“PREPARATION OF COMMITTAL PAPERS” Presented to the O/DPP PROSECUTORS SYMPOSIUM 2022 AT JOAN MEMORIAL LECTURE PRESE NTE D BY MI CHAE L WAMASE BU ADVOCATE AND FORME R ASSI STANT DPP LEGAL FRAME WORK FOR COMMITTAL PAPERS S.168(1) of the MCA “ When a person is charged in a magistrates court with an offence to be tried by the High Court, the Director of Public Prosecutions, shall file in the magistrate’s court an indictment and a summary of the case signed by him or her or by an officer authorised by him or her in that behalf acting in accordance with his or her general or special instructions” LEGAL F/W-THE INDICTMENT S.22 TIA, contents of indictment; “Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” s. 23(2) “where more than one offence is charged in an indictment, a description of each offence so charged shall be set out in a separate paragraph of the indictment called COUNT. COMMON SHORTCOMINGS IN INDICTMENTS 1. Mis joinder of offences 2. Mis joinder of persons 3. Non inclusion of time frames and geographical locations of when and where offences took place. 4. Confused or omnibus statement and particulars of offence. 5. Splitting hairs and inclusion of too many counts in one indictment. 6. Joining capital and non capital offences in one indictment. SUMMARY OF CASE S. 168(2) MCA “The summary of the case refered to in sub section (1) shall contain such particulars as are necessary to give the accused person reasonable information as to the nature of the offence with which he or she is charged” WHAT ARE “COMMITTAL PAPERS”? It follows from the provisions of S. 168 of the MCA that; COMMITTAL PAPERS = Indictment plus summary of case and annextures if any In other words; C/P = IDM + SOC+ (any annextures as deemed fit or deserving) WHO CAN SIGN COMMITTAL PAPERS? 1. The DPP in person 2. One specifically authorised by the DPP on a case by case basis. 3. One (or group) given general authority to sign. ISSUES ON SIGNING COMMITTAL PAPERS 1. All officers of the rank of State Attorney and above have general authority to sign committal papers. 2. Where the Dpp appoints special prosecutors, she can authorise them to sign Committal papers on a case by case basis or in any other way she deems fit. 3. State prosecutors ( of all ranks ) have no authority to sign committal papers unless authorised individually or collectively by the Dpp. Indeed such illegally prepared papers if objected to during trial can cause embarrassment for the prosecution case and the prosecutor. 4. The rampant practice of state prosecutors preparing and signing committal papers is illegal and should be discouraged. 5. In trial advocacy court papers can only be properly prepared and signed by persons who have a right of audience in that court. In this case since SPs have no right of audience in the High Court, they have no business preparing and signing committal papers. 6. The practice of SPs drafting committal papers for their bosses to sign is strongly discouraged. LEGISLATIVE BACK GROUND TO SOC In 1967 under the Criminal Procedure (summary of evidence) Act the DPP was required at the time of committal to file in the magistrates court an indictment and a summary of evidence containing the substance of the evidence of each would-be witness for the prosecution. In the summary of evidence, reference had to be made to the exhibits intended to be produced by the prosecution at the trial. These exhibits once produced would be marked and taken in the custody of the court. This procedure was also known as the “FULL DISCLOSURE REGIME” This provision was maintained in subsequent amendments of the MCA, including the one of 1970 until in 1990 when it was repealed and replaced by the present system of Summary of Case by MCA amendment statute no 6/1990. This procedure has been criticized by defence lawyers and trial judges who refer to it as “THE TRIAL BY AMBUSH REGIME” The decision of the constitutional court in C/Refrence 6/2007 –(SOON YEON KONG KIM &Anorther vrs Attorney General was intended to fill the gap created by the so called “trial by ambush” regime. SOME COMPARISONS BETWEEN THE TWO REGIMES FULL DISCLOSURE The trial is transparent and no new materials can be smuggled into the trial without leave of court and after hearing the defence. The court has a clear picture of the prosecution case and can easily allocate time and resources to exhaustively deal with the case TRIAL BY AMBUSH Trial is sometimes characterised by hide and seek of evidence by prosecution. In Ug vrs Okumu Reagan and others prosecution amended the case mid trial and called witnesses whose evidence had not been disclosed. Trial magistrate disallowed the evidence. Prosecution petitioned High Court for revision of the order of the trial magistrate, the High court dismissed the petition and upheld the decision of the trial magistrate to disallow the evidence The court in many cases has no clear picture of the entire case. This is because even with disclosure, the prosecution can only provide what the prosecution has requested for and only to the defence. The court may have no clue of the nature of case or evidence the prosecution has in store. THE DECISION TO PROSECUTE (1)The DPP operational standards of 2014 provide comprehensive guidelines on how to arrive at the all important decision to prosecute. (2) Before discussing issues of committal papers, it is important to remind ourselves that the beginning milestone in the prosecution journey starts with the quality and soundness of the decision to prosecute. (3) The quality of committal papers no matter how good cannot be a substitute for a good prosecutable case. (4) It is therefore important that only cases based on MERIT are taken to court. (5) Experience has repeatedly, disturbingly and stubbornly shown that cases taken to court not on merit or based on ulterior motives CAN NEVER YIELD POSITIVE PROSECUTION RESULTS – no matter the calibre or prominence of the prosecutor. SOME RED FLAGS OF POOR CHARGING DECISIONS. 1. Too many nolle prosequis are being entered in committed cases including those not yet cause listed. Terminating cases in this way should be done as a last resort not as a matter of routine. Termination of cases by nolle prosequi should not be a matter of pride.It speaks volumes about the calibre and professionalism of prosecutors. 2. The commissioning of “ CASE WEEDING” operations as a case management tool is an indication that cases are being committed for trial without due consideration of the merits. This is an expensive venture that can be avoided and the funds deployed for more useful operations. 3. Action officers are increasingly sending files back to police for “further inquiries” with long to-do lists – sometimes as many as 20 items in an effort to make out a meaningful case from a police file. To me this an indication that the case is weak and salvaging it with further inquiries is in most cases an exercise in futility. SHORT COMINGS IN THE PRESENT SOC (1)Facts are over summarised giving a very vague or rudimentary picture of the case. This to me is evidence of casual perusal of the police file and failure to internalise the evidence and full context of the case. (2)The sequence of events in many cases is not given in chronological order. (3) In most cases there is hardly any reference made to exhibits if any that the prosecution intends to rely upon at the trial. (4) The language used in some cases, especially sexual offences, is explicit and embarrassing. (5) The facts are in many cases stated without any regard to rules of logic or common sense. (6) Above all there is, in most cases no mention made of what the defence or the defence case is. (7) In many cases, the SOC gives the negative impression that it was prepared with a “FOR WHOM IT MAY CONCERN ” mind set or attitude. RECOMMENDED PRACTICES IN PREPARATION OF COMMITTAL PAPERS The Action officers should do the following; 1. Carefully and exhaustively peruse the file to internalise the facts of the case and be double sure that the case meets or passes the evidential Test. 2. Prepare the indictment in strict accordance with rules in part 3 of the TIA (SS 22-32). 3. In the SOC, state the facts in separate paragraphs starting with the most important in the right sequential order. 4. Highlight and put the spot light on the role played by the accused in the commission of the offence. 5. Make reference to all important related actions which followed the commission of the offence such as , report to police, medical examination of the victim and or the suspect and the findings of any forensics that were carried out. 6. Indicate the exhibits, if any the prosecution intends to tender and rely on during the trial. 7. Highlight the defence if any – including the option to keep quiet or alibi offered by the accused person. 8. Conclude with the prayer that the accused be convicted as charged. 9. If you are still in doubt, look at and seek guidance from the “SAMPLE SOC” enclosed. TO NOTE S. 168(2) of the MCA is not limiting; the action officer should therefore take liberties to include as much information as necessary to give the accused, the court and to some extent, the assessors as much reasonable information as possible regarding the nature of the offence and the kind of evidence they should anticipate. Let your committal papers speak or shout out your case. It is an important trial advocacy technique to use “the right to begin” given by the law to the prosecutor to give the court as much admissible information as possible to tilt the court’s mind in favour of the prosecution- well in advance. Indeed one can argue that committal papers are the first opening statement of the prosecution in a criminal trial. The more articulate and convincing they are, coupled with credible evidence, the higher are the chances of success of the prosecution. The “second opening statement” is given in s. 71 of the TIA which provides as follows; “ when assessors have been chosen, the advocate for the prosecution shall open the case against the accused person and shall call witnesses and adduce evidence in support of the indictment” Note that similar provisions exist in S. 131 of the MCA for trials in magistrate’s courts. In trial advocacy,the prosecutor also has the final say under SS, 76, AND 77 of the TIA especially when the accused has adduced evidence in his defence. In the hands of a good prosecutor, the combination of the right to begin and the right to have a last say during trial offer very ideal tools to persuade the court for successful prosecution no matter how complex the case. COMMITTAL DILEMMA Times do occur when the prosecutor has to seriously consider committing the accused to the High Court. This is normally done for many reasons including; 1. The need to avoid release of accused on statutory bail before committal. 2. To reduce undue public pressure 3. To buy time for police to finalise investigations, etc The dilemma in such scenario is whether to commit or not when investigations are incomplete and vital evidence is not yet on the police file. It is STRONGLY recommended that in such a case rather than commit an incomplete case to the High Court, the prosecutor should “Bite the bullet ” and concede to the release of the accused on bail until investigations are over and credible evidence is on the police file. The justification is that after committal the prosecution more or less loses control of the case and the court can set it down for hearing at any time – when the all important evidence is not yet on the police file. However, if a mistake has been made and an incomplete case has been committed to the High Court, the prosecution should IN ALL CIRCUMSTANCES decline to proceed and enter a nolle prosequi to avoid the premature acquittal of the accused. CONCLUSION 1. Preparation of committal papers is an important step in trial advocacy and every effort should be made to ensure that they are carefully prepared by the right persons and in good time to ensure that the accused is committed to court prior to clocking mandatory bail. 2. Committal papers should be prepared in a way that gives reasonable information not only to the accused but also the court and the assessors as to the nature of the case and the evidence they should anticipate. The more information is given the better especially for the court and assessors who have no advance knowledge of the evidence even when disclosed by the prosecution to the defence. 3. Failure to prepare committal papers properly can lead to a false start in prosecution and embarrassment to the complainants and loss of confidence in the prosecution by the public. 4. All the above points should be preceded with well thought out and meritorious decisions to prosecute. SOME TRIAL ADVOCACY TECHNIQUES In my understanding trial advocacy rotates around the following matters; § Selecting of which case to take to court. § Preparation of pleadings like charges sheets, indictments, soc, affidavits etc. § Delivery of opening statements. § Examination, cross examination and re examination of witnesses. § Tendering of documentary and other exhibits. § Making closing arguments or submissions. § Maintaining confidentiality. § Managing expectations of stake holders like complainants, witnesses and judicial officials and defence counsel. § Managing high profile and politically sensitive Julian Asange - style cases. MANAGING WITNESSES- SUGGESTIONS 1. Witnesses should be handled with courtesy, a high level of sensitivity, empathy, sympathy and concern. The system of prosecutors asking “are there any witnesses in this case” is out dated and seriously discouraged. 2. The prosecutor must find time before going to court to sit down and talk with the witnesses to prepare them on all aspects of the case. They should be informed of what is expected of them in court and after court. 3. If there are any documents to be tendered through the witnesses, they should be given the opportunity to familiarise themselves with the said documents in advance. 4. Prosecutors should avoid a system of inviting or summoning witnesses whose evidence is unlikely to be taken by court due to pressure of time or other factors. 5. Witnesses under cross examination should be protected from scandalous and embarrassing questions. 6. Where some payment is due to the witnesses, the prosecutor should help the witnesses access their payment after court. 7. If witnesses require special security, the prosecutor should work with court and police to ensure such security is provided. 8. Prosecutors working with judicial officers should keep time to ensure that witnesses are not unduly kept in court for extended periods. MANAGING EXPECTATIONS Prosecution is a process that involves many stake holders. To be successful it is recommended that the prosecutor; 1. Cultivates good working and professional relationship with court (judiciary), police, and all related support disciplines. In the past cases have been reported of friction between prosecutors and police or with court which negatively affects prosecution work. In one bad case the magistrate barred a prosecutor from “his” court. This can be avoided through good PR and use of existing fora chain link to iron out misunderstandings. 2. Maintaining his or her professionalism and operating within his or her space and leaving the other organs to play their role. 3. Should conduct himself or herself with integrity and openness. In the past fights between prosecutors and judicial officials have been over so called “eating habits”. 4. Avoid over socialising with key stake holders as this can breed familiarity and contempt.