Appeal Court halts CJ’s ruling on paper committals

Dec 18, 2014 News

---

In a move sure to garner approval from civil society movements and organisations fighting for the rights of victims

of sexual violence,  the Court of Appeal has granted the State’s motion for stay of execution in the recent ruling by Chief Justice Ian Chang (ag), who deemed paper committals under the Sexual Offences Amendment Act 2010 unlawful and unconstitutional.
This means that the order by the Chief Justice is now halted, pending the resolution of this appeal. The Appeal Court’s decision comes after Attorney General (AG) and Minister of Legal Affairs, Anil Nandlall, filed a request asking it to put a halt on the CJ’s decision while he pursues an appeal.
Chang’s ruling had stemmed from a successful challenge to the Act by Attorney-at-Law Murseline Bacchus. He argued against a Magistrate’s decision to commit his client to stand trial in the High Court under the Act.
Bacchus, on behalf of his client, had moved to the court for an order or rule nisi of certiorari directed to the Director of Public Prosecutions (DPP), the Commissioner of Police and Magistrate Sherdel Isaacs-Marcus herself, to show cause why her decision to commit his client to stand trial for the offence of rape, should not be quashed on the grounds that the committal is null, void, unlawful and unconstitutional.
In his petition, Bacchus had submitted that he was not permitted cross-examination of the witness whose statements were filed by the Prosecution, nor was his client permitted to give evidence or call any witness in the proceedings before he was committed.
After listening to arguments from all sides, on November 14, last, Chang 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.
According to the Sexual Offences Act, no witnesses are required to attend the Magistrates’ Court to give evidence, and the

Magistrate would make a verdict based on statements provided by the virtual complainant, investigating ranks and the complainant’s medical report and birth certificate.
However, Chang’s ruling noted that 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.
It goes on to say that an accused/defendant {d} shall be permitted to defend himself or herself before the court in person or by a legal representative of his or her own choice and {e} Shall be afforded facilities to examine in person or by his or her 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.
These rights, Chang says, were violated.
On November 25, last, Nandlall filed an appeal to the decision; and also sought to have a stay of execution of the judgment. This was granted by Justice B.S Roy in the appeal court on Tuesday.
The AG and Deputy Solicitor General, Prithima Kissoon, appeared for the Magistrate, the DPP and the Top Cop while Attorney-at-Law Perry Gossai appeared for the respondent/applicant, holding for Bacchus.
The Attorney General relied on written submissions which were laid over with the Court and the respondent, and in addition made oral submissions. Nandlall submitted that the Appeal filed has every likelihood of success, and cited several cases to support that contention.
The AG emphasized that the Magistrate acted lawfully, within her jurisdiction and scrupulously complied with the Sexual Offences Act in committing the accused.
He pointed out that the CJ erred by quashing the Magistrate’s ruling on the ground that the Act was unconstitutional, since that was not an issue for which the Court was properly moved to determine and further, that was not an issue canvassed before the Magistrate.
He pointed to the fact that there is a clear and settled procedure by which legislations are challenged for want of constitutionality contending, that the will of Parliament cannot be struck down by a side wind through a collateral challenge.
Nandlall added that as a result of the ruling, all of the committal proceedings already completed by Magistrates across Guyana since the last amendment of the Act in 2013, may now be invalid based on this ruling and therefore may have to be done de novo.
This, he said, would create an overwhelming backlog for Sexual Offence cases.  The Attorney General urged the Court to not only consider the right of the accused as guaranteed by the Constitution, but the rights of all the victims of sexual offences. He said that the victim’s rights to have a determination of the guilt of the persons accused of the heinous offences stood in abeyance because of Chang’s decision.
He urged the Court to be cognizant that the Court’s pivotal function is to strike that vital but delicate balance between two competing interests: in this case that of the victorious party and that of the victims of sexual offences.
After listening to the arguments of both attorneys, the stay of execution was granted.
As Justice Roy delivered his ruling, he remarked, “It is well established that this court has an unfettered discretion to order a stay of an order under appeal if the justice of the case demands it.”
“In a case in which the question of ordering of a stay arises, the role of the court is to make the order that best accords with interest of justice. Where there is a risk of harm to one party or the other, whichever order is made, the court has to balance the alternatives and make a decision as to the course which is likely to occasion the least injustice.”

---

---