Paedophiles and others who commit offences against children might walk free because of loopholes in the Administration of Justice (Indictable Offences) Act. This concern is one of several raised by Dana Seetahal and Pamela Elder, both senior counsel, ahead of the implementation of the legislation. Elder, a criminal defence attorney, said she wanted the justice system to be fair.
“Persons will be discharged because of weakness in the legislation. I am a human being, a citizen, I am a mother, and it sometimes hurts to see persons who commit wrong escape because of the weakness of the system. So I cannot stay quiet,” Elder said yesterday. She said it must be ensured that if children should give evidence it must be admissible.
“Any accused whose evidence is dependent on a child could walk free, including those who commit murder and sexual offences,” Elder added. Under the Children Act, witness statements by children are not to be sworn but the new Administration of Justice Act contradicts this. Elder said: “The act makes no provision for the admissibility of the evidence of children. This is because evidence before the master is to be in the form of witness statements which are required to be sworn.
“Pursuant to the Children Act the evidence of children is to be unsworn.” Justice Minister Christlyn Moore, she said, should inform stakeholders what was the position of the act and how the deficiencies were being addressed. “Persons who operate the criminal system... defence attorneys...we do not know what is taking place. We don’t even know if the prosecutors know, but we, as stakeholders, have a right to know well in advance what is happening,” Elder added.
No provisions for multiple accused
Questions have also arisen over the treatment of evidence and exhibits when dealing with multiple accused. Under Section Four of the act, Elder said, for matters already existing at the magistrates court, an accused had a choice of having a matter heard before a master or remaining in the magistrates court.
Saying the act did not take the movement of evidence into consideration, Elder said: “So what will we be doing? Borrowing the exhibits? Moving it up and down the system? The act speaks of movement of accused not movement of exhibits.” Another issue, she added, was the status of bail if an accused decided to have a matter heard before a master. “Does the accused get fresh bail?” she asked.
On the issue of witness statements she said these must be done in conformity with the act. Most statements were in manuscript form but the act said they must be typed. Again, she added, it was possible that some of the accused may walk free because of loopholes and technicalities. She said: “I have cases where I have 60-something manuscripts.
“So we will sit before the master and wait for the police to type these up? You will find witness statements that were tendered in the magistrates court may not meet the admissibility requirements before the master. “So what you will have is when an accused goes before the master the document which goes with him may not be admissible. “So what that would result in? Not a discharge?” Elder asked.
Problems with alibis
Under the new system, an accused person has five days after being brought to court for the first time to notify the court of an alibi, Seetahal said. That, she said, would work unjustly against them. Under the current system of preliminary inquiries (PI), an accused person is only required to give notice of an alibi after hearing all the evidence of the prosecution.
“Currently it is at the end of the PI, when the prosecution has led all of the evidence, that the magistrate calls upon the accused to indicate if he has an alibi, and in such cases he will know the details of the evidence and the date or dates for which an alibi may be required,” Seetahal said She said that was in contrast to the new law, under which the accused would only be told of the date of the offence and was then expected to say whether he had an alibi.
No provisions for masters
Applications for masters “recently went out” and the deadline was tomorrow, raising concerns about effective and efficient training. Seetahal added: “My concern has to do with the administrative matters and the fact that the master is a central figure in this act. “Seeing the intention is to abolish preliminary inquiries (PIs), the master is dealing with the initial hearing and the sufficiency hearing replaces what went on in a PI.
“The problem is that advertisements for masters have now gone out and the deadline is July 26. These persons must be trained in the procedure that’s now going to happen.” These masters, she added, must understand processes like what was an initial hearing, a scheduling order and sufficiency hearing. “Very few people know what these things are because they are now coming on stream and if Friday is the deadline, when is this training going to happen? I can’t see it being feasible,” Seetahal said.
A master is an officer of the Supreme Court who has powers less than those of a judge, Seetahal said. That person was assigned specific functions, one of which is to determine whether a prima facie case had been made out. Added to that, she said, was the need for the training of police officers, who have specific roles to play. Statements, for instance, which would constitute evidence, must now be typed, as witnesses were no longer required to give verbatim evidence.
Seetahal said: “Every single statement that is taken from every single witness must conform to a certain procedure so the police officer who is recording every statement must know these things. “You can’t just give them the act and say, ‘do it.’ Police officers must be trained. They need to understand their role. They need to understand, for example, they could file matters before a master in the High Court.”
About the act
About the act
The act replaces the Indictable Offences (Preliminary Inquiry) Act, by providing a new system of pre-trial proceedings for indictable offences. It aims to remove the backlog associated with preliminary inquiries and introduces a new pre-trial system for serious criminal matters which would reduce the pre-trial waiting time.
A press release from the Justice Ministry last week said Sections 3 (2), 3 (3), 4-31, 33, 35 and Schedules 1- 5, 7 and 8 of the act were supposed to have come into effect on January 2. The new date for these sections to come into operation is August 2.