By ANDRE BAGOO and CLINT CHAN TACK Wednesday, January 29 2014
INDEPENDENT Senator Anthony Vieira yesterday related a deeply personal account of why he voted in favour of the Bail (Amendment) Bill 2013 as the Senate heard chilling accounts of incidents surrounding re-offenders in society which have caused the criminal justice system — and citizens hoping for justice — to be beset by fear.
The legislation, which will return to the House of Representatives with amendments next month, proposes to deny persons who have convictions for violent offences bail if they are subsequently charged. During the Committee Stage of the legislation Vieira, an attorney, recalled when he used to practice in the criminal courts.
“I once had a client who was charged with cutting up a woman,” Vieira told Senators. “I got him off. A year later, he was before the court again. He had sliced up another woman. She was killed.” As the chamber fell silent, Vieira added, “so I understand recidivism”.
Vieira has been a practising lawyer since 1983 in civil, industrial, family and criminal law. In the British Virgin Islands, he worked as senior crown counsel in the Attorney General’s chambers, where he prosecuted serious and complex criminal offences and worked closely with the Inspector of Banks and Trust Companies in the regulation of off-shore financial services. The Independent Senator said he was in support of the legislation in principle, but expressed concern that its original form — denying bail for an initial120 days and then even after the case has started — would have been unconstitutional since it effectively resulted in a “Guantanamo Bay” situation of indefinite detention.
“That would be an unconstitutional deprivation of liberty,” Vieira said. “I don’t like the idea of indefinite detention... My real concern is that you could have a Guantanamo Bay situation.” He noted a prosecution attorney, under the original proposal, only had to start the process of leading evidence in a matter within the first 120 days and this would result in the repeat offender staying behind bars indefinitely. Vieira argued that while the State had to act on crime, there was a need for a balance of interests. He said the State could justify detaining a repeat offender for 120 days, but beyond this would be going too far.
“Hold the guys for 120 days,” the Independent said. “We are talking about a balancing and as a fulcrum is the idea of the separation of powers. I feel that after 120 days you pass the mark. Hold him for 120 days. And either way he has the right to appeal and the prosecution has a right to appeal.”
Attorney General Anand Ramlogan gave an account of one case which he said involved a juror complaining that criminal elements sought to intimidate her, through her daughter. Ramlogan also said crime in TT has deteriorated to a level where criminals are posting videos on line.
“Over the weekend it was brought to my attention that if you go on You Tube you will see that we are worldwide becoming infamous on You Tube,” Ramlogan disclosed.
“Our gangsters now are making You Tube videos and they are linking with international crime syndicates and it is on You Tube.” Rejecting a criticism from Independent Senator Helen Drayton that the legislature must not react to fear pervading in society, Ramlogan asked, “You are saying to the nation that you don’t think that fear is a factor that permeates our entire society?”
Drayton replied, “I am saying that fear is a factor that permeates our society, but fear is not going to make me pass a law that is dictated by criminals.” Saying she would pass a law that is reasonable and in the context of the Constitution, Drayton stated, “I don’t think our judges operate on the basis of being intimidated by criminals. I believe we cannot do the work of the police.”
Ramlogan replied, “The reality is that we are not asking the Parliament to do the work for the police. We are asking Parliament to be fair to the police.”
“I am not saying the Judiciary or anyone else is operating on the basis of fear. I am saying that fear has permeated the subconscious of our society and it applies to every single man and woman and every single institution without exception,” Ramlogan said. “Judges and magistrates are not immune to fear. You think when they go home, they don’t worry about their wife and their children?”
Ramlogan cited one trial which he said a judge had brought to his attention. The Attorney General said the case involved one of robbery with violence and rape of a young girl and several persons were charged. One day, in the middle of the trial, a female juror noticed a man with a red handkerchief tied around his neck and a scar on his left cheek. This man had reportedly approached the woman’s daughter at school one day, buying her entire group of friends lollies from a vendor who plied his trade through a hole in the fence of the school compound. The judge told the woman juror he could not do anything about that.
The Attorney General said a psychological message was clearly being sent to the juror. He sought to show how this situation was linked to repeat offenders being granted bail, thereafter allowing them to intimidate witnesses, jurors and to re-offend.
Independent Senator Elton Prescott SC worried whether the legislation — which passed with amendment and now returns to the House of Representatives — would be too harsh and would be unsuitable for cases of mistaken identity.
“Mistaken identity is not unheard of in Trinidad and Tobago,” Prescott said. “In fact, it may very well be common.” He said in this situation it was important that the accused repeat offender be allowed to appear in court.
However, Ramlogan denied that such cases were common and said there was a separate legal procedure to deal with cases of mistaken identity.
(See page 5)