31 January

Exploring the Administration of Justice (Indictable Proceedings) (Amendment) Act, 2011 and the Future of Criminal Proceedings

BY: NIKEIYA HENVILLE

NIKEIYA HENVILLE

Attorney-at-Law

Martin Anthony George & Company

The criminal justice system in Trinidad and Tobago grapples with persistent delays, which raise concerns about the timely delivery of justice. This has created a landscape where the dispensation of justice is frequently perceived as elusive and in many cases manifestly unfair and it gives true meaning to the maxim – “Justice delayed is Justice denied”. The Administration of Justice (Indictable Proceedings) (Amendment) Act, 2011, (hereinafter referred to as “the AJIPAA”), proclaimed on the 12^th December 2023 by Her Excellency Christine Carla Kangaloo, marks a pivotal moment in criminal justice reform, ushering in a new era for Trinidad and Tobago’s legal system.

One of the most significant changes introduced by the AJIPAA is the elimination of Preliminary Enquiries in indictable matters. During a sitting of the Upper House of Parliament the Attorney General, Reginald Armour S.C. indicated that the removal of Preliminary Enquiries and the introduction of a more effective case management process, allows for the criminal justice system to experience a reduction in the backlog of cases, fewer hearings and cost savings for the legal system, and significantly less delay in proceedings.[1] The AJIPAA, therefore, holds substantial significance in Trinidad and Tobago. This article will delve into the advantages and efficacy of the AJIPAA within the judicial system of Trinidad and Tobago.

The Preliminary Enquiry

Prior to the implementation of the AJIPAA, the Magistrate’s Courts were responsible for conducting Preliminary Enquiries into serious criminal matters (indictable offences) to assess the sufficiency of evidence for a case to proceed to trial in the High Court. This process operated in accordance with the Indictable Offences (Preliminary Enquiry) Act Chapter 12:01(hereinafter referred to as “the Act”).

The Preliminary Enquiry process, under the Act, involved the accused being apprised of the charges upon appearing in court, with the potential for bail to be granted. Following this, the prosecution presented their intended evidence for the Preliminary Enquiry. The Magistrate, in the Preliminary Enquiry then scrutinized the evidence and listened to the testimonies of each witness to ascertain the adequacy of evidence for a trial. There is the opportunity for cross-examination and re-examination of Witnesses, making No Case Submissions and other Legal arguments and submissions, taking Evidential Objections, and a myriad of other Legal processes and procedures, all of which contributed to an extraordinarily lengthy process, just to conclude one matter.

Section 23D of the Act permits the defence to engage in cross-examination of the prosecution’s witnesses, wherein it stated as follows:

“23D. Where a Magistrate holding a preliminary enquiry admits written statements of a person under section 23A or 23B, a party to the enquiry or an Attorney-at-law acting on behalf of that party is entitled to cross-examine the maker of any statement admitted in evidence.”

The extensive nature of the Preliminary Enquiry process, coupled with the provision for witnesses to testify and undergo cross-examination, has resulted in a protracted procedure. Consequently, this has contributed to a substantial backlog of cases. The AJIPAA is crucial in alleviating the strain on witnesses and notably reducing the time and resources expended during the Preliminary Enquiry process.

It is no revelation that numerous criminal cases remain stagnant in Magistrate’s Courts, with some enduring for over a decade in the Preliminary Enquiry stage, a phase intended simply to determine whether sufficient evidence exists to establish a prima facie case to go to Trial. The injustice in this system is exacerbated when an accused person is unable to secure bail or is charged with a non-bailable offence as the prison system becomes more and more overcrowded, with persons simply awaiting the conclusion of their Preliminary Enquiries.[2]

The AJIPAA eliminates the Preliminary Enquiry process, shifting the initiation and processing of indictable matters to the High Court. The preliminary enquiry procedure is replaced with initial and sufficiency hearings, which fosters improved case management and a revamped case flow in the judicial system for criminal matters.

The Initial Hearing

The Initial Hearing is the first stage of the new AJIPAA process, whereby a Master of the High Court would conduct an initial hearing to address issues relative to the identification of the accused, place of abode, bail and legal representation, and other contact information of the accused. This is provided for within section 11 of the AJIPAA wherein it states:

“11. (1) Where an accused appears or is brought before a master pursuant to Part I, the Master shall conduct an initial hearing with respect to any offence with which the accused is charged and which is:

(a) to be tried on indictment; and

(b) a summary offence which appears to the Master to be related to an offence which is to be tried on indictment.”

(2) Subject to the Rules, at an initial hearing, a Master shall, where practicable—

(a) verify the identity, place of abode or given address and other contact information of the accused;

(b) inform the accused of his right to legal representation and inquire whether the accused is represented by an Attorney-at-law—”

Under the AJIPAA, the Master issues a Scheduling Order, that sets the deadlines for the key actions to be taken before a Sufficiency Hearing. This ensures that the case is adequately prepared for the subsequent stages of court proceedings, with indictments filed prior to the commencement of the sufficiency hearing.[3] Initial hearings occur the same day or the next available day after the case is filed.

The Sufficiency Hearing

According to the AJIPAA, the Master would proceed to conduct a Sufficiency Hearing, aiming to assess whether a prima facie case has been established against an accused. Should a prima facie case be established, the Master would then direct that the accused face trial before a judge and jury. Notably, AJIPAA eliminates the possibility of any cross-examination during the sufficiency hearing, unless the Court otherwise directs in accordance with rule 5.10 (3) of the Criminal Procedure Rules, 2023. The AJIPAA, however, permits No Case Submissions to be made, following which the Master would review the witness statements, documentary evidence, and No Case Submissions and the Replies thereto, and would decide whether the matter should proceed to trial.

This process is outlined in section 19 of the AJIPAA wherein it states:

“19(1) A Master shall hold a sufficiency hearing to determine whether there is sufficient evidence to establish a prima facie case of any indictable offence on an indictment.”

Section 20(1) further states:

“20. (1) A Master conducting a sufficiency hearing shall—

subject to section 19, review only the witness statements, other documentary evidence and properly identified exhibits filed or produced, as the case may be, by the prosecutor and the accused…”

Section 24(1) and 25(1) of AJIPAA provide that the Master would determine after reviewing the evidence submitted by both parties, whether the evidence is insufficient or sufficient to establish a prima facie case of any indictable offence. The sections state as follows:

“24. (1) Subject to section 25(1) and (2), where, after reviewing the evidence submitted by the prosecutor and the accused, a Master finds that there is insufficient evidence to establish a prima facie case of any indictable offence, on indictment the Master shall discharge the accused and any recognisance taken in respect of the charge shall be void.

25. (1) Where after reviewing the evidence submitted by the prosecutor and the accused, a Master finds that there is sufficient evidence to establish a prima facie case of any indictable offence on the indictment, the Master—

shall order that the indictable offence be dealt with by the High Court in accordance with the Criminal Procedure Act; and may cause the indictment to be amended accordingly.”

The Judiciary has noted that aside from eliminating Preliminary Enquiries, the new system enables the filing of all indictable matters on its new e-forms platform SWiF. This platform provides a secure environment for the completion and submission of court forms.

Furthermore, an additional feature of the AJIPAA is that with the AJIPAA framework, evidence must be uploaded digitally to the Judiciary’s evidence management platform, Case Center, and presented digitally in Court. This reduces the opportunity for delay in the court process in instances when physical evidence is not readily available and makes its presentation more secure and clearer.

What happens to criminal matters instituted prior to the AJIPAA?

Section 4(1) of the AJIPAA indicates that the Act shall apply to proceedings that are instituted on or after the coming into force of the AJIPAA. However, for proceedings that were instituted prior to the coming into force of the AJIPAA, a Magistrate has the power to decide whether the case is to be determined in accordance with the AJIPAA after the prosecutor and the accused have the opportunity to be heard.

Preparation for the AJIPAA

The AG indicated that in preparation for AJIPAA, his office partnered with the Judicial Education Institute of the Judiciary, under the charge of Justice Gillian Lucky, with a view to designing and executing a comprehensive sensitisation program to ensure all relevant parties are prepared for the transition of Preliminary Enquiries to sufficiency hearings.[4] The Judiciary also sprang into action and adopted various processes and infrastructure to deliver on the requirements of the Act. This included orientation sessions organized for the Law Association of Trinidad and Tobago, the Office of the Director of Public Prosecutions, the Public Defender’s Department of the Legal Aid and Advisory Authority, the Criminal Bar Association, and other important stakeholders.[5]

Conclusion:

The AJIPAA heralds a transformative era in Trinidad and Tobago’s criminal justice system, ushering in efficiency, and modernization. By abolishing Preliminary Enquiries, introducing e-forms through SWiF for indictable matters, and mandating digital evidence presentation through the Case Centre, the framework addresses longstanding issues of delays and inefficiencies. This shift towards a more streamlined and technologically advanced process promises more expeditious trials, reduced backlogs, and enhanced overall efficacy within the judicial system of Trinidad and Tobago.

[1] ‘System overhaul to tackle trial delays’ | Local News | trinidadexpress.com

[2] Office of The Prime Minister – Republic of Trinidad and Tobago | We Don’t Need Preliminary Enquiries. Here’s why … (opm.gov.tt)

[3] The Judiciary of Trinidad and Tobago : Newsroom : News : Proclamation of the Administration of Justice (Indictable Proceedings) Act, 2011 (as amended) (AJIPAA) (ttlawcourts.org)

[4] ‘System overhaul to tackle trial delays’ | Local News | trinidadexpress.com

[5] Ibid

Exploring the Administration of Justice (Indictable Proceedings) (Amendment) Act, 2011 and the Future of Criminal Proceedings