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…says provisions oppressive, unconstitutional
Former Attorney General and Minister of Legal Affairs, Basil Williams said the Evidence (Amendment) Bill 2022 is a repressive piece of legislation that is unconstitutional.
“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,” Williams said in a statement on Monday.
The Evidence (Amendment) Bill is expected to be debated when the National Assembly convenes on Tuesday (May 17) at the Arthur Chung Conference Center (ACCC).
Section 63 A (1) states: “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.
The other subsections add: “(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.”
Williams explained that based on the proposed amendment, if a person confesses to the commission of a crime and in his confession he implicates other persons as being parties to the crime, though they were not present on the scene, that confession can be used as evidence 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),” the former AG explained.
Further, he said 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,” he further explained.
Williams stated that all of the protection would be lost to the individual that is guaranteed by the Constitution, especially where clause 63A 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.