Prominent attorney at Law Murseline Bacchus, on behalf of his client Ray Bacchus has filed legal arguments challenging the ruling of Justice of Appeal B.S Roy to grant a stay of execution against the ruling of Chief Justice Ian Chang. Chang had ruled that the amendment to the Sexual Offences Act was unconstitutional. Mr. Bacchus wants the stay of execution granted by Justice Roy to be thrown out.
Bacchus had successfully challenged the amendment to the Sexual Offenses Act in the High Court. The attorney, on behalf of his client, had moved to the High 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 to show cause why the decision made by the Magistrate committing the applicant to stand trial for the offence of rape should not be quashed and that the committal is null, void, unlawful and un- constitutional.
The matter was heard before Chief Justice Ian Chang and after listening to arguments and reading submissions from Bacchus and the Director of Public Prosecution and submission from the Magistrate, he ruled that the amendment to the sexual Offences act of 2010 which was first ruled unlawful was in itself unlawful.
Ray Bacchus, a father of three of 20-7, St. John Street, New Amsterdam, was charged with being engaged in sexual penetration with a child on Wednesday 28th of August, 2013 at ST. John Street, New Amsterdam Berbice.
Bacchus had contended among other issues that the decision of the Magistrate against his client was null, void and of no legal effects 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 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, no. 7 of 2010 which purports to give jurisdiction and power to the Magistrate to commit his client for the trial is unconstitutional and of no legal effect as it is inconsistent with his clients 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, creditable evidence of the prosecution and the defence shall be allowed.” The new law takes away the right of the client to call witness and have the right to have his client cross examine witnesses for the defence.
The Chief Justice had, after listening to both sides, given 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 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 Order or Rule Nisi of Certiorari granted on the 30th June 2014 must be made absolute.
An appeal against the Chief Justice ruling was filed to a judge in chambers the 25th of November 2014 by way of a summons which was supported by an affidavit and dated the 27th November. The main purpose of the appeal was being a stay of execution of the honorable Chief Justice ruling granting the order absolute.
Mr. Bacchus in his application submitted that his client received a notice from the court of appeal on the 10th of December that the hearing for the application for a stay of execution was fixed for the 12th December at 11:30 hrs. He is however contending that by the 12th December, no copy of the Notice was served on his client neither was a copy of the application for a stay of execution.
Mr. Bacchus in his submission stated that that he only received the relevant document on the afternoon of the 12th December.
He could not have attended the hearing, but sent a written submission by way of his client to Justice of Appeal B.S Roy who was sitting in Chambers. After the letter was delivered to Justice Roy, he subsequently ordered counsel for the appellants to serve the Notice on his client Ray Bacchus immediately. The matter was then adjourned to the 16th of December at 10:00 hrs for hearing.
The documents were delivered to Attorney Bacchus around 15:30 hrs on that day. Mr. Bacchus on the 14th prepared an affidavit in response and it was filed on the 15th of December.
Mr. Bacchus was unable to attend court on the 16th of December and was represented by Attorney at Law Perry Gossai. However, on the day in question Mr. Gossai’s request for a short adjournment to argue the case on behalf of his colleague was overruled by Justice Roy. Justice Roy then granted the stay of execution pending the determination of the appeal.
Mr. Bacchus is contending that Justice Roy breached his client’s constitutional rights to a fair hearing by refusing to grant the adjournment sought. He also breached his client’s constitutional rights by refusing to give him adequate time and facilities to respond to the legal arguments.
The judgment of the Honourable Chief Justice was not one upon which a stay of execution could have been granted. He also said that the decision to grant the stay was contrary to the interest of justice in that his client could be tried, convicted and jailed on a statute that may be ultimately found to be unconstitutional and that Justice of Appeal Roy acted unconstitutionally and had no jurisdiction to do so.
In his lengthily submission the learned attorney stated that there was no jurisdiction in Justice Roy when he undertook and granted the appeal. He further contended that many persons charged with similar offences can be adversely affected and that it was not in the interest of justice to grant the stay.
He mentioned that many persons would be affected since the Chief Justice’s decision has not been reversed and Magistrates would be in a quandary as to whether they should ignore the Chief Justice’s decision.
He said that since there is no statute of limitation in respect of offences under the sexual Offences act of 2010 as amended, the administration of justice would not be prejudiced nor compromised if the stay is discharged for which proper grounds exist.
The matter comes up for hearing shortly.
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