Attorney at Law Murseline Bacchus has successfully challenged the amendment to the Sexual Amendment Act in the High Court. He challenged a Magistrate’s decision to commit his client to stand trial in the High Court on the amended Sexual Offences act.
Mr. Bacchus, on behalf of his client, Ray Bacchus, had moved to the court for an order or rule nisi of certiorari directed to the Director of Public Prosecution, the Commissioner of Police and Magistrate Sherdel Isaacs-Marcus herself, to show cause why her decision to commit Ray Bacchus to stand trial for the offence of rape should not be quashed on the grounds that the committal is null, void, unlawful and unconstitutional.
The matter was heard before Chief Justice Ian Chang who heard arguments from Bacchus, the Director of Public Prosecution and submissions from the Magistrate.
Ray Bacchus, a father of three, of St. John Street, New Amsterdam, and a driver attached to A. Ally & Sons, Main Street, New Amsterdam, Berbice, was charged on August 28, 2013 for engaging in sexual penetration of a child of 14.
Attorney at Law Bacchus, stated that his client was charged indictably on January 3, 2014 contrary to section 10 (1) (a) of the Sexual Offences Act No.7 of 2010 as was amended
He was tried by Magistrate Sherdel Isaacs- Marcus at the New Amsterdam Magistrate court and after the filing of statements by the Prosecution; the Magistrate committed him to stand trial on the said charge.
Attorney at Law Bacchus in his petition had submitted that he was not permitted cross-examination of the witness whose statements were filed by the Prosecution. Nor was his client permitted to give evidence or call any witness in the proceedings before he was committed.
Bacchus further contended that the committal of his client was null, void and of no legal effect and is contrary to his fundamental right under article 144(2) (d) and (e) of the Constitution of the Republic of Guyana, and the committal is unlawful and of no legal effect and ought to be quashed.
He also contended that the said committal cannot be used for the purpose of a lawful indictment by the Director of Public Prosecution against his client.
He also submitted that the provisions of that part of the Sexual Offences Act, which purports to give jurisdiction and power to the Magistrate to commit him for the trial is unconstitutional and of no legal effect, as it is inconsistent with his client’s right under article 141 (1), 144 (2) (d) and (e) of the Constitution, and that to such inconsistency it is void by the provisions of article 8 of the Constitution. He also believes that Act No 2/13 which purports to amend the said Sexual Offences Act is itself void as being inconsistent with the provision of Article 144 (2) (d) and (e) of the Constitution of Guyana.
When the act was amended in 2010 it read- “For the purpose of a paper committal, only the evidence of the Prosecution shall be allowed.” After this was thrown out by the courts it was amended to read, “For the purpose of a paper committal, credible evidence of the Prosecution and the defence shall be allowed.” The new law takes away the right of the client to call and cross examine witnesses for the defence.
Both the DPP and the Magistrate made submissions relying on the amendments made to the Act in defending their case.
Mr. Bacchus quoted a number of authorities in putting forward his case for the committal to be quashed.
The Chief Justice, after listening to both sides, gave a detailed conclusion in which he looked at the evidence presented before him and what is provided for in the Constitution. He stated that Section 43 of the Sexual Offences Act 2010- provided that, “where a person is charged with an offence under the Act, there shall be no oral preliminary inquiry and instead, a paper committal shall be held in accordance with the procedure set out in the first schedule.”
However, this act is inconsistent with article 144(1) and 144(2) of the Constitution which reads, “Every person who is charged with a criminal offence-shall be permitted to defend him or herself before the court in person or by a legal representative or his or her own choice.”
“The person shall be afforded facilities to examine in person or by his or her legal representative the witnesses presented by the Prosecution before the court, to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the conditions as those applying to witnesses called by the Prosecution.”
The Chief Justice thus concluded that it is difficult to see how a person charged, can defend him or herself personally before the court unless he or she is at liberty to dispute the evidence of the prosecution witness either by cross- examining the prosecution witnesses who have made statements tendered as evidence before the court or his own behalf.
Mr. Chang also stated that ordinary legislation cannot create an exception to the application of a constitutional provision –unless provided for in the constitution itself. Chief Justice Chang thus ordered that the committal order by the Magistrate be quashed.
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