Defence attorney: Virtual trials like 'sucking a dinner mint with the wrapper still on'

VIRTUAL trials have been likened to “sucking a dinner mint with the wrapper still on.”

The analogy was used by defence attorney Amerelle Francis, who was relating what she was told by a colleague. However, she said, “It is what it is and this is what we have.”

Francis is representing a Tobago man who is expected to go on trial before a judge-alone next month. She said the defence and prosecution were on an equal footing in terms of the disadvantages in holding trials virtually, especially when it comes to questioning witnesses in person.

Jason Duncan is before Justice Hayden St Clair-Douglas, and Wednesday’s hearing was held virtually to sort out issues relating to the trial, which is expected to begin on November 2.

At the status hearing, a suggestion was made by prosecutor Giselle Heller-Ferguson for an in-person hearing either at the Hall of Justice in Port of Spain or at the court in Tobago.

She said holding an in-person hearing would be a best-case scenario and asked if it could be an option.

St Clair-Douglas said he was not sure what arrangements could be made for witnesses to give evidence from either the Hall of Justice or Tobago, but said he would speak with the registrar to see what could be accommodated.

He reminded that arrangements have been made in the past for witnesses to give evidence from the court facilities in Tobago and noted that the Judiciary was outfitting witness rooms at King’s Court on Frederick Street, in response to the position of the Director of Public Prosecutions that his office will not become a courthouse.

Heller-Ferguson said there was some apprehension on the part of the DPP about prosecutors questioning an accused person and witnesses virtually, but once the integrity of the proceedings was maintained, the State would have to carry out the case that way.

St Clair-Douglas said while he understood the concerns over the integrity of the process, court marshals will be present where witnesses give evidence.

He said he could not give a definitive “yea or nay” answer on holding an in-person hearing, since that decision was not dependent on him alone.

“For me to have a courtroom available physically, there are a number of things I have to do: make registrar aware, MTS aware.

“I will make inquiries to those possibilities as well as the possibility of an in-person trial in Tobago as an option,” he said.

The judge admitted the situation was not ideal, adding that if juficial officials allowed the difficulties of holding virtual trials to “stop us, we are going to be in a spot of bother. Let’s try to make the best of a bad situation.”

The matter has been adjourned to next week to give the judge time to find out if the trial can be held in person and the accommodation for witnesses, as well as for the attorneys for the prosecution and defence to find out about possible flights to Tobago and accommodation for the trial, which is expected to last a week.

In September, Chief Justice Ivor Archie issued new rules for the operations of courts in response to the coronavirus pandemic and the increase of cases at the time. The new covid19 practice directions suspended in-person hearings indefinitely, with certain limited exceptions.They also suspended all jury trials.