Attorney General Anil Nandlall plans to appeal a recent ruling by acting Chief Justice Ian Chang that concluded that the paper committals process under the Sexual Offences Act is inconsistent with the constitution because it does not allow accused persons to cross-examine witnesses at the preliminary inquiry stage.
As a result of the ruling, Director of Public Prosecutions (DPP) Shalimar Ali-Hack has advised the Chief Magistrate Priya Sewnarine-Beharry to adjourn all sexual offences matters for which paper committals are being conducted, until a stay of execution of the decision is granted.
In a brief statement to Stabroek News, Ali-Hack said Nandlall has been instructed to appeal the decision to the Court of Appeal for and for a stay of execution of the judgment.
The ruling stemmed from an application by accused Ray Bacchus, who was charged with sexual penetration of a child under the age of 16. Through his lawyer Murselin Bacchus, Bacchus challenged his committal by Magistrate Sherdel Isaacs-Marcus to stand trial in the High Court, which was done on the basis of a paper committal.
Justice Chang last week ruled that the committal was in breach of the accused’s constitutional rights under Article 144 (2) (e) of the constitutional, which provides that the court must permit every person charged with a criminal offence or their legal representative to examine the witnesses called by the prosecution before the court. As a result, the committal was quashed.
This is the second such ruling by Justice Chang. His first ruling forced the framers of the Act to return to the National Assembly to amend the provision, making it possible not only for the prosecution to file statements and other evidentiary material before the court but also for the defence to be afforded this opportunity. The magistrate is expected to then examine the evidence from both sides and rule whether there was case for the accused to answer in the High Court.
“The court finds that, in so far as paragraph 5 of the First Schedule to the Sexual Offences Act purports to disallow cross-examination of the makers of prosecution witness statements, it is inconsistent with Articles 144 (2) (d) and (e). The court also finds that, in any event, 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,” Justice Chang said in his ruling.
“The court must point out that Article 144(2) makes no exception of persons charged with a sexual offence. It expressly applies to “every” person who is charged with a criminal offence. Ordinary legislation cannot create an exception to the application of a constitutional provision—unless provided for in the constitution itself,” he further said.
Justice Chang noted that it is difficult to see how a person charged can defend himself or herself personally before the court unless he or she is at liberty to dispute the evidence of the prosecution witnesses, either by cross-examining the prosecution witnesses who have made witness statements tendered as evidence or by personally testifying before the court on his own behalf. He said interpreted purposively, Article 144 (2) (d) confers on an accused person a right to be allowed to do these things in his defence either personally or through his legal representative. It also implicitly confers on the person charged the right to call witnesses to dispute the evidence adduced or tendered by the prosecution, he added.
This new ruling has now put other sexual offence cases in jeopardy as one legal source has pointed out that any other case that was sent to the High Court on the basis of a paper committal would now be null and void.
The new Sexual Offences Act was primarily crafted with a view to making the legal system more friendly to victims of sexual violence, and in particular children, because of the traumatic nature of the crime. Prior to the new Act, victims were forced to endure preliminary inquiries that were criticised for subjecting victims to further trauma.
Ridiculous
Nandlall told this newspaper that he would indeed be appealing the ruling and asking for a stay of execution of the decision. According to him, he is aware that paper committal legislation in almost the same form exists throughout the Caribbean and the constitution of those territories are similar to Guyana’s.
Recalling that Justice Chang had made similar rulings in the past, Nandlall explained that he did not appeal them because Parliament was in session—it is currently prorogued—and instead he tried to correct the oversight. “I now want to challenge it, get another court’s opinion,” he said.
Women and child rights activist Danuta Radzik, who was integral in helping to frame the new Sexual Offences Act, described the recent ruling as ridiculous and making a mockery of the law.
She believes it should just be withdrawn. She pointed out that Justice Chang was reverting to a system that did not work well, was geared towards the defence and not understanding the trauma that rape victims endure.
“It is just ridiculous and alarming,” a shocked Radzik said, when contacted by this newspaper. She added that the decision along with the recent recording of Nandlall in conversation with a Kaieteur News journalist, during which he is heard trying to solicit a female reporter for a man, once again demonstrates how troubling society is for women. She described the solicitation by Nandlall as “criminal,” while adding that a lot of women have lost confidence in him.
“This is an extremely worrying trend and something has to be done about it because it seems to be very pervasive throughout society. And these are top echelon of people in the justice system, police, court and the Attorney General,” Radzik charged
She said that with leaders harbouring backward notions about women, “they can start a whole trend within the society where the advances that women made are going to be pushed back.”
Speaking specifically about Justice Chang’s ruling, Radzik said even if he cites the constitution, which gives the accused the right to cross examine their accuser and witnesses, the paper committal is only a procedural mechanism for the case to be transferred to a court where a full trial would be held by a judge and jury.
“The accused would have every opportunity to cross-examine. You have to weigh the rights of the accused but also the rights of the victim to have his or her day in court, to have the matter go to the court for the court to settle the matter based on evidence,” Radzik added, while noting that she could not see how a person’s constitutional rights could be breached based on the paper committal process.
She pointed out that the paper committal is the only mechanism in the act for the more serious offences, such as rape, and if the Chief Justice is saying it can’t happen, then it would never happen. For her, it means that there is no justice for the victim, who is now being denied the process of getting her case sent before the court and it suggests that some want the new act to be withdrawn and the country to revert to the old law.
Radzik pointed out that there have been three rulings by Justice Chang—the two that dealt with the paper committal process and the other in relation to former police commissioner Henry Greene which quashed a decision by the DPP to charge him with rape—in which women rights group and some in the legal field felt there was a misreading of the Sexual Offences Act because he did not accept any of the guidance given in the legislation.
The guidance indicates that rape victims behave in certain kinds of ways and very often would not immediately report a case of rape because their responses are delayed. This is so, Radzik explained, because of the trauma of rape and the Act recognises this.
The Act also states that those who are dealing with such cases should take account of this.
She added that she could not see how in any way the paper committal process could be biased.
She pointed out that many times victims decide to discontinue their case because they are weary of the long time preliminary inquiries take to be completed, which include lengthy delays.
Many of the victims are children who are raped by the very system that is set up to give them justice, she also noted.
