The Criminal Bar Association believes it is an exercise in futility to abolish preliminary inquiries without simultaneously addressing the numerous factors which contribute to delays in the criminal trial process. This was one of the recommendations made by the association when it reviewed the Indictable Offences (Criminal Proceedings) Bill, 2011. They were included in a 91-page document which was submitted to the Justice Ministry at the invitation of former minister Herbert Volney.
Since passed by Parliament, the act aims to remove the backlog of cases associated with preliminary inquiries and introduces a new system for serious criminal matters to reduce the pre-trial time. In the introduction to its report, the association said: “Though this is a laudable legislative objective, the association is extremely doubtful that the bill in its present form would achieve this objective as some of its provisions are inconsistent with the constitutional rights of an accused to a fair trial, unworkable, ambiguous and vague.”
The association’s head Pamela Elder, SC, said there were fundamental issues in the bill stage which still existed. These included:
• delays in: appointing legal aid attorneys and state attorneys, transmitting file from the police to the DPP and obtaining an early date for hearing before magistrates
• transfers of presiding magistrates before whom matters are part heard
• late filing of witness statements, submission of analysis of exhibits from Forensic Science Centre and transmission of depositions from magistrates courts
• retirement or long vacation leave of police complainants
• slow pace at which witnesses are brought to court to testify
• prolix or irrelevant examination of witnesses
• lack of electronic recording evidence
• delay in filing indictments
Magistrates should conduct hearings
It was initially put forward by the Justice Ministry that initial and sufficiency hearings should be conducted by judges. The association, however, said judges already had to deal with clearing the current backlog and would therefore be burdened with dealing with the myriad sufficiency hearings that would come before them from all the magisterial districts.
“The association submits that magistrates are suitably qualified, experienced and competent to conduct sufficiency hearings,” the association recommended. “Moreover many of them have been handling ‘old style’ committals and analysing evidence for years.”
This recommendation, however, was shot down by the Justice Ministry. Instead, the ministry recently put advertisements in the newspapers for judicial officers, called masters.
More resources needed
Unless there is a significant restructuring of the High Court it is physically impossible for the court to effectively and expeditiously handle all sufficiency hearings, the association warned. Unless this was done it foresaw “chaos, frustration and despair.” “The new system envisages a speedy turnaround of documents and exhibits which necessitates co-ordination and revamping of various institutions such as the Forensic Science Centre, where it takes a year or sometimes two years to analyse an exhibit,” the association said.
It added that the chronic shortage of prosecutors at the office of the Director of Public Prosecutions must be immediately addressed, as well as the small pool of criminal-law practitioners, senior and junior. Saying there must be consultations with the DPP, the association added: “It is no secret that at times defence counsel has to wait months and sometimes over a year for statements to be filed and served on the defence.
“The association fears that in light of the current handicaps, the proposed system would only exacerbate the problems if all indictable matters come before the High Court in a speedier fashion.”