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The issue of Preliminary Inquiry (PI) procedure

Jun 09, 2011 Letters

DEAR EDITOR,
The points made by Judge Rabindra Rooplall in the article (Magistrates should conduct voir dire – Bar Association Review 2011, 5th June), raise the wider issue of the Preliminary Inquiry (PI) procedure, its impact on the length of the pre-trial criminal process and the constitutional provision for a fair hearing within a reasonable time.
The basic PI procedure is set out in the Criminal Law (Procedure) Act, Chapter 10:01. It involves the taking down in writing of oral evidence given on oath before the magistrate.
The written documents, signed by the witnesses and magistrate, are termed depositions. If a witness is unable to attend through illness, there is power for another magistrate in that person’s district to take a deposition from that witness.
If the magistrate is of the opinion that the evidence has established a prima facie case, i.e. a sufficient case for the accused to answer at trial on indictment in the High Court before a judge and jury, the accused person must be cautioned and given an opportunity to give oral evidence and to adduce evidence of any witnesses. Any such evidence given by the accused or witnesses will be taken down in writing, signed by those testifying and the magistrate, and kept with the depositions.
The procedure was amended by the Criminal Law (Procedure) (Amendment) Act 2008 to enable evidence to be adduced at PI proceedings by way of statements, documents, writings and other articles tendered in the absence of the witnesses, but the magistrate may require certain witnesses to attend to give oral evidence and to be cross-examined. In cases of proceedings concerning sexual offences, the Sexual Offences Act 2010 provides for a new procedure of paper committals (committals based on written statements, documents and depositions, with no oral PI).
If the magistrate determines that the oral and/or written or other evidence adduced at the PI does not make out a sufficient case to commit the accused for trial before judge and jury for any indictable offence disclosed by the evidence, the accused must be discharged by the magistrate.
The discharge does not, however, amount to an acquittal, as a PI is not a trial. The Director of Public Prosecutions holds statutory power to remit the case to the magistrate with directions to reopen the PI and to commit the accused for trial.
There have been cases where more than one PI has been held in the magistrates’ court, resulting in long delays in bringing the accused to jury trial.
The amended PI procedure is based on the former English procedure of what was known as “the old-style” committal (where oral evidence was adduced at committal proceedings) and the “paper committal” (where the accused was committed for trial on acknowledgement by the defence that the written statements disclosed a prima facie case).
The “old-style” procedure was found to be extremely laborious, time consuming, costly, and even prejudicial in some instances where there was adverse pre-trial publicity. Full committal proceedings were abolished in England and Wales several years ago.
Notwithstanding the amendments in 2008 and 2010, Law Reform authorities in Guyana will no doubt consider further ways in which the length and cost of the PI process can be effectively reduced, so that more speedy trials may be achieved in accordance with the constitutional requirement for a fair hearing of criminal offences within a reasonable time.
It is imperative that this is attained without prejudice to the right of the accused to receive full disclosure of the prosecution evidence at the earliest opportunity.
Colin Bobb-Semple
Legal Consultant

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