Vanishing documents in Magistrates’ Courts raise concerns
“This happens too often in the Magistrates’ Courts… Clearly, something serious needs to be done to prevent injustices such as … persons getting their cases dismissed because of missing evidence.”
The recent dismissal of a causing death by dangerous driving charge against an attorney owing to the disappearance of vital documents from the case file has raised serious questions about the security of evidence and has opened discussions on how such occurrences ought to be treated.
In fact, Senior Counsel (SC) Ralph Ramkarran, while noting that the situation is cause for concern, believes that it warrants an investigation.
“In the case in question, the family and relatives of the deceased need an explanation and so does the public. There should be an inquiry and the results made public,” he told Sunday Stabroek in a recent interview.
The case against Keisha Chase was dismissed by Magistrate Allan Wilson on January 31st. Chase was charged with causing the death of Julian Leitch on November 10th, 2015, on Duncan Street, Georgetown.
The ruling came shortly after Magistrate Wilson ordered that the prosecution close its case after futile attempts to locate the original case file, a page from the statement of Constable Kwesi Carmichael and other documents which were ordered to be produced from the Attorney General’s (AG) Chambers.
The magistrate ruled that the absence of the documents rendered it impossible for Carmichael to continue his testimony, or for another rank, who photographed the scene of the accident, to give evidence.
It has not been made clear why the documents were at the AG’s Chambers and who had control and possession of them while the file was there.
Ramkarran, when contacted on the issue, said that it is a situation of much concern. While making it known that he doesn’t know much about the disappearance of evidence in the lower courts, since he does not practice there, he recalled that some years ago the disappearance of files from the Supreme Court was a serious problem. “It delayed the hearing of cases quite substantially,” he said, while explaining that in the High Court files can be reconstructed by the lawyers and therefore this sort of situation is no longer a problem. He said he became aware of the missing evidence in the case through the media.
“This happens too often in the Magistrates’ Courts… Clearly, something serious needs to be done to prevent injustices such as … persons getting their cases dismissed because of missing evidence,” he stressed.
The Senior Counsel noted that there should be foolproof systems in place to keep files intact and in the event that documents are found to be missing, an investigation should be conducted.
After the defence declined to cross-examine him, Carmichael’s evidence was deemed complete. The prosecution’s final witness, Mark Plant, was absent since he could not be located.
Chase’s lawyer, Roger Yearwood, made a no-case submission, which was upheld by Magistrate Wilson, who told the court that the prosecution failed to present any evidence that the defendant was driving in a manner dangerous to the public, and that she was driving with speed.
Sunday Stabroek reached out to Chambers of the Director of Public Prosecutions (DPP) via email correspondence on February 2nd for an explanation of what action it takes in such cases but there has been no response to date.
Documents were also discovered missing in the case of the Muslim Scholar who is accused of raping children. At that point, the accused, Nezaam Ali, had already been committed to stand trial in the High Court.
The mother of three of the boys allegedly raped by Ali had repeatedly called for an investigation to be launched into the disappearance of key documents from each of the files. This was never done. Instead, the DPP instructed Magistrate Alex Moore who had committed Ali to reopen the matter. Magistrate Moore, who resides in Berbice, has not appeared on the bench for the last two occasions when the matter was called. The matter is scheduled for hearing again on February 22.
Ali, of 268 Section ‘C’ 5 South Turkeyen, was charged in 2012 with raping nine boys.
When contacted, Chancellor (Ag) Justice Yonette Cummings-Edwards told Sunday Stabroek that files are reconstructed when documents are found to be missing. Asked to explain what reconstruct means, she said “we have copies of the documents put together.”
According to Justice Cummings-Edwards, apart from reconstruction, if it is felt that mischief is afoot, the police are called in. “Missing documents have not been a regular occurrence during my tenure at the helm of the judiciary but I know that the former Chancellor had cause to do so on two occasions,” she noted, while pointing out that the disappearance of documents is something that she is concerned about. “It is not regular though. Documents could be misplaced, because they are incorrectly or wrongly filed,” she added.
Asked about the recent case involving Chase, the acting Chancellor said that she could not publicly comment since she was not “briefed.”
Based on the explanations of the police’s Public Relations Officer, Superintendent Jairam Ramlakhan, there are safeguards in place to secure the documentary evidence in matters before the Magistrates’ Courts.
He explained that for cases being heard in the lower court, the court files are kept in the office of the Court Superintendent. He explained that each division has such a rank who is responsible for all files and case jackets pertaining to matters in that division. Noting that there will be more than one prosecutor in each division, Ramlakhan, a former prosecutor himself, explained that the prosecutor is responsible for collecting files from the Court Superintendent’s office and returning them. “A book in and book out system is in place,” he said before assuring that checks are made upon return that all the files are intact.
According to Ramlakhan, in the case of a preliminary inquiry, the magistrate records everything that is said by the witness and if the accused is committed to stand trial in the High Court, the police will forward their file with a report to the DPP and subsequently a state lawyer is appointed to prosecute the case in the High Court.
Prior to that, he said the police would be in possession of all the documents connected to the court matters. “Everything…,” he said, before adding that once the matter is committed to the High Court, the police forward all the documents to the DPP’s Chambers. He said that this is done as soon as practically possibly, bearing in mind that the police would have to compile a report on the entire proceedings to send along with the documents.
“The documents are sent to the commander and then they would forward them, through the necessary channels, to the DPP; that is the Commander to the Crime Chief, who would send the documents to the DPP,” he explained.
Once the matter is completed in the High Court, the DPP would return the file to the police for them to write up their records, he said.
“When it is returned to us with a conviction, there is a conviction form in the file which has to be filled out and sent to the criminal records office, so if you get a conviction and you go for a [police] clearance, it will show up,” he explained, before adding that if there is an appeal, the DPP will retain the file and then it will be returned to the Division because “remember you have to account for each crime, write up the records.”
Turning his attention to causing death by dangerous driving matters, he said that in most cases there will be an accident report file in the accident report booklet as well as a copy of the notice of intended prosecution and a copy of the caution statement. “Yeah, there are always copies, they would do that just in the event…,” he said noting that he has no details about what happened in the Chase matter.
Head of the Guyana Bar Association (GBA) Kamal Ramkarran, in an invited comment, told Sunday Stabroek that the matter of missing documents has never been raised with the association and he stated that he is not aware that this is something “prevalent.”
“As far as I know it is not an endemic problem. We haven’t heard anything, lawyers complaining or anything, so it is not something on our radar,” he said, before adding that the association would take up this matter if there is a complaint lodged by a lawyer. He noted that if this is the case the association would be in a position to raise the issue, for example with the Chief Magistrate, if the complaint involved a case or cases in the Magistrates’ Courts.
The attorney informed that what has started to happen in the High Court is that files are now being scanned. “So it is more difficult for things to get lost,” he said.