Dear Editor,
I wish to respond to Mr Juman-Yassin’s last letter published by Stabroek News on August 27 under the caption, ‘Magistrates are bound to follow the decision in State v Webber until it is overruled by a higher court.’
Apart from failing to advance any cogent argument against the long line of authorities I have cited, Mr Juman-Yassin even doubts that a former Court of Appeal judge supports my contentions. He argues thus, “I do not believe this assertion as I was informed by someone very close to this eminent person that no such support emanated from them…” It is clear that Mr Juman-Yassin thinks that he knows to whom I am referring. Logic and commonsense would have mandated therefore that a query be made directly to this person rather than “someone very close” to him. Mr Juman-Yassin chose not to do so, but yet disbelieves my assertion based upon the information fed to him by a third party.
Any debate on the admissibility of confession statements in Guyana would be incomplete if reference is not made to the Guyana Court of Appeal decision of the State v Oswald Gobin and Boniface Griffith (1976) 23 WIR 256. In this case, a special panel of five judges was assembled to specifically and compendiously deal with the issue of the admissibility of confession statements in Guyana. The five judges assembled were Chancellor Haynes, Chief Justice Bollers and Justices of Appeal Crane, RH Luckhoo and Dhan Jhappan. Readers will recall that at this point in time, the Guyana Court of Appeal stood at the summit of our judiciary as the highest court in the land. Based upon the report of the case, the arguments lasted for twelve days. The judgment rendered at the end of this process numbered seventy five pages in length. It is definitely the most ecumenical judicial dissertation on the admissibility of confession statements in Guyana’s legal history. Indeed, it is arguably the most comprehensive judicial treatment of the issue by any court in the entire Common-wealth. The judgments referred to a total of one hundred and eighteen cases from Guyana, the Caribbean, England, India, Australia and Canada.
Chancellor Haynes commenced his historical excursion into the law of confession statements in England in the year 998. At page 269 the learned Chancellor concluded: “I have reached the end of my historical survey of those common law rules which related to the reception of evidence of confessions or guilty admissions, bearing on the legal questions raised. They are common law principles of some antiquity, but this Court is bound by them.”
Nowhere in the seventy-five pages of the judgment of the Court of Appeal is it either, expressly or by implication, stated that a magistrate has the power to exclude a confession statement at a preliminary inquiry. In fact, the words ‘magistrates’ or ‘preliminary inquiry’ do not appear in any of the judgments rendered thereof. Each of the said judgments situate a voir dire in the context of a trial.
The very common law principles referred to by Chancellor Haynes above are the same common law principles which inform the authorities that I have cited from the commencement of this debate.
Additionally, Dr Mohamed Shahabuddeen in his text, The Legal System of Guyana, traced the historical evolution of our criminal law and procedure and found that our current criminal law and procedure owe there genesis largely to the Rules of Criminal Practice (1829) made by the President and Members of the Court of Criminal and Civil Justice for Essequibo and Demerara and approved by the Court of Policy on May 12, 1829. At page 305 Dr Shahabuddeen states:
“The last paragraph of the 1829 Rules of Criminal Practice significantly provided that, ‘in all questions of form which may arise on criminal trials, which are not herein provided for, the Court shall follow as near as is possible the practice which would be adopted by a criminal court in England under similar circumstances.’”
This statement accords with the analysis done by the Guyana Court of Appeal in State v. Oswald Gobin and Boniface Griffith (supra) and indeed with every major case reported in Guyana on the issue of confession statements.
As I have earlier stated, the practice and procedure in England have always been that a magistrate has no power to exclude a confession statement at committal proceedings. As I have pointed out in my previous correspondence, England passed special and specific legislation in 1984 and 1996 to change this position.
This position has however remained unchanged in Guyana and the rest of the Caribbean. I have previously stated that the legislative network in Guyana is almost identical to what obtains in the rest of the Caribbean. The pivotal question therefore remains, whence a magistrate in Guyana derives a special power which his counterparts do not possess in similar circumstance anywhere else in the common law world?
It is against this historical and jurisprudential background that the case of The State v Webber (2004), cited by Mr Juman-Yassin, must be viewed and examined. It has not escaped my attention that although Guyana has a case reporting system dating back to 1823, Mr Juman-Yassin has only been able to cite a single unreported case in the year 2004, to support his argument. This by itself ought to excite the intellect of a keen reader.
In my humble view, the case of Webber proceeded on the assumption that a magistrate has the power to exclude a confession statement at a preliminary inquiry. It does not appear that the specific issue as to whether a magistrate indeed possesses such a power, in the first place, was ever canvassed. If this was done and the relevant authorities cited, the learned trial judge may have ruled differently.
I observed that the trial judge placed heavy emphasis on Section 71 of the Criminal Law (Procedure) Act which obliges a magistrate to form an opinion of the whole of the evidence adduced in order to determine whether a sufficient case is made out against the accused person to commit him for trial. I feel compelled to again emphasize that this very statutory provision exists in almost all the Commonwealth Caribbean countries and existed in England before 1984, when a new Criminal Procedure and Evidence Act was promulgated. The authorities I cited on previous occasions clearly demonstrate that this section was never used and is not being used in any other jurisdiction as a vehicle to empower a magistrate to exclude a confession statement. Again, were proper legal submissions made on this issue I am confident that the learned trial judge would have ruled differently.
Needless to say that Mr Juman-Yassin’s expectation of an apology from me is hopelessly misplaced.
Yours faithfully,
Anil Nandlall MP
