act no. 10 of 2017 · this act may be cited as the miscellaneous provisions (trial by judge alone)...

BILL

AN ACT to amend the Supreme Court of JudicatureAct, Chap. 4:01, the Summary Courts Act, Chap. 4:20, the Offences Against the Person Act,Chap. 11:08 and the Criminal Procedure Act,Chap. 12:02 and for related matters

[Assented to 7th July, 2017]

ENACTED by the Parliament of Trinidad and Tobago asfollows:

Enactment

Second Session Eleventh Parliament Republic of Trinidad and Tobago

REPUBLIC OF TRINIDAD AND TOBAGO

Act No. 10 of 2017

[L.S.]

Legal Supplement Part A to the “Trinidad and Tobago Gazette”, Vol. 56,No. 72, 13th July, 2017

1. This Act may be cited as the Miscellaneous Provisions(Trial By Judge Alone) Act, 2017.

2. This Act shall come into operation on such date asis fixed by the President by Proclamation.

2A. (1) The Supreme Court of Judicature Act isamended in section 44(1), by inserting after the word“jury” the words “or Judge as the case may be,”.

(2) The Court of Appeal Rules are amended inAppendix C in Criminal Form II, in item (4), by inserting after the word “Jury” the words “/Judge”.

2B. Section 100 of the Summary Courts Act is amended—

(a) in subsection (3), by inserting after theword “jury” the words “or by a Judgealone”; and

(b) in subsection (4), by inserting after theword “jury” the words “or by a Judgealone”.

3. The Offences Against the Person Act is amended—(a) in section 4A—

(i) in subsection (6), by deleting fromthe words “require the jury” to theword “known” and substituting thewords “require the jury or theJudge as the case may be, todeclare whether the accused was soconvicted by them or by him on theground of such abnormality of mindand, if the jury declare or the Judgedeclares, that the conviction was onthat ground, the Court may insteadof passing such sentence as is provided by law for that offence,

Chap. 4:01 amended

Chap.11:08 amended

Chap. 4:20 amended

Commencement

Short title

300 No. 10 Miscellaneous Provisions (Trial by Judge Alone) 2017

direct the finding of the jury or theJudge to be recorded and there-upon the Court may order such person to be detained in safe custody, in such place and manneras the Court thinks fit until theCourt’s pleasure is known”; and

(ii) by repealing subsection (7)and substituting the following subsections:

“ (7) Where the Court makesan order of detention undersubsection (6), the Judgeshall, within fourteen days ofmaking the order, determinewhat he considers to be theappropriate minimum periodof detention to be served andgive his reasons.(8) In determining the

appropriate minimum periodof detention pursuant to subsection (7), the Judgeshall take into account—

(a) the penal objectivesof retribution andgeneral deterrence;

(b) the seriousness of theoffence;

(c) the principle of i n d i v i d u a l i z e d sentencing;

(d) any aggravating ormitigating factors;

(e) any victim impactstatements submittedto the Court; or

No. 10 Miscellaneous Provisions (Trial by Judge Alone) 2017 301

(f) any other relevantmatters.

(9) For the purposes of subsection (8)(d), aggravatingfactors include—

(a) planning and premeditation;

(b) the killing of a child,senior citizen, d i f f e r e n t l y - a b l e d person or otherwisevulnerable victim;

(c) evidence of sadism,gratuitous violence, orsexual maltreatment,humiliation or degradation beforethe killing;

(d) killing for gain in thecourse of burglary,robbery, blackmail,insurance fraud orother offence;

(e) multiple killings;(f) the killing of a witness or potentialwitness to defeat thecourse of justice;

(g) the killing of any person doing his public duty, includinga judicial officer, amember of theDefence Force or theProtective Services, acustoms officer, animmigration officer ora postal worker;


(h) terrorism or politically motivatedkillings;

(i) the use of firearms orother dangerousweapons, whether carried for defensiveor offensive reasons;

(j) a record of seriousviolence; and

(k) attempts to dismemberor conceal the body.

(10) For the purposes of subsection (8)(d), mitigating factors include—

(a) age;(b) provocative words oracts on the part of thevictim;

(c) absence of an intention to kill;

(d) spontaneity and lack ofpremeditation (beyondthat necessary to constitute the offence);

(e) mercy killing;(f) plea of guilty; and(g) hard evidence ofremorse or contrition.

(11) An order of detentionunder subsection (6) shall bereviewed by a Judge of theHigh Court in accordancewith this section.


(12) A person in respect ofwhom an order of detention ismade under subsection (6)may appeal to the Court ofAppeal against—

(a) the determination ofan appropriate minimum period ofdetention under subsection (7); or

(b) a decision of a Judgeupon the review of theorder of detentionunder this section.

(13) For the purposes of areview under subsection (12),the Commissioner of Prisonsor the head of the institutionin which the person isdetained, as the case may be,shall transmit to theRegistrar of the SupremeCourt the following documents, which shall beprepared in respect of eachyear following the making ofan order of detention undersubsection (6), or in respect ofsuch shorter interval as theCourt may, in exceptional circumstances, order:

(a) a full report addressing—(i) the conduct ofthe person during hisdetention;


(ii) the response ofthe person to the punishmentand to any c o u n s e l l i n g provided to, orrehabi l i tat ivep r o g r a mm e sengaged in by,the person;

(iii) the attitude ofthe persontowards theoffence for which he was convicted; and

(iv) the response ofthe person toany moral or religiousteaching,

and containing suchrecommendations forthe guidance of theCourt as theCommissioner ofPrisons or the head ofthe institution, as thecase may be, thinksfit;

(b) an up-to-date mentalassessment reportfrom a psychiatrist;

(c) such other information derivedfrom the record of thecase or otherwise asthe Court mayrequire.


(14) The Commissioner ofPrisons or the head of theinstitution, as the case maybe, shall ensure that—

(a) information providedunder subsection (13)and relating to theprogress and development of a person detained underan order made undersubsection (6) is generated by the appropriatedepartment in theprison or institutionat yearly intervals orsuch shorter intervalsas the Court may, in exceptional circumstances, order;

(b) the documentsreferred to in subsection (13) aretransmitted to theRegistrar of theSupreme Court withinthree months from—(i) the anniversaryof the making ofthe order; or

(ii) the end of anyshorter intervalordered by theCourt underparagraph (a);and


(c) copies of the documents referred toin subsections (13)and (15) are sent tothe Director of PublicProsecutions and,where applicable, theA t t o r n e y - a t - l a w representing thedetained person.

(15) The Commissioner ofPrisons or the head of theinstitution, as the case maybe, shall ensure that the mental assessment reports inrespect of each period of threeyears or such shorter periodas the Court may, in exceptional circumstances,order, are independentlyreviewed by a psychiatristand that the report of thatpsychiatrist is transmitted tothe Registrar of the SupremeCourt within three monthsfrom—

(a) every third anniversary of themaking of the order;or

(b) the end of any shorterinterval ordered bythe Court under subsection (14)(a).

(16) Within fourteen days ofreceiving documents referredto in subsections (13) and (15)in respect of a period of threeyears or such shorter periodas the Court may, in


exceptional circumstances,order, the Registrar of theSupreme Court shall forwardthose documents to the ChiefJustice.(17) The Chief Justice shall,within fourteen days ofreceiving documents undersubsection (16), assign aJudge of the High Court toreview the matter and theJudge shall, within twomonths of receiving those documents, review the matter.(18) Where a Judge is notassigned pursuant to sub-section (17), any party mayapply to the Court for a Judgeto review the matter in accordance with this section.”.

(b) in section 4B—(i) by inserting after the word “jury”wherever it appears the words “orJudge, as the case may be,”; and

(ii) by deleting the words “their opinion” and substituting thewords “their or his opinion”;

(c) by repealing section 19 and substitutingthe following section:

19. If, upon the trial of any person for an offence under section 17—

(a) the jury are not satisfied that suchperson is guilty of

“On indict-ment undersection 17jury or Judgemay find verdict undersection 18


that offence but aresatisfied that suchperson is guilty of an offence under section 18; or

(b) the Judge is not satisfied that suchperson is guilty of thatoffence but is satisfiedthat such person isguilty of an offenceunder section 18,

then and in every such case thejury or the Judge may acquit theaccused for the offence under section 17 and find him guilty ofthe offence under section 18 andthereupon he shall be liable to bepunished in the same manner as ifconvicted upon an indictment forthe offence under section 18.”; and

(d) in section 58, by inserting after the word“jury” the words “or the Judge, as the casemay be,”.

4. The Criminal Procedure Act is amended—(a) by repealing section 6 and substituting thefollowing section:

6. (1) Every person againstwhom an indictment has beenfiled shall, subject to the provisions of this Act, be tried by aJudge and jury unless he elects tobe tried by a Judge alone.

“Mode of trial

Chap. 12:02 amended


(2) At the first hearing afteran indictment has been filed, aJudge shall inform the accusedperson that he may elect to betried by a Judge and jury or by aJudge alone, unless the accusedperson indicates an intention toenter a plea of guilty.

(2A) An accused person whoindicates an intention to enter aplea of guilty shall be dealt with inaccordance with section 61 andthe Criminal Procedure Rules,2016.

(3) Where the accused person does not make an electionat that hearing, he shall file hiselection with the Registrar of theSupreme Court and serve a copyon the prosecution within sixtydays of the adjournment of thatmatter, or before such later dateas the Court may order.

(4) The Court shall make anorder that the accused person betried by a Judge alone if it is satisfied that the accused person—

(a) has sought andreceived legal advicefrom an Attorney-at-law in relation to atrial by a Judge alone;and

(b) has filed with theRegistrar of theSupreme Court a

L.N. No. 55 of2016


certificate in the formset out as Form 31 ofthe First Schedule.

(5) Where an accused person does not wish to be represented by an Attorney-at-lawand elects to be tried by a Judgealone, the Court shall make anorder that the accused person betried by a Judge alone if it is satisfied that the accused person—

(a) is competent and haswaived his right toconsult an Attorney-at-law for legal advicein relation to a trial bya Judge alone; and

(b) has filed with theRegistrar of theSupreme Court a certificate in the formset out as Form 32 ofthe First Schedule.

(6) The Court shall notmake an order for a trial by aJudge alone unless it is satisfiedthat—

(a) in the case of a jointtrial, all other accusedpersons have electedto be tried by a Judgealone and eachaccused person hasfiled a certificate inthe form set out asForm 31 or 32 of the


First Schedule, as thecase may be, in accordance with sub-section (4) or (5); and

(b) where two or morecharges are to be triedtogether, the accusedperson has elected tobe tried by a Judgealone in respect of allof the charges.

(7) Subject to subsection (8)—(a) where the Courtmakes an order undersubsection (4) or (5),the accused personmay subsequentlyapply to the Court fora trial before a Judgeand jury;

(b) an accused personwho elected to be triedbefore a Judge andjury pursuant to sub-section (2) or (3) maysubsequently apply tothe Court for a trial bya Judge alone; or

(c) where the first hearing after the filing of an indictmentagainst an accusedperson took placebefore the coming intoforce of the


M i s c e l l a n e o u sProvisions (Trial byJudge Alone) Act,2017—(a) the Registrar ofthe SupremeCourt shall causeto be served on the accused person, a noticeinforming himthat he may, atleast sixty daysbefore the datefixed for his trial,apply to the Courtfor a trial by aJudge alone; and

(b) the accused person may, subject to sub-section (8), applyto the Court for atrial by a Judgealone.

(8) An application undersubsection (7) shall be made atleast sixty days before the datefixed for trial.

(9) Where an accused person makes an application inaccordance with—

(a) subsections (7)(a) and(8), the Court shallmake an order grantingthe application; or


(b) subsection (7)(b) or (c)and subsection (8), theCourt shall, subject tosubsections (4), (5)and (6), make anorder that the accusedbe tried by a Judgealone.”.

(b) by inserting after section 6, the followingsections:

6A. In a trial by a Judge alone,the Judge shall have the power,authority and jurisdiction whichhe would have had in a trial byjury, and the power to determineany question and to make anyfinding which would have beenrequired to be determined or madeby a jury.6B. (1) Except where the context otherwise requires, a reference in this Act or any otherwritten law to a jury, the verdictof a jury or the finding of a juryshall be read, in relation to a trialby a Judge alone, as a reference tothe Judge, the verdict of the Judgeor the finding of the Judge, as thecase may be.

(2) For the purposes of atrial by a Judge alone, the provisions of this Act or any otherwritten law, insofar as they arepredicated on a trial with a jury,shall be read and construed withsuch modifications, adaptations,qualifications and exceptions as

“Jurisdictionof the Judge

References to jury in written laws


may be necessary to bring theminto conformity with a trial by aJudge sitting alone without ajury.”;

(c) in section 37, by deleting the words “ordera jury for the trial of the accused personaccordingly” and substituting the words“ , unless it makes an order under section 6(2), shall order a jury for the trialof the accused person accordingly.”;

(d) by inserting after section 42A, the following section:

42B. (1) When the case on bothsides is closed in a trial by Judgealone, the Judge shall, as soon asreasonably practicable and in anyevent before the expiration offourteen days, deliver his verdictand, in the case of a conviction, heshall give a written judgmentstating the reasons for his verdictat the time of conviction.

(2) A judgment by a Judgein any such case shall include theprinciples of law applied by theJudge and the findings of fact onwhich the Judge relied.

(3) If any other lawrequires a warning to be given to ajury in any such case, the Judge isto take the warning into accountin dealing with the matter.

(4) Subject to sub-section (5), where an accused person is acquitted in a trial by aJudge alone, the Judge may givereasons for his verdict.

“Judge to givereasons fordecision


(5) Where the prosecutionrequests reasons for an acquittal,the Judge shall give reasons within fourteen days of thatrequest.

(6) Where a Judge fails todeliver his judgment, or give reasons for an acquittal, withinthe period specified in sub-section (1) or (5), as the case maybe, he shall convene the Court andinform the parties of the timerequired for the completion of thetask.”;

(e) in section 62—(i) in subsection (2), by deleting thewords “a jury” and substituting thewords “a Judge”;

(ii) by repealing subsections (3), (4)and (5);

(iii) by repealing subsection (6) and substituting the following subsection:

“ (6) The question whetherthe woman is pregnant or notshall be determined by aJudge, on written or oral evidence of at least two medical practitioners and theburden of proof shall be on theperson alleging pregnancy.”;

(iv) in subsection (7), by deleting thewords “jury find” and substitutingthe words “Judge finds”;


(f) in section 63—(i) by repealing subsection (2) andsubstituting the following subsection:

“ (2) Where upon the trial ofa woman for the murder ofher child, being a child underthe age of twelve months, thejury are or the Judge is, asthe case may be, of opinionthat she by any wilful actcaused its death, but that atthe time of the act the balanceof her mind was disturbed byreason of her not having fullyrecovered from the effect ofgiving birth to the child or byreason of the effect of lactation consequent upon thebirth of the child, then thejury or the Judge may,notwithstanding that the circumstances were such thatbut for this section they or hemight have returned a verdictof murder, return in lieuthereof a verdict of infanticide.”;

(ii) in subsection (3), by inserting afterthe word “jury” the words “or theJudge, as the case may be,”; and

(iii) by inserting after subsection (3),the following subsection:(4) In a trial by a Judge alone,

the Judge shall, at the time of making a decision pursuant to thissection, give his reasons for thatdecision.”;


(g) by repealing section 64 and substitutingthe following section:

64. If any accused personappears, on arraignment, to beinsane, the Judge on written ororal evidence of at least two medical practitioners may, findwhether such person is or is notinsane and unfit to take his trial,and the Judge shall, at the time ofmaking a decision pursuant tothis section, give his reasons forthat decision.”;

(h) in section 65, by repealing subsection (1)and substituting the following subsection:

“ (1) If, during the trial of an accusedperson, such person appears, after thehearing of evidence to that effect orotherwise, to the jury or the Judge, asthe case may be, before whom he istried, to be insane—

(a) the Court shall in suchcase direct the jury to; or

(b) the Judge before whom heis tried shall,

abstain from finding a verdict uponthe indictment, and, in lieu thereof, toreturn a verdict that such person isinsane.(1A) In a trial by a Judge alone, the

Judge shall, at the time of making adecision pursuant to this section, givehis reasons for that decision.”;

(i) in section 66, by inserting after the word“jury” wherever it appears the words “orJudge, as the case may be,”;

“Procedurewhere personappears onarraignmentto be insane


(j) in section 67, by inserting after the word“jury” the words “or Judge, as the case maybe,”;

(k) in section 68, by deleting the word “jury”and substituting the word “Judge”; and

(l) in the First Schedule, by inserting afterForm 30, the following forms:

“FORM 31[Section 6(4)]

(This Form applies if the Accused is represented by an Attorney-at-law)


NO.A. B.—The State

v.C. D. — The Accused

CERTIFICATE OF CONFIRMATION OF LEGAL ADVICE ON ELECTINGTRIAL BY JUDGE ALONE

I, ……………. the Accused, confirm that I have sought and received advice from theundersigned Attorney-at-law on electing to be tried by a Judge alone. The under-signed Attorney-at-law has advised me of my rights, of possible defences, of thepenalties and of the consequences and the implications of electing to be tried by aJudge alone. I have had sufficient time to confer with the undersigned Attorney-at-law concerning this mode of trial. I understand the implications of electing to betried by a Judge alone and agree to this mode of trial without reservation. No promise, inducement, threat, coercion or force of any kind was employed to securemy election of this mode of trial. I voluntarily and of my free will agree to it.

Dated this.......................... day of ..................................................... , 20.................

………..............…………. ………………………......…………..Name of Accused Name of Attorney-at-law

(BLOCK LETTERS) (BLOCK LETTERS)

(Signature) (Signature)

…………………………….. ……………....................Accused Attorney-at-law


FORM 32[Section 6(5)]

(This Form applies if the Accused is not represented by an Attorney-at-law)


No.A. B.—The State

v.C. D.—The Accused

CERTIFICATE OF WAIVER OF LEGAL ADVICE ON ELECTING TRIAL BYJUDGE ALONE

I, …………. the Accused, confirm that I have not sought and received advice from anAttorney-at-law on electing to be tried by a Judge alone and I have waived my rightto consult an Attorney-at-law for legal advice in relation to a trial by Judge alone. Ielect to be tried by a Judge alone and agree to it without reservation. No promise,inducement, threat, coercion or force of any kind was employed to secure my electionof this mode of trial. I voluntarily and of my free will agree to it. I am satisfied withrepresenting myself in this matter.

Dated this.......................... day of ....................................................., 20.................

……………..……….. Name of Accused(BLOCK LETTERS)

(Signature)……………………………..

Accused ”.

5. (1) This Act applies to an indictment for which thetrial has not begun under the Criminal Procedure Act.

(2) This Act does not apply to any trial on indictment that began under the Criminal ProcedureAct prior to the commencement of this Act.

Application

Chap.12:02


Passed in the Senate this 22nd day of June, 2017.

B. CAESARClerk of the Senate (Ag.)

Passed in the House of Representatives this 28th dayof June, 2017.

J. SAMPSON-MEIGUELClerk of the House

PRINTED BY THE GOVERNMENT PRINTER, CARONIREPUBLIC OF TRINIDAD AND TOBAGO—2017


act no. 10 of 2017 · this act may be cited as the miscellaneous provisions (trial by judge alone)...

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