Episode Transcript
[00:00:01] Speaker A: The best insight, instant feedback, accountability. The all new Talk Radio Freedom 106.5.
[00:00:08] Speaker B: We are talking about sufficiency hearings.
So I'm gonna start from that point. What is a sufficiency hearing?
[00:00:19] Speaker A: Yes.
So essentially in the past that would have been what we call the preliminary inquiries. So we have two things, different types of matters generally, which would be the summary offences and the indictable offences.
It could be either way as well. And then the prosecution would elect which way they would want to go. But for the indictable offences, what usually occurs? Well, let's start. In the past they would have to go through the preliminary inquiry to determine if there's sufficient evidence to move forward if the prosecution has made out a prima facie case, essentially. And that previous process meant that you could call witnesses, cross examine. So it was kind of like a trial before the actual trial.
The issue with that is now that it took a lot of time and then you had the magistrate doing all these preliminary inquiries and then which would last seven, 10 years and then you have to go to your actual trial, which would then take a number of years as well. Accordingly.
[00:01:20] Speaker B: So prima fasi. First of all, I just wanted to find out what is the definition of that and how does that apply?
All right, so that is the initial hearing where all of the points are brought to the court.
[00:01:38] Speaker A: Right. So just to continue, it changed now to a sufficiency hearing. And when we say a prima facie case, it isn't that you're going to try to prove that the person is guilty beyond a reasonable doubt. It's just that the prosecution has to show that they have at least their case taken at the highest, satisfy the essential elements of the offense and there's even a case to try in the first place. So it's kind of like a sifting process to sift all the matters. That doesn't even make sense to go to trial essentially. And once you cross that bull, then you go to the actual trial you could elect for a judge, judge and jury.
And the case will have to, you call all your witnesses, et cetera, to determine if the person is guilty beyond a reasonable doubt. Now it changed to a sufficiency hearing with the introduction of ajipa.
And that in essence, essentially amount of time that this entire process would take. So now you no longer have to call all the witness and then defense counsel, cross examining, etc, trial in itself, quite literally, what they now do with AJPR is essentially shorten that process. All these statements, all the evidence of the states would usually be tendered electronically, so it is even done online and they will send all your statements and then defense counsel, the prosecution, can make submissions to determine. Well, they. We would be saying, there's no case to answer. There's no case. This shouldn't move forward to trial. The prosecution would be saying, yeah, there's enough evidence, it should move forward to trial. And at the end of it, the master will determine if the person would be discharged and that will just be the end of it, or if it will move forward to trial.
[00:03:19] Speaker B: So in essence, what would you need to have when entering the sufficiency hearing?
[00:03:26] Speaker A: Right. So that will all depend on the type of the offence.
So if it's murder, you would have to show several things. You have to show that the person was probably there at the time, all the elements of murder, if it was. Lastly, you would have to show that there is the elements of last name. Obviously, you don't have to prove it at the high threshold as if it was the actual trial beyond a reasonable doubt. You just have to show that there's a prima facie case, that at the highest, there's something that we should try, that's something that should be brought before the jury, something that should be brought before the judge to determine if this person is actually guilty of this offense.
Or alternatively saying, well, we should sift this out. It doesn't even make sense to move forward to the actual trial.
[00:04:09] Speaker B: Yeah. Wouldn't that be done even before reaching the sufficiency hearing? Because the evidence would have to be gathered. What would be. Well, you said the purpose is to sift it out, but how much more sifting would you need to do? If you said that you have the initial evidence.
[00:04:27] Speaker A: Right. So that's completely up to the prosecution. So they could arrest somebody if they see fit, and now it's up to them to prove that they have evidence to actually move forward with the process. Because a lot of times they possibly arrest a person and then when you get to the bottom of it, there isn't even sufficient evidence to move forward. So that's what we are trying to tell them. You arrested this person, but you don't have enough evidence to move forward, quite literally. So what usually happens is when the person is arrested, we have an initial hearing. That's what it's called in the Act. In the initial hearing, bail considerations are done to determine if the person would be granted bail. And the master will issue the scheduling order. In that scheduling order, it will state that the file with all the evidence that you have has to be sent to the director of public prosecutor. By this particular date they have to serve the indictments. By this date they have to serve all their statements, all their evidence and give full disclosure to defence counsel, the accused. By this particular date, if the person could afford a private attorney, well they will just retain their private attorney. If they can't, the master could also make an order saying that this person should be granted a public defender, which is essentially a legally an attorney.
There's a whole department dedicated to doing just that. So it isn't just like we're giving them a random attorney, persons who dedicate their life to being public defenders to do that. And then we come back for status here to determine if all these things are done and then we move to the sufficiency hearing. Right?
[00:05:56] Speaker B: That could take a good, good amount of time.
[00:05:59] Speaker A: So actually it sets the time so it usually is done within a year. So that changed from the past process where the preliminary inquiry would usually be years to know where I'm doing sufficiency hearings. That happened in January 2025 because the Saturn is two months period. You have to do these things and then if you want more time, you'll obviously have to make an application for an extension of time.
If you don't do that, then defence counsel could then make an application and say, well, I want my client to be discharged for non compliance by the prosecution because they haven't even given me disclosure. We haven't received the indictment, why are we still here?
[00:06:40] Speaker B: How do you explain disclosure? What does that mean?
[00:06:44] Speaker A: Right, so disclosure, as when someone is arrested, the prosecution, the police officers will then have to gather their evidence.
It will be the statements of the complainant, statements of eyewitnesses. If they have it, if they send it to forensics to get the certificate of analysis.
If they recovered a firearm, they'll have a picture of the firearm and send it to defence counsel as well. So all the evidence that the state have in the matter, they have to, they have a duty to disclose that to defence counsel even if they're not going to use the material. So they also have to disclose unused material as well. So for instance, they may have taken a statement from an individual who was there, but they don't intend to use that statement. But when we get it we realize, well, this person was saying is somebody else. So they have a duty to disclose all the evidence that they have. In this particular, there's some exceptions, but generally they have a duty to disclose all the evidence that they have. The station diary extracts the pocket diaries of the police officer, the Statements of all the eyewitnesses, what they recovered from CERE, what they recovered from forensics, etc.
[00:07:53] Speaker B: Now if it is in the process, you realize that a piece of information comes up after the disclosure period, how is that dealt with?
[00:08:03] Speaker A: Right. So they would have to disclose by particular date, but their duty to disclose is ongoing. So whenever, if they get it after a particular time, they will disclose it to the defence counsel and then they will indicate to the court and to us, well the only reason we're now giving you this is because we just got it. Because as we know, they could submit the exhibits to forensics and then it will take a while for them to get it back. So whenever they get that back, they'll disclose it as they get it because they have an ongoing duty of disclosure.
[00:08:32] Speaker B: Now in the process, how does a defense attorney, once you've gotten that disclosure, go through the process of building that case to defend your clients?
[00:08:46] Speaker A: So as I explained, there's two parts of this entire process. Firstly, the sufficiency hearing. And then if you go to the actual trial at the sufficiency hearing, what we will do is generally we'll wait to see what are the statements that the state is going to tender and then we'll get make our submissions on that. If we want to call a witness to say, well my client wasn't there at the trial. So for instance, there's also alibi and Lisa was charged for a murder that was alleged to have occurred on January 1, 2024.
Actually at the initial hearing, the master has to give an alibi notice indicating that the person has to let the court know if they are going to rely on any alibi, any witnesses that they would be calling, they could give it to the court at the sufficiency or they could serve it a notice to the director of public prosecutor. And alibi is essentially saying, well on January 1st, I was in New York, I was traveling with my family and I have all my family members, my mother, my father, my sister, who would be able to say that I was in New York at that date at that time. So it could not have been me who committed that crime. So we will essentially be looking at all the evidence to scrutinize it because we, we will then at the trial have the opportunity to cross examine all the witnesses of the state if we decide to.
And then if we're going to put forward a defense like self defense, or if they're going to say it's provocation or alibi, we have the ability to call witnesses as well, so what defence counsel usually does is we will obviously scrutinize the evidence that the state puts forward and then mount our defense based on the instructions of our clients.
[00:10:30] Speaker B: And how long does that process normally take? I mean, in terms of the complaints on how the judicial. That system goes, it takes a very long time. But on average, how long is it supposed to take?
[00:10:42] Speaker A: Yes. So the sufficiency hearing should take like about a year, because usually does the timeline that the court sets. So as I said, I did a sufficiency hearing just last week.
Matter that happened in 2025, January 2025. So the sufficiency here, and I don't think that we should not overlook how much that reduced the time that that process would usually take. And then previously the preliminary inquiries would have been conducted by a magistrate. And we know that the magistrate courts are already overburdened. And then you have the magistrate also doing preliminary inquiries, which is also taking up a lot of time. And those preliminary inquiries, inquiries going on for years. If you even look at the preliminary inquiry into the murder of Dana Sitala that went on for years.
[00:11:31] Speaker B: Well, this is what. Because I just recognize that you say you did a sufficiency hearing just this week.
[00:11:37] Speaker A: Yeah.
[00:11:38] Speaker B: For something that happened last year in January.
[00:11:41] Speaker A: This year in January 2020.
[00:11:43] Speaker B: Well, yeah, we're in 20 still. Yeah, I think can be in 26 already.
[00:11:46] Speaker A: The only time the scheduling order is usually set for a.
[00:11:50] Speaker B: A year.
[00:11:51] Speaker A: Right. So they say you have three months. That's the timeline. It isn't usually I'm giving you a year to send the files in. No, that's not usually how it is.
If the prosecution wants extensions because they, they're probably experiencing some difficulties, they can make an application to get the extension of time.
Usually the act provides that they should make a written application before the before deadline actually lasts. But sometimes they come on the day and ask oral applications for an extension of time because we know that the prosecution is. They are overworked. There are very few prosecutions. I mean, the police officers, a lot of exhibits go to forensic. So we recognize the challenges that they face. So only then it will be extending a bit further, but generally is within a year, the sufficiency hearings are being conducted.
[00:12:44] Speaker B: And this is not the same as the preliminary inquiry.
[00:12:47] Speaker A: So we abolished. Well, we didn't fully abolish it. There are still some. And they could elect to move across to the sufficiency hearing because obviously we're in the transition period. But for the most part, preliminary inquiries are a thing of the past. And the sufficiency hearings for the indictable offenses is what will has replaced.
[00:13:07] Speaker B: Okay. And from these sufficiency hearings, if there is enough evidence, then it goes into the trial. Trial.
[00:13:17] Speaker A: Okay. So from then, at the end of the sufficiency, the master will indicate that while you're being committed for this particular offense, and we will consider bail fresh at that point as well. And they will also indicate which judge, which judge the matter will be going before. And then we will go to pre trial reviews where is essentially like case management to ensure that everything is ready for the trial. Then we go to the trial where we select the jury, opening statements, receive the evidence, et cetera.
[00:13:49] Speaker B: All right, we've got some calls coming in. 625, 2,257. 627. 3,223. If you have questions for Ms. West. Good morning.
[00:13:57] Speaker A: Good morning, Ms. Tusker. Good morning to your guests, Princess Tongue.
Mrs. West, I wanted to find. You said that at the sufficiency hearing you can make an application for bail.
[00:14:12] Speaker B: Can you repeat that question, please?
[00:14:15] Speaker A: At the sufficiency hearing, you can make an application for bailiff if somebody's charged for murder, Is that correct? Yes. So what usually happens is at the initial hearing, the person has to make the application for bail then. But once the master determines that there's enough evidence to move forward with the trial, then bail has to be considered afresh at that point as well. So then you'd have to make a fresh application for bail, indicate, well, at all the time this person was coming to court, there's no reason why the bail shouldn't continue per the act. So as mandated by the act, a fresh bail application, once the master determines that there is enough, Enough evidence has to be made at that point.
My second question is how or where does, or if at all on the part of a defense can.
Can. Can use, or attempt to use insanity in. In his defense, how that works, and so on. Can you? Yeah. So that's usually a matter for trial.
And they will have to show that that person was under that insanity at the time of the offense. Because we know sometimes persons might have schizophrenia or some.
Some medical condition that may not be for the entire period. It may come and go. So that's usually an issue that they would have to raise at the trial where they will have to let you. And that's a complete defense. So if somebody committed a murder and they indicate that, well, they were insane at the time, that's a complete defense for murder, quite literally. So that's something that the defense would have to do at the trial.
[00:15:51] Speaker B: How do you determine when bail is applicable to a matter?
[00:15:58] Speaker A: Right. So that is based on the Bail act, generally, most matters, not most, all offenses are bailable.
We saw where there was this decision recently where they challenged the position that bailiff would be denied for offenses such as murder. And now we have the position where if someone is charged for murder, they will have to show exceptional circumstances.
And then there are some restrictions under the Bail act for particular type of offenses as well. So for instance, if the person is charged for possession of firearm and ammunition and they have a previous or a pending conviction for firearm and ammunition, then they will have to satisfy the court that they have sufficient, sufficient cause to receive bail. But generally all offenses available at the initial hearing, as I indicated, you'll have to make your application for bail, so you'll have to let the court know. Well, I have three children who's depending on me or wife. I have no previous conviction. So you're essentially telling the court why they should give you bail. And as I said, bail is as of right per the constitution.
So you. And it isn't at that point that we're going to lock this person up because we think that they committed an offence. No, bail is really and truly just to ensure that this person comes to court for their trial and then to determine if they are actually innocent or guilty. Because remember, there's the presumption of innocence as well. So generally all offenses are bailable for some offences, we reckon than the others, they would have to jump over an additional hurdle, such as like exceptional circumstances for Maida and, and that is how it will usually go.
[00:17:38] Speaker B: So there are different criteria as to what type of bail, how much.
[00:17:43] Speaker A: Yeah, there.
[00:17:44] Speaker B: Yeah, yeah.
[00:17:44] Speaker A: So there are different types of bail. So you could get bail with a surety, a name surety, cash bail.
It usually depends on the type of offense. And then once you receive bail, so you can get bail with a surety. But the prosecution could look and see that this mass, this, this offense was committed 1am in the morning. So then they then could ask for conditions to be imposed on the individuals as well, to say by 6, 6pm you need to be inside. So we're going to impose a curfew. You're possibly a flight risk. So we're going to take away your passport. We want to ensure that we could locate you. So we're going to tell you to sign at the. For instance, Bessel street police station every morning and Wednesday between a particular time. So in addition to receiving bail it could be bail, cash bail and own bail.
The master also has the ability to.
[00:18:39] Speaker B: Impose conditions and those conditions, if not met, then bail is revoked. How does that process happen?
[00:18:47] Speaker A: Yes. So usually you would have to come to court still. So when you receive bail, you'll have court dates.
If they realize that you're not attending court because as I said, you're getting bail and the main consideration is just to ensure that you're here for your trial. If they realize that you're not getting bail and they'd usually issue a warrant for this person's arrest and the person would be arrested and they will have to come before the court and say why they won't come in to court. And at that point they'd be like, well we're not going to release you back out there because we possibly wouldn't get you again and your bail could be possibly revoked. Yeah. Or you could give an explanation and say, well I wasn't, I'm coming to court, I wasn't signing because I was sick and I was in the hospital and that's the only reason why, etc. Etc. So you'd have to give a good explanation as to why the court shouldn't revoke your bail and send you to MSP or remand yard.
[00:19:37] Speaker B: Do they send persons to investigate your claim as to why you haven't been to turning up to court?
[00:19:45] Speaker A: Not necessarily. It's usually just at the moment before the court, the complainant who would usually be present, which is a police officer or the prosecutor could say well no, we were trying to find him. And they could at that point could say well what he's saying isn't true. So it is based on the submissions that are made by the party's presence. The complainants in the matter is who's usually a police officer and who is usually the person who going to find the person and bring them to court. They at that point could be able to say, well he's lying. The only reason why he wasn't coming to I see him on the block every other day, et cetera, et cetera, so that's usually just done at that point.
[00:20:25] Speaker B: Yeah. Now on the other side, if it is that the prosecution does not appear for the sufficiency hearings or any other part of the process, what is done from the defense side.
[00:20:39] Speaker A: Right. So if so just this week we also did a matter that was discharged because of non compliance by the prosecutor.
It was kind of, that was.
That had a lot of things happening. So if the prosecutor, usually what occurs is at the magistrate, court level, they are usually police, prosecutors, and they are assigned to particular courts. So they are usually there every day. And for the indictable offenses, a state council is usually assigned from the office of the Director of Public Prosecution. If they are not attending, then it will be up to defense counsel or the accused, if they are unrepresented, to say, well, what exactly is happening? This is non compliance by the prosecutor. If they are not interested in this matter, then why are we continuing for this particular matter? I want this matter to be dismissed or discharged accordingly. Yeah.
[00:21:32] Speaker B: Number one person is asking, so the court just accepts any reason, you know, they're trying to figure out what, what is the process? How, how is it determined?
[00:21:42] Speaker A: Yeah. So the judicial officer, whether it be the master, the magistrate, whoever it is, they will obviously be scrutinizing the entire process. So when you're saying, well, I was sick, the master sent that, well, why didn't you not send us a medical circumstance certificate or something to that effect to let us know that this is exactly what is happening. And they could possibly be a journey proceedings for you to provide them with that reason. So it usually isn't a process where you just come and tell the court, well, I wasn't coming to court because of, usually at that point the judicial officer is upset that you wouldn't come in and they are scrutinizing every word that you're saying. And you have to, sometimes recently when we did that, we had to submit an affidavit and explain why the person wasn't coming to court. Affidavit on sworn affidavits. So like you're letting them know that this is the truth, quite literally.
[00:22:31] Speaker B: Right.
[00:22:31] Speaker A: And if, if you, if you don't provide a sufficient reason, then they are going to revoke your veil. And they say that up front because what, and then basically wasting court time. Yes. So at that, and at that point, that isn't. You're not in good graces with the judicial officer. They're asking questions, they're scrutinizing everything that you're saying.
And so you have to give a good reason and you have to give evidence to support the reasons that you're given.
Sometimes they would accept the oral submission, sometimes they'll ask for you to submit an affidavit explaining why you didn't, you didn't show up to court. Yeah.
[00:23:07] Speaker B: Gonna take a short break and when we come back, we'll take in some more calls at 625-225-7627-3223 and of course. Your messages at 3061065. Stay tuned.
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[00:24:47] Speaker B: We've got a couple minutes to the news, so we've got one question that we can answer here. Good morning. Would bail be given to someone who was actually caught in the act? Right.
[00:24:56] Speaker A: Same murder, yes. So bail, anybody can make an application for Bailey, regardless of if you were caught in the act, you're still presumed innocent until proven guilty because that particular person could have possibly been laboring under insanity. They could possibly have a or even provocation or self defense. So they could possibly have a defense to the offense that they are accused of committing. So anybody could make the application for bail. It is then up to the judicial officer, the master, to determine if they are going to grant bail to this person. And they will consider several factors as we discussed previously on another program. And that would also include, for instance, if this person was charged with this offence and they have pending matters. So then they could say, well, there's a possibility that you might commit another offense while out on bail. So it's up for the judicial officer then to scrutinize all the submissions of the prosecutor because the prosecutor at that point, at the initial hearing will the will indicate whether they are objecting to bail or not. And they will say why they are objecting to bail because I. We looked at the criminal record of the individual and he has a whole long rap sheet before him. And it will then, then be up to the judicial officer to determine if they are granting bail to this individual or not. But regardless of if you are caught in your offense or not, you have the ability to make the application for bail.
[00:26:20] Speaker B: Doesn't necessarily mean that you get bail, but you can make the application.
As you said, it is your right.
[00:26:26] Speaker A: Yes, you could mean yes only all the offenses you can make the application fit. There's only some that they include additional hurdles. As I indicated, for murder, you wouldn't just make a regular bail application. You'd have to show exceptional circumstances what exactly that means. There's currently a case before the Court of Appeal to determine that.
But because of the seriousness of the offense, obviously they made it a bit more difficult to get bail for it.
[00:26:53] Speaker B: All right, let's squeeze in one call before we head to the news. Hello. Good morning.
[00:26:58] Speaker A: Hello.
[00:26:58] Speaker B: Good morning.
[00:26:59] Speaker A: Yeah, good morning again. Tusca, Princess Tong. Morning. I wanted to ask your guest, is video recording admissible or how strong it is in terms of being used by the prosecution as evidence? Thank you. Yes, it is.
They would definitely have to follow the requirements under the Evidence act, so they would have to show the chain of custody how they got it to ensure that the footage wasn't doctored in any way. But the worst thing as a defense uncle, that you could get is disclosure from the prosecution where they send you that cd and it's CCTV footage in relation to the offence. And what they will also have to do, they'll have to include a statement in their evidence where someone is identifying that this is the person who. Who is charged, because the prosecution has the burden of proving their case. So usually it might be a police officer who would say, well, I arrested this person before I knew him from the area I looked at the footage and that is the person in that footage. They would usually show it to the person as well if they conduct an interview and if they had it at the time at the police station. But yes, you can use CCTV footage on it. It is used a lot in Trinidad, actually.
[00:28:11] Speaker B: Yesterday, strange enough, there was a question that came up with AI and how it relates to the current laws that we have where footage is concerned, is that admissible?
[00:28:24] Speaker A: So you have to ensure that whatever footage that you're putting forward isn't doctored in any way and it is actually footage of the scene. So if it is AI footage that you just gave a prompt to create to show that this person was at the scene, then that would definitely not be admissible and defence counsel will object to it. The court will scrutinize it as well. So you have to follow the requirements of the act. They will have to say, I went on this day and I talked to Tusca and she had a camera and I. She showed me to the room and it on the footage it had this time and I took that and then I carried there. So they have to show the chain, scrutinize the chain of custody, to show how exactly they got this footage and that the person in the footage is the person who is being charged for the offense.
[00:29:14] Speaker B: So there is the technology to determine all of this.
[00:29:17] Speaker A: I don't know if they have the technology, if you're being honest. I think that AI is changing the way we do things because I know recently Justice James had to give a judgment in relation to attorneys using AIs in their submissions. And he was like, even though I will never forget that line, even though you may have relied on artificial intelligence, the intelligence of this court is not artificial. That was his line in the judgment. So obviously the judicial system has to keep up with the fact that AI is becoming very real and it may affect different aspects of the case to ensure that it doesn't affect justice at the end of the day. Because it isn't to secure prosecute prosecutions, it isn't to ensure that every person who is charged go to jail is to ensure that persons who are actually guilty of these offenses get to the jail.
[00:30:07] Speaker B: Yeah, because it crossed my mind. You have to look at both sides as well. Those who use it in an offensive way and then those who are victims of that use.
I haven't heard anything really about legislation where that is concerned.
[00:30:23] Speaker A: Yes, I think that we need to do we need to get a handle on the situation before it gets real? I think. So I think we need to start legislating as it relates to artificial intelligence, not just in the judicial system, but generally, because even the entertainers where AI voices are being used of them in their own image and likeness. And I think that could possibly become an issue in the future because that's how they make their money, that's how they earn a living. So I think that hopefully Parliament makes the decision to start looking into AI and we could start to regulate that aspect of it as soon as possible.
[00:31:03] Speaker B: Well, we're precariously close to the 8 o' clock news. I want to thank you, Ms. West, for coming in again today and giving us information on the law as usual inside the morning rumble.
[00:31:13] Speaker A: Yes.
[00:31:13] Speaker B: Take care.
[00:31:13] Speaker A: You too.
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