The Court of Appeal has commenced hearing arguments to determine the constitutionality of amendments to Sexual Offences Act.
The case stems from a High Court ruling which essentially outlined that a Magistrate’s decision to send rape accused, Ray Bacchus, to stand trial in the High Court based on a paper committal was unlawful.
Yesterday, DPP Shalimar Ali Hack presented oral arguments in the Appeal Court and gave reasons for her contention that the amendment to the Sexual Offences Act is not unconstitutional.
In her arguments, the DPP contended 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 an accused person to a High Court trial based on a paper committal does not contravene the rights of that person based Article 144(1) and 144(2) of the Constitution.
The article 144(1) and 144(2) of the Constitution 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.
Attorney Bacchus had claimed that the paper committal, which is an amendment made to the Sexual Offences Act trumps the rights of his client based on the provisions in the Constitution.
The DPP however vehemently denied this, saying that an accused person is allowed to test the credibility of witnesses but at the trial in the High Court. Ali Hack argued that the amendment to the Sexual Offences Act gives both the accused and complainant the right to a fair hearing.
“What the paper committal does is fast track the process in which accused or complainant may spend awaiting a trial. It was specifically created to address the issue of trauma; which the victim suffers having to recite the horrific experiences over and over again.”
“In the past, they would first have to tell their story to the police and then a magistrate at a Preliminary Inquiry, (PI) and then at the trial at the High Court.
“What the paper committal does is remove this burden from the complainant; it eliminates the issue of re-victimization— in that the complainant is not saddled with the trouble of having to revisit the experience repeatedly, as is the case with a PI.”
The DPP has asked the Court to take into consideration that both accused person and the complainant will be able to cross-examine witnesses but at the High Court. She noted in the cases of paper committals the accused is afforded a fair hearing in that in a matter of months, his case will be set for trial in the High Court when in the case of PI, the process takes much longer.
In that regard, the DPP contends that the paper committal benefits both the victim and the accused.
Ray Bacchus, a father of three, was charged on August 28, 2014, last, at St. John Street, New Amsterdam Berbice, for sexual penetration of a child aged 14. Attorney- at- law Mursaline Bacchus in his application stated that his client was charged with the rape of a child under 16 years of age.
In 2014, Attorney-at-law, Mursaline Bacchus challenged the Magistrate’s decision to commit his client to stand trial in the High Court on the amended Sexual Offences Act.
Bacchus had moved to the court for an order directed to the Director of Public Prosecution, the Commissioner of Police and Magistrate Sherdel Isaacs-Marcus, to show cause why the Magistrate’s decision to, commit his client to stand trial for rape should not be quashed.
Bacchus, in his affidavit, noted the paper committal did not afford his Attorney, (Mursaline Bacchus), an opportunity to cross-examine the witness whose statement was filed by the prosecution.
Nor was he permitted to give evidence or call any witness before he was committed. He, therefore, contended that his committal is null, void and of no legal effect. He is also contending that the said committal cannot be used for the purpose of a lawful indictment by the Director of Public Prosecution, (DPP) against him.
Bacchus had contended among other issues that the decision of the Magistrate against his client 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.
Bacchus had successfully challenged the amendment to the Sexual Offences Act in the High Court.
The matter was heard before former Chief Justice Ian Chang and after listening to arguments and reading submissions from Bacchus and the DPP and submission from the Magistrate; he ruled that the amendment to the Sexual Offences Act 2010, which was unlawful. The ruling was challenged by the State.
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