Magistrate lambasts lawyers on defective charges before court

On what planet did alleged offenses occur, he wonders

Both Crown counsel and defense attorneys were put on notice when Magistrate Valdis Foldats declared on Tuesday that too much court time was being spent correcting charges. 

“Too often the court [meaning the presiding magistrate] is doing the job of counsel, pointing out defects in charges,” he said. 

There were at least four defendants whose charges had wrong or missing information, he noted. 

The four were among 43 names listed for mention that day. 

Errors included the wrong revision of the law being cited, the wrong section of the law, and the wrong particulars of the charge. Most common was that the jurisdiction was missing from the statement of the charge. 

“In what county did this alleged offense take place?” the magistrate asked. When the same information was missing in a second and third file, he elaborated – “What country? On what planet? I hope it’s the same universe.” 

He asked the prosecutor to take his concerns back to the Office of the Director of Public Prosecutions. 

He also pointed out that defense attorneys need to make sure charges are correct when their clients plead guilty or not guilty to charges. The consequences could be important, he emphasized. 

The magistrate referred to one file in which a charge was named as attempted theft, but the section cited pertained to going equipped for stealing [or vice versa]. “The penalties are vastly different,” he observed. The maximum for going equipped is three years; for attempted theft the maximum could be seven or 10 years.  

In another case, there was a question because, under the 2010 Penal Code, the charge was triable only in Summary Court. Under the 2013 revision of the Penal Code, however, a similar allegation could lead to a charge that may be tried in either the Summary Court or the Grand Court, in which case a choice would have to be made. 

“These sorts of issues are cropping up all the time,” the magistrate said. 

12 in court for failure to surrender 

In addition, there were 12 defendants in court who had previously failed to show up for their court dates and who had been charged with failure to surrender to custody. There was no information as to why each person had been brought to court originally.  

The magistrate said people may not have understood that missing a court date without a valid excuse could result in a charge, even though they subsequently came to court and apologized.  

Some of the charges for failing to surrender dated from October 2014, but were listed for the first time this week. 

“I’m going to be blunt about it,” the magistrate declared, telling the defendants that if they pleaded guilty to the charge of failing to surrender, he would not record a conviction although he would impose costs. 

He indicated that he did not want anyone to feel pressured and they should feel free to plead not guilty. 

One man and two women pleaded guilty to failure to surrender and each was ordered to pay costs of $100. The magistrate gave them until the end of July to pay. 

Three men gave explanations. One said he had to leave the island because he was sick and had told his attorney. One man said he had come to court to say he could not get off work that day and then he had returned the following week with a letter from his employer. The third man said he couldn’t come to court because he was in Northward Prison. 

The magistrate said the man who was sick should have made sure the court was told, not just his attorney. The man who couldn’t get off work had to know that, “Court trumps work. End of story.” The man who said he was in prison had a legitimate excuse if it checked out. 

After some consideration, the magistrate said he was going to leave these three charges on file for one month. He said it would be up to the Crown to choose whether resources should be used to investigate the explanations. If the Crown does not bring the charges back in one month, they will be dismissed, he said. 

Six other people charged with failure to surrender were not in court. He ordered summonses to be re-served for those who had not been served; he issued warrants for those who had been served, with a requirement that they post a $100 cash bond. 


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