A SUMMONS for a Stay of Execution of the judgment of acting Chief Justice Ian Chang was heard by the Court of Appeal yesterday and granted, after an application was filed by Attorney-General (AG) and Minister of Legal Affairs Anil Nandlall.

On November 14, the acting Chief Justice ruled that Magistrate Sherdell Isaacs-Marcus acted in violation of the constitutional rights, as stated in Article 144 (2) and (e), of Bacchus who was charged for rape in January.
The acting Chief Justice’s ruling had effectively quashed a decision of Magistrate Sherdell Isaacs-Marcus to commit rape-accused Ray Bacchus to stand trial before the High Court on the grounds, inter alia, that the Sexual Offences Act, Chapter 8:03, under which he was charged and committed was unlawful and unconstitutional.
In an invited comment, the Attorney-General explained that the effect of the stay of execution is that, “The police can continue to charge persons under the Sexual Offences Act, magistrates can continue to hear matters under the same Act and the Director of Public Prosecutions (DPP) can indict persons who have been committed to stand trial in the High Court for offences under the Act.”
“One of the possible consequence of the acting Chief Justice’s ruling was that a section of the Sexual Offences Act was unconstitutional and that presented a chaotic situation for persons who are likely to be charged, or charged, or indicted under the said legislation,” Nandlall said.

“The police can continue to charge persons under the Sexual Offences Act, magistrates can continue to hear matters under the same Act and the Director of Public Prosecutions (DPP) can indict persons who have been committed to stand trial in the High Court for offences under the Act.” – AG and Minister of Legal Affairs Anil Nandlall

Additionally, Justice of Appeal B.S. Roy who handed down the ruling yesterday said, “It is well established that this court has an unfettered discretion to order a stay of an order under appeal if the justice of the case demands it.
“In a case in which the question of ordering of a stay arises, the role of the court is to make the order that best accords with interest of justice.
“Where there is a risk of harm to one party or the other, whichever order is made, the court has to balance the alternatives and make a decision as to the course which is likely to occasion the least injustice.”
Bacchus was represented by Attorney-at-Law Perry Gossai and Nandlall, along with Deputy Solicitor General Prithima Kissoon, who appeared for the Director of Public Prosecutions and the Commissioner of Police, who were the applicants seeking a stay of execution of the acting Chief Justice’s ruling.

LIKELIHOOD OF SUCCESS
The Attorney-General, in his arguments, submitted that the appeal filed has every likelihood of success and therefore the stay of execution should be granted.
He cited several cases to support that contention and emphasized that the magistrate acted lawfully, within her jurisdiction and scrupulously complied with the Sexual Offences Act in committing the accused.
Nandlall also pointed out that the learned acting Chief Justice fell into error by quashing the magistrate’s ruling on the ground that the Sexual Offences Act was unconstitutional, since that was not an issue for which the court was properly moved to determine and significantly that was not an issue canvassed before the magistrate.
He pointed to the fact that there is a clear and settled procedure by which legislation is challenged and that the will of Parliament cannot be “struck down by a side wind” through a collateral challenge.
The Attorney-General articulated that the effect of this judgment is that committal proceedings for all offences under the Sexual Offences Act Chapter 8:03 may be invalid and as a result all of the committal proceedings which have been completed by magistrates in all the districts in Guyana since the last amendment to the Sexual Offences Act in 2013, may now be invalid based on this ruling and therefore may have to be done de novo thus creating an overwhelming backlog for Sexual Offences cases.
He urged the court to take “keen consideration” of the right of the accused, as guaranteed by the Constitution, as well as the rights of all the victims of sexual offences.
Nandlall also asked the court to be cognizant that the Court’s pivotal function is to strike that vital, but delicate balance between two competing interests – on the one hand, that of the victorious party, and in this special circumstance, that of the victims of sexual offences, who ought to have their cases determined in their and the public’s interest.

FIRST APPEARANCE
Bacchus, 38, in early January was placed on $150,000 bail when he appeared before Magistrate Isaacs-Marcus at the New Amsterdam Magistrate’s Court on a rape charge. Bacchus was accused of committing the offence on August 28, 2013 at New Amsterdam. The court was told that he had sexual intercourse with a girl under age 15. The accused denied committing the crime during the police investigations.
On June 2, Magistrate Isaacs-Marcus ruled that Ray Bacchus stand trial in the High Court on the amended Sexual Offences Act.
However, in July Bacchus’ attorney Murseline Bacchus challenged Magistrate Isaacs-Marcus’ ruling.
The attorney-at-law moved to the court for an order directed to the Director of Public Prosecutions (DPP), the Commissioner of Police and Magistrate Isaacs-Marcus to show why the magistrate’s decision handed down on June 2, committing Ray Bacchus to stand trial for rape should not be quashed.
The client Ray Bacchus, in his affidavit stated that his attorney Murseline Bacchus was not permitted 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.
As a result, the client contended that his committal is null, void and of no legal effect.
After hearing the affidavit submitted by his attorney, Chief Justice Chang instructed that an Order be issued directing the DPP, the Commissioner of Police and Magistrate Isaacs-Marcus to show cause why the decision of the said Magistrate should not be quashed.

IN FAVOUR OF BACCHUS
After considering the responses, Chang on November 14 stated that constitutional violation occurred when Magistrate Isaacs-Marcus disallowed cross-examination of the makers of prosecution witness statements tendered against the applicant in the preliminary inquiry.
In so far as paragraph 5 of the First Schedule to the Sexual Offences Act purports to disallow cross-examination of the makers of prosecution witness statements, it is inconsistent with Articles 144 (2) (d) and (e) of Guyana’s Constitution.
Article 144 of the Constitution provides:
(1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(2) It shall be the duty of a court to ascertain the truth in every case and every person who is charged with a criminal offence –
a. Shall be presumed to be innocent until he or she is proved or has pleaded guilty;
b. Shall be informed as soon as reasonably practicable in a language that he understands and in detail, of the nature of the offence charged;
c. Shall be given adequate time and facilities for the preparation of his defence;
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.
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.
The Attorney-General subsequently filed an appeal of Chang’s ruling and the matter is to be heard on a date to be fixed.