Derek Achong

ROSE­MARIE SANT

DEREK ACHONG

SASCHA WIL­SON

The open­ing of the 2016-2017 law term takes place to­mor­row and it is ex­pect­ed that Chief Jus­tice Ivor Archie will, for yet an­oth­er year, de­tail the pos­i­tives, the neg­a­tives and de­liv­er an­oth­er wish list of what the Ju­di­cia­ry needs to make the de­liv­ery of jus­tice faster.

But is one of the is­sues which needs to be ad­dressed the ex­pe­ri­ence of judges who now sit on the bench and the length of time it takes for a crim­i­nal tri­al to be com­plet­ed?

It is against the law to pub­licly crit­i­cise a judge but one can ques­tion a judg­ment. Now, peo­ple who work the le­gal sys­tem are rais­ing their own con­cerns about the slow pace of jus­tice.

Some at­tor­neys–speak­ing off the record–said they be­lieve the crim­i­nal jus­tice sys­tem "has ground to a halt be­cause some of the judges ap­point­ed to the bench lack ex­pe­ri­ence in crim­i­nal law."

Ex­pe­ri­enced pros­e­cu­tors, how­ev­er, de­fend­ed the judges say­ing that the crim­i­nal law has ex­pand­ed over the years and now de­fence at­tor­neys can raise many more points of law than what ex­ist­ed a decade ago.

One pros­e­cu­tor agreed, though, that some judges were re­luc­tant to rule im­me­di­ate­ly on rel­a­tive­ly sim­ple points of law and al­low de­fence at­tor­neys free reign to cross ex­am­ine wit­ness­es for days on mat­ters un­re­lat­ed to the pros­e­cu­tion's case.

Case man­age­ment, the pros­e­cu­tor said, was a mat­ter that left a lot to be de­sired as de­fence lawyers and un­pre­pared pros­e­cu­tors con­tribute to in­or­di­nate de­lays.

An­oth­er ma­jor is­sue, one le­gal ex­pert said, was the fact that some judges are over­ly con­cerned about whether the Ap­peal Court will over­turn their rul­ings and, there­fore, do ex­ten­sive re­search be­fore giv­ing a de­ci­sion on pre­lim­i­nary points.

An­oth­er pros­e­cu­tor said judges should be more con­cerned about a mis­car­riage of jus­tice rather than their sta­tis­tics of com­plet­ed cas­es or whether their judg­ments can be over­turned by a su­pe­ri­or court.

Some prac­ti­tion­ers called for an end to the ju­ry sys­tem, to be re­placed by a pan­el of judges or legal­ly trained peo­ple–in­clud­ing mag­is­trates–as there were record­ed in­stances of ju­ry in­tim­i­da­tion. One lawyer said the ju­ry pool should be ex­pand­ed to in­clude ex­perts, re­tired judges and lawyers.He said the cul­ture of ad­journ­ments not on­ly frus­trate wit­ness­es but de­ter them from co-op­er­at­ing be­cause of pos­si­ble job loss and loss of fi­nan­cial earn­ings.

An­oth­er ma­jor prob­lem is the small pool of crim­i­nal de­fence at­tor­neys who, once en­gaged in a tri­al, has to put off all oth­er com­pet­ing mat­ters.There are now more than 700 peo­ple await­ing tri­al for mur­der and it takes ten years for a mur­der case to make its way through the sys­tem. In some cas­es, it takes up to three months for a sim­ple tri­al to be com­plet­ed.

One se­nior at­tor­ney said he was con­cerned that "back in the day, when judges man­aged their lists prop­er­ly, a case would take a week or two (to be com­plet­ed) and, in the case of a com­plex mat­ter, prob­a­bly a month."He asks: where did we go wrong?

But a se­nior re­tired judge said in an in­ter­view that "one can­not just broad brush the is­sue, some cas­es are bound to take longer than oth­ers, but you have to be care­ful that you are re­al­ly bas­ing your crit­i­cisms on the knowl­edge of the facts of the case."

"These broad-based crit­i­cisms" ac­cord­ing to the re­tired judge "can be very un­fair."

But, in any event, the re­tired judge said more of­ten than not "de­lays are out­side the court of the judges."He added that apart from de­lays in pro­duc­ing ev­i­dence there is al­so a ma­jor is­sue with "tight­en­ing up notes of ev­i­dence tak­en at pre­lim­i­nary hear­ings, which of­ten takes a long pe­ri­od of time."

He said that more than a decade ago mat­ters were done in such a way that none took longer than three years and every ef­fort was made to clear the back­log; the chal­lenge, ac­cord­ing to the re­tired judge, is "avoid­ing de­lays in both the High Court and the Court of Ap­peal."

Re­spond­ing to the crit­i­cism that some of the judges lack crim­i­nal ex­pe­ri­ence, the re­tired judge de­clined com­ment say­ing hav­ing left the bench more than a decade ago it would be un­fair to make such judg­ments.

Asked whether night courts or even week­end sit­tings of the courts may be the an­swer to re­duce the back­log in the courts, the re­tired judge said a pi­lot project was done but night courts and week­end courts face prob­lems with "the in­fra­struc­ture, staffing, and se­cu­ri­ty which is go­ing to be cum­ber­some and ex­pen­sive."

If those prob­lems can be ad­dressed, he said, it could be a good idea be­cause it would mean that you get­ting max­i­mum use of the avail­able re­sources.

In 1996 a night court–un­der the tenure of re­tired Chief Jus­tice Michael de la Bastide–was utilised "suc­cess­ful­ly" in Ari­ma. But a pro­pos­al to in­sti­tute four oth­er night courts was put on hold by the then Patrick Man­ning Cab­i­net be­cause of de­lay in de­cid­ing what leg­isla­tive amend­ments were need­ed to al­low for the ap­point­ment of part-time mag­is­trates to staff the courts and in de­ter­min­ing the terms of ser­vice of the mag­is­trates.

More courts need­ed

Lengthy crim­i­nal tri­als and lim­it­ed courts con­tin­ue to be ma­jor prob­lems plagu­ing the crim­i­nal jus­tice sys­tem.

Chief Jus­tice Ivor Archie is like­ly to again cite the is­sue when he re­ports on the per­for­mance of the Ju­di­cia­ry over the past year at the cer­e­mo­ni­al open­ing of the 2015/2016 law term to­mor­row.

Sev­er­al se­nior crim­i­nal de­fence at­tor­neys in­ter­viewed by the T&T Guardian said that de­lays caused by pro­ce­dur­al ap­pli­ca­tions dur­ing crim­i­nal tri­als cou­pled with lim­it­ed courts were to blame for per­pet­u­al in­ef­fi­cien­cies in the dis­pos­al of crim­i­nal cas­es.

Ra­jiv Per­sad, an ex­ec­u­tive mem­ber of the Crim­i­nal Bar As­so­ci­a­tion and for­mer tem­po­rary High Court Judge, not­ed that the is­sue of lengthy tri­als is ex­ac­er­bat­ed by the fact that there are on­ly 12 crim­i­nal courts in T&T: six in Port-of-Spain, four in San Fer­nan­do and two in To­ba­go.

"There are a sig­nif­i­cant num­ber of mat­ters which take months and judges are try­ing their best to make things work but the sit­u­a­tion is that there are a great num­ber of mat­ters be­fore them," Per­sad said.

Per­sad said that while there 12 court­rooms on­ly 11 were op­er­a­tional over the past year as the Vin­dra Naipaul-Cool­man tri­al oc­cu­pied two at the Hall of Jus­tice in Port-of-Spain for its du­ra­tion.

The tri­al be­gan in March 2014 and be­came the longest and most cost­ly in lo­cal and re­gion­al his­to­ry when it end­ed in May this year with eight of the ac­cused men be­ing ac­quit­ted. Of the 12 men who ini­tial­ly went on tri­al for the high-pro­file kid­nap­ping and mur­der of the busi­ness­woman in 2006, two were or­dered to be re­tri­al, one was killed dur­ing a dar­ing prison break, last year, and the oth­er freed at a pre­lim­i­nary stage be­cause of in­suf­fi­cient ev­i­dence against him.

"It is a ques­tion of man­ag­ing re­sources in try­ing to deal with these mat­ters. There are a lot of re­tri­al cas­es be­ing sent back and per­sons on re­mand for 10 to 12 years have to be giv­en pri­or­i­ty," Per­sad said.

He said there were is­sues out­side the con­trol of the Ju­di­cia­ry that were al­so crip­pling the crim­i­nal jus­tice sys­tem.

"Many times foren­sic re­ports are not ready in time, so it takes two to three years to get ex­hibits. The 99 va­can­cies in the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) im­pacts the sys­tem and must be ad­dressed," Per­sad said.

An­swer­ing ques­tions at a Joint Se­lect Com­mit­tee of Par­lia­ment on Le­gal Af­fairs in March, Di­rec­tor of Pub­lic Pros­e­cu­tion Roger Gas­pard, SC, stat­ed his of­fice's lack of fi­nan­cial au­ton­o­my had led to se­vere short­ages in staff and even ba­sic of­fice sup­plies such pho­to­copiers, pa­per and ink.

Per­sad sug­gest­ed that there be more mean­ing­ful and pro-ac­tive con­sul­ta­tions with stake­hold­ers in or­der to ad­dress de­fi­cien­cies.

"There is a re­al dis­con­nect be­tween what is hap­pen­ing on the ground and in the court. There are com­mit­tees, but there is no re­al sense that one is get­ting prob­lems solved in an ef­fi­cient man­ner," Per­sad said.

20 years to clear back­log

Op­po­si­tion Sen­a­tor–and one of crim­i­nal de­fence at­tor­neys in high de­mand–Wayne Sturge, shared Per­sad's sen­ti­ments over the lack of court­room re­sources, adding that at the cur­rent rate of tri­als it would take up to 20 years to clear the back­log of crim­i­nal cas­es which has seen up to 600 peo­ple on re­mand for mur­der at any giv­en time.

"There is a sim­ple so­lu­tion: build more courts and re­tain more judges," Sturge said.

Plans were afoot over the past five years to build ad­di­tion­al courts across T&T, how­ev­er, they were put on the back burn­er due to fi­nanc­ing is­sues and prob­lems find­ing suit­able lo­ca­tions for the new ju­di­cial cen­tres.

Sturge said that as an in­ter­im mea­sure a shift sys­tem could be in­tro­duced at ex­ist­ing courts so that two sep­a­rate tri­als could be done in one day.

Propos­ing that tri­als for cap­i­tal of­fences be held be­tween 9 am and 1 pm and less­er of­fences be done af­ter 2 pm, Sturge said: "That way we can get twice the amount of work done. Out­side of that the on­ly al­ter­na­tive is to build more courts and em­ploy more judges."

He said that even with more courts there would be ad­di­tion­al prob­lems caused by a pool of crim­i­nal de­fence at­tor­neys in T&T be­ing lim­it­ed and un­will­ing­ness of ex­pe­ri­enced crim­i­nal prac­ti­tion­ers to be­come judges.

Sturge al­so said there was need for the ur­gent im­ple­men­ta­tion of the crim­i­nal pro­ce­dure rules. They are to be im­ple­ment­ed in Jan­u­ary 2017.The rules, part of the con­tro­ver­sial and un-pro­claimed Ad­min­is­tra­tion of Jus­tice (In­dictable Of­fences) Act 2011, were tabled in Par­lia­ment ear­li­er this year.

Sim­i­lar rules were in­tro­duced for civ­il cas­es in 1998 and have di­rect­ly led to greater ef­fi­cien­cy in the man­age­ment of civ­il tri­als, lawyers said.

"Judges need to stop ap­pli­ca­tions which could have been made be­fore the tri­al be­cause when they are en­ter­tained dur­ing the tri­al it dou­bles and triples the length of time it should take," Sturge said.

Progress through goodyear hear­ings

Notwith­stand­ing the is­sues with court­room re­sources, Chief Jus­tice Archie is ex­pect­ed to an­nounce an in­crease in the dis­po­si­tion of crim­i­nal cas­es over the past year. Last year, the Ju­di­cia­ry record­ed a six-year high with 130 cas­es be­ing dis­posed of.

The in­crease has been at­trib­uted to the grow­ing pop­u­lar­i­ty of max­i­mum sen­tence in­di­ca­tions or Goodyear Hear­ings.

Un­der the pro­ce­dure, ac­cused peo­ple who wish to plead guilty and avoid a tri­al are giv­en an in­di­ca­tion of the max­i­mum sen­tence they would re­ceive if they chose to do so. They are not bound to make the plea af­ter the in­di­ca­tion is giv­en.

The hear­ings are utilised most­ly by peo­ple ac­cused of felony mur­der where the manda­to­ry death sen­tence for mur­der is waived in sit­u­a­tions where death re­sult­ed in the com­mis­sion of a less­er crim­i­nal of­fence, in most cas­es, rob­bery.

New court need­ed for San­do

Pres­i­dent of the South­ern As­sem­bly of Lawyers, Im­ran Khan, said there is an ur­gent need for a new Mag­is­trates' Court in San Fer­nan­do.Dur­ing the past year, staff and cus­tomers at the court strug­gled with is­sues with the di­lap­i­dat­ed con­di­tions of the ex­ist­ing build­ing.

There were is­sues with pi­geon drop­ping land­ing on peo­ple and se­cu­ri­ty breach­es caused by vi­o­lent out­burst from pris­ons in­clud­ing on in­ci­dent in which T&T Guardian pho­tog­ra­ph­er Rishi Ra­goonath was in­jured as one man at­tempt­ed to es­cape cus­tody.

While Khan said that lawyers in south Trinidad were promised that a new fa­cil­i­ty was planned, there was no in­di­ca­tion when it would be ful­ly func­tion­al. He al­so said his mem­bers had been ad­vo­cat­ing for a branch of the pro­bate reg­istry be opened in the south­land.

"We have no op­tion but to go to Port-of-Spain to file doc­u­ments. Mat­ters against the State are au­to­mat­i­cal­ly trans­ferred to Port-of-Spain and we have to trek there for the du­ra­tion of the cas­es. These are his­toric things that need to change," Khan said.

He added that changes in the crim­i­nal jus­tice sys­tem were nec­es­sary as mem­bers of the pub­lic have be­come dis­il­lu­sioned by it.

"If the sys­tem is al­lowed to crum­ble and de­te­ri­o­rate peo­ple will feel hope­less and be­lieve crim­i­nals have more pow­er. We need to stop talk­ing and put things in place to get the sys­tem mov­ing faster," Khan said.

Over the past year, there has al­so been sev­er­al com­plaints over staff short­ages at the Fam­i­ly Court. Last Thurs­day, the T&T Guardian re­port­ed that sev­er­al court users had dif­fi­cul­ties in ac­cess and mak­ing child main­te­nance pay­ments. The Ju­di­cia­ry has promised to seek ap­proval from the Gov­ern­ment to in­crease staff at the fa­cil­i­ty.

The Ch­agua­nas Mag­is­trates Court was al­so closed and re­lo­cat­ed to the Tu­na­puna Court for the greater part of the year due to poor con­di­tions and re­opened for busi­ness re­cent­ly.

Ma­jor cas­es list­ed for tri­al

The re­tri­al of sedi­tion-ac­cused Ja­maat Al Mus­limeen leader Yasin Abu Bakr is among the high-pro­file cas­es list­ed for tri­al when the 2016/2017 Law Term opens on Fri­day.

Bakr was charged with in­cit­ing oth­ers to de­mand mon­ey by men­ace and en­deav­our­ing to pro­voke a breach of the peace stem­ming from an Eid ser­mon at his or­gan­i­sa­tion's Mu­cu­rapo Road mosque in 2005.

Bakr's tri­al four years ago end­ed in a hung ju­ry af­ter the nine-mem­ber ju­ry hear­ing his case failed to come to a unan­i­mous ver­dict af­ter de­lib­er­at­ing for close to six hours. The T&T Guardian un­der­stands that the re­tri­al is sched­uled for Oc­to­ber, how­ev­er, ju­ry se­lec­tion is ex­pect­ed to take sev­er­al weeks as dur­ing the last tri­al 1,000 po­ten­tial ju­rors were in­ter­viewed be­fore the ju­ry was se­lect­ed.

Al­so on the crim­i­nal case list for the Port-of-Spain High Court in the new term is the tri­als of two groups of men charged with kid­nap­ping and mur­der­ing busi­ness­man Dr Ed­die Koury and re­al es­tat­ed agent Ger­ard Gopaul. Koury was kid­napped in Sep­tem­ber 2005 and his head­less corpse was found in a re­mote area in Ca­paro days af­ter his ab­duc­tion. Gopaul was ab­duct­ed in Ju­ly 2005 and his body was found by sol­diers at Tram Trail Road St Au­gus­tine, 11 days af­ter he was kid­napped.

The tri­al of three for­mer em­ploy­ees of the Min­istry of For­eign Af­fairs for smug­gling co­caine in diplo­mat­ic pouch­es dur­ing 2004 is al­so set to com­mence this year.

In south Trinidad there are 76 crim­i­nal cas­es list­ed for hear­ing in the San Fer­nan­do High Court in­clud­ing 26 mur­ders, two manslaugh­ters, four at­tempt­ed mur­ders and six sex­u­al of­fences.

Last term saw an in­crease in the num­ber of crim­i­nal mat­ters which were dealt with and con­clud­ed in the court.This in­clud­ed three mur­der tri­als, two of which con­clud­ed with Ja­son Housten and Kel­loy Koon Koon be­ing found guilty and sen­tenced to hang.

While the oth­er per­son Roger Greene was freed af­ter ten years in jail await­ing tri­al for the mur­der of Dr Ravi Ma­haraj.Sev­er­al peo­ple plead­ed guilty to mur­der based on the mur­der felony rule which is when some­one en­gages in an ar­restable of­fence, eg rob­bery, and a per­son dies dur­ing the com­mis­sion of that of­fence.

In one such mat­ter Nigel "Cat" Roderique, 41, and Wen­dell "Piper" Sim­mons, 34, plead­ed guilty be­fore Jus­tice Maria Wil­son to the 2005 mur­der of Nigel Allen based on the mur­der felony rule.

The men ad­mit­ted to kid­nap­ping, Allen, 32, of Simp­son Brown Ter­race, Co­coyea Vil­lage, San Fer­nan­do, who was sub­se­quent­ly killed and buried in a shal­low grave. They were sen­tenced to sev­en years in jail as af­ter the judge ap­plied the ap­pro­pri­ate de­duc­tions.

The judge said an ap­pro­pri­ate sen­tence was 29 years but, af­ter ap­ply­ing the sev­er­al de­duc­tions, their sen­tence was re­duced to sev­en years. There were al­so sev­er­al who plead­ed guilty af­ter the Goodyear Hear­ing.

The courts al­so dealt with sev­er­al sex­u­al of­fences, which in­clud­ed David Bap­tiste be­ing sen­tenced to 22 years in jail af­ter he was found guilty of rap­ing a 15-year-old school girl in 1997.

Oth­er of­fences list­ed for hear­ing when the new law term opens are: two manslaugh­ter, four at­tempt­ed mur­der, eight sex­u­al of­fences, and de­stroy­ing trees, among oth­ers.

Across in the low­er court the San Fer­nan­do Mag­is­trates Court–which is sit­u­at­ed op­po­site the Supreme Court– the staff strug­gled with the di­lap­i­dat­ed con­di­tions and staff short­ages.

Ear­li­er this week at­tor­ney Sub­has Pan­day ex­pressed hope that more mag­is­trates would be as­signed to the San Fer­nan­do courts since there were five courts, but on­ly two mag­is­trates.

In June, be­cause of ran­dom vi­o­lent out­bursts–re­sult­ing in po­lice of­fi­cers be­ing in­jured–pris­on­ers on re­mand were not brought down to court twice in June be­cause court and process po­lice of­fi­cers called in sick.

Ear­li­er this year Jus­tice Ron­nie Boodoos­ingh de­liv­ered judg­ment in favour of a PC Bun­ny Ali, who was in­jured by a pris­on­er in the San Fer­nan­do Court.

The judge called for an ur­gent as­sess­ment of all court fa­cil­i­ties to en­sure prop­er stan­dard of safe­ty and se­cu­ri­ty in or­der to pro­tect mem­bers of the pub­lic, staff, po­lice of­fi­cers, pris­on­ers and lawyers.