TRC Final Report

Volume 5

Chapter 8

Subsection 13

■ LEGAL AND JUDICIAL

47 In spite of the various clauses contained in the Constitution relating to the judiciary, and in spite of the substantial steps taken since 1994 by the Ministry of Justice to review the justice system, serious problems still remain with regard to access to justice and the general administration of justice.

48 The Commission has analysed the various submissions by members of the judiciary and magistracy, NGOs and government with regard to these issues, and has incorporated these, where appropriate, into the following recommendations. These recommendations are brief and merely direct attention to the most important areas requiring attention.

Access to justice for victims of crime

49 The victims of crime are the most neglected and disempowered of the role-players in the legal system. They are not being adequately served by the criminal justice system for a number of reasons, including:

• the absence of a professional, motivated and appropriately staffed national police service;
• the inability of the prosecutorial system to prosecute effectively and ensure criminal convictions in a manner that will change the current perception of criminals and potential criminals that their wrongdoing is unlikely to be detected and punished;
• the inability of the Department of Correctional Services to carry out its role of effectively incarcerating awaiting-trial and convicted prisoners.

50 The Commission thus recommends that:

THE FEASIBILITY OF ESTABLISHING A SERIOUS CRIMES COMPENSATION FUND, AS EXISTS IN COUNTRIES LIKE AUSTRALIA, BE EXAMINED.

A CODE OF CONDUCT FOR PROSECUTORS BE DRAWN UP, TO ENSURE IN PARTICULAR THAT THE INTERESTS OF VICTIMS ARE PROPERLY CONSIDERED. THE CODE OF CONDUCT SHOULD BE AIMED AT ASSISTING AND EMPOWERING VICTIMS BY:

ADVISING THEM ON COMPLAINTS AND REMEDIES;

ADVISING THEM ABOUT THE MERITS AND DEMERITS OF THEIR PARTICULAR CASE;

INFORMING THEM OF THEIR RIGHTS TO COMPENSATION UNDER SECTION 300 OF THE CRIMINAL PROCEDURE ACT, IN TERMS OF WHICH FINANCIAL COMPENSATION MAY BE PAYABLE BY A CONVICTED PERSON TO A VICTIM;

UPDATING THEM REGULARLY CONCERNING DEVELOPMENTS IN THE CASE;

PREPARING THEM TO GIVE EVIDENCE IN COURT, AND FOR CROSS-EXAMINATION; ENABLING PROSECUTORS TO CARRY OUT AN EFFECTIVE AND EFFICIENT PROSECUTION.

Access to justice for accused persons

51 Although accused persons have a constitutional right to legal representation, the way in which this is implemented is often unsatisfactory. Legal representation is one of the most important protections against abuse of suspects by the police and criminal justice system. The Commission thus recommends that:

FURTHER ATTENTION BE GIVEN TO THE ROLE PLAYED BY THE LEGAL AID BOARD AND THE SYSTEM OF PUBLIC DEFENDERS, TO ENSURE THAT AT LEAST A CONSISTENT MINIMUM STANDARD OF LEGAL REPRESENTATION IS EXTENDED TO ACCUSED PERSONS.

PUBLIC DEFENDER OFFICES BE SET UP IN ALL THE MAIN CENTRES IN THE COUNTRY.

THE OPTION OF COMPULSORY COMMUNITY SERVICE FOR LAW GRADUATES, AND STUDENT PRACTICE RULES FOR LAW CLINICS, BE EXPLORED TO AUGMENT THE PUBLIC DEFENDER PROGRAM.

PUBLIC DEFENDERS BE INDEPENDENT FROM THE PROSECUTION ARM OF THE DEPARTMENT OF JUSTICE, SO AS NOT TO COMPROMISE THEIR SERVICES.

LEGISLATION WHICH RESTRICTS THE RIGHTS OF DEFENDANTS TO BAIL BE RESISTED.

LEGITIMATE CONCERNS ABOUT THE INAPPROPRIATE GRANTING OF BAIL TO ACCUSED PERSONS WHO HAVE PREVIOUSLY COMMITTED OFFENCES WHILE ON BAIL, BE ADDRESSED THROUGH THOROUGH POLICE INVESTIGATION OF THE STATUS OF THOSE APPLYING FOR BAIL AND THE PROPER TRAINING OF MAGISTRATES AND PROSECUTORS IN THE APPLICATION OF BAIL PROCEDURES, RATHER THAN BY AMENDING THE LAW.

PROSECUTORS, MAGISTRATES AND JUDGES DISALLOW EVIDENCE OBTAINED THROUGH UNLAWFUL METHODS.

CO-ORDINATION AND SUPERVISION

52 The Commission recommends that:

LAW STUDENTS WORKING IN LAW CLINICS BE ENTITLED TO ADMISSION UNDER STUDENT PRACTICE RULES, TO ASSIST THE DELIVERY OF LEGAL AID SERVICES IN THE DISTRICT MAGISTRATE’S COURT.