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'Catalogue of errors' in Magistrates’ Court, says QC

Jerome Lynch QC (File photograph)

Defendants are being denied a fair trial in Magistrates’ Court because of inefficiencies that cause hearings to drag on for years, it has been claimed.

Top attorney Jerome Lynch QC made the accusation during a Court of Appeal hearing yesterday into the conviction of Kenneth Williams, who was jailed last year for a string of sex offences after a trial that lasted 21 months.

Mr Lynch claimed that flaws in the system caused proceedings in that case to be continually interrupted and postponed which resulted in a prejudice against Williams.

He later told The Royal Gazette that Williams’s trial was “absolutely not a one-off”, and that “there is a catalogue of errors within the system”.

The complainant in the Williams case, a minor who cannot be named for legal reasons, had to give evidence over a period of more than two months because of repeated delays, Mr Lynch told the Court of Appeal.

A second witness, the complainant’s mother, had to attend court on five separate occasions over a period of 3½ months in order to provide just eight hours of testimony.

“What is plain is that, when the complainant was giving evidence there was a significant number of delays which were nothing to do with any of the parties in the case,” he said.

“They were variously described as technical difficulties, lack of magistrates, there was no courtroom available, the magistrate was not ready, and matters of that kind.

“When cross examination is broken up in that way, when you come back to it a week later, two weeks later, a month later, there is inevitably a lot of recapping to be done — all it does is actually make the trial longer.”

He said that a sufficient amount of time should be set aside in the court diary to allow trials to run through to their completion.

But in the Williams trial, there was an adjournment after the first day.

“If this had been laid down for three days right from the beginning, this witness’s evidence could have been given continuously,” he said.

“In reality what should have happened and what one hopes will happen in the future, particularly in cases of this kind, is that there is a block of time taken out straight away. That is a flaw in the system.

“The trial should not be truncated in this way and that is part of case management. On its face there is very little management of the trial process if at all by the magistrate and that is to be lamented.

“The problem here is this: if you’re hearing evidence from the main complainant in one year, and hearing the answers to that complaint in another year, with something in the order of 17 months apart, it is very difficult for a court to make a proper assessment of the first witness’s evidence in the light of what you hear from the defendant’s evidence.

“If the trial takes that long and is truncated in that way, it clearly creates prejudice to a defendant.

“The right to have a trial in a reasonable amount of time is a basic cardinal right that should not be abrogated by technical difficulties, a failure to list the case for a proper amount of time, in chunks of time.

“None of these things should impact on the need to have a trial conducted within a reasonable amount of time. This simply cannot be regarded as reasonable.”

Mr Lynch highlighted another lengthy adjournment caused when trial defence attorney Sara Tucker asked that magistrate Tyrone Chin recuse himself because of a conflict of interest.

Mr Lynch said the episode had “failed to be properly managed” — a view supported by Appeals Court Judge Geoffrey Bell.

“The responsibility for that matter lies with the magistrate — I don’t think there was merit and the magistrate could and should have dealt with that within half an hour,“ Judge Bell said.

Providing an example of poor administration in the Williams trial, Mr Lynch said that on one occasion, prosecution and defence attorneys jointly contacted the court saying they would be available on a particular day for the trial to resume — but the e-mail was not passed on to the magistrate.

“I want to say ʽno surprises there’ but I better perhaps not,” Mr Lynch said.

“But if a magistrate is not told in advance what’s happening, he can give no orders. I am perplexed as to why those sorts of obvious things don’t happen. It’s simply not an acceptable way for trials to be conducted.”

Mr Lynch also pointed out that hearings moved slowly because magistrates had to take lengthy notes, writing down witness testimony in long hand.

“It is always the case — how long it takes for the evidence to be given in a magistrate’s court,” he said.

“We’re always dependant on the speed of a magistrate’s pen.”

Speaking after yesterday’s hearing, Mr Lynch said the Williams case highlighted gross inefficiencies in the court system that ultimately could impact the outcome of trials.

“This is not a one-off — there is a catalogue of errors within the system. The system doesn’t work and the courts need to get a grip.” Mr Lynch said.

“The starting point is trial management by magistrates.

“We used to do things very differently in the past, but times have changed. Magistrates are now expected to take control of a trial, but I think there’s some resistance to that. They go on a three-day course, come back and do nothing, when they need to understand that it’s not optional.

“At the same time, they can’t do their job if the proper facilities are not provided by the court. There are instances matters are adjourned because a courtroom isn’t available, yet we have this huge court building — there’s no reason why we shouldn’t be able to utilise it.

“And if there are not enough magistrates, there are plenty of attorneys on the island who can be made acting magistrates.

“I just hope that, whatever happens in this particular appeal, the Court of Appeal makes some very serious pronouncements about how things should change — it definitely needs to happen.“

The Royal Gazette e-mailed senior magistrate Juan Wolffe yesterday asking for a response to Mr Lynch’s comments. No reply was received by press time last night.