By Dana Seetahal
June 14, 2009 – guardian.co.tt
Trinidad and Tobago News Blog
www.trinidadandtobagonews.com/blog

Three weeks ago, Justice Stanley John commented to the effect that if magistrates did not wish to do their work properly, they should resign. Then, despite the furore that his comments caused, he gave a lengthy interview to a radio station, during which, among other things, he queried the frequency of adjournments in the Court of Appeal and commented on the need for training magistrates.

I hold no brief for anyone on these issues, particularly Justice John, but I have to agree on one point. Some magistrates are just ignorant of the principles of sentencing and/or do not enlighten themselves on what the penalty is for particular offences. Notice I say “some” magistrates—and these are in the minority.

I speak from a position of some authority, having done magisterial appeals for the last five years for the State and also having appeared with clients who have pleaded guilty in the magistrates’ courts.
There are a few magistrates who do not appreciate that it is basic that if a defendant (1) pleads guilty, (2) does so at the first opportunity, and (3) has no previous conviction, he should not be sentenced to the maximum term.

I appeared for a client who was in such circumstances in his appeal in respect of a charge of obscene language, but the magistrate still sentenced him to the maximum of 30 days’ jail. The Court of Appeal discharged him. Later, I appeared for the State in a matter in which the same magistrate had done the same thing. The problem, it seems to me, is with particular magistrates (a very few of them) who may be ignorant in certain areas of criminal practice. The answer is not to abuse all magistrates, but to remedy the situation. The best remedy is training: training for some weeks prior to first sitting and continuing training during the course of their holding office.

Resignation and adjournment

In so far as Justice John’s comments on the issues of resignation (for incompetence) and easy adjournments, I think it is only fair in that regard to bring to the public domain some judgments of the Privy Council, so that the public can form a balanced view. In the matter of Wilberforce Bernard, the Privy Council, in 2007, considered what had happened at the trial in which Justice John presided. The judge adjourned the trial to the following day, and appointed as counsel for the appellant Mr CS, who received instructions on the evening of January 3.

Mr S was qualified to practise for a mere three months at that time. When appointed the next morning, he asked the judge for an adjournment to permit him to take instructions from the appellant and prepare the case, but the judge refused his request. He was to refuse subsequent requests as well. In overturning the appellant’s conviction for murder, the PC said it could never be justifiable to appoint counsel of three months’ standing to defend a client on his own in a capital murder trial.

Prejudicial matters

The handicaps placed upon counsel by the judge included:

(a) the refusal of an adjournment and the forcing on (counsel) of the trial when he had had a far from adequate opportunity to make himself familiar with the case and the evidence;

(b) the refusal to furnish him with the notes of evidence of the preliminary inquiry and the aborted first trial; and

(c) the judge’s decision to proceed with the evidence when Mr S was absent through illness and the appellant was left unrepresented. That judgment, one may have thought, would demonstrate why a court should grant adjournments on occasions, but obviously Justice John still is not convinced. Further, even though the judgment may be seen as an indictment on Justice John, the PC did not suggest he was incompetent, or call for his resignation. Similarly, in 2005, when two convictions in respect of trials in which he has presided were overturned, there was no consequential name-calling.

In Mantoor vs Ramdhanie, the PC said that it was a valid submission by the defence that the judge (John), not having permitted the defence to pursue a line of cross-examination on the ground of prejudice to the defendants, the prosecutor was permitted to excite the same prejudice by references to the same material, enhanced by highly prejudicial matters. The appeal was eventually allowed. And in Jagdeo Singh they said of the trial judge, Justice John: “It is clear and this has been conceded by the State that the judge’s directions on good character were inadequate. He omitted to direct the jury on the impact of the appellant’s good character on the question of his credibility.”

The appeal was allowed. In none of these cases nor in others in which Justice John presided did the PC (or the local Court of Appeal, for that matter) attribute his failings to gross incompetence. Nor was it suggested that he simply was not reading—was ignorant. One would have hoped that the learned judge would have been as patient and understanding with the magistrates, rather than simply judgmental.

Source: guardian.co.tt

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