Goodbye Preliminary Inquiries, Hello Sufficiency Hearings!
In Trinidad and Tobago, we classify criminal offences into two categories, summary offences and indictable offences. Summary offences, considered less serious, are resolved by a Magistrate. On the flip side, indictable offences attract harsher penalties and go before a Judge and Jury or, a Judge alone, depending on the election of the accused person.
If you find yourself charged with an indictable offence, it doesn’t automatically mean a date with a Judge and Jury or Judge alone. There is a pre-trial procedure, and its purpose is to assess whether there is enough evidence against you. Prior to 12th December 2023, there were Preliminary Inquiries where Magistrates decided if there was sufficient evidence for a High Court trial. However, it was criticized for being time-consuming, particularly in the overburdened Magistrates’ Court1. A matter could take years going through the preliminary inquiry process, which doesn’t allow for expedient justice for the victim or the accused.
Fast forward to now, we’ve done away with Preliminary Inquiries. With the introduction of AJIPAA (Administration of Justice Indicatable Preliminary Inquiries Amendment Act), instead, Indictable matters go through a Sufficiency Hearing managed by a Master of the Court. This Master acts as a referee for the evidence, tasked with determining if there’s enough for a trial. It’s a two-step process: an Initial Hearing followed by the Sufficiency Hearing. Things are different, and hopefully, speedier too!
The Initial Hearing
You are charged with an indictable offence and the journey kicks off with the ‘Initial Hearing’. Now, despite its name, it’s not a one-and-done situation – in fact, the Initial Hearing may be a series of successive hearings. During the Initial Hearing, the Master has a checklist that must be completed before we move on to the main event, the ‘Sufficiency Hearing’. The Master’s checklist comprises of the following actions:
- Reading the charge to the Accused and verifying their information.
- Informing the Accused that they are not called upon to plead – A sufficiency hearing is not about guilt or innocence, it’s about evidence. However, if they choose to admit guilt, the matter heads straight to a Judge for sentencing.
- Dealing with the issue of bail – If bail is refused, the Accused holds the option to reapply to the Master if there is a change in circumstances. There is also the ability to appeal this decision in the Appeal Court.
- Notice of Alibi – If the Accused plans to show that they were not near the scene of the offence, they must reveal the details of that alibi at the Sufficiency Hearing or within twenty-eight (28) days after the Initial Hearing. It is a notice which gives the Police a chance to investigate the Accused’s alibi.
- Make an order for representation- If the Accused is unable to afford an attorney of his own choice, then he/she is deemed fit for legal aid, and an order is made for an attorney to be appointed for the Accused by a particular date.
- Getting a recommendation for matters triable either way- Some matters can be heard summarily, despite being indictable in nature. This recommendation is made by the DPP and/or his agent. Once the recommendation is summary trial, then the matter would be transferred to the Magistrates’ Court. If kept indictably, then the matter proceeds as a sufficiency hearing.
- Issue a Scheduling Order – This order sets deadlines for key events, ensuring all evidence for the Sufficiency Hearing is in place. With the Scheduling Order in hand, the curtains close on the Initial Hearing and the parties must now ensure compliance before the Sufficiency Hearing.
The Scheduling Order
The Scheduling Order is the roadmap for seamless case management. Its purpose? To set clear deadlines to ensure that all parties are geared up and ready for action on the day of the Sufficiency Hearing.
Under the Scheduling Order, the deadlines include:
- The date for the Accused to retain an attorney.
- The date for the Police to submit to the Prosecutor the relevant documentary evidence.
- The date for the Prosecutor to file and serve on the Accused the indictment and documentary evidence.
- The date for the Accused to file and serve on the Prosecutor the documentary evidence he wishes to rely on.
Missed an order without asking for an extension? There are serious repercussions. If the Prosecutor or the Accused fails to comply with a deadline, the Court can forge ahead with the Sufficiency Hearing or release the Accused.
The Sufficiency Hearing
Following the issuance of the Scheduling Order, the spotlight shifts to the second act—the Sufficiency Hearing. Both the Prosecutor and the Accused must make an appearance, yet no witnesses take the stand. Surprisingly, it’s a silent affair—conducted solely through written submissions. The Master meticulously reviews witness statements and documentary evidence, aiming to determine if there is sufficient evidence. Before deciding the fate of the Accused, the Prosecutor and the Accused have a chance to state their case, providing reasons for the Master to consider. If the Master is convinced there is sufficient evidence, the baton is passed, indictment is filed and the matter advances to the High Court.
Submitted by:
Shuzvon Ramdass
Public Defender Entry
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email: [email protected]
Published in The Trinidad Express News Paper on Wednesday 6th February, 2024