Evidence (Amendment) Bill 2013 – Bill No. 23/2013
4111 16 Jan, 2014
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Thank you very much Sir. This is a simple and short amendment to the Evidence Act, Chapter 5:03, of the Laws of Guyana. What it seeks to do essentially is simply to expand the category of experts whose certificates, analysis, reports or any form of diagnoses or certification, to make those documents admissible in a court of law without necessarily the maker of that document, presenting himself/herself personally.
Already, in the Evidence Act is section 43, which the marginal note reads, “Report of analysts to be received as evidence.” This substantive section details the number of certificates and reports by the different analysts that are currently admissible in a court of law. All we are seeking to do in this Bill is to expand those categories.
With the development of technology; with the advances that are made in sciences and other disciplines, it is expected that amendments of this type and nature will have to be made from time to time. Lawyers, who are in practice, would recognise the practical importance and the pragmatic value of being able to tender into evidence certain documents prepared by experts and the conferring of the law, of certain evidential value, to those documents.
The smallest and most trivial of cases in the Magistrate Court of, let us say, assault, sometimes presents great difficulties in establishing without the assistance of a medical certificate from a registered practitioner.
Also, we know in cases of maintenance of children, oftentimes, the mother is confronted with the argument that the father is not the biological father of the child and therefore, ought not to be compelled to pay maintenance. Once paternity becomes in dispute, it therefore becomes necessary to lead evidence to establish paternity. One of the surest and most effective ways in recent times of leading such evidence has been the use of the DNA technology.
I can give also example of cases involving smuggling of fuel. Under the Guyana Energy Agency Act, fuel imported into Guyana is marked by a marker and if a person is found in possession fuel that is not marked to the required proportion, that person is liable for an offence under that legislation. An analyst is therefore required to conduct an examination of the questionable fuel to ensure that, one, it contains the marker and secondly, it contains the marker in the required proportion. That analyst certificate is what is admitted in the court to I n a far way establish whether or not the fuel in question is illegal fuel.
In the absence of this amendment, tremendous difficulty has been encountered in trying to establish that particular offence. This Bill is intended to address that. It repeats the beginning of section 43 of the Principle Act and it then list additional certificates or reports, which are signed or purported to be signed by a series of analysts, stating that he or she has examined or analysed: (1) Finger print, (2) Firearm or ammunition, (3) Poisonous and noxious substances, (4) A firearm or ammunition, (5) A local or foreign currency, (6) Human blood, bones or tissue, or fuel base substance and the results of his analysis and or examination, et cetera.
Also, the Bill seeks to take into account the newly established Guyana Forensic Science Laboratory and the type of certificates that are expected to be generated by scientific officers located in that establishment. That essentially is what the Bill seeks to do and it defines an analyst to mean a Government analyst, an assistant Government analyst, a radiologist, a Government bacteriologist, a pathologist, scientific officer of the Guyana Forensic Laboratory or any other qualified person that the Minister may by order prescribe.
The amendment is crafted in such a way that by ministerial prescription the category can be further increased. This will greatly enhance the way in which we conduct both criminal and civil trails. In civil law, whenever compensation is sought for injuries, invariably, one depends upon the expert evidence of a doctor to deal with the type of injuries and also the effects of the injuries on the injured person, to determine the quantum of compensation, which is likely to be ordered by the judge.
I can, of course, go on to give so many other practical and realistic instances where this type of legislation has tremendous and or practical value.
The Bill which is before us has an amendment which has been circulated. The amendment is simply to correct the language used to describe the new laboratory to which I made reference. The wrong name was used to describe that establishment and a correction has been made in the form of an amendment, which has been circulated.
This is a very, though small amendment, it is of great practical legal value to legal practitioners, the judiciary, the justice system, but more importantly to the people of Guyana who depend upon that system for the delivery of justice. I encourage every Member of this Hon. House to support this Bill and I ask that it be read a second time. Thank you very much. [Applause]
Mr. Nandlall (replying): Sir, thank you very much. I want to begin by thanking my colleagues, the Hon. Bibi Shadick, Mr. Basil Williams, the Hon. Member, and of course my friend Mr. Ramjattan for the support which they have extended to this Bill. The concerns which they have raised are noted. Mr. Williams, the Hon. Member, spoke about the impact that this Bill will have on the acceleration of the speed of which our judiciary functions and that of course is one of the main purposes of the Bill. He has asked me about the Committal Proceedings Act, as well as whether the act is being used and whether it is used by all magistrates. I know that the Act is capable of being used by every magistrate in every magisterial district throughout the length and breadth of Guyana. I share his concern that the act is not used as widely as we anticipated and as widely as it can be used but the truth of the matter is, as an executive officer, there is very little that I or the Government can do. The Act, when one considers the language of the Act, the purport of the Act, the nature of the Act, is lawyer driven and it is judiciary driven so there must be a willingness of the legal practitioner and the willingness of the magistrate.
I know for a fact that there are many cases in which the committal act could have been used and there could have been paper committal but lawyers insist on having their daily magistrates’ court so that is the practical problem and I invite my learned friend Mr. Williams to work with me to encourage the profession and encourage the bench to bring the act more into use. Statistically, I know Sir, that the Director of Public Prosecution (DPP) has the information annual in terms of how many cases have been disposed of utilising that legislation. It is relevant also that I make mention of the plea bargaining legislation. That is another one that is intended to increase dispatch in the judiciary and the same problem we are confronted with. It is not being utilised in the manner that it should. Again that is another piece of legislation that is lawyer driven and judicially driven and I continue to echo my sentiments that I hope my friends on that side, Mr. Ramjattan and Mr. Williams, will work with me in terms of getting the profession and the bench to utilise these statutory mechanisms with greater frequency.
Mr. Ramjattan spoke about the integrity of the officers. Yes, that is a valid concern but these are all professionals. They are regulated by different bodies. The medical profession has the Medical Council. Engineers have an organisation. Lawyers have a Legal Practitioners’ Committee and they have powers of discipline over their membership. One would expect that professionals would execute their functions with rectitude, with professionalism. I do not know how I can dictate, or the Parliament can dictate, to any grouping of professionals that they must have integrity. If their integrity is not intact and they violate any criminal law I suppose that they can be charged but outside of that there is very little that one can do in the form of a law to ensure that experts discharge their functions with rectitude, competence, diligence and integrity. Of course, as Your Honour correctly pointed out, those experts whose documents are going to be admitted by virtue of this amendment are subject to cross examination. I know Mr. Ramjattan to be a rigorous cross examiner. If he is unable to unearth the lack of integrity then, who can we blame? In relation to that matter, I know that there is great care exercised by the Police Force along with the Director of Public Prosecutions to ensure that doctors who give evidence are doctors who are likely to be in Guyana for the purpose of testifying at every stage of the proceedings. Doctors may have testified at the preliminary enquiry but the trial comes up two to three years after and they may leave but I know that great care is being taken to ensure or to minimise those occurrences and that is precisely why there is no Cuban doctor who is a pathologist and there Dr. Nehal Singh and someone else in Berbice performing those statutory functions.
In terms of integrity of the institution, I want to say that the Guyana Forensic Laboratory was specifically and deliberately located in close proximity to the university so that it is away from the usual hive of activities and its scientific work can be assisted, examined and compared with or contrasted with similar exercises at the labs at the university. The police will have a different lab, a specialised crime lab and they will also access the Guyana Forensic Laboratory. They will specifically deal more with crime scene type investigations and when they accumulate the evidence they themselves will take it to the lab – the Guyana Forensic Laboratory – for examination, analysis as the case may be.
This Bill, as all of the speakers have indicated, is a very good Bill. My learned friend is asking me about the jury. I do not know of any intentions on the part of the Government to abolish the jury system. I know that we may wish, as I agree with my friends, that there are many things that we can work on in the jury system – increasing the jury pool, putting laws in place to ensure that employers remunerate their employees when they attend jury duties. I received a complaint that in Essequibo, for example, a particular business establishment refuses to remunerate the staff members who have been selected to serve on a jury and when one considers the fact that that is one of the largest employers in Essequibo one can quickly assess the impact that that can have on the ability to recruit jury in a small population like Essequibo. The jury system, as I said, needs to be worked on. With those few remarks I commend this Bill to the National Assembly.
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