Much is being written in the press about the Court of Appeal (Amendment) Bill of 2008, which in essence confers upon the State the right of appeal in certain High Court Criminal matters. Unfortunately, many of the comments which are being made about the Bill are ill-informed, misconceived and simply wrong. I reproduce hereunder an excerpt of my address in the National Assembly when the Bill was debated. I hope that it will bring some degree of balance and objectivity to the public ongoing debate and it will inform the public of the nature, purpose and purport of the Bill:
I respectfully submit that under the present law, when an accused person stands trial for a criminal offence before the High Court of Guyana, that vital component of the rule of law and the constitutional guarantee that all is equal before the law, is absent. The proverbial scale of justice, which at all times ought to be equally balanced between parties in legal proceedings, is tilted in favour of the defence.

THE SAFEGUARDS OF THE ACCUSED PERSON
I will now explain this imbalance.
* Firstly, whilst an accused person has a right of appeal against his conviction, the Prosecution has no right of appeal against the accused acquittal.
* Secondly, throughout the trial, the accused is presumed to be innocent. This common law presumption of innocence has received constitutional imprimatur and is guaranteed as a fundamental right by Article 144 of the Constitution.
* Thirdly, a necessary corollary to the presumption of innocence, is the burden of proof. In a criminal trial, the burden of proof remains upon the Prosecution throughout.
* Fourthly, throughout the trial all doubts which may arise upon the evidence must be resolved in favour of the Defence and whenever there are two or more inferences which are to be drawn from the evidence presented the law compels that the inference most favourable to the Defence is to be drawn.
Fifthly, the standard of proof that devolves upon the Prosecution is proof beyond reasonable doubt. But, whenever the accused is to prove his defence, the standard that is required of him is one which is merely on a balance of probabilities. A much lower standard than ‘beyond reasonable doubt’.
I have outlined above only some of the inequalities which exist between the Defence and the Prosecution at a criminal trial. But these inequalities are facilities which the law has guaranteed to the accused person from time immemorial. Today, they form a network of mechanisms embedded in our criminal justice system to guarantee to the accused person the fairest possible trial.

THE PROSECUTION’S RIGHT OF APPEAL
This Bill does not in any way whatsoever take away or interfere with those protective facilities which the Defence enjoys. All that the Bill does, is to confer upon the Prosecution, a right of appeal. And of course, this right of appeal can only be exercised at the conclusion of the trial. So that this Bill seeks to change nothing during the course of the trial.
This Bill is indeed historic and one may even say revolutionary because it confers upon the Prosecution, for the first time in the legal history of Guyana, the right of appeal at an indictable trial.
I submit that there appears to be no philosophical, juridical or practical reason why the prosecution should not enjoy a right
of appeal in a criminal trial in the High Court. I must emphasise that in summary trials, that is, trials in the Magistrate’s Court, the Prosecution has a right of appeal and this right of appeal has existed for the last one hundred years. I can see no just reason nor or can I conceive a convincing argument why this right of appeal should not be extended to criminal trials in the High Court.

THE STATE’S INTEREST
It is important that I explain at this juncture whose interest the Prosecution represents in a criminal trial. I must emphasize that in law, when a crime is committed, the crime is not only committed against the victim but also against the State. The Prosecution represents the interest of the State. And whose interest does the State represent? The State represents the people’s interest, the public interest and the public good. That is why in the U.S.A, in Criminal trials, it is called the “The People v- Tom Jones”. In Guyana it is the State v- Tom Jones. So that when Tom Jones faces a criminal trial in Guyana, it is 750,000 Guyanese citizens against Tom Jones.
Often times, it is believed that justice is only about the interest of the accused person. This is a grave misconception and a myopic perception of justice. The State at all times has an interest in a criminal trial. Justice is about balancing the accused interest on the one hand and the public or the State interest on the other. Justice is not a one way Street but is dual carriageway which must accommodate in a balanced way, the interest of the accused along with the interest of the State.
Therefore, in a fair, impartial and balanced legal system, if the accused has a right of appeal, on what jurisprudential basis or by what philosophical rationale should the State or the public or the Prosecution not have a reciprocal or corresponding right of appeal? Why should 750,000 Guyanese not have a right of appeal when the accused has such a right?

CRIME RATE
It is common knowledge that in recent times, Guyana has been plagued with an unusually high incidence of brutal, violent and sophisticated crimes. It is the legal and constitutional responsibility of the State to curb and address this horrendous social reality. Enacting suitable legislative measures and strengthening the criminal justice system are recognized the world over as necessary and effective mechanisms to combat crime. This Bill represents one of such mechanisms.
It is also common knowledge that a high crime rate is a social problem confronting many countries in the Caribbean and further afield. In a quest to address this serious problem of crime, similar Legislation has been enacted in several countries both in the Caribbean and beyond which confers upon the Prosecution the right of appeal. My research informs me that such a right of appeal presently exists [in the Caribbean] in Antigua (2004), the Bahamas (1989), Bermuda (1962), Barbados (2000), Dominica (1982), St. Kitts and the Nevis (1998) and Trinidad and Tobago (1996). Outside of the Caribbean, the prosecution has a right of appeal in Singapore, Tasmania, Sri Lanka, India, U.K and Canada.

THE CURRENT POWERS OF THE DPP
Presently, the position in Guyana is if the prosecution wishes to review the acquittal of an accused at a criminal trial, the DPP can refer the case to the Court of Appeal for an opinion ONLY. Of course, this opinion bears no impact whatsoever on the acquittal but it is to be used only for future reference. And this mechanism to reference cases to the Court of Appeal was only introduced in 1978, with the enactment of the Administration of Justice Act, which amended the Court of Appeal Act.
At this point in time, because of the futile nature of this exercise, the power of the DPP to refer cases to the Court of Appeal for an opinion has fallen into disuse.
In my research I was able to unearth four reported instances where the DPP utilized this device. They are as follows:
(1) DPP reference No. 1 of 1980 29 WIR p. 94
(2) DPP reference No. 2 of 1980 29 WIR p. 954
(3) State v- Alvin Mitchell 39 WIR p. 185
(4) DPP v- Levine 41 WIR p. 169 (reference No. 1 of 1987.
In all these cases, the Court of Appeal ruled that the decision of the High Court in acquitting these accused persons were wrong. But of course, the Court of Appeal was impotent to do anything.
The result is that we had four (4) cases of manifest miscarriages of ju
stice, where four (4) guilty persons – 3 murderers and one rapist were allowed to walk free because the State does not have a right of appeal. This Bill seeks to redress this lacuna.

THE JUDICIARY CALLS FOR REVIEW
In particular, the case of the State v- Alvin Mitchell was such a glaring injustice that our Court of Appeal made some very telling remarks which I believe are most germane to this debate. In fact, the Court of Appeal in this case, that is, since 1984, issued a call for parliament to confer a right of appeal on the prosecution. In this case the DPP referred the following question to the Court of Appeal for their opinion:
“was the trial judge correct in law on the evidence led by the prosecution in this case in ruling that a case had not been established requiring the accused person to lead a defence”.
I will quote from the case itself. Chancellor Massiah at page 195 (39 WIR) states:
“My answer to the question under reference would therefore be that in point of law the trial judge fell into fundamental error when he concluded that the circumstantial evidence in its total and cumulative effect could not justify an inference of guilt by a properly charged jury acting reasonably. He ought to have overruled the “no case” submissions made on Mitchell’s behalf and submitted the case to the jury for their determination of his guilt or innocence.
No-one could ever tell what the result would have been if the case had been sent to the  jury but (in my judgment), in any event, justice miscarried, as it appeared to have done also in another case out of which arose Director of Public Prosecutions’ Reference (No 2 of 1980) (1981) 29 WIR 154. In my opinion, there can be a miscarriage of justice in relation to and affecting the State just as there can be one in relation to the accused. It is a grievous state of affairs which in either case ought to be deprecated. For this reason, Parliament may wish to consider whether the law ought not to be amended to give this court the power to order a new trial where, as in this case, the Court is satisfied that the case ought to have been sent to the jury”.

Justice of Appeal Fung-A-Fatt at page 196:
“Bearing in mind that justice is not one – sided, that the State is entitled to justice in the same manner as an accused person, it is my considered opinion that there was a denial of justice to the State by the trial judge when he ruled that the prosecution had failed to establish a prima facie case and directed the jury to return a verdict of “Not Guilty” in favour of Mitchell.
My answer to the reference posed by the Director of Public Prosecutions therefore is that the trial judge fell into serious error in agreeing with the “no case” submission and ordering an acquittal. My answer, like that of Massiah C, is an emphatic “No”. In conclusion, I feel that the time is ripe for Parliament to consider the question of giving the State a right of appeal in cases similar to this one. Had the State such a right of appeal, I am doubtful whether Mitchell would have left the courtroom a free and innocent man on 21st February, 1984”.

Justice of Appeal Vieira at page 197 states:
“In this matter under reference, Massiah C has painstakingly pointed out the telling circumstances put forward by the State which, in my view, might lead any reasonably jury inexorably to the almost irresistible inference that Mitchell brutally murdered the deceased during the early morning hours of Sunday 7th February 1982. What the trial judge did here was to usurp the functions of the jury and, as a result, a grave injustice was caused to the State. Justice is a two-edged sword which should work equally for the prosecution as it does for the defence.
I entirely agree with the view expressed by Massiah C that the time is now ripe for legislation in this country similar to that enacted in Canada under the Canadian Criminal Code, where an appellate court has the power to order a new trial where (as clearly here) the court is satisfied that the case ought to have been sent to the jury for their consideration”.
We must recognize that judges are human beings and therefore fallible. The above four cases clearly demonstrate this. Repeatedly, we hear the public, the victims of crime and their relatives complain that criminals are able to defeat the criminal justice system and walk free. Often, it is these same exonerated individuals who go on to commit more offences. We are all aware of career criminals in our society. These are realities which we must accept and seek to correct if we, as national leaders, are serious about confronting crime. It is incumbent upon us to devise new and innovative mechanisms to deal with the exigencies of the changing phenomenon of crime. This Bill is but only one of such mechanisms.

THE GROUNDS UPON WHICH THE STATE CAN APPEAL
It is important that I emphasize, however, that whilst this Bill seeks to confer upon the Prosecution a right of appeal, this is not a carte blanche right of appeal. The Bill lists the grounds upon which the Prosecution is to appeal. These grounds are contained in Clause 34B of the Bill.
It is clear from Clause 34B that the Prosecution can only appeal against the decision or ruling of the judge. In a criminal trial, the judge is the sole arbiter of questions of law. Therefore, when an appeal is launched against the judge’s ruling, it is an appeal that will invariably involve questions of law alone. Indeed, the only challenge that is allowed in respect of questions of fact is in respect of the judge’s summation to the jury.
I say all of this to emphasise that this Bill does not allow an appeal against the decision of the jury. The province of the jury remains untouched. Therefore, the cardinal principle that a man must be tried by his peers remains intact and unaffected by this Bill. It is the judge’s decision which will be the subject of an appeal. The verdict of the jury cannot be appealed under this Bill. It is important that I point out that in many of the Commonwealth jurisdictions which have conferred a right of appeal on the Prosecution, the relevant legislation provides for a right of appeal against all verdicts of acquittal in the High Court. If one looks at the jurisdiction of Tasmania, one would see that they have gone the whole route, that is, there is a right of appeal not only in relation to errors of law but against any acquittal. Singapore, Sri Lanka and India have similar legislation.
Under Clause 34B (1) (b), the Bill also empowers the Prosecution to appeal against the sentence imposed on the grounds that:
(i)    the court has no power to pass such sentence;
(ii)    the sentence is inadequate; and
(iii)    the sentence is wrong in principle.
Sentencing is done by the judge in accordance with established legal principles. So again, it is the judge’s decision which will be challenged where an appeal is filed against sentence. The jury has nothing to do with sentencing.
Under the Bill, the Court of Appeal can either dismiss the Prosecution’s appeal or allow the appeal, set aside the verdict and order a new trial. So that the Court of Appeal has no power to impose a sentence after an appeal succeeds. The matter is sent back to the High Court for a retrial. This mechanism is in compliance with the fundamental principle that an accused can only be convicted by his peers, that is, by a verdict of the jury. The right to trial by jury is again preserved.
The Bill also allows the Court of Appeal at the hearing of the appeal to assign an Attorney-at-Law to the Respondent if it appears in the interest of justice to do so where the Respondent seems unable to retain counsel.
The other fundamental aspect of this Bill is that it allows both the Prosecution and the Defence a right of appeal to the Caribbean Court of Justice, our final court of appeal, as of right. This is another mechanism to ensure that the interest of justi
ce and the interest of all sides are served. I feel compelled to point out that in all Caribbean jurisdictions that retain the Privy Council as their final Court of Appeal, the State has a right to appeal to that Court in serious criminal cases. This has been the position since the establishment of the Privy Council since 1883 over 125 years ago. So that the State maintaining a right of appeal to its final court of appeal is a facility which Commonwealth countries have enjoyed for over a century. It is nothing new.

THE INDEPENDENCE OF THE JUDICIARY REMAINS
Most of the arguments raised against the State having a right of appeal are simply puerile. It is argued that this Bill will denude the judiciary of its independence. This is a clearly unintelligent and warped argument because conferring a right of appeal to one side in legal proceedings which hitherto never existed and which the other side enjoys has no bearing whatsoever on the independence of the judiciary.
It is also argued that conferring a right of appeal on the prosecution will result in the accused not having a fair trial and leads to a breach of article 144 of the Constitution. Again this Bill does not in any way whatsoever alter, affect or impact upon the course of the trial. The safeguards which the law affords to the accused remain unaffected by this Bill.
It is also argued that the right of appeal will be used as a political weapon. Again this is an argument that is devoid of any jurisprudential reasoning and is lacking in logic. The DPP upon whom this Bill confers a right of appeal is a constitutional office holder and by virtue of article 187 of the Constitution is not subject to any interference or directions whatsoever in this charge of the office.

CONCLUSION
In conclusion, this Bill is indeed historic and a most necessary legislative intervention. As I have pointed out before, the judiciary has called for it twenty five years ago. The executive has seen it fit to present it to the National Assembly. The People of Guyana have called for it. It is the duty of this Legislature to enact it.
The End
Dated this 23rd day of July, 2008