AppEAl Court rulEs AmEnDmEnts to SExuAl OFFEnCEs ACt ConstItutIonAl
The Court of Appeal handed down a ruling Tuesday, which essentially overturned a decision of former Chief Justice, (CJ) Ian Chang in relation to the amendments to the Sexual Offences Act of 2010.
Chang had deemed paper committals under the amendments of Sexual Offences Act 2010 unlawful and unconstitutional. Chang’s ruling had stemmed from a successful challenge to the Act by Attorney-at-law, Murseline Bacchus. The lawyer has presented arguments on behalf of his client, Ray Bacchus, a father of three, who was charged with the rape of a child under 16 years of age. According to the charge, Bacchus on August 28, 2014 at St. John Street, New Amsterdam Berbice, sexually penetrated a child aged 14. He argued against a Magistrate’s decision to commit his client to stand trial in the High Court under the Act. Murseline Bacchus, on behalf of his client, moved to the court for an order or rule nisi of certiorari directed to the Director of Public Prosecutions (DPP), the Commissioner of Police and Magistrate Sherdel Isaacs-Marcus herself, to show cause why her decision to commit his client to stand trial for the offence of rape, should not be quashed on the grounds that the committal is null, void, unlawful and unconstitutional. In his petition, Bacchus had submitted that he was not permitted crossexamination of the witness whose statements were filed by the Prosecution, nor was his client permitted to give evidence or call any witness in the proceedings before he was committed.
After listening to arguments from all sides, Chang said that paper committals under the Sexual Offences Act, are unlawful as the accused is given no opportunity to defend him or herself in the Magistrate’s Court, which is a breach of one’s constitutional rights. According to the Sexual Offences Act, no witnesses are required to attend the Magistrates’ Court to give evidence, and the Magistrate would make a verdict based on statements provided by the virtual complainant, investigating ranks and the complainant’s medical report and birth certificate. However, Chang’s ruling noted that the Magistrate acted in violation of the Applicant’s rights under Article 144 (2) (d) and (e) when she disallowed crossexamination of the makers of prosecution witness statements, tendered against the applicant in the preliminary inquiry.
It goes on to say that an accused/defendant shall be permitted to defend himself or herself before the court in person or by a legal representative of his or her own choice and {e} shall be afforded facilities to examine in person or by his or her legal representative, the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution. These rights, Chang says, were violated. However, the State had appealed Chang’s ruling. On Tuesday, the Court of Appeal determined that the decision of the former CJ is set aside.
(Kaieteur News)