CHIEF Magistrate Priya Sewnarine Beharry, by way of a referral made under Article 153 (3) of the Constitution of Guyana, approached the court on July 24, 2012, for determination of the following questions:- (a) Whether an accused can be lawfully committed to stand trial pursuant to provision for paper committals under the Sexual Offences Act # 7 of 2010 without giving him an opportunity to be heard.

(b)Whether the provisions of the Sexual Offences Act No. 7 of 2010, which do not permit the accused to be heard, are in breach of Articles 144 (1), 144 (2)  (d) and 144  (e) of the Constitution.
Acting Chief Justice Ian Chang, S.C., in responding to the Chief Magistrate’s referral recently, said that an accused person cannot be lawfully committed under the Sexual Offences Act No.7 of 2010, without giving him an opportunity to be heard.

And the CJ also inferred that the provisions of the Sexual Offences Act No. 7 of 2010, which do not permit  the accused to be heard, are in breach of Articles 144 (1), 144 (2) and 144 (e) of the Constitution of Guyana.

The Chief Justice declared, “The court must therefore answer the first question in the negative, and the second in the positive”.
According to the CJ’s decision, “In her affidavit in support of application for the determination of the above legal questions, the Chief Magistrate deposed that, while presiding in the Georgetown Magistrate’s Court in the matter of Anthony Branche PC 20456 VS Leonard Singh C.J No 2509/2011, the question arose as to whether  paragraph 5 (1) of the First Schedule to the Sexual  Offences Act No. 7 of 2010 is in contravention with the constitutional rights of an accused person, guaranteed by Article 144 (1) 144 (2) (d) and (e) of the Constitution.
“She further deposed that Mr. Nigel Hughes, counsel for the accused, informed the court that the accused was having in his possession legally admissible evidence which would exonerate him from the charge, and that the accused would like to give an unsworn statement and to call witnesses on his own behalf – a course of action which the Sexual Offences Act No 7 of 2007 purports to prevent him from doing, in contravention of his constitutional rights, guaranteed by Article 144 of the Constitution.

“Paragraph 5 of the First Schedule to the Sexual Offences Act provides:
“(1) for the purpose of paper committals only, the evidence of the prosecution shall be allowed.”
Article 144 of the Constitution provides:
(1)If any 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, provided that every person who is charged with criminal offence shall be permitted to defend himself before the court in person or by a legal representative of his own choice; shall be afforded facilities to examine, in person or by his 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.
“There can be no doubt that the preliminary inquiry is part and parcel of the hearing process into an indictable offence; if so, the preliminary inquiry is caught by the “fair hearing” requirement of Article 144 (1) of the Constitution.
“Surely, a hearing cannot be fair if the accused can lead no evidence in response to the evidence adduced by the prosecution. In furtherance of ensuring a procedurally fair hearing, Article 144 (2) (d) mandates that every person who is charged with a criminal offence shall be permitted to defend himself before the court in person or by a legal representative of his choice.
“Surely, a person cannot defend himself if he is disabled from testifying on his own behalf, and from calling any witness on his behalf.
“Article 144 ( 2) (e) prescribes that such a person must be “afforded  facilities to obtain the  attendance and carry out the examination of witnesses to testify on his own behalf before the court on the same conditions as those applying to witnesses called by the prosecution.”
After expounding on the law, the Chief Justice added that a preliminary inquiry into an indictable offence is part and parcel of the hearing process into that offence, or a stage in the judicial proceedings for proof of guilt of that offence.
“It does appear to this court that paragraph 5 (1) of the First Schedule to the Sexual Offences Act 2010 is   inconsistent with Article 144 (1), 144 (2) (d) and (e) of the Constitution to the extent that it purports to prohibit the admission of evidence for or on behalf of an accused, and is therefore pro tanto void for such inconsistency under Article 8 of the Constitution.
“The court must therefore answer the first question in the negative and the second in the positive,” the acting Chief Justice declared at the conclusion of his decision.