Who will make the tough decisions?

There has been a persistent cry for improvements to the island’s justice system from all stakeholders.  The adage justice delayed is justice denied has become a recurrent refrain for attorneys.  However, in as much as they complain about the system, they do little to progress it or ease the burden.  Throughout the years the STAR has reported on the reprehensible behaviour of some attorneys.  This is compounded by Justice Kenneth Benjamin’s statements in open court, chastising attorneys for all kinds of reasons.

“Why is it that this court has to wait on one person?  There are in excess of sixty jurors present.  There are attorneys at the Bar table waiting for cases to be called and we have to wait on one person?” said the judge on one occasion.  The excuses vary from stuck in traffic to house renovations.

On one occasion in December 2009, an attorney decided to recuse himself from a matter on the day of the trial because of “physical exhaustion.”  His client had been on remand since 2002.  Benjamin denied the application.  Court adjourned early at the attorney’s request.  The attorney was absent without excuse the following day.  The judge broached the idea of issuing a bench warrant for his arrest.  On the second day, the judge informed the court he received a call from the attorney and the case could not proceed.

Benjamin has cautioned attorneys in open court.  Now, he has taken a different approach.  When a case is called, especially for trial, regardless of whether the defense or prosecution is present, the case will progress.

In doing research for this piece, I came across an article published on June 7, 2003 by Christine Larbey entitled Accused rapists, thieves and attackers absent from Assizes-three flea overseas.

It was the opening of the June Criminal Assizes.  The presiding judge was Justice Indra Hariprashad-Charles. Consider the following excerpts from that article:

Addressing the jurors, the judge said “These Assizes are going to be very short. My job is to make you as comfortable as I can.  I would like you to be happy.  Some of you have complained about the hard seating facilities in the jury box.  This is a difficult problem that involves some finance and the court budget is very low, so when it comes to that we will try to provide you with some cushions.”

With pleasantries over it was down to business.  First up was a remand prisoner accused of murder.

“There has been no service on some of these witnesses,” said then Acting Director of Public Prosecutions Victoria Charles.  The case was adjourned.

Next on the list was a man accused of theft.  He did not appear.  “There has been no service,” said the investigating officer.  “I understand the person is somewhere in Vieux Fort.”  The matter was adjourned to June 16.

The next case was against a man accused of using a cutlass with intent to cause a wound and grievous harm.  He was absent.

“He has not been served,” said Crown Counsel Leslie Mondesir.  “He is out of State.”
The accused’s brother informed the court his brother is a Canadian who resides in Canada with his Canadian wife.  The accused’s St Lucian passport was surrendered.

“Well,” said the judge, “it seems that he had a Canadian passport also.  Both passports should have been taken away.  In my eyes the man has fled.  Magistrates have to be more responsible when they know the accused lives abroad.  I will issue a warrant for the man’s arrest.  The bail money will be forfeited.”

Eventually, after hearing several more times that witness could not be served because they could not be found or were out of State, the judge asked exasperatedly, “What’s the difficulty?”

She continued, “Why am I hearing over and over that there has been no service? Why am I hearing that the accused are not being served?”

“Seems there has been a lapse at the court office,” said Hariprashad-Charles.  “If all the accused have not been served why am I sitting here?”

This article may have well been written in the present day, including the issue of seating for jurors and non-service to witnesses and defendants.  Compare it to excerpts from this article published in 2009 entitled Cases discharged on account of unprepared prosecution.  It was written after the October 16 sitting of the High Court where Sufficiency Hearings were being dealt with.

“It was a routine day in court with matters being stood down, judgments being made, defense lawyers and prosecutors fumbling through files, submissions for adjournments and of course, matters being discharged.

“Firstly, remember the case of the elderly couple in Saltibus whose house was burgled on November 3 of 2007? The man was murdered and his wife allegedly raped. The accused in that case was charged for rape on November 13, 2007 and indicted on the murder charge earlier this year. The date for the murder trial has not been set. Unrepresented the accused stood before Justice Benjamin. Deputy Director of Public Prosecutions, Robert Innocent, appeared for the Crown, file in hand. Innocent made a submission for an adjournment on the basis that he was not ready to argue the case. As it turns out, although the prosecution was in possession of the file, he had not had time to peruse it. After minutes of back and forth, Justice Benjamin found that this was not appropriate grounds for an adjournment so he discharged the case.”

There has been no drastic improvement in the court system from 2003 to 2010 save for replacing long and tedious Preliminary Inquiries with paper-based submissions at Sufficiency Hearing which was introduced in 2009 resulting in more cases being sent to the High Court from the Magistrates Court.

Speaking at the close of the Assizes in December 2010, Benjamin reviewed the efficiency of the new system.

“We have seen a significant increase in the amount of cases.  It is not that we have more cases.  All that has happened is that we have now come to reality, that is, we have now come to catalogue and present all the cases that are in the system in a way that they are all before the court.  We are now beginning to see exactly how many cases there are in the criminal justice system.  Now that we are in a position where case management has mandated that there be monitoring of all cases, we can see exactly how many there are facing us.  I think this can be a good thing but it can be a bad thing if not managed.”

Management has always been a sore point with Benjamin, having reprimanded attorneys, especially the Crown on several occasions.  In one instance in 2009, speaking sternly to the DPP he said, “The Crown does not keep proper records . . . You have a list. We have a list. Why can’t the Crown keep track of its cases?”

The DPP explained: “We lose track of certain cases because of the volume of cases we have to deal with. We simply do not have the resources.”

The DPP offered another excuse that there are only five persons, including herself, in the office to deal with a mountain of files, hence, some cases will “slip through the cracks.”
Justice Benjamin did not accept this explanation saying “there is only one of me and I keep track of your cases better than you do.”

Robert Innocent has since retired as Deputy DPP and the position has remained opened.  Police Prosecutor Sergeant Sixtus Stephen Brette was called to the Bar in September 2010 and has indicated his interest to be a Crown Counsel.  Towards the latter part of 2010, it appeared the DPP’s Office may actually be adjusting to the new system.

With the number of cases in the High Court, the Attorney General Lorenzo Rudolph Francis revealed in a December 2010 press conference a new High Court judge will be assigned.  Hopefully, this new judge will be assigned to the Criminal Division of the court to assist the lone Justice Kenneth Benjamin.

The court system reflects the structure which houses it.  The High Court building, to borrow from our Minister of Foreign Affairs, is a basket full of holes.  Aside from leaks permeating the walls and ceiling, the air condition system is a continuous bother, with court having to be adjourned because the unit is not working.

Coincidentally, the unit was fixed just in time for Sir Vincent Floissac’s memorial on September 30, 2010, after having issues for more than a year.  The hole in the floor of the Criminal High Court gets larger and poses a danger to all who attempt to walk near to it and the washroom facilities for attorneys, civilians and prisoners leave much to be desired.
To say the magistrates have a cupboard for an office is a drastic understatement.  Since the Magistrates Court has been relocated to the High Court early this year because of security issues, all who have business in the court have to wait outside the court house, in any weather condition.  It seems the powers that be have no issues with people congregating in the parking lot- with nowhere to sit or shelter, no accommodations for the elderly, disabled or sick-waiting for their name to be bellowed by a court orderly.
The High Court Registry staff do not have it any better.  They proceeded to strike on several occasions to protest the abhorrent conditions they were working under.  Renovations have been done but there are still health concerns in the working environment.  The Bar Association has complained countless times about the conditions of the building but its pleas have apparently fallen on deaf ears.

Additionally, questions have been raised as to the judiciary’s efficiency following the April 8, 2010 shooting of Magistrate Ann Marie Smith.  Smith was gunned down on her way to work.  Her recovery is nothing short of remarkable having received seven gunshot wounds.  She has already returned to her duties on the Bench.  Police suspect Smith was targeted based on her work as a magistrate.  She was lauded as one of the toughest magistrates on island.  Did her shooting affect the manner in which sentences are handed down? Is the judiciary fearful of reprisal for its decisions against offenders since criminals are now bold enough to target the institution of justice itself?  AG Francis indicated in December, Special Police Constables will be trained to protect officers of the judiciary.  The feasibility of the idea is questionable.

When it comes to the courts, it is left to the DPP’s Office and the Attorney General’s Chambers to enact change as agents within the legislative branch of government.
Given the voluminous nature of cases facing the office, it needs to keep proper records of cases.  Additionally, the office needs to have a handle on each case for two reasons—in order to pressure the police to do its job efficiently and to ensure the defense’s case does not succeed solely because the Crown failed to execute its duties.

Likewise defense attorneys need to adhere to the ethics of the profession and represent their clients to the best of their abilities.  Defense attorneys are part of the system and contribute to its progress.  In some cases, they tend to be hindrances rather than advocates of progress.

For any change to come in the short term, the AG’s Chambers need to revisit the Criminal Code and present legislation to Parliament to enable the prosecution to do its job.  Where is the legislation on breathalyzers, non-lethal weapons and pepper spray?  Why is there a fine upon conviction for vehicular manslaughter when the Traffic Act prescribes a minimum of five years imprisonment? Why is it that matters which could be dealt with summarily in the magistrates’ court are indictable only offenses such as robbery and burglary?  If a defendant has roughed up a victim and takes EC$20 from the victim, the matter will be sent to the High Court based on the aggravating factor.  If the defendant pleads not guilty, there will be a full blown trial.  Is it really necessary to tangle up resources with such?

Unless these issues are addressed, the wheels of St Lucian justice will continue to be a ghostly outline.

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