I read an interesting case in the Kaieteur News on May 3, 2011 in which a lawyer won a court battle with a magistrate before the Chief Justice. The case is interesting because the Chief Justice ruled that the law in Section 94 of Chapter 8:02 is illegal. As I understand it, the case is as follows: A person was charged for being in  unlawful possession of a carcass and the section goes on to say that if the stuff he was found in possession of is reasonably suspected to be stolen or unlawfully obtained and he does not give an account to the satisfaction of the court as to how he came by it, he shall be convicted of the offence of unlawful possession. The Chief Justice ruled that this is putting the burden on the man charged of proving an essential ingredient and this offends the Constitution of Guyana – that the charge is unconstitutional and contravenes the rights of the man charged – that there is a presumption of innocence.
I do agree with the Chief Justice’s ruling that giving an account to the satisfaction of the court by the man as to how he came by the carcass is an essential ingredient.
The essential elements in the case, and which the police must establish are that the carcass was found in the man’s possession, and that the police have reasonable grounds to suspect that the carcass was stolen or unlawfully obtained.
If there is such a case made out, only then does the onus shift to the defendant for him to give an account as to how he came by the carcass. He is not denied the right to offer an explanation if a prima facie case is made out.
If the Chief Justice is right, the following can happen. People go on a looting spree and vandalise shops and business enterprises and move off with refrigerators, microwave ovens, radios, television sets, etc, but there are no marks on the items to say from which establishments they came from. If the police hold someone and charge him with unlawful possession of the articles – is that the law?

Let us look at it from this angle also. We are dealing with the burden that the prosecution must bear, because according to the Chief Justice the man is presumed to be innocent.

A driver of a motor vehicle was driving carelessly and the police stopped him and asked  for his driving licence and Certificate of Insurance for the vehicle. He refuses to hand over or to answer any questions.

He is then charged for being an unlicensed driver and for the breach of insurance. How can the prosecution prove the case against that driver? Must the police call witnesses from all the insurance companies to establish that the man had no certificate of insurance, and must they also call the entire Inland Revenue Department to produce records to prove that the man is not a licensed driver?

All the prosecution has to establish is that he was driving a motor vehicle. The onus then shifts unto the driver. The law provides for the driver of a motor vehicle to be licensed and that there must be a Certificate of Insurance for the vehicle.
We see that Guyana is a lawless society.

If the law is as the Chief Justice rules, then we will be removing all the flood gates. I am sure that the law is and should be that knowledge of something peculiar to the defendant shifts onto him to explain his side.

I do not wish that the report in the press is full. Was the magistrate present at the hearing or was she represented by a lawyer?