Breaking Down the Sexual Offences Act
This week I will be breaking down sections 43 of the Sexual Offences Act, Cap 8:01, Laws of Guyana (“the SOA”).
Section 43 of the SOA is titled “Paper Committals” in the marginal note (the title found to the left of the section).
Section 43 – Paper Committals
Section 43 of the SOA states that where any person is charged with any indictable offence under the Act, there must be a paper committal, instead of an oral preliminary inquiry (PI). The PI must be held in keeping with the Act’s First Schedule, which sets out the process for the paper committal.
This provision effectively abolished oral PIs in sexual offences cases in Guyana, including any cross-examinations of complainants.
To better distil this provision, I will break down the terms “paper committal” and PI, and explain the intent and purpose of section 43 of the SOA.
There are, generally, two categories of offences under Guyana’s laws: i) indictable offences, and ii) summary offences.
Indictable offences are the more serious offences while summary offences are usually less serious.
There are also offences which are referred to as “triable either way offences” or “hybrid offences.” These are offences regarding which the Director of Public Prosecutions has the option to try a person by summary trial (in the Magistrates’ Court) or on indictment (in the High Court) These hybrid offences are still indictable offences, regarding which the law was changed to allow trials to be fast tracked.
There are several indictable offences under the SOA. These include rape (section 3), and rape of a child under 16 years (section 10).
Hybrid offences under the SOA include sexual assault (section 4), sexual activity with a child under 16 years (section 11), causing a child under 16 years to watch a sexual act (section 12), and meeting a child under 16 years following sexual grooming (section 13).
Generally, if a person is charged with an indictable offence, or charged with a hybrid offence, and a decision is made to try him or her on indictment, a PI must first be conducted.
What is a PI, and how is it conducted?
A PI is a process carried out by a magistrate in a Magistrates’ Court. In this process, the magistrate conducts a trial to determine whether, at first glance, the prosecution has enough evidence to justify putting the accused on trial, which would take place in the High Court before a jury.
At this point, the magistrate does not determine whether he or she thinks the accused is guilty or innocent, or even whether the evidence is particularly strong or weak. The test is whether there is enough evidence to justify a trial.
Generally, this trial is usually conducted much like any other oral trial. Proposed witnesses are called to lead evidence, and there are cross-examinations. If necessary, there are also re-examinations.
A PI can be held orally, or by examining the evidence. Where a PI is held by only examining the evidence which the prosecution and defence intends to put forward, this is referred to as a Paper Committal (PC).
PCs generally
When a PC is held, the magistrate will merely examine all the prosecution’s documents, including witness statements. While a magistrate may call witnesses for clarification or evidence or for cross-examination in some cases, this is not necessary. For this reason, PCs take much less time than oral PIs, which makes it an attractive alternative. It is therefore unsurprising that the Government of Guyana (“GoG”) has now abolished oral PIs for all criminal offences.
The SOA, however, was ahead of its time since section 43 and the First Schedule of the SOA abolished oral PIs in 2010. Under clause 12 of the First Schedule, a magistrate could commit an accused to stand trial if the magistrate is satisfied that the evidence tendered by or on behalf of the prosecution and defence is admissible, unless the defence claims that the prosecution’s evidence reveals no case to answer. In any case, this process excludes any cross-examination.
In addition to the time advantage of PCs, and the reduction of the backlog of sexual offences matters, and criminal matters generally, in the criminal justice system, it also allowed the State to: i) protect the complainant from being retraumatized by retelling the story at the PC and at trial; and ii) prevent a complainant from being exposed to the accused during an oral PI, and then again at trial in the High Court, assuming the case went to trial.
Undoubtedly, the State considered that a complainant could feel intimidated or threatened during a PI, and decide to withdraw his or her evidence, thereby scuttling any chance of a trial.
Does the paper committal system violate fundamental rights?
In 2018, Ray Bacchus was accused of rape, and was committed to stand trial following a PC under section 43 and the First Schedule of the SOA. His lawyers had argued that these provisions violated his constitutional right to cross-examine his accuser under Article 144 (2) of the Constitution of the Cooperative Republic of Guyana, and therefore violated his right to a fair trial.
The High Court agreed with Bacchus, but this decision was overturned by the Court of Appeal (CoA).
The CoA said that Bacchus’s right to cross-examine, and therefore his right to a fair trial was not breached as he would still be able to cross-examine during this trial in the High Court. Being refused the ability to cross-examine during the PC, the CoA said, did not prejudice him, as this stage did not, in any case, include a deep interrogation of the evidence in the case. The CoA also said that it was in the interest of the public that complainants in sexual offences are not subjected to cross-examination twice: during the PI and trial.
Conclusions
Section 43 and the First Schedule of the SOA have therefore revolutionised the prosecution of sexual offences in Guyana by fast-tracking indictable trials for sexual offences and protecting victims.
While there are no statistics which directly show that these changes have, in part, led to increased trials and convictions, it is undoubtable that there is some correlation and causation.
