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Chief Justice Ivor Archie – FILE PHOTO/ROGER JACOB
NEW COURT rules have been made to allow the Office of the Director of Public Prosecutions to file an indictment electronically in the case of the murder of Senior Counsel Dana Seetahal in 2014.
The new rules are listed in practice directions, described as delegated legislation, issued by Chief Justice Ivor Archie on May 17 and published in the Gazette. Legal sources said the new rules cannot override the provisions of the Indictable Offences (Preliminary Enquiry) Act (IOPEA).
They will take effect on May 20. The new rules provide for filing an indictment electronically using the Judiciary’s online portal (SWIF).
The date coincides with the Judiciary’s commitment to provide over 8,100 pages of transcripts and original exhibits in Seetahal’s case to the DPP’s office.
The preliminary enquiry against the ten men accused of murdering Seetahal was completed in July 2020 by then-senior magistrate Indrani Cedeno, but the electronic files were only transmitted in three tranches to the Office of the DPP between December 20, 2023 and January 5, around the same time Cedeno was appointed a High Court judge.
The Judiciary said on May 4, in response to a newspaper report that the documents in the Seetahal file had not been sent to the DPP’s office: “For matters prior to December 2023, Section 25 of the Indictable Offences (Preliminary Enquiry) Act requires that committal bundles are transmitted to the DPP.”
Legal sources questioned the need for a practice direction if the Judiciary was of the view that electronic copies could have been used to file indictments for criminal matters predating December 2023.
In response to the Judiciary’s statement, on May 7, DPP Roger Gaspard, SC, said if he had used the electronic version of the committal bundle sent to his office by the Port of Spain District Court to file an indictment in the case of Seetahal’s murder, it would have resulted in the case being quashed.
Gaspard said then section 25 of IOPEA required that committal bundles be sent to him “without delay” at the end of a preliminary inquiry. There was no explanation from the Judiciary as to why it has taken almost four years to send over the hard-copy documents.
He said it was his duty to keep the bundle until an indictment was filed and then transmit it to the Registrar. Gaspard said the bundle comprised originals of the complaints, depositions or statements of witnesses, documentary exhibits, evidence of the accused, warrants of commitment for trial and recognisances of the witnesses.
He maintained the act did not contemplate the DPP’s filing a valid indictment based on copies, whether electronic or otherwise.
Gaspard said then since the conclusion of the preliminary enquiry, his office had made “numerous enquiries” about the delivery of the committal bundle, but was repeatedly told the delay was due to its size.
He said since January 5, efforts had been made to have the original committal bundle delivered to his office, but was advised the Judiciary said it could not be done before May 20.
Gaspard admitted that an electronic copy of the committal bundle had been sent to him, but said he did not understand why the Judiciary decided to take three years and five months to digitise it, rather than secure the 8,100 pages in bankers’ boxes and deliver them to his office, as required by law.
“I am grateful for that copy but the provision of such a copy does not comply with the IOPEA.
“I will need to have the original committal bundle in order to fulfil my statutory duties under the IOPEA and to file a valid indictment since expediency is not a source of law,” he said then.
The new rules say any requirement for committal bundles to be sent to the DPP under section 25 of the IOPEA will be satisfied by the Judiciary’s sending them to the DPP in electronic format by File Transfer Protocol, including Next Cloud.
It also says the DPP can transmit to the Registrar of the High Court committal bundles in electronic format by e-filing or uploading to the case centre the Judiciary’s electronic case presentation system as required by rules of court, law or court order.
The new rules do not refer to hard-copy original documents. It said when proceedings are recorded electronically using the method used by the Judiciary, the audio-digital or digital audio-visual recording as the source of truth “is the official record.”
“Any text transcript in which the recording may have been reduced into words by any means used by the Judiciary and certified by the person so transcribing is a transcript of the official record.”
The rules say any dispute to the accuracy of the text transcript can be verified against the recording and the court, as holder of the official record, was the “final arbiter of accuracy.”
All documents filed in the district courts and the Supreme Court must be filed electronically, the rules say. Manual filing is limited to exceptional circumstances and is to be determined and approved by the registrar of either court.
The rules say when an indictment is filed for matters under the IOPEA – which was superseded in 2023 by the Administration of Justice (Indictable Proceedings) Act which brought an end to preliminary inquiries – the court office will assign the case to a judge.
Once filed, copies of the complaint, witness statement and warrant of commitment must be filed by the prosecution and uploaded in the electronic case presentation system.
There is also a provision for filing copies of documents electronically. The rules reference the Electronic Transactions Act and the Evidence Act and say any document tendered into evidence to the district court in hard copy may be scanned and transmitted.
“Section 11 of the ETA is satisfied by the Judiciary’s retention of any document, which was tendered to the District Court, in electronic or non-electronic form. 3. “When a document is sent to or filed in court electronically, the data message transmitted electronically is the original. Any printed replica of that document is a copy.
“When information is created or filed in the court electronically, the data message transmitted electronically is the original. Any printed replica of that information is a copy.”
The new measures will take effect on May 20:
A. The Official Record of Court Proceedings
1. For the avoidance of all doubt, when proceedings are recorded electronically using the method used by the Judiciary, the audio digital or digital audio-visual recording as the source of truth is the Official Record.
2. Any text transcript in which the recording may have been reduced into words by any means used by the Judiciary and certified by the person so transcribing is a transcript of the Official Record.
3. If there is any dispute as to the accuracy of the text transcript, it may be verified as against the audio digital or digital audio-visual recording which remains the source of truth. The Court as the holder of the Official Record is the final arbiter of accuracy.
B. Electronic Filing
1. All documents filed in the District Courts must be filed electronically.
2. All documents filed in the Supreme Court must be filed electronically.
3. Notwithstanding (1) and (2) above, manual filing is limited to exceptional circumstances only as determined and approved by the Magistracy Registrar and Clerk of the Court or the Registrar as the case may be.
C. Proceedings instituted prior to the coming into force of the Administration of Justice (Indictable Proceedings) Act 2011 (hereinafter referred to as “AJIPA”) where no order is made under section 32A of AJIPA
1. The indictment must be filed electronically using the SWIF system provided by the Judiciary for the filing of indictments.
2. The filing of an indictment in proceedings of this category commences a case in the High Court.
3. On the filing of the indictment, the Court Office shall assign the matter to a Judge.
4. In keeping with Rule 7.8(6) of the Criminal Procedure Rules 2023, upon the filing of an indictment, copies of the following documents which were included in the committal bundle are to be filed by the prosecution:
The complaint or information;
Witness statements; and
The warrant of commitment
5. The following must be uploaded by the Prosecution into the electronic case presentation system in keeping with the template identifiers specified in Column 1 of Schedule 2 of the Practice Direction dated December 12, 2023.1
Filed copies of the complaint or information, witness statements tendered in the District Court, the warrant of commitments;
Transcripts of proceedings in the District Court;
Copies of any cautions to the accused, alibi warning; and
Other documents, videos, recordings, or other media on which the Prosecution intends to rely.
D. Transmission of records
1. In accordance with the ETA and section 14B(1) of the Evidence Act, any requirement for a document or record to be transmitted by the Judiciary to anyone or any agency is satisfied when it is transmitted electronically to the address or cloud location identified for this purpose.
2. In accordance with the ETA any document which was tendered into evidence to the District Court in hard copy may be scanned and transmitted electronically to the address or cloud location for this purpose. Section 11 of the ETA is satisfied by the Judiciary’s retention of any document, which was tendered to the District Court, in electronic or non-electronic form.
3. When a document is sent to or filed in the court electronically, the data message transmitted electronically is the original. Any printed replica of that document is a copy.
4. When information is created or filed in the court electronically, the data message transmitted electronically is the original. Any printed replica of that information is a copy.
5. For the further avoidance of doubt, any requirement for committal bundles to be sent to the Director of Public Prosecutions pursuant to section 25 of the PI Act will be satisfied by the Judiciary sending to the Director of Public Prosecutions in electronic format by File Transfer Protocol including Next Cloud.
6. Any requirement for committal bundles to be transmitted to the Registrar by the Director of Public Prosecutions pursuant to section 25 of the PI Act will be satisfied by the Director of Public Prosecutions sending to the Registrar in electronic format by efiling or uploading to Case Center, the Judiciary’s electronic case presentation system as required by rules of court, law or court order.
