In a major decision, the Guyana Court of Appeal yesterday overturned former acting Chief Justice Ian Chang’s ruling that the paper committal process under the Sexual Offences Act was unconstitutional and found that the Act balanced the rights of the victims and the accused.
In setting aside Justice Chang’s 2014 ruling, which had been stayed by Justice B.S. Roy, the Court affirmed Magistrate Sherdel Isaacs-Marcus’ committal to the High Court of rape accused Ray Bacchus.
Then Attorney-General Anil Nandlall had appealed Justice Chang’s decision, which led to Justice Roy granting his request for a stay of execution of the decision.
Since the committal has been validated, an order will now have to be issued by the Director of Public Prosecutions to indict Bacchus, who was charged with sexual penetration of a child under the age of 16 in January of 2014.
It was Bacchus’ committal that resulted in the challenge to the law on the grounds that he was not allowed to cross-examine witnesses in the proceedings, which he said should be deemed null and void.
Based on Bacchus’ challenge, Justice Chang had then concluded that the paper committal process, under the Sexual Offences Act, was inconsistent with the Constitution because it did not allow accused persons to cross-examine witnesses at the preliminary inquiry (PI) stage.
However, acting Chancellor, Justice Yonette Cummings-Edwards, Chief Justice Roxane George and Justice of Appeal Arif Bulkan yesterday found that the accused’s right to cross-examination was not taken away because he would be given that opportunity in the High Court. Their decision was unanimous and all three of the judges spoke on the decision.
The Appeal Court found that the paper committal procedure under the Sexual Offences Act was not unconstitutional and did not breach Article 144 of the Constitution as Bacchus had claimed in his challenge. It was pointed out that the section of the Act that makes provision for the PI to proceed without oral evidence or the cross-examination of the victim was not excessive or in contravention of Article 144. It was also pointed out that that the accused will have all the powers to cross-examine the victim in the High Court.
Article 144 states that any person charged with a criminal offence shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by the law. It further provides at 2(e) for an accused to examine, either by him/herself or through a legal representative, the witnesses called by the prosecution.
The judges also noted that the Act was new legislation and as a result looked at whether the changes it effected were reasonably justified in a democratic society. They found that the legislation was in keeping with international obligations under both the United Nations Convention on the Rights of the Child and Convention on the Elimination of all Forms of Discrimination Against Women, to which Guyana is a signatory.
Also examined was the context, history and the underlying purpose of the legislation and it was stressed that its objective was not to submit the victim to cross-examination twice and to shorten the length of the PI and allow for speedy resolution.
Further, the judges found that the Act itself was one to reform and consolidate the laws relating to sexual offences and to provide for related matters.
Justice Bulkan, in his comments, also noted that the Act was passed unanimously in the National Assembly.
To support their decision, the judges cited two cases. In the 1978 case, which involved an application by Norris Williams and Cecil Salisbury, the late J.O.F. Haynes ruled that the PI is just the first stage in the trial process. In that case, it was submitted that the PI is an investigation of the sufficiency of the evidence for committal and is not a hearing of a case, which would connote an adjudication of guilt or non-guilt so that the clause “the case shall be afforded a fair hearing” in part would mean the case before the trial jury.
Justice Haynes pointed out that if a person is charged for an indictable offence, only a jury can find him guilty, and only according to the procedure laid down. This procedure, he said, covers the proceedings at the PI and the proceedings before the jury.
“I regard a preliminary inquiry as part and parcel of the trial of an indictable offence. I would prefer to say it is a stage on the judicial proceedings for the proof or guilt of an indictable offence,” Justice Haynes had said in his ruling at the time.
Another case cited by the Court of Appeal was Humphreys versus the Attorney General of Antigua and Barbuda, which was determined by the Privy Council. In that case, the Council found that the committal proceedings were not determinative of guilt but act as a filter to enable the magistrate to screen out those cases in which there appears insufficient evidence to justify a trial. Those proceedings, it was found, are conducted by an independent magistrate to whom both sides may submit evidence and make submissions and the restriction to written evidence applies to both prosecution and defence. It was noted that the accused is entitled at trial to cross-examine the prosecution witnesses and give oral evidence.
The new Sexual Offences Act was primarily crafted with a view to making the legal system more responsive to victims of sexual violence, including, in particular, children, because of the traumatic nature of the crimes.
Prior to the new Act, victims were forced to endure preliminary inquiries that were criticised for subjecting them to reliving their trauma.
In his ruling, Justice Chang said that in so far as the Sexual Offences Act purports to disallow cross-examination of the makers of prosecution witness statements, it is inconsistent with Articles 144 (2) (d) and (e). “The court also finds that, in any event, the Magistrate acted in violation of the applicant’s rights under Article 144 (2) (d) and (e) when she disallowed cross-examination of the makers of prosecution witness statements tendered against the applicant in the preliminary inquiry,” he said. “The court must point out that Article 144(2) makes no exception of persons charged with a sexual offence. It expressly applies to “every” person who is charged with a criminal offence. Ordinary legislation cannot create an exception to the application of a constitutional provision—unless provided for in the constitution itself,” he further said.
Women’s and child rights activist Danuta Radzik, who was integral in helping to frame the new Sexual Offences Act, had described Justice Chang’s ruling as ridiculous and making a mockery of the law.
She had pointed out that Justice Chang was reverting to a system that did not work well, was geared towards the defence and not understanding the trauma that rape victims endure.
“It is just ridiculous and alarming,” a shocked Radzik had said, when contacted by this newspaper at the time.
Radzik had said even if Justice Chang cited the constitution, which gives the accused the right to cross-examine their accuser and witnesses, the paper committal is only a procedural mechanism for the case to be transferred to a court where a full trial would be held by a judge and jury.
“The accused would have every opportunity to cross-examine. You have to weigh the rights of the accused but also the rights of the victim to have his or her day in court, to have the matter go to the court for the court to settle the matter based on evidence,” Radzik added, while noting that she could not see how a person’s constitutional rights could be breached based on the paper committal process.