An attorney has sought to provide some guidance on the issue of judges ruling in the parish courts without a lawyer or a changed plea from guilty to not guilty involving the sometimes controversial Resident Magistrate Judith Pusey.
There was an unfortunate news item in the media last week about a lady who went before a parish court judge and was convicted without a trial or hearing.
The case came to public attention after a ruling from the Court of Appeal, which was followed by a front-page article in the Daily Gleaner with comments from former Justice Minister Mark Golding, and thereafter a stinging criticism from the Director of Public Prosecutions. The saga is unfortunate.
In all of this, it seems as if the full 'story' is still unfolding, as last week a Queen’s Counsel was on radio saying that he was present in court, and in fact heard when the lady in question pleaded guilty.
That is interesting and adds to the intrigue.
The starting point in the criminal justice system is Section 16 of the Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which provides that a person charged should be afforded a fair hearing.
Arraignment
STEP 1: A critically important part of the due process expected in criminal cases is the arraignment process. This happens, on most occasions, on the first appearance in court. The procedure requires the clerk to announce to the parish judge that the next matter is say 'R v. John Brown for larceny'. If Mr Brown is already in the dock, upon his name being called he stands so that the judge identifies him, especially since other persons are seated in the dock. At the same time, the judge ensures that he finds John Brown’s name on the court sheet. If the matter were coming before the court for the first time, the judge would ask the clerk to outline the allegations against Mr Brown.
What happens next is critically important.
STEP 2: At this stage, if a lawyer does not represent Mr Brown, the judge would ask him if he has a lawyer. If the answer is yes and the judge forms the view that the lawyer is just running a little late for court, the matter is sometimes stood down to await the arrival of the lawyer. If the answer is no, on some occasions, the accused is asked if he can afford to retain a lawyer. If the answer to the judge is yes, the accused might be given time to do so. If the answer from the accused man is no, the judge would seek to assign a lawyer under the legal aid system, if the case is not drug related.
STEP 3: Depending on the circumstances, the clerk may proceed to read the criminal charges against Mr Brown, and thereafter ask him if he is guilty or not guilty. If the answer given is not clear or Mr Brown says guilty with explanation, the judge will intervene to hear the explanation or seek clarification and ensure that the answer given is a direct response to the question posed by the clerk and most importantly that Mr Brown understands the nature of the charge.
STEP 4: If the accused pleads guilty, the judge is most likely to order a social enquiry report and set a date for sentence as well as to determine the status of the Mr Brown with respect to bail.
STEP 5: If it is a not guilty plea, the judge is likely to make enquires as to the status of the file, give a date for disclosure on Mr Brown or his lawyer, determine the status of Mr Brown with respect to bail and set a mention date for Mr Brown to return to court.
It seems as if it was the absence of the steps above, which caused the complaint to the Court of Appeal.
The reality is that if an accused person is not arraigned but was deemed by a judge to be guilty and sentenced, it is very like that the aggrieved convicted person could successfully complain to the Court of Appeal that he did not get a fair trial for want of due process. The case in the media highlights the importance of the arraignment in the criminal justice system. It should never be ignored or circumvented.
- Keith N. Bishop is an attorney-at-law and senior partner in the law firm of Bishop & Partners. He may be contacted at knbishop@gmail.com or by WhatsApp at 876-460-8231.
The starting point in the criminal justice system is Section 16 of the Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which provides that a person charged should be afforded a fair hearing.
Arraignment
STEP 1: A critically important part of the due process expected in criminal cases is the arraignment process. This happens, on most occasions, on the first appearance in court. The procedure requires the clerk to announce to the parish judge that the next matter is say 'R v. John Brown for larceny'. If Mr Brown is already in the dock, upon his name being called he stands so that the judge identifies him, especially since other persons are seated in the dock. At the same time, the judge ensures that he finds John Brown’s name on the court sheet. If the matter were coming before the court for the first time, the judge would ask the clerk to outline the allegations against Mr Brown.
What happens next is critically important.
STEP 2: At this stage, if a lawyer does not represent Mr Brown, the judge would ask him if he has a lawyer. If the answer is yes and the judge forms the view that the lawyer is just running a little late for court, the matter is sometimes stood down to await the arrival of the lawyer. If the answer is no, on some occasions, the accused is asked if he can afford to retain a lawyer. If the answer to the judge is yes, the accused might be given time to do so. If the answer from the accused man is no, the judge would seek to assign a lawyer under the legal aid system, if the case is not drug related.
STEP 3: Depending on the circumstances, the clerk may proceed to read the criminal charges against Mr Brown, and thereafter ask him if he is guilty or not guilty. If the answer given is not clear or Mr Brown says guilty with explanation, the judge will intervene to hear the explanation or seek clarification and ensure that the answer given is a direct response to the question posed by the clerk and most importantly that Mr Brown understands the nature of the charge.
STEP 4: If the accused pleads guilty, the judge is most likely to order a social enquiry report and set a date for sentence as well as to determine the status of the Mr Brown with respect to bail.
STEP 5: If it is a not guilty plea, the judge is likely to make enquires as to the status of the file, give a date for disclosure on Mr Brown or his lawyer, determine the status of Mr Brown with respect to bail and set a mention date for Mr Brown to return to court.
It seems as if it was the absence of the steps above, which caused the complaint to the Court of Appeal.
The reality is that if an accused person is not arraigned but was deemed by a judge to be guilty and sentenced, it is very like that the aggrieved convicted person could successfully complain to the Court of Appeal that he did not get a fair trial for want of due process. The case in the media highlights the importance of the arraignment in the criminal justice system. It should never be ignored or circumvented.
- Keith N. Bishop is an attorney-at-law and senior partner in the law firm of Bishop & Partners. He may be contacted at knbishop@gmail.com or by WhatsApp at 876-460-8231.
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