CHAPTER 11:24

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT

PART III
REQUESTS BY COMMONWEALTH COUNTRIES TO TRINIDAD AND TOBAGO FOR ASSISTANCE

23. Assistance to country in obtaining evidence.

(1) This section applies where a request is transmitted seeking assistance from Trinidad and Tobago in obtaining, by any of the means stated in section 7, evidence or information relevant to any criminal proceedings in the Commonwealth country making the request, and the request is accepted.

(2) A person, from whom evidence is taken in Trinidad and Tobago pursuant to a request for assistance under this section by a Commonwealth country—

(a) may refuse to answer any question if—
(i) the refusal is based on the laws of Trinidad and Tobago;
(ii) to answer the question would constitute a breach of a privilege recognised by the laws of the Commonwealth country; or
(iii) to answer the question would constitute the commission by the person of an offence against the laws of the Commonwealth country; and

(b) shall not be compelled to give evidence for the purposes of, or in connection with, any criminal proceedings other than those to which the request relates.

(3) Where the request for assistance under this section is for evidence or information relating to the matters set out in section 7(c), copies of such records not publicly available may be produced or examined, only to the extent that they could be produced or examined in accordance with the laws of Trinidad and Tobago.

24. Assistance to country in locating or identifying person.

(1) This section applies where a request is transmitted seeking assistance from Trinidad and Tobago in locating or identifying and locating, a person believed to be in Trinidad and Tobago, who—

(a) is or might be concerned in or affected by; or
(b) could give or provide evidence or assistance relevant to,
any criminal proceedings in the Commonwealth country making the request, and the request is accepted.

(2) Where this section applies, the Central Authority shall use its best endeavours to have the person located or, as the case may be, identified and located, and shall inform the central authority for the Commonwealth country making the request as to the outcome of those endeavours.

25. Assistance to country in obtaining article or thing, by search and seizure.

(1) This section applies where a request is transmitted seeking assistance from Trinidad and Tobago in obtaining, by search and seizure if necessary, an article or thing in Trinidad and Tobago for the purposes of, or in connection with, any criminal proceedings in the Commonwealth country making the request, and the request is accepted.

(2) Where this section applies, the Attorney General shall, unless the article or thing concerned is otherwise lawfully obtained, authorise in writing the Commissioner of Police to apply to a magistrate for a search warrant in respect of the article or thing.

(3) The Commissioner of Police authorised under subsection (2) may apply for the issue of a search warrant to a magistrate having jurisdiction in the area where the article or thing is believed to be located.

(4) The authorisation given to the Commissioner of Police pursuant to subsections (2) and (3) may be executed on his behalf by any member of the Police Service.

(5) The laws of Trinidad and Tobago with respect to—

(a) the making and disposal of an application for a search warrant; and
(b)the execution of a search warrant, apply to an application under subsection (3) and to the execution of any warrant issued pursuant to any such application.

(6) The central authority shall provide such certification as may be required by the central authority for the Commonwealth country making the request concerning the result of any search, the place and circumstances of any seizure, and the subsequent custody of any property seized.

(7) Where this section applies, the Attorney General may, in writing, authorise the removal of any article or thing obtained pursuant to a request, to the Commonwealth country making the request.

26. Assistance to country in arranging attendance of person.

(1) This section applies where a request is transmitted seeking that assistance be given by Trinidad and Tobago for the attendance in the Commonwealth country making the request, of a person in Trinidad and Tobago to give or provide evidence or assistance relevant to any criminal proceedings in that country, and the request is accepted.

(2) Where this section applies, the Central Authority shall—

(a) inquire whether or not the person concerned is willing to attend as requested;
(b) inform the central authority for the Commonwealth country making the request as to the outcome of the inquiry; and
(c) if the person is willing to attend as requested, make appropriate arrangements to facilitate that attendance.

27. Assistance to country in securing transfer of prisoner.

(1) This section applies where a request is transmitted seeking the Central Authority to secure the transfer of a prisoner in Trinidad and Tobago to the Commonwealth country for giving or providing evidence or assistance relevant to any criminal proceedings in that country.

(2) The Central Authority may state, and inform the central authority for the Commonwealth country making the request as to, conditions subject to which a prisoner is to be transferred, including conditions with respect to the custody, release or return of the prisoner.

(3) Any period during which a prisoner is in custody in a Commonwealth country, pursuant to a request, shall be deemed, for all purposes, to be time served in custody in Trinidad and Tobago.

(4) In this section, “prisoner” means a person who is being held in custody pending trial for, or is under imprisonment for, an offence, or is subject to any limitation on his personal liberty pursuant to any written law.

28. Assistance to country in serving documents.

(1) This section applies where a request is transmitted seeking assistance of Trinidad and Tobago in effecting the service of a document on a person or an authority in Trinidad and Tobago for the purposes of, or in connection with, any criminal proceedings in the Commonwealth country making the request, and the request is accepted.

(2) Where this section applies, the Central Authority shall—

(a) use its best endeavours to have the document served—
(i) in accordance with procedures proposed in the request; or
(ii) if those procedures would be unlawful or inappropriate, or no procedures are so proposed, in accordance with the law of Trinidad and Tobago; and

(b) if the document—
(i) is served, transmit to the central authority for the Commonwealth country making the request, a certificate as to service; or
(ii) is not served, transmit to that central authority a statement of the reasons which prevented the service.

(3) A person served with a document under this section who fails to comply with the summons shall not be liable to any penalty or measure of compulsion notwithstanding any contrary statement in the summons.

29. Assistance to country in tracing property, etc.

(1) This section applies where—

(b) property derived or obtained, directly or indirectly, by the person from the commission of that offence is suspected, on reasonable grounds, to be in Trinidad and Tobago;
(c) a request is transmitted seeking assistance by Trinidad and Tobago in identifying, locating or assessing the value or amount of that property; and
(d) the request is accepted.

(2) Where this section applies, the Central Authority—

(a) shall use its best endeavours to give the assistance requested and, in doing so, may invoke such powers and procedures as may be prescribed for the purposes of this section; and
(b) shall inform the Central Authority for the Commonwealth country making the request as to the outcome of those endeavours.

30. Assistance to country in relation to certain orders.

(1) This section applies where—

(a) an order is made in a Commonwealth country—
(i) confiscating or forfeiting property derived or obtained, directly or indirectly, from the commission of a specified serious offence;
(ii) imposing on the person, against whom the order is made, a pecuniary penalty calculated by reference to the value of property so derived or obtained; or
(iii) restraining dealings with property which is, or is suspected on reasonable grounds of being, property so derived or obtained;

(b) property available for the satisfaction of the order of the pecuniary penalty under the order, or to which the order would apply, is suspected on reasonable grounds, to be in Trinidad and Tobago;

(c) a request is transmitted requesting that the order concerned be enforced in accordance with the laws of Trinidad and Tobago and to that end Trinidad and Tobago give appropriate assistance; and

(d) the request is accepted.

(2) Where this section applies, the Attorney General shall cause an application to be made to the Supreme Court in accordance with the Rules of the Supreme Court for the registration of the order concerned.

(3) On application made under subsection (2), the Registrar of the Supreme Court shall register the order if he is satisfied—

(a) that at the time of registration the order is in force in the Commonwealth country; and

(b) that, in the case of an order such as is referred to in subsection (1)(a)(ii)—
(i) the person against whom the order was made appeared in the proceedings or, if he did not do so, that he received notice of the proceedings in sufficient time to enable him to defend them;
(ii) the order is not subject to appeal; and
(iii) that enforcing the order in Trinidad and Tobago would not be contrary to the interest of justice.

(4) Where an order is registered in accordance with this section, a copy of any amendment made to the order, whether before or after registration, may be registered in the same way as the order, and the amendments shall not have effect until they are so registered.

(5) An order or an amendment of an order shall be registered by the registration, in accordance with the Rules of the Supreme Court, of—

(a) a copy of the order or amendment sealed by the Court or other authority making the order or amendment; or
(b) a copy of the order or amendment duly authenticated in accordance with section 35(2)(a).

(6) The Supreme Court shall, after appropriate notice has been given to the Central Authority, cancel the registration of an external confiscation order or an external forfeiture order if—

(a) it appears to the Court that the order has been satisfied whether by payment of the amount due under the order or by the serving of a term of imprisonment by the person against whom the order is made; or
(b) after appropriate notice has been given to the Central Authority, it appears to the Court that the order has ceased to have effect in the Commonwealth country that made the request for assistance.

(7) In this section, “appeal” includes any proceedings by way of discharging or setting aside a judgment or an application for a new trial or stay of execution.

31. Assistance to country in obtaining restraining order.

(1) This section applies where—

(a) the Central Authority of a Commonwealth country transmits to the Central Authority, a certificate to the effect that—
(i) a named person has been, or is likely to be charged with, or has been convicted of, a specified serious offence; and
(ii) an order has been, or is likely to be made that has or, will have, the effect under the laws of that country—
(A) of confiscating or forfeiting property derived or obtained, directly or indirectly, by that person from the commission of the serious offence; or
(B) of imposing on that person a pecuniary penalty calculated by reference to the value of the property so derived or obtained;

(b) property so derived or obtained, or which would be available to satisfy a pecuniary penalty under the confiscation order, or, under such an order if made, is suspected on reasonable grounds to be in Trinidad and Tobago;

(c) a request is transmitted requesting that an order be made, in accordance with the laws of Trinidad and Tobago, restraining dealings with property and that Trinidad and Tobago give the appropriate assistance; and

(d) the request is accepted.

(2) Where this section applies the Attorney General shall cause an application to be made to the Supreme Court in accordance with the Rules of the Supreme Court to secure the making of an appropriate order.

(3) The provisions of subsections (2) to (6) of section 30, shall apply mutatis mutandis with respect to the implementation of a request under this section.

CHAPTER 11:24

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT

PART V
CRIMINAL PROCEEDINGS AND INVESTIGATIONS

MUTUAL SERVICE OF PROCESS

33A. Service of overseas process in Trinidad and Tobago.

(1) This section shall apply where the Central Authority receives from the central authority of a Commonwealth country or such similar authority of a non-commonwealth country—

(a) a summons or other process requiring a person to appear as a defendant or attend as a witness in criminal proceedings in the Commonwealth or non-commonwealth country ; or
(b) a document issued by a Court exercising criminal jurisdiction in the Commonwealth or non-commonwealth country and recording a decision of the Court made in the exercise of that jurisdiction,
together with a request for that process or document to be served on a person in Trinidad and Tobago.

(2) The Central Authority shall cause the process or document to be served by post or, if the request is for personal service, direct the Commissioner of Police to cause it to be personally served on the person concerned.

(3) Service of a process or document under this section shall not impose any obligation on any person under the law of Trinidad and Tobago to comply with it.

(4) A process or document served under this section shall be accompanied by a notice—

(a) stating the effect of subsection (3);
(b) indicating that the person on whom it is to be served may seek legal advice as to the possible consequence if he fails to comply with the process under the law of the Commonwealth or non-commonwealth country where it was issued; and
(c) indicating that under that law he may not, as a witness, be accorded the same rights and privileges as would be accorded to him in criminal proceedings in Trinidad and Tobago.

(5) Where, under this section, the Commissioner of Police is directed to cause any process or document to be served, he shall use his best endeavours to have it served and immediately transmit to the Central Authority if the process or document is—

(a) served, an affidavit or other certificate of service, stating how and when it was served; or
(b) not served, an affidavit or other certificate of service, stating that fact and the reason.

CHAPTER 11:24

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT

PART V
CRIMINAL PROCEEDINGS AND INVESTIGATIONS

MUTUAL PROVISION OF EVIDENCE

33D. Trinidad and Tobago evidence for use overseas.

(1) This section shall apply where the Central Authority receives from the central authority of a Commonwealth country or such similar authority of a non-commonwealth country a request for assistance in obtaining evidence in Trinidad and Tobago in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country.

(2) If the Central Authority is satisfied—

(a) that an offence under the law of the country in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed; and
(b) that proceedings in respect of that offence have been instituted in that country or that an investigation into that offence is being carried on there, it may make a request in writing to the Chief Justice, who may nominate and direct a Court in Trinidad and Tobago to take the evidence to which the request relates.

(3) For the purpose of satisfying itself as to the matters mentioned in subsection (2), the Central Authority shall regard as conclusive a certificate issued by the central authority of the Commonwealth country or such similar authority of the non-commonwealth country, in the country in question as appears to it to be appropriate.

(4) The Third Schedule shall have effect with respect to the proceedings before a nominated Court in pursuance of a direction made under subsection (2), where that Court is a Magistrates’ Court.


33E. Form of testimony.

(1) For the purpose of this Part, evidence may be taken or recorded—

(a) in writing;
(b) on audio tape;
(c) on video tape;
(d) by any other electronic or mechanical means; or
(e) by means of technology that permits the virtual presence of the person in Trinidad and Tobago.

(2) Evidence taken or recorded under this Part may be taken or recorded in camera.

(3) Where evidence is taken or recorded in writing under this Part, it need not be in the form of an affidavit.

(4) Where the evidence has been made by means of video or other means which permits the virtual presence of the person in a Commonwealth or non-commonwealth country that evidence is deemed to have been given in Trinidad and Tobago.

(5) For the avoidance of doubt, a person mentioned in subsection (4) may be cross-examined and re-examined and all the evidence shall form part of the evidence under subsection (1).

(6) The evidence shall be endorsed with, or accompanied by, a certificate to the effect that it is an accurate record of the evidence given and it was taken in a manner specified by the laws of the Commonwealth or non-commonwealth country.

(7) The certificate shall be signed or certified by a Judge, Magistrate or Court officer of the Commonwealth or non-commonwealth country to which the request was made.

(8) Evidence taken or recorded in accordance with this section is admissible in any Court in Trinidad and Tobago without proof of the signature, seal or due authorisation and such evidence shall be effectual as if taken or recorded or done by or before any lawful authority in Trinidad and Tobago.

33F. Admission of foreign evidence.

(1) Where evidence is received upon a request made under this Act and is certified by a Judge, Magistrate or Court officer of the Commonwealth or non-commonwealth country, such evidence is admissible in any Court in Trinidad and Tobago without proof of the due certification and shall be effectual as if recorded or taken by or before any lawful authority in Trinidad and Tobago.

(2) Nothing in this section shall prejudice the admission in evidence of any document that is admissible in evidence apart from this section.

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.