APPLICANT Milton Kewley, in a constitutional motion complained that a Sparendaam magistrate had refused to grant him permission to cross-examine prosecution witnesses who were to testify in a sex offence case against him.After hearing the motion recently, Chief Justice (ag.) Mr. Ian Chang, S.C. ruled: “The declaration prayed for by the applicant in paragraph (a) is granted. Each party to bear his own costs.”
On the 30th April, 2015, the applicant Milton Kewley by way of Notice of Motion applied for the following constitutional reliefs:
(a) A declaration that the refusal of the magistrate of the Sparendaam Magistrate’s Court to permit the applicant to cross-examine the prosecution witnesses in the trial against the applicant is in breach of the applicant’s guaranteed constitutional right to examine in person or by his legal representative the witnesses called by the prosecution as guaranteed by Article 144 (1) (2).
The grounds of the application were stated as follows:
1. The applicant is a citizen of Guyana.
2. The applicant was charged with an offence under the Sexual Offences Act 2010.
3. The applicant was served with statements of witnesses which the prosecution intended to rely on.
4. The applicant’s attorney-at-law applied to have witnesses cross-examined.
5. The learned magistrate refused to permit cross-examination.
6. The applicant’s attorney-at-law invited the learned magistrate to refer the matter to the High Court pursuant to Article 153 of the Constitution of the Co-operative Republic of Guyana.
7. The learned magistrate refused to do so.
8. The applicant’s right to a fair trial is impaired.
During the judgment, the Chief Justice said: “The point must be made that it is not open to Parliament to disapply Article 144 (2) by ordinary legislation to preliminary inquiries or any other form of committal proceedings in which the accused can seek a magisterial discharge and avoid a committal.
“The further point must be made that the preliminary inquiry or any other form of committal proceedings is judicial in nature as part and parcel of the hearing process for an indictable offence.
“This court declines to follow the decision in the Humphreys case-but only in so far as that decision seeks to disapply Article 10 (2) ( the equivalent of Article 144 (2) of the present Guyana Constitution) to preliminary inquiries or any other form of committal proceedings.
“As before mentioned, the fact that there can be a fair hearing for the purpose of Article 144 (1) without the application of the special provisions of Article 144 (2) does not at all mean that the Court is free to disapply those special constitutional provisions. It should be noted that the relevant dicta of Haynes C. in Re: Williams and Salisbury were not at all considered in the Humphreys case (supra). Indeed, Re Williams and Salisbury was not even mentioned in the Humphreys’ case (supra). This court is bound by the decision of the Guyana Court of Appeal in Re Williams and Salisbury and not by the decision and not by the decision of the Privy Council in the Humphreys’ case – which is strong persuasive authority but not binding authority in Guyana.
“For the above reasons the declaration prayed for by the applicant in paragraph (a) of the Notice of Motion is granted. Each party to bear his own costs.
By George Barclay