While acknowledging that criminal trials are now taking longer than they used to, Chief Justice Sir Ian Winder yesterday dismissed "attacks" on the judiciary, adding that there are many reasons beyond the control of judges that lead to the delays plaguing the court system.
"It is unhelpful to attack the judiciary and suggest that the courts are responsible for all that ails the criminal justice system or that we are not completing trials," said Sir Ian during the Opening of the Legal Year, held at The Pointe in downtown Nassau because the main Supreme Court building is under renovations.
He continued, "Not only is the suggestion wholly inaccurate, it ignores the known realities in the criminal courts and in our country."
The chief justice said a considerable amount of nolles have been entered by the Office of the Director of Public Prosecutions in 2022.
Most of these have been entered after trials had begun or on the morning when a trial was to commence, often causing considerable loss of court days, he said.
Sir Ian added, "Judges do not live in ivory towers or hold cloistered views of the country in which we live.
"We attend the same stores, churches, and public places as every member of the society. Our children and our families live in this society and we love this country as much as everyone else does. We want our communities to be safe and crime to be at an irreducible minimum.
"We take very seriously the oaths that we have taken, to uphold the law. We do not make the laws; we merely interpret and apply them.
"The rules of engagement to prosecute and defend criminal matters have not changed. The prosecution is aware [of] what it takes to secure a conviction or to convince a judge that bail is not appropriate in a given circumstance."
Sir Ian advocated the "cooperative" approach previously encouraged by retired Chief Justice Dame Joan Sawyer.
He said, "The appropriate solution, as Dame Joan reminds us, is for a cooperative approach to these challenges and together find innovative measures to improve the criminal justice process."
Sir Ian said he accepts that good management of a trial by a judge can lead to a more efficient criminal trial.
But there are many other reasons why the criminal trial process has lengthened over time, which have nothing to do with the management of the trial by the judge, he added.
Sir Ian said these include greater access to information which has created a defendant who is more informed as to his rights and the legal system; the extension of legal aid assistance to unrepresented persons to include virtually all indictable offenses; the advent of stenographers permitting a microscope to be placed on the evidence in real time as it evolves; the greater use of records of interviews and videotaped interviews expanding the witnesses available to the defendant in a voir dire; newer types of evidence involving technology as well as forensics leading to greater challenges as to admissibility; greater instances of challenges to confession statements; and developments in the law over time.
"We must find ways to counter this decrease in the speed at which criminal trials can be concluded without affecting its fairness," he said.
"I have asked the question as to why can't the law provide for binding evidentiary hearings and voir dires to take place outside of the formal trial process.
"This would obviate the need for a jury to be empaneled, especially in circumstances where the determination of the issue may decide the entire action. At the very least, it shortens the length of a jury empaneled trial."
Sir Ian noted that in 2016, Sir Hartman Longley, the then-chief justice, in his 2016 address at the Opening of the Legal Year, called for the abolition of the jury system.
This echoed an earlier call by former Chief Justice Sir Burton Hall in December 2011 at a lecture hosted by Eugene Dupuch Law School.
Sir Ian said, "Avoiding that debate [surrounding] the need for a constitutional amendment to remove juries, why can't an accused be given the option of a judge alone trial? The incentive may be an earlier trial date.
"If just one or two of every 10 accused persons selects this option, that will be one or two trials that will not require jurors and almost guaranteed to take half as long."
Sir Ian also asked, "Why are 90 percent of our cases going to trial when 90 percent of cases in other jurisdictions are pleaded out?"
He said, "All stakeholders must meaningfully engage to implement proper alternate dispute resolution.
"Admittedly, this may require the courts to create sentencing guidelines to provide a level of certainty in the negotiation process.
"The bottom line is that all of these cases on our dockets cannot be tried by the usual formal means and resort to the court process should be reserved for those cases which must go to trial."
In referencing criticism of the judiciary on the speed and efficiency of trials, Sir Ian was not referencing anyone in particular.
However, some observers are likely to take note of the criticism in this regard made by Prime Minister Philip Davis last June.
"What is astounding to me, in my heyday of practicing law, I used to do murder cases in three days," Davis told reporters.
"If a murder trial takes a week, that's a long time. Trials for murders are now taking a month or two months. I still can't understand why trials take so long.
"That requires judges taking control of their court and controlling their court.
"At the end of the day, they need to get the cases done, finished, and if there is anyone that is aggrieved by any decision, there is another level to go to. That other level is a bit more efficient than the lower level. It's a very vexing issue."
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