Dear Editor,
I have observed with great interest the recent comments, mostly adverse to the judiciary and magistracy in Guyana by members of the Guyana government. Some of the comments related to specific instances, eg the Hon Chief Justice granting bail to a murder accused.
It would appear that the executive is disgruntled with the performance of its judicial officers and is unhappy when courts exercise the discretion that is afforded to them by law.
This has led to the legislature introducing mandatory minimum sentencing for firearms offences. This is not the end as penalties under the new act are challengeable in the courts as they were in the case of Thelbert Edwards v Regina, a case from Grenada, Criminal Appeal No. 3 of 2006, Eastern Caribbean Supreme Court, where the Honourable Mr Justice of Appeal Michael Gordon, QC said:
“…once one concedes that it is within the competence of Parliament to set sentencing policy, it flows ineluctably that Parliament is competent to set mandatory minimum sentences, subject to the duty of the courts to evaluate whether such laws contravene the Constitution. To put it another way, each such law must be examined by the courts to see whether the fundamental rights and freedoms are observed or contravened.” (Emphasis mine)
The requirement of a corroboration warning in sexual offences to which the Director of Public Prosecutions referred, has been abolished in most of the jurisdictions in the region, and the DPP should use her good office to urge the Hon Attorney General to consider a move in the same direction. It must be noted that a trial judge retains discretion as to what, if any warning he considers appropriate in respect of a witness making a sexual complaint as in respect of any other witness in whatever type of case. What to my mind is a travesty of justice is the practice of the prosecution in Guyana not to disclose witness statements prior to a summary trial or a Preliminary Inquiry. The Hon Mr Justice of Appeal Satrohan Singh in Donaldson Knights v The Queen, Criminal Appeal No. 15 of 1995 said in relation to the prosecution’s duty to disclose:
“As I understand this law, the prosecution has a duty at common law to disclose to the defence all relevant material, scientific or otherwise, which tended either to weaken or strengthen the prosecution’s case or to assist or strengthen the defence case, whether or not the defence made a specific request for disclosure… ‘Relevant material’ in this context, means material which may have some bearing on the offence charged and the surrounding circumstances of the case and which material is known to the prosecution…”
The Hon Mr Justice of Appeal Michael Gordon, QC in Ronald Wheatland v Commissioner of Police, Magisterial Criminal Appeal No. 9 of 2003, commented further on the prosecution’s duty when he said:
“The current culture in jurisprudence abhors trial by ambush in any case and particularly so in criminal cases. In general, once an accused person pleads Not Guilty, then he is entitled to have disclosure of the prosecution’s case made to him. Failure to do so might well result in a Court of Appeal reversing the decision of the Court below.”
The courts in the region have risen to the challenges. As the courts in Guyana face new challenges and mounting criticism from the executive, it is imperative that they stand resolute and ensure that the fundamental rights of citizens are protected.
The President of the Caribbean Court of Justice, the Rt. Honourable Michael de la Bastide, TC on the occasion of the Inaugural Telford Georges Memorial Lecture in March 2006 said:
“The courts are not only entitled but have a duty to interfere with the executive or administrative actions for two purposes – to prevent injustice and to secure compliance with the law, above all the Constitution. I welcome what I see as a trend of Judges in the region showing a good deal of courage and inventiveness in the pursuit of these objectives.”
Let me take this opportunity to congratulate the Hon Chancellor Mr Carl Singh and the Hon Chief Justice Mr Ian Chang, SC on their recent appointments, and Mr Teni Housty on his election as President of the Guyana Bar Association. A lot rests on your shoulders, gentlemen, and none more important that the rights of the citizens and those citizens can only depend on you to prove Plato wrong when he said, “Justice is but the rule of the stronger.”
Yours faithfully,
Dawn A Holder
