Appeal Court rules amendments to Sexual Offences Act constitutional

Jul 26, 2018 News

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 — overrules decision of former CJ

The Court of Appeal handed down a ruling Tuesday, which essentially overturned a decision of former Chief Justice,  (CJ) Ian Chang in relation to the amendments to the Sexual Offences Act of 2010.

Chang had deemed paper committals under the amendments of Sexual Offences Act 2010 unlawful and unconstitutional.

Chang’s ruling had stemmed from a successful challenge to the Act by Attorney-at-law, Murseline Bacchus.

The lawyer has presented arguments on behalf of his client, Ray Bacchus, a father of three, who was charged with the rape of a child under 16 years of age.

According to the charge, Bacchus on August 28, 2014 at St. John Street, New Amsterdam Berbice, sexually penetrated a child aged 14.

He argued against a Magistrate’s decision to commit his client to stand trial in the High Court under the Act.

Murseline Bacchus, on behalf of his client, moved to the court for an order or rule nisi of certiorari directed to the Director of Public Prosecutions (DPP), the Commissioner of Police and Magistrate Sherdel Isaacs-Marcus herself, to show cause why her decision to commit his client to stand trial for the offence of rape, should not be quashed on the grounds that the committal is null, void, unlawful and unconstitutional.

In his petition, Bacchus 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.

After listening to arguments from all sides, Chang said that paper committals under the Sexual Offences Act, are unlawful as the accused is given no opportunity to defend him or herself in the Magistrate’s Court, which is a breach of one’s constitutional rights.

According to the Sexual Offences Act, no witnesses are required to attend the Magistrates’ Court to give evidence, and the Magistrate would make a verdict based on statements provided by the virtual complainant, investigating ranks and the complainant’s medical report and birth certificate.

However, Chang’s ruling noted that the Magistrate acted in violation of the Applicant’s rights under Article 144 (2) (d) and (e) when she disallowed cross-examination of the makers of prosecution witness statements, tendered against the applicant in the preliminary inquiry.

It goes on to say that an accused/defendant {d} shall be permitted to defend himself or herself before the court in person or by a legal representative of his or her own choice and {e} shall be afforded facilities to examine in person or by his or her legal representative, the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.

These rights, Chang says, were violated.   However, the State had appealed Chang’s ruling.   On Tuesday, the Court of Appeal determined that the decision of the former CJ is set aside.

The Appeal Court essentially upheld the arguments of the State that the amendments to the Sexual Offences Act are in fact, constitutional.

Last month, DPP Shalimar Ali Hack presented oral arguments in the Appeal Court on behalf of the State 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.

In his affidavit, Attorney Murseline Bacchus argued that the paper committal did not afford him 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.

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.

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 had 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.

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