Draft Evidence Bill calls for statements by vulnerable witnesses to be used at trial without appearances

St. Kitts and Nevis’ Attorney General and Minister of Justice and Legal Affairs, Hon. Patrice Nisbett

CHARLESTOWN, NEVIS, SEPTEMBER 25TH 2011 (CUOPM) – Attorney General and Minister of Justice and Legal Affairs, Hon, Patrice Nisbett says a draft legislation introduced in the National Assembly last year, seeks to reform the law relating to evidence in order to strengthen the delivery of criminal justice.

He told a sitting of the High Court in Charlestown to commence the New Law Term that the Evidence Bill, 2010, which was introduced in the St. Kitts and Nevis National Assembly, seeks to re-examine the law relating to the evidence of vulnerable witnesses.

“This country is very well aware of the challenges faced by the prosecution in securing conviction for offences like murder. These challenges are witness tampering, witness intimidation, and unfortunately, in some cases, witness elimination. It is therefore not surprising that most people who see crimes being committed are afraid of giving evidence at trial because of the real likelihood of victimization by defendants, or by persons instructed by, or acting at the behest of, defendants,” he told the Court.

He noted that to protect themselves from victimization, some witnesses change the testimony they give at trial from the evidence they give the police in their statements.

“These witnesses I prefer to call them vulnerable witnesses. That sad state of affair should not be allowed to continue. Therefore, the law is being reformed so as to allow the Director of Public Prosecutions, in cases where a vulnerable witness has a real apprehension of suffering bodily injury at the hands of a defendant, or where a vulnerable witness has been threatened by a defendant or on behalf of a defendant, to make application, ex parte, and in camera, to a Supreme Court Judge, for an order allowing the statement of a vulnerable witness to be used at trial, in lieu of the vulnerable witness appearing and testifying at the trial,” said Attorney General Nisbett

He disclosed that the weight to be given by the jury or, (in a summary trial by the Magistrate) to the statement of the vulnerable witness will be determined by the jury, or the Magistrate, since it will not have been tested in cross-examination, and judicial officers will have to give appropriate directions to the jury in this respect, or, in summary trials, appropriately warn themselves. If a prosecution witness is kept out of the way by the actions of the defendant, then it will be intolerable for him or her to rely on his or her human rights to prevent hearsay evidence being admitted. The net effect of this reform will be to tilt the scale of justice in favour of balance. Right now the scale is heavily in favour with defendants because of our anachronistic legislation,” said the Attorney General.

Referring to the new section on the Disclosure of Defence Evidence, the Attorney General noted that at present, only the prosecution is under an obligation to disclose evidence to the defence.

He pointed out that this state of affairs is outdated, and the Bill seeks to address the situation by imposing on the defence a statutory obligation to disclose (a) the defence, and (b) the defence witness statements and evidence in circumstances similar to the obligation currently placed only on the prosecution.

“In other words, we are trying to design a system that would ensure the certainty of conviction, and within a reasonably quick time. I believe that you are going to support the Government in its efforts to further reform the law relating to evidence. We have to act in order to prevent the collapse of the criminal justice system, and to take yet another step in creating a safer environment for all the citizens and residents of this country,” Mr. Nisbett said.

He said unsworn statements from the dock by defendants are to be abolished.

“At present, the playing field between the prosecution and the defence is not level, in so far as the defendant is allowed to make an unsworn statement from the dock, the veracity of which is never tested by the prosecution in cross-examination,” said the Attorney General, who added:

“This position, by its very nature, is an anachronism. The purpose of a criminal trial is to determine the guilt or innocence of an accused person. Thus, the Evidence Bill, 2010 seeks to abolish such statements thereby bringing our law on par with similar developments in other Commonwealth countries like Trinidad and Tobago, and with the United Kingdom and the United States of America,” said Attorney General Nisbett, who was appointed to the post in February of last year.

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