A preliminary inquiry is a creature of statute

Aug 24, 2009 Letters

Dear Editor,

My attention was drawn to a letter written by Mr. Winston Moore under the captioned “A Magistrate has the power to apply common law rules of evidence and therefore has the power to determine the admissibility of a confession statement” published in the SN Newspaper on the 19th August, 2009.

The argument of Mr. Winston Moore that magistrates are a creature of statute and derive their power therefrom is one with which I am in full agreement. This is so for Guyana as well as the Commonwealth Caribbean. I wish to add that a preliminary inquiry is similarly a creature of statute. I humbly submit that no statutory provision empowers a magistrate to exclude a confession statement at a preliminary inquiry.

My reference to the common law was to demonstrate that committal proceedings, which has existed in England for over a century did not develop the concomitant practice of excluding a confession statement in those proceedings even at common law. The seminal question therefore is, if neither statute nor the common law permits it, then on what basis is it done and from whence did magistrate derived the power to do so in Guyana?

It is apposite to point out that by Section 3 (b) of the Civil Law Act, Chapter 6:01, on the 1st January, 1917, we received the common law of England as the common law of Guyana. Thus, any common law principle, practice or procedure extant in England as at 1st January, 1917, became the common law of Guyana as of that date. This position only changes when Parliament passes some new statute which either repeals, changes or alters the common law. I humbly submit that any judicial authority which pronounces or suggests otherwise is per incuriam.

Mr. Moore next cites the Evidence Act, Cap 5:03, Sections 3 and 4 as the statutory authority which empowers a magistrate to exclude a confession statement. I do not accept that the Evidence Act is supportive of this contention.

In essence, Section 3 explains that the provisions of the Act apply to all Courts of Justice in Guyana which include magistrate’s courts. Section 4 provides that the rules and practice relating to the common law rules of evidence shall apply to Guyana.

Then the letter posits that “a magistrate conducting a voire dire has to take evidence”. Herein lies the nucleus of the issue under review. As I have pointed out elsewhere, the recognised authorities establish that a magistrate has no jurisdiction to deal with the admissibility of a confession statement at a preliminary inquiry and therefore should not be conducting a voire dire. This is a process for the trial; hence, the possible historical explanation for the phrase voire dire – a trial within a trial.

Lastly, our Evidence Act is the 1893 Evidence Act of England. This very Act was transplanted throughout the English Commonwealth including the Caribbean. This said Act remained in England virtually unchanged for nearly 100 years. This very Act, to date, remains in force throughout the Caribbean with certain minor modifications, none of which are relevant to the issue under review. The question which ineluctably must be posed therefore is, why, despite a similar Evidence Act in England and throughout the Caribbean, does a magistrate have no power in all those jurisdictions to exclude a confession statement, but in like circumstance a magistrate in Guyana enjoys such power? I hope the answer is not that all these countries are wrong and we are right.

I consider the remainder of learned counsel’s letter not germane to the debate and will therefore not comment thereon.

Mohabir Anil Nandlall MP,

Attorney-at-Law

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