Proposed amendment to Evidence Act is repressive and not in keeping with our aspirations for a democratic state

Dear Editor, 

The Evidence (Amendment) Bill 2022, Bill No. 3 of 2022 is a repressive piece of legislation the PPP/C Government has laid in Guyana’s Parliament and is not in keeping with our aspirations for a Democratic state. The Proposed Amendment,  Clause 63 A, will rob the Guyanese Citizen  of the  right to the protection  of his or her  liberty and to security  under the law  of a fair hearing  before an independent  and impartial court  guaranteed under Articles 139  and 144 of the  Constitution of Guyana.

Section 63 A provides: 63 A  (1) In any proceeding a  confession made  by an accused person  may be given  in  evidence  for another  person  charged  in the same  proceedings  (a co-accused),  in so far  as it  is relevant  to  any matter in issue in the proceedings  and  is not   excluded  by the court in pursuance  of this Section. (2)  if,  in any proceedings  where a co- accused  proposes to  give in  evidence  a confession made by an accused  person,  it is represented  to the court  that the confession  was or  may have  been obtained:- (a)  by oppression of the person  who made it; or (b)  in consequence of anything  said or done which was likely,  in the circumstances existing  at the time, to render unreliable  any confession which might be made by him in consequences thereof, the court  shall not allow  the confession to be given in  evidence  for the co-accused  except  in so far  as it is proved  to the Court  on the balance of probabilities that the confession, notwithstanding that it  may be true, was not  so obtained. 

This amendment  in effect means that where  A  confesses to the  commission  of a crime  and  in his confession  he calls  the names  of B and C who he  implicates  as being  parties  who agreed  to commit the offence with  him  but  who were not present  on the  scene with  him,  when he acted. The prosecution by virtue of this amendment can give A’s confession in evidence against B and C unless the confession is excluded for oppression or in consequence of anything being said or done making it unreliable. If passed by the Parliament, clause 63 A would abolish the existing law relating to confessions where several persons are charged in the same proceedings. The existing law is that the confession of an accused person is not evidence against a co-accused. That is A’s confession is not evidence against B and C (co-accused). 

Moreover, the existing law too is that no confession (oral or written) is admissible in evidence against an accused person unless it is shown to have been made freely and voluntarily. The voluntariness of such a confession is determined by a Judge on a Voir Dire (a trial within a trial) on the standard of beyond reasonable doubt and if admitted the confession statement goes to the Jury which determines, as a matter of fact, its truthfulness or the weight to be attached to it. All of this protection would be lost to the individual that is guaranteed by the Constitution, especially where clause 63 A imposes a lesser standard of proof namely on a balance of probabilities (a civil standard), and a Magistrate or Judge sitting without a Jury, exercises their power on the question of admissibility. To be continued …

Sincerely, 

Basil Williams SC

Former Attorney General and Minister of Legal

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