The Guyana Court of Appeal yesterday upheld a stay of execution granted by Justice B.S. Roy on a judgment made by former Chief Justice Ian Chang, who had ruled that the paper committals process under the Sexual Offences Act was unconstitutional.
“This court declines to discharge or vary the order for stay of execution of the order of the then Chief Justice in Chambers,” Chief Justice Yonette Cummings-Edwards stated when the matter came up in the Appellate Court yesterday.
The decision stemmed from an application by accused Ray Bacchus, who was charged with sexual penetration of a child under the age of 16, in January of 2014. It dealt with the discharge of the stay rather than the substantive appeal.
Justice Cummings-Edwards said that the stay of the decision that was granted by Justice Roy will not be varied, discharged or set aside by the Appellate Court and thus declined the application by Bacchus because there is an arguable ground for an arguable appeal in the substantive matter.
The stay will now have to be determined in the appeal or the arguments for the appeal.
The state was yesterday represented by Deputy Solicitor General Prithima Kissoon.
Through his then lawyer, Murseline Bacchus, Ray Bacchus had challenged his committal to the High Court, which was made by Magistrate Sherdel Isaacs-Marcus, on the grounds that he was not allowed to cross-examine witnesses in the proceedings, which he said should be deemed null and void.
Justice Chang had concluded that the paper committals process, under the Sexual Offences Act, was inconsistent with the constitution because it does not allow accused persons to cross-examine witnesses at the preliminary inquiry stage.
Then Attorney-General Anil Nandlall appealed the decision at the Court of Appeal, leading to Justice Roy granting his request for a stay of execution of the decision.
Nandlall, along with other persons in the legal fraternity, had argued that Justice Chang’s ruling had put other sexual offence cases in jeopardy and, as one legal source pointed out, any other case that was sent to the High Court on the basis of a paper committal would have been 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 them to further trauma.
Women and child rights activist Danuta Radzik, who was integral in helping to frame the new Sexual Offences Act, had described Justice Chang’s ruling as ridiculous and making a mockery of the law.
She had 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 had said, when contacted by this newspaper.
Radzik had said even if Justice Chang cited 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.
