Dear Editor,
Attorney-at-law Mr Anil Nandlall cites the reception of English common law via the Civil Law of Guyana Act, Chapter 6:01 as the common law of Guyana from January 1, 1917 as authority to support his argument that a local magistrate has no jurisdiction to conduct a voir dire to determine the admissibility of a confession statement at a preliminary enquiry. (‘The Evidence Act does not empower a magistrate to exclude a confession statement’ SN, August 22).
I cannot agree. The Civil Law of Guyana Act resulted from the work of two bodies – The British Guiana Roman Dutch Law Commission (1914) and the British Guiana Statute Law Committee (1916). Each body produced a report on its respective work giving details of the local law as it then stood, its recommendations for changes and reasons therefore.
The commission made the following observation concerning the state of the criminal law and procedure in then British Guiana in a paragraph headed “Alterations since 1828”:
“In 1846 a series of statutes was passed to introduce the English system of criminal law and procedure for which preparation had been made by an Order-in-Council of 1828, reforming the more pressing abuses. In 1847 an Ordinance repealed all Ordinances, Proclamations or other laws which in any way might conflict with the new system. The statutes of 1846 were consolidated in 1893 by a remarkable body of legislation, Ordinances dealing with Indictable Offences and Procedure, Summary Offences and procedure and introducing the English Law of Evidence… but both as regards Criminal law and Criminal and Civil procedure, it cannot be alleged that we are much inferior to any other Colony.” (Report of the Commission, p 16)
Not a single recommendation was made by either the commission or the committee to add to or take anything from the criminal law or criminal procedure. All recommendations made for changes concerned the civil law. The committee’s draft Civil Law of British Guiana Ordinance was enacted almost in toto by the legislature.
The title Civil Law is instructive.
There is a second reason why, in my opinion, the above event made no changes affecting local criminal law and procedure.
The Evidence Act, Chapter 5:03 and the Criminal Law (Procedure) Act, Chapter 10:01, which in my opinion are the relevant acts on the subject, each contains a provision subjecting the provisions it contains to any other written law.
Section 4 of the Evidence Act reads: “Subject to this Act and to any other written law for the time being in force, the rules and principles of the Common law relating to evidence shall, so far as they are applicable to the circumstances of Guyana, be in force therein.”
The Criminal Law (Procedure) Act makes provisions for the conduct of a voir dire by a magistrate, inter alia.
Section 3 reads:
“This Act shall extend and apply to all proceedings taken after the commencement of this Act in respect of indictable offences, unless the contrary is expressly provided by any written law relating thereto, whether those offences are constituted before, or at the time of, or after, the commencement of this Act.”
These acts were in force since 1893. I understand the above provisions to mean that each of the acts cited can only be affected by a written law.
Section 5 (1) of the Interpretation and General Clauses Act, Chapter 2:01 states:
“‘written law’ means the constitutional instruments, Acts of Parliament, subsidiary legislation and applied laws.
“‘applied law’ means an Act of Parliament of the United Kingdom, having effect or having had effect as part of the law of Guyana.”
English common law as received here from January 1, 1917 does not fall within the definition of written law and as such cannot give or take away anything from the two acts referred to above.
There is nothing esoteric about a voir dire. I should add that a voir dire (trial within a trial) is not only conducted to determine the admissibility of a confession statement, written or oral.
A voir dire can be held to determine the admissibility into evidence of other matters such as a dying declaration (if a person had made a statement while being conscious of being in a dying state) or whether a statement or action forms part of the res gestae (all things done including words spoken in the course of one transaction).
I have nothing further to add. This letter ends my contribution to the debate.
Yours faithfully,
Winston Moore
