Govt. to abolish Preliminary Inquiries

Feb 05, 2023 News

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By Renay Sambach

In the Magistrate’s Court, there are three different methods in which matters are tried. For the not so serious offences, a trial is conducted, while for the serious offences, the Magistrate can either conduct a preliminary inquiry (PI) or a paper committal.

However, the Government of Guyana, will be moving towards the abolition of preliminary inquiries (PI), as part of the criminal justice process, with the aim of reducing the waiting time for persons to be tried, Attorney General and Minister of Legal Affairs, Anil Nandlall disclosed recently.

Nandlall, speaking during the final day of budget 2023 debates said, that government is cognizant of the complaints about the backlog of cases and the prolonged delay in the time accused spend awaiting trial.

“Part of the reason is because currently the law requires a PI to be done to establish a prima facie case before going to a judge and jury,” he told the House while explaining that across the Caribbean and in the Commonwealth jurisdictions they have abolished this first tier of the criminal trial process.

Guyana will soon be moving in this direction to reduce the significant backlog of cases.

For the serious offences, the defendant is not allowed to either plead guilty or not guilty, since the matter was laid indictably. For those offences, the Magistrate does not impose a sentence but rules whether or not sufficient evidence was presented to the court for the matter to either be discharged or for the defendant to be committed to stand trial in the High Court of the respective district.

However, while a PI can last for more than five years, most Magistrates prefer this method.The paper committal which was introduced in 2008 can last up to 45 days. Also, if the defence requests to cross-examine the witnesses it may take even longer to conclude.

TRIAL

Some matters can be disposed of at the Magistrate’s Court level. Some of these matters are: larceny charges such as simple larceny, larceny from the person, break and enter and larceny, assault charges and threatening and abusive language.

While those offences are still criminal acts, those matters can be disposed of in the Magistrate’s Court. On the defendant’s first court appearance he or she is required to either plead guilty or not guilty to the charge after it is read by the Magistrate. With a guilty plea, based on the offence, the Magistrate can either, sentence the defendant to not more than five years, impose a fine or order the defendant to do community service.

In some instances, some persons are fined and sentenced, but the Magistrate would also take into consideration the defendant’s honesty and with a not guilty plea, the matter will have to go to trial.
The defendant is either granted bail or remanded, and a date will be set for report and fixture. This will be based on the readiness of the prosecutor, who is expected to have his or her file completed and be ready for trial.

With the file completed, a date is then set for trial. During the trial, the prosecutor will call his or her witnesses to testify orally in court. Each witness who testifies is subject to be cross-examined by either the defendant or his or her attorney.

The Magistrate will usually take written notes of each witness’ testimony which is called a longhand deposition. After that process is completed the defendant or attorney will then make his or her no-submission to the court and the prosecutor will also make a submission.

A no-case submission to the court occurs when the defence highlights aspects of the matter to support their claims that the prosecution does not have a matter against their client.

When the Magistrate is finished reading both parties’ submissions, a date will be set for ruling on the submissions. If the Magistrate upholds the defence’s no-case submission, the matter will be dismissed. However, the Magistrate can also rule that there is sufficient evidence against the defendant.

In the Magistrate’s Court, someone who is found guilty of an offence can only be sentenced to a total of five years, which can be accompanied by a fine.

PRELIMINARY INQUIRY (PI)

For the more serious offences like rape, murder, manslaughter, treason, and causing death by dangerous driving, among other offences, a trial cannot be conducted in the Magistrate’s Court.

For those matters, the Magistrate can either conduct a preliminary inquiry (PI) or paper committal. It should be noted that what is said in court by the witnesses during a PI, cannot be reported on.

Magistrates often choose to conduct a PI into a matter, even though it can take more than five years to complete. Like the trial, the Magistrate takes down in writing every witness’ statement and records and marks all items presented to the court as exhibits. After the prosecution would have called all of his or her witnesses to testify, the prosecution can then close their case.

Most prosecutors are hopeful that the evidence they would have produced to the court would satisfy the Magistrate to make out a prima facie case, so that a reasonable jury can convict the defendant.

If the Magistrate finds that a prima facie case is made out against the accused, he or she can opt to lead their defence or not.

A defendant, who chooses to lead their own defence, can call their witnesses to testify in the matter, but a defendant who refuses to lead their defence would automatically be committed to stand trial. The accused will then join the line of accused awaiting trial at the next convenient sitting of the criminal jurisdiction of the High Court.

It should be noted that the assizes do not consider the accused matter until the Magistrate’s longhand depositions are typed by the court staff. A longhand can take anywhere from a few weeks to years to be completed.

Additionally, there are several aspects of the PI which cause delays.

Not only does the Magistrate have to set the matter to accommodate other PIs, summary civil matters, summary criminal matters, inquests, and other statutory and administrative functions, but also the police prosecutorial system and the defence counsel’s schedule, and the number of witnesses and the availability of the witnesses must be taken into consideration.

While this method is commonly used by Magistrates for serious offences, the PI into a matter usually takes years to complete thus this method often causes backlog in cases.

PAPER COMMITTAL

The Criminal Law Procedure (Amendment) Act No. 17 of 2008 introduced a system which is known in other jurisdictions as ‘Paper Committals.’

A paper committal is when the witnesses’ statements and documentary evidence are tendered to the Court without the witnesses being present in court and are inventoried and marked as exhibits.

Based on the written records, the Magistrate will take approximately 45 days before giving a ruling on whether there is sufficient evidence for a prima facie case to be made out for the accused to stand trial in the High Court.

Additionally, the Magistrate may also consider submissions from counsel that there is insufficient evidence or allow the cross-examination of witnesses before making his or her decision whether to commit the accused for trial. It should be noted that Magistrates are not expected to allow cross-examination ad nauseam as this would defeat the purpose of the act.

The defence on his or her own motion or on an application to the proceedings, can require any witness to attend before them and give evidence – the cross-examination is also allowed.

Issues have been raised in the past whether the Magistrate should have more guidance in the form of regulations with appropriate safeguards to ensure the process would be executed in a fair manner.

Meanwhile, Nandlall disclosed that focus will be placed also on the establishment of Guyana’s law school, reviewing the criminal plea deal law, and setting up the Constitutional Reform Commission this year.

 

 

 

 

 

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