Chief Justice finds that paper committal in sex offences case unlawful

Acting Chief Justice Ian Chang last Friday said that paper committals under the Sexual Offences Act are unlawful as the accused is given no opportunity to defend him or herself in the Magistrate’s Court which is a breach of one’s constitutional rights.

“Surely a hearing cannot be fair if the accused can lead no evidence in response to evidence adduced by the prosecution”, Justice Chang said in handing down the landmark ruling that it likely to place this aspect of the Act in limbo.

Chief Justice Ian Chang

Paper committals came into being in 2010 when the Sexual Offences Act No. 7 of 2010 was passed in the National Assembly allowing a magistrate to make a committal only on statements provided. No witnesses according to the legislation are required to attend the magistrate’s court to give evidence. The Magistrate would make a determination based on statements provided by the virtual complainant, the investigating rank and the rank who accompanied the complainant to the hospital along with the complainant’s medical report and birth certificate.

During the hearing in the Magistrate’s Court, the accused, according to the law cannot say or produce anything in his defence.

It was Chief Magistrate Priya Sewnarine-Beharry who approached the High Court seeking an opinion after attorney for accused Leonard Singh informed the court that his client was in possession of evidence which would free him of the charge and as such wanted to make an unsworn statement.

Justice Chang in his eleven-page decision said that on July 24, the magistrate by way of referral made under Article 153 (3) of the constitution, approached the court for the determination of the following questions:

“(a) whether an accused can be lawfully committed to stand trial pursuant to the provision for paper committals under the Sexual Offences Act No 7 2010 without giving him an opportunity of being heard.

(b) whether the provisions of the Sexual Offences Act No 7, 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.

It was pointed out that in her affidavit in support of the application for the determination of the above legal questions, the chief magistrate deposed that while presiding in the matter of Singh the question arose as to whether paragraph 5 (1) of the First Schedule to the Act is in contravention of the constitutional rights of an accused as guaranteed by the above sections of the Constitution.

The decision read that the magistrate further deposed that Nigel Hughes, the attorney for the accused informed the court that his client had in his possession “legally admissible evidence” which would exonerate him from the charge and that he wished to make an unsworn statement and to call witnesses on his own behalf. This is a course of action which the Act purports to prevent him from doing in contravention of his constitutional rights guaranteed by Article 144 of the Constitution.

According to the decision, Paragraph 5 of the First Schedule to the Sexual Offences Act provides that “(1) for the purpose of paper committals only the evidence of the prosecution shall be allowed” while Articles 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 …… (d) shall be permitted to defend himself before the court in person or by a legal representative of his choice; (e) 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”.

Fair hearing

Justice Chang noted that there can be no doubt that the preliminary inquiry is part and parcel of the hearing process into an indictable offence. He said that if so, the preliminary inquiry is caught by the “fair hearing” requirement of Article 144 (1) of the Constitution.

He said that in the 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”.

It was also pointed out that a person cannot defend himself if he is “disabled from testifying on his own behalf and from any witness on his behalf”, as prescribed in Article 144 (2) (e) of the constitution.

Meanwhile Justice Chang noted that it does appear that Article 144 (2) (e) is intended to ensure that there is “equality of arms” in relation to the procuring and examination of witnesses between the prosecution and the accused.

He noted that while the preliminary inquiry is not a trial (in which the accused is exposed to conviction) it is nevertheless a hearing which can result in the discharge of an accused from the indictable offence on the grounds that there is no prima facie case or an insufficient case to warrant a committal.

“As such there can be no doubt that a preliminary inquiry is part and parcel of the hearing process within the meaning of “hearing” in Article 144 (1) of the constitution – which mandates a procedurally fair hearing, Justice Chang said pointing out that such a hearing can hardly be viewed as procedurally fair when an accused is denied the right to testify or to call witnesses.

He said that the question as to whether a preliminary inquiry was part and parcel of the hearing of an indictable offence within the fair hearing provision of the constitution was dealt with by the Guyana Court of Appeal in Re Williams and Salisbury (1978) 26 W.I.R 139 and decided in the affirmative.

Justice Chang in his decision quoted extensively from several decisions.

“It would be overly simplistic and fundamentally fallacious to advance the argument that since the procedural right of an accused person to the conduct of a preliminary inquiry is merely statutory and not constitutional, there can be no constitutional right to a fair hearing at a preliminary inquiry. One only has to apply a modicum of analogical reasoning to reject such an argument”, he said. He stressed that all trials must be fairly conducted under the constitution.

“It is clear that Article 144 (1) mandates a fair hearing for all persons charged with criminal offences. It does not distinguish between hearing in the magistrate’s court or in the high court. Nor does it distinguish between preliminary or final hearings for its application. It applies to all post charge hearings”, Justice Chang ruled.

He said that since 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”.

Backlog

A legal source told this newspaper yesterday that this ruling will put “a stay” on all matters dealing with paper committals. The source said that all committals made under this Sexual Offences Act will now “have to go back before the magistrate”.

It was noted that even though, there were committals, they are yet to be heard in the High Court.

“You will now have to review the act to make amendments to allow the accused to lead a defence”, the source said adding that when the Act was passed “it amazed a lot of people. You have to be balanced. It was so unfair”.

Hughes in an invited comment told this newspaper that everyone’s rights needed to be protected including those of the accused. He expressed hope that in light of the ruling, Parliament would recognize the difficulties that were pointed out by the Chief Justice.