What is my defence?
Bert Samuels, Contributor
Following on eight years of case management in civil matters brought before our courts, the criminal bar was this year introduced to, and has adopted, the new system of case management in criminal cases. This is a most welcomed move. It has come at a time when the delivery of justice in our courts was bursting at the seams from the weight of a large backlog of cases. The all too familiar maxim that "justice delayed is justice denied" was fast becoming the rule rather than the exception.
This untenable state of affairs carried with it two serious defects in the administration of justice in Jamaica. Foremost was (sic) the fact that defendants, who are presumed innocent until proven guilty, had to wait out inordinate delays before their fate could be known. Similarly, witnesses who, for very good reasons, desire to have their say in court and move on with their lives, have had to experience the frustration of returning to court, adjournment after adjournment. Against this background, case management at the criminal bar is a win-win for all its players. Speedy trial is by no means a luxury; it is every Jamaican's constitutional right to have his trial heard within a reasonable time (Section 20 (1) & (2) of our Constitution). Protracted delays can, therefore, amount to a trial being declared unconstitutional.
Case management involves the coming together, at pre-trial hearings, of the police, defence and prosecutor in a spirit of cooperation, with the judge acting as coordinator/manager of the process. Its aim is to ensure, as far as is practicable, that when cases are set for trial, the need for adjournments are minimised.
An added feature of case management is that it has strengthened and reinforced the defendant's right to discovery. Two decades ago, a defendant had no right, or so it was thought, to material in the hands of the prosecutor which was relevant to his case. Trials were unjustly conducted along the lines of "hearings by ambush". A prosecutor could, on the day of trial, throw at a defendant, without warning, important material he sat on, in an attempt to 'win' his case, and for no other reason.
The Privy Council, in the celebrated 1992 case of Linton Berry v the Queen, put that era behind us. A searchlight was cast on the dark halls of the DPP's office, which was henceforth compelled to share with the defendant, all material relevant to his trial. In Canada, the more enlightened approach was articulated by the court in the case of William B. Stinchcombe, where it was declared: "The fruits of the investigation which are in its (prosecutors) possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." Alas, in the case of the DPP's interview conducted with a former accused, now Crown witness, the court may order that those notes be shared with the defence.
There is one aspect of this new era of court-managed discovery that does not, in my view, sit well with the time honoured twin principles that every defendant is presumed innocent, and that there is a burden on the prosecution throughout to prove its case. My complaint is with respect to the fact that the defendant has an option to declare in writing his alibi and/or defence. I humbly suggest that the idea of making the request in the first place is in itself highly improper. It is not cured by stating that the defendant need not provide the information.
I am reminded of the principle laid down in the Privy Council case of Shabadene Peart in 2005, in a reasoned judgment delivered by Lord Carswell, when he opined thus: "Neither judge, magistrate nor juryman can interrogate an accused person," this was with reference to the fact that an accused has the right to remain silent, and ought not to be required to respond to any questioning, let alone reveal his defence! Under our adversarial system of trial in criminal matters, the defendant may elect to say, "I have nothing to say to you. The prosecution placed me on trial, so prove the case against me."
So, when asked to state his defence, he may say quite bluntly, but lawfully, "none of your business" to judge, juryman and anyone conducting his case management.
I so advise.
Bert S. Samuels is an attorney at law. Feedback may be sent to firstname.lastname@example.org.