– Court of Appeal rules

THE Court of Appeal on Tuesday ruled that the paper committal of rape accused Ray Bacchus is valid and unanimously allowed an appeal mounted by the state in the matter.
Bacchus was charged on January 3, 2014 with the indictable offence of rape of a child under 16 years, contrary to Section 10 (1) (a) of the Sexual Offences Act No. 7 of 2010 as amended.

According to the charge, on August 28, 2013, at St. John Street, New Amsterdam, Berbice, he engaged in sexual penetration with a child, namely, a child of the age of 14 years. A preliminary inquiry into the said charge by way of paper committal was conducted by Magistrate Sherdel Isaacs-Marcus at the New Amsterdam Magistrates’ Court and on June 2, 2014, Bacchus was committed on Case Jacket Number 18 of 2014 in the Berbice Magisterial District.

During the paper committal, his attorney Murseline Bacchus was not permitted by the magistrate to cross-examine witnesses whose statements were filed by the prosecution, nor was he permitted to give evidence or to call any witnesses at these proceedings. As such, Bacchus challenged the committal on the basis that the said committal was null, void, unlawful and unconstitutional.

On June 23, 2014, the accused filed an Application for a Writ of Certiorari to be issued against Magistrate Isaacs-Marcus, the director of public prosecutions (DPP) and the commissioner of police, who are Appellants named in the said case. Then Chief Justice (ag.) Ian Chang on November 14, 2014, had ordered that the Order Nisi granted on June 30, 2014 be made absolute, thus quashing the decision of Magistrate Isaacs-Marcus to commit Bacchus to stand trial for the offence of rape on the ground that the committal was null, void, unlawful and unconstitutional.

In the High Court proceedings, Justice Chang, S.C., found that in so far as paragraph 5 of the First Schedule to the Sexual Offences Act purports to disallow cross-examination of the markers of prosecution witness statements, it is inconsistent with Articles 144 (2) (d) and (e) of the constitution. The court also found that, in any event, the magistrate acted in violation of the rights of Bacchus under Article 144 (2) (d) and (e) when she disallowed cross-examination of the markers of prosecution witness statements tendered against him in the preliminary inquiry.

Justice Chang’s decision was appealed by the state and the appellants argued that the chief justice misdirected himself in law when he ruled that in so far as paragraph (5) of the First Schedule of The Sexual Offences Act, Chapter 8:03 purports to disallow cross-examination of the makers of prosecution witness statements, is inconsistent with Articles 144 (2) (d) and (e) of the Constitution of the Co-operative Republic of Guyana.

Additionally, Section 43 of the Sexual Offences Act, Chapter 8; 03, states; “Where a person is charged with an offence under this Act, there shall be no oral preliminary inquiry and instead a paper committal shall be held in accordance with the procedure set out in the First Schedule.”

It was argued that the chief justice misdirected himself in law when he ruled that while it does appear that the amended paragraph (5) to the First Schedule to the Sexual Offences Act does afford the person charged the opportunity of tendering witness statements under the same conditions as are applicable to the witness statements tendered by the prosecution, Article 144 (2) (e) clearly imposes a positive duty on the court to facilitate the examination of the prosecution witnesses by the person charged, either in person or by his or her legal representative.

Additionally, the state contended that the judge erred and misdirected himself in law when he failed to consider that the Applicant’s constitutional rights as guaranteed by the specific requirements of Articles 144 (2) (e) are satisfied by the Sexual Offences Act, Chapter 8:03, which clearly sets out that the accused shall be afforded the same conditions as those applied to the prosecution.

It was also argued that the judge erred and misdirected himself in law when he failed to take into consideration that the Respondent/ Applicant who was represented by counsel, was given every opportunity to provide evidence and failed or declined to exercise his rights during the paper committal proceedings.

The state said too that the judge erred and misdirected himself when he failed to consider that a paper committal proceeding is a judicial process to determine whether in the magistrate’s opinion, there is sufficient evidence to commit the accused for trial or to discharge the accused if the magistrate is of the opinion that there is insufficient evidence.
Moreover, the contention was that the judge also erred and misdirected himself in law as the procedure utilised by the respondent was flawed, since the constitutionality of legislation cannot be challenged by prerogative writ.

It was submitted that the respondent has to challenge the constitutionality of the legislation not by way of a collateral of that legislation’s constitutionality seeking a prerogative writ which is misconceived and an abuse of the process of the court, but by way of Article 153 of the constitution, which provides for redress by application to the High Court in its original jurisdiction.

In handing down the ruling, Chancellor of the Judiciary (ag), Yonnette Cummings-Edwards, Chief Justice (ag), Roxanne George S.C. and Justice of Appeal Arif Bulkan, found that the prerogative writ filed by Bacchus was wholly misconceived and that it was not for the Magistrate Isaacs-Marcus to make a determination as to the constitutionality of any law, and, further, that the said magistrate did not act in excess of her jurisdiction.

The state had argued that further in the decision of the Court of Appeal, the court had found that Article 144 of the constitution applied to paper committal proceedings where there is no calling of witnesses in paper committals and Article 144 (2) (d) provides that the accused can defend case himself or with legal representative and Article 144 (2) (e) provides that the accused can dispute evidence in the prosecution’s statements and the court concluded that paper committals must be considered holistically and do not involve violation of Article 144 of the constitution.

In addition, the Court of Appeal found that Section 43 of the First Schedule of the Sexual Offences Act did not take away the right of the accused to cross-examine.
In addition, the court opined that The Sexual Offences Act should be a welcomed reform and the new procedure was not found to be unfair to the accused person because of the restriction of cross-examination. The appellants were represented by DPP, Shalimar Ali-Hack; Solicitor-General, Kim Kyte-Thomas; Deputy Solicitor-General, Deborah Kumar and Deputy DPP, Diana Kowlessar.