Dear Editor,
I read the letters by Attorneys-at-Law Messrs K Juman-Yasin and Anil Nandlall on the issue of whether Magistrate Yohhannseh Cave had the power to determine whether an alleged confession statement was admissible in evidence at a preliminary inquiry.
Mr Nandlall grounded his conclusion that the magistrate has no such powers on English common law by which he stated we are bound.
I however wish to refer to the powers of a local magistrate as explained in the case of Sadler v Wight (1938) Law Reports of British Guiana 1.
The head note states: “The powers of a magistrate in this Colony are limited to those conferred upon him by Ordinance: he has none of the powers or of the jurisdiction which a magistrate in England has under the common law.” The report further states at page 4: “In this appeal before us immemorial practice cannot be cited as an authority, but in any event there does not appear to be any reason for doubting what the position of a magistrate is in the Colony having regard to the different Ordinances passed and in force at the moment.
“By these, power is given for the appointment of a magistrate and his duties and powers are definitely set out and codified. Outside of these Ordinances we do not see that a magistrate has any powers; therefore, the point raised by Mr. Stafford that the learned magistrate was wrong when he set out that his authority for making the order appealed from, was the powers vested in him at common law, appears to us to be sound…
“The result at the moment then is, that the learned magistrate had no power at common law to make this order…”
If we substitute country for colony and statute for ordinance, the above statements represent the local position today.
A local magistrate’s powers cannot therefore be found in the common law per se. It has to be found in some statute or in some statute that incorporates the common law on the particular subject.
I cannot therefore agree with Mr Nandlall’s position in so far as he turns to the common law, neither can I agree with Mr Juman-Yassin who appears to ground his conclusion on practice over time.
The powers of a local magistrate must be found in some statute. I therefore turn to the Evidence Act, Chapter 5:03. Sections 3 and 4 read as follows:
“3. Unless the contrary is in any case expressly provided, or by necessary implication appears to be intended, the provisions of this Act shall, so far as they extend and are respectively appropriate thereto, apply to all causes and matters in all courts of justice and before all judges in Guyana.
“4. Subject to this Act and to any other written law for the time being in force, the rules and principles of the common law relating to evidence shall, so far as they are applicable to the circumstances of Guyana, be in force therein.”
Section 3 makes it clear the act applies to all courts (including magistrates’ courts) and section 4 provides for the application of common law rules of evidence.
A magistrate conducting a voir dire has to take evidence. It is a cardinal rule of evidence that before an alleged confession statement can be admitted into evidence, it must be proved beyond a reasonable doubt to be free and voluntary.
I therefore come to the conclusion that since a magistrate has power to apply common law rules of evidence, a magistrate conducting a PI has the power to determine the issue of admissibility of a confession statement.
I am not quite sure why local magistrates have in most cases been leaving the issue of the admissibility of confession statements for determination by judges at High Court trials. Perhaps it is done for convenience if there is other evidence on which the accused will be committed for trial at the High Court anyway.
I have seen no law or rule that prevents a magistrate from conducting a voir dire to determine whether a confession statement is free and voluntary and therefore conclude that Mr Cave had the jurisdiction to do so in the case that was before him.
Yours faithfully,
Winston Moore
