Supreme Court of Judicature (Appeal) (Amendment) Bill
10256 07 Feb, 2013
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Thank you very much, Mr. Speaker. This is a very simple amendment to two pieces of legislation which are in our statue books. Simple in the sense that they are small in terms of their size but they have very far reaching ramifications.
The Court of Appeal Act, Section 6.5 (a) provides:
“No appeal shall lie under this section from any order made in any criminal cause or matter.”
The High Court Act, Chapter 3:02, Section 71 (b) provides:
“No appeal shall lie to the full court from any judgment or order of a single judge referred to in Section 6.5 or 6 of the Court of Appeal Act.”
In a nutshell, these two provisions in the law combine together to deny a right of appeal in a whole category of cases. This exists in a system like ours where the hierarchical structure of our court system has in it several tiers of appeal – the Full Court, the Court of Appeal and, of course, the Caribbean Court of Justice – and outside of the these bracketed cases every other case which commences in our system can or has the potential of travelling from the nadir of the system to its very summit by way of the appealed process but these bracketed or category of cases, unfortunately does not enjoy that latitudinal freedom of climbing up the system. One has this inconsistency inherent in this system and it has existed in our system for a very long time and I wanted to know why it is that this deficiency exists in our system and my research led me back to an act passed in Parliament in the United Kingdom in 1873 and perhaps it is important that I trace how that act impacts upon the current status of our legal system. [Mr. B. Williams: Going onto 1769.]
Since the 13th century, I am going beyond what you are speaking about, in the United Kingdom there were two different sets of courts administering two different sets of legal rules and principles. One set of courts administered the common law and the other sets of courts administered the principles of equity. As litigation increased, both the common law and equity rapidly developed and advanced. These two systems became both expensive and cumbersome to administer and maintain separately. For the litigant it was similarly costly and inefficient because it became necessary on a frequent basis to file cases both in the common law courts as well as in the courts of equity in relation to a singular wrong because both systems had inherent in them jurisdictional limitations so to get a complete redress for a singular wrong sometimes the litigant was burdened with the process of filing in both sets of courts.
These and other reasons led to the enactment of two important pieces of legislation in the United Kingdom – the Judicature Acts of 1873 and 1875. The main purpose of these acts was to amalgamate the superior courts into one Supreme Court of Judicature. The Courts of Queen’s Bench, Exchequer, Common Pleas and the Court of Chancery were all placed by the Supreme Court, consisting of the Court of Appeal and the High Court with different divisions. The Supreme Court was directed to administer both law and equity so while the rules of law and equity remained distinct and disparate both systems were hence forth administered by the same courts.
This is the court system and structure which we inherited from England when we became a colony of Great Britain and today that system remains the same. That is why our whole system is called the Supreme Court of Judicature; the same system enacted in England by this legislation in 1873, consisting of a High Court with several divisions – both civil and both criminal – and a Court of Appeal. They merge both law and equity. That is why a litigant can go to our courts and file a case for a breach of contract and before a single judge ask for the legal remedy or the common law remedy for damages for contract and, at the same time, ask for an injunction restraining a further breach of that contract; thereby asking for both legal as well as an equitable remedy in a single litigation before the said same judge. That is the history of how we inherited the court.
The Court of Appeal of Guyana, as we know it, is of comparatively recent vintage. Of course it had many predecessors. For example, the Courts for Crown Cases Reserved which was established in 1869, the Court for Criminal Appeal, established in 1952, the Federal Supreme Court of British Guiana, established in 1958 and then the British Caribbean Court of Appeal, established in 1962. All the afore said appealed tribunals had one limitation after another and when we became independent in 1966 of course the need came for us to have a singular court which would administer and preside over all appeals coming out of our judicial system and we established in 1966, by virtue of Article 83 of the 1966 Constitution, the current Court of Appeal. It is common knowledge that a right of appeal is a statutory right and therefore legislation had to have been enacted to establish this right to be exercised and that is how we established our Court of Appeal. That Court of Appeal Act which we used, which is still the Court of Appeal Act that is here being amended today was largely borrowed from the Federal Supreme Court Ordinance which was its predecessor and that Federal Supreme Court Ordinance appears to have been a replication of the 1873 Judicature Act of Great Britain to which I made reference earlier.
However, when the 1873 legislation established the court of appeal in Great Britain it confined that Court of Appeal to only hear civil cases because it was clearly the intension at the time in the UK to create a separate tribunal to hear criminal cases so it was a transitionary process undergone in England. Some years later the Criminal Court of Appeal was established. Hence the 1873 legislation contained the prohibition against hearing appeals which arose out of a criminal cause or matter in anticipation of the establishment of a court to hear, exclusively, criminal matters. Our draftsman unfortunately borrowed or took the 1873 legislation wholesale, not appreciating that it was part of a transitionary process and they supplanted it into Guyana and that became our law here and that is why we have that historical deficiency in our system. Of course England rectified it when they created a separate court of appeal that dealt exclusively with criminal cases so what they did was to put a prohibition to ensure that the Civil Court of Appeal of England does not hear any cause or matter arising out of criminal law and that prohibition is what mistakenly or inadvertently was what was transplanted into our system without recognising that it was only transient and part of a developing system.
This prohibition indeed is quite unpalatable. It prevents any form of review from decisions of a single High Court Judge in a large category of cases thought we have two other tiers of review in the hierarchical structure of our court system. Of course I speak of the Court of Appeal and the Caribbean Court of Justice. In short this legal hurdle makes the decision of a single judge almost invincible in a whole host of cases.
This state of affairs simply does not sit well in a legal system which guarantees several opportunities to appeal decisions in every other type of case except the ones which are prohibited. It is logically incompatible and inexplicably discriminatory in terms of the types of cases that can be appealed again.
That is the historical explanation as to how that provision arrived as part of our statute books. To examine the category of cases, which fall prey to this hurdle, one would necessarily need to examine what constitutes a criminal cause or matter so that one can appreciate the category of cases which are prohibited, by this provision, from being appealed against.
The term “criminal cause or matter” has been the subject of interpretation in various cases, both in the United Kingdom as well as in Guyana. But in my humble view, I believe the best analysis of the term was done by our Court of Appeal in 1990 in the case of Zaman Ali against Director of Public Prosecutions reported at 1991, 45 West Indian Law Report, at page 196. In this case, the facts are very simple. A lawyer was accused of forging an agreement of sale in relation to a property. The person, whose property was being fraudulently taken, reported the matter to the police and criminal charges were instituted against the lawyer. The lawyer then filed a civil case in the High Court for breach of contract saying that the man should pass the title to him because he produced the agreement of sale, saying that the man sold the property to him. That was the very agreement of sale that the man was saying that he did not sign and that resulted in the institution of the criminal charges. The lawyer then filed civil proceedings in the High Court seeking to enforce that very forged agreement. So there were two sets of litigation pending: one in the Magistrates’ Court in relation to forgery and one in the High Court in relation to breach of contract of the alleged forged agreement.
The lawyer then attempted to get the proceedings in the Magistrates’ Court stayed until the proceeding in the High Court was heard and determined and he made an application to the magistrate to have that done. That application was refused by the magistrate. He then filed a proceeding in the High Court and he asked a High Court judge for what is called an Order of Prohibition, restraining the magistrate from proceeding to hear and determine the criminal charges pending in the Magistrates’ Court until his civil case of breach of contract is heard and determined in the High Court. The judge, before whom the application was made to stay the Magistrates’ Court’s proceedings, declined to grant the application and dismissed his case. He filed an appeal against that judge’s refusal to stop the Magistrates’ Court’s proceedings to the Court of Appeal.
In the Court of Appeal – Mr. Rex McKay was his lawyer, just for the information of the House, and Ms. Clarissa Riehl, former Deputy Speaker, appeared in the Court of Appeal - the jurisdictional point was taken, invoking section 6 (5), the very section that we are seeking to amend, and the application was made to the court that it had no jurisdiction because the matter arose out of a criminal cause or matter. Rex McKay, being the industrious lawyer that he is, said that the application that was made to the judge was not in a criminal cause or matter; it was a civil matter. It was an application for a writ of prohibition, which is a prerogative writ, and would be categorised as a remedy in civil law. Therefore this provision in the law, this restriction in the law, will not apply to preclude the appeal from going forward. That necessitated the court examining the concept.
The court reviewed over thirty cases from across the Commonwealth and, of course, the United Kingdom, and examined the term. What the court found, in all the decisions that it examined, was that the unanimous view of every judge in the Commonwealth and in England, who had the occasion to interpret this section, said that criminal cause or matter does not necessarily mean the case from which the decision is appealed against; it goes to the decision which originated the cause. In the case at hand, the case that was before the court, it was the criminal proceedings which caused this cause to arise and which occasioned the civil proceedings in the High Court, and all the cases that were examined by that court led to the inescapable conclusion that it was immaterial that the decision, which was appealed against, emanated from a civil cause. What was important was that that decision related to a criminal cause or matter.
Of course, the judgements that were given by our Court of Appeal, very eminent bench, comprising of Chancellor George, Justice of Appeal Kennard and Justice of Appeal Churaman examined all the cases relevant to the area and all the cases say the same thing: firstly, that the provision must be interpreted very widely to give it the widest of connotations and that it must relate to what originated the civil proceedings. If I may quote from one of the cases, ex parte Woodall, the 1888 case from England, the judge on that case, Lord Isha, the master of rules of England, said this:
“The principle which I deduce from the authorities I have cited and the other relevant authorities, which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in conviction of the person charged and in a sentence of some punishment such as imprisonment or fine, it is a criminal cause or matter.”
When the proceeding was looked at in the Magistrates’ Court in which the lawyer was charged with, it was forgery. That obviously required, or contemplated, a penal sanction being imposed at the end of the process if a guilty verdict is found. Therefore the thing is a criminal cause or matter.
In this case, every one of the judges, who wrote, took the occasion to express his disquiet about the state of the law and, in particular, about the fact that this prohibition does not make any sense in our legal system.
I am laying the basis, Sir. I am establishing what the judiciary said about the need for us to change the law. This is what Chancellor George said at the conclusion of his judgement:
“Before leaving this matter, I am constrained to express my grave disquiet at the absence of a right of appeal from decisions of the High Court in matters which fall under section 6 (5) (a) of the Court of Appeal Act.
As I have said, this provision traces its origin to similar legislation in England.
Then he continued:
“I think that the law should be suitably amended to provide for a review as it would seem that not only does the constitutional framework imply it but the dictates of justice would require that this court as the final court of recourse...”
Of course, at that time it was.
“...should have the final say on the merits of any such challenge.”
Justice of Appeal Kennard had similar sentiments to express. He said this:
“Like Chancellor George, I feel that there is need for legislation to give aggrieved persons, like the appellant, a right of appeal to this court. In England, the position has been corrected. It seems only right that this court being the final court of the land should be given powers similar to that given to the final court in England.”
Of course, Justice of Appeal Churaman rather rendered similar sentiments in his judgement.
Another case I would like to refer to, which really sends home the point, and I am sure many Members are acquainted with, is the case of application by Barry Dataram aka ‘Mogatani,’ very celebrated individual. The case received wide coverage in the newspapers.Recall that a request was made by the United States of America Government of the Government of Guyana, via the Minister of Home Affairs, to commence extradition proceedings in Guyana with a view of extraditing Mr. Dataram to the United States of America where he was wanted to stand trial for several criminal offences. We begun the process in Guyana as prescribed by the relevant legislation, the Extradition Act, and when those proceedings were ongoing in the Magistrates’ Court, which is the court from which those proceedings must originate, an application was filed in the High Court, by the lawyer, seeking to challenge what was going on in the Magistrates’ Court. The decision of the High Court was that the Magistrates’ Court’s proceedings was bad in law and that the law of Guyana did not authorise the proceedings to proceed in the manner in which it was proceeding, and, therefore, quashed the Magistrate’s proceedings and put a halt to the proceedings in the Magistrates’ Court. [Mr. B. Williams: What about the High Court?] Well, I wanted to skip the process. It went to Justice Rishi Persaud and he refused it and a similar application was made to the full court of the High Court. Then the full court of the High Court quashed the Magistrates’ Court’s proceedings. Mr. Doodnauth Singh, who was our Attorney General then, proceeded to appeal to the Court of Appeal and he was met by Justice of Appeal Charles Ramson who was Justice of Appeal at the time and he, invoking section 6 (5) of the Court of Appeal Act and relying on all the cases which were relied upon in Zaman Ali’s case, and that case itself, said that unfortunately the Court of Appeal cannot entertain an appeal in the matter. Therefore the State could not have challenged Barry Dataram’s success in the High Court. We were left without a remedy. Of course, Justice of Appeal Ramson, in his judgement, also took the occasion to call on this Parliament to rectify that lacuna which exists in the legislation. In fact, he called on the National Assembly to awake from a slumber – that is the language I believe he used. He was saying that twenty years ago the Court of Appeal expressed a similar call and it went unheeded and he, twenty years after, was echoing that same call.
The other case that I will like to make reference to, which assumed some national significance in our country, was the case filed by former Commissioner of Police Henry Green, now deceased. Recall, based upon allegations made to the police, a file was transmitted to the Director of Public Prosecutions (DPP) for advice; the DPP advised that the then Commissioner of Police should be charged with the offence of rape. Prior to the institution of the charge, Mr. Green, through his counsel, rushed to the High Court and sought to stop the institution of the charge of rape against him. That matter, we know, received widespread attention and it was widely reported in the press. I heard my friend say that the case filed by Mr. Greene was also wrongly condemned. [Mr. Felix: It was the decision.] The case itself... The condemnation or the criticism came in two stages. It came when Mr. Henry Greene filed the challenge in the first place and then the criticism continued when the decision was rendered because the learned High Court judge quashed the decision of the DPP and precluded the institution of the intended charge of rape.
Again, the DPP called upon me because I was the respondent; the Attorney General was the respondent in those proceedings, to appeal the decision. I prepared a three-page opinion to the DPP citing all the law, citing Zaman Ali’s case, citing Barry Dataram’s case and, of course, citing the provisions in the law, which is currently under review, and advised her that as much as public sentiments may demand an appeal, the law simply does not allow it. That is the state of affair in relation to what exists by virtue of these two provisions and we are given an opportunity here, tonight, to correct these deficiencies which have been with us for nearly a hundred years.
If one goes through the Bill itself one sees that there is a provision. Clause 2 states:
“Section 6 of the Court of Appeal Act is amended as follows –”
Subsection (b):
“(5A) An appeal shall lie under this section...”
So we are giving a positive where in the current law there is a negative – “no appeal shall lie”. I am reverting now to the positive. I am making that prohibition now a permissive formula to allow for an appeal.
“An appeal shall lie under this section from an order made -
(a) in any criminal cause or matter at the commencement, during or at the conclusion of the said criminal cause or matter;”
So at any stage of the criminal cause or matter, an appeal can be filed. And:
“(b) before institution of a charge in respect of a criminal cause or matter...”
The reason this was put in before was to deal with the Henry Greene’s kind of situation. Remember the challenge was made prior to the institution of the charge, so I did not want to leave it up to any interpretation. I wanted to make it very clear that once the thing arises out of a criminal cause or matter, whether there is in existence a charge or not, whether a charge is imminent or not, an appeal, if one gets a decision to stay the institution of that charge, then one must have a right to challenge that decision which prohibits the institution of that charge all the way from top to bottom of the judicial system of our country because that is the right that is enjoyed by every litigant in every case other than cases that are caught by this unfortunate restriction.
Therefore this is a Bill that has great public value in the sense that it increases the citizenry’s access to justice, firstly, and access to every tier of the justice system which we have provided in this country. As I have said, over and over again, it is important to our country - it is important to our democracy; it is important to our economic growth - that our judicial system functions properly and that it remains accessible to every Guyanese citizen, irrespective of class or of status. This amendment which is being proposed here will seek to augment our efforts to make the judiciary accessible and to strengthen our judicial system.
I therefore commend this Bill for a second reading.
Thank you very much Mr. Speaker. [Applause]
Mr. Nandlall (replying): I wish to thank all Members who have spoken on this Bill and to express and to convey my gratitude for their support. I have noted the points, which have been made. I have noted that Mr. Williams has requested that we continue to have changes in our law as we continue our efforts to rid our statute books of anachronistic and antiquated provisions which are still there. I had indicated to the Guyana Bar Association and to every lawyer, who is a Member of this House, that it would be desirable if he or she can make suggestions to me. They do not have to do it in writing; call me or say to me, whilst I am in the National Assembly, that these amendments should be looked at, or they should be brought, or this should be amended and that would help me to accelerate the process of cleansing our statute books of all the relics that are scattered in many places.
My honourable friend made a comment about the jury system and sought to advance the argument that this Parliament fell into error when we passed a law which allowed a right of appeal in relation to the criminal cases at the assizes. I recall distinctly that I spoke at length when that Bill was promulgated through this House and I clearly distinguished that this was not an attempt to appeal a verdict of the jury. In fact, that is not possible and that is clearly excepted from the written provisions, express provisions of the Bill, now law. But what it sought to do was in our efforts to make the judiciary more accessible and to permeate greater fluidity in the system from bottom to top. There seems to be no rational basis to make any decision of anyone unappealable, when the system allows for appeals beyond where that particular judge sits, so that whether a judge in the High Court accepts a no-case submission prior to the enactment of the law, to which my friend made reference, that decision of the judge to accept a no-case submission at the criminal assizes was unappealable. I did in my presentation then.
I took the National Assembly to an excursion of almost the entire Commonwealth to show the number of countries that have changed the law to permit an appeal at the assizes. It is not from a decision from the jury, but from a decision of the judge on questions of law. I believe that to go back and change that, which we rectified in the last Parliament, would be a retrograde and retrospect step because here it is that we are conferring a right of appeal where one never existed. We are amplifying accessibility to the various strata of the judicial hierarchy and my friend, in a retrospective suggestion, is asking that we take away a right of appeal. That simply is not the philosophy that we want this Parliament to pursue.
We want to give greater access and have greater reviewability, all in keeping with the Opposition’s call for transparency, responsibility and accountability. Well, it is the same concept that I am seeking to inject in the judiciary, because it is a public institution, such as every other institution. It reviewed the conduct of others and there seems to be very little sense in making it unreviewable. That is what I am seeking to do, to make everyone, public officer, who is funded by public moneys to be as reviewable as the law permits. That is not a suggestion that I think is one that we should consider, having regard to the type of atmosphere that we are trying to create.
I think that we had a very good debate. My friends recognised that the law is of great utilitarian value and will advance the process of justice in our country. I know that my friends feel that I should not speak so much but it is important… [Mr. Ramjattan: …[inaudible]] No Mr. Ramjattan, as you see, when we make the law we must understand [Mr. Ramjattan: It is regardless.] Do you see how my friends are abusing me, Mr. Speaker? I believe that it is my constitutional duty, as Attorney General, as legal adviser to the Government and to the Assembly and as head of the Guyana Bar Association when I bring legislation to the House, that I must bring every explanation that is available, including the historical evolution of the law, the mischief that the law seeks to remedy and the remedy that it advances to cure that mischief.
I know that my friends are in a mood to stay here very long since they have requested and voted for us to be here very long, so we are going to stay here very long. I want to thank my friends very much and I ask that the Bill be read a third time.
Mr. Speaker: It is the second report.
Mr. Nandlall: It is for a second time.
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