Justice must also be seen to be done

BRENT D. WINTER, Attorney

THE OPENNESS of judicial proceedings is a fundamental pillar of democratic society. It is enshrined in our Constitution that Parliament may not deprive a person charged with a criminal offence of the right to a fair and public hearing by an independent and impartial tribunal.

However, little by little, this ideal is being slowly eroded in Trinidad and Tobago at the altar of expediency. Permit me to record my denunciation of the “written statement” procedure presently operated in the magistrates’ court, as constituting a radical incursion upon the open justice concept.

In 2005, Parliament passed legislation (Act Nos 15 and 23 of 2005) that provided for the use of written statements by witnesses in summary proceedings and preliminary enquiries, respectively, subject to the satisfaction of certain conditions, to be admissible as evidence to the like extent as oral evidence.

Prior to the change in law, a statement given by a witness in a criminal case did not become admissible as evidence until the said witness came to court and testified upon oath or affirmation (called “viva voce” evidence). As such, under the oral procedure, the evidence of a witness was heard in open court by the parties, the public and the press.

At common law, subject to limited exceptions, a criminal trial had to be held in a public court with open doors, and even the Summary Courts Act speaks of hearings being held in “open court,” meaning any room or place where a court sits and to which the public may have access so far as the same can conveniently contain them.

Indeed, the sitting of a court in private (or in camera) is much the exception to the general rule and was confined to circumstances of tumult or disorder in court or matters involving characters of tender years. Even in cases where considerations of public policy or decency necessitated that the closure of the court to the general public, the members of the press were allowed to remain.

However, despite the legal requirement for written statements to be read aloud in court or an account given orally of so much of any statement as is not read aloud, this is not being done. To make matters worse, many courts have adopted the parochial view, undeviatingly followed, that it is within the sole discretion of the prosecution to determine whether the “written statement” procedure is to be utilised. Even physical (non-documentary) exhibits are no longer being produced in court by the prosecution.

The result is that the public and press, although they may be present in court, are ignorant of the evidence being adduced against the accused person. Indeed, many accused people are functionally illiterate, and unless their attorney reads over the written statements to them, they too are unaware of the evidence being admitted against them.

It seems lost on administrators of our criminal justice system that it is not only the parties to criminal proceedings who have a vested interest in a criminal case. There is a wider public interest that justice should be properly administered, with the return of true verdicts and proper sentencing for those found guilty.

I am yet to see any statistical evidence to suggest that proceedings under the “written statement” procedure has resulted in the faster disposition of summary and/or indictable cases. On the contrary, the police frequently take months, if not years, to have the written statements prepared and filed.

The procedure has also led to a dilution of the quality of police witness testimony. In many cases, officers no longer review their statements before going to court to give evidence, and their type-written statements occasionally contain large segments of “cut and paste” text.

While we aspire to greater expedition in criminal matters, it ought not to be done at the expense of transparent justice. Although Lady Justice is depicted as blindfolded, the public ought not to be blind to the administration of justice.