Appeal Court affirms 20-year sentence for “Dusk Till Dawn” murder convicts

The conviction and 20-year jail sentence for Joshua Persaud and Raphael Morrison for the June 3, 2012 murder of 18-year-old Marlon Ramcharran, was on Monday affirmed by the Guyana Court of Appeal. In April 2014, a jury found Persaud and Morrison guilty of the crime.
They were each sentenced to 20 years’ imprisonment by Justice Diana Insanally. It was reported that the three men were at the “Dusk Till Dawn” night club when an argument ensued among them.
Reports are that things escalated into a fight during which Persaud and Morrison dealt the Tain, Corentyne, Berbice teen several chops about his body with a cutlass.
An autopsy gave his cause of death as shock and haemorrhage resulting from multiple incised wounds. Being dissatisfied with the decision of the High Court, Persaud, 28, and Morrison, 26, filed an appeal asking for their conviction and sentence to be set aside and/or reversed.
In the alternate, the convicts had asked the court to order their immediate release even if their sentence and conviction was affirmed, as the six-year delay in the hearing of the appeal is a breach of their constitutional rights.
In support of this ground, they referenced Article 144 of the Constitution of Guyana and a ruling by the very Court of Appeal in the case of Mark Fraser vs the Director of Public Prosecutions (DPP).
Persaud was represented by Attorney-at-Law Murseline Bacchus, while Attorney-at-Law Kim Kyte-Thomas represented Morrison. Senior State Counsel Mercedes Glasford appeared for the State.
The appeal was heard by Chancellor of the Judiciary Justice Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud.
In delivering the court’s ruling, Justice Cummings-Edwards rejected the convicts’ contention that the trial Judge erred in law when she refused to uphold the no-case submission made on their behalf which among other things, questioned the credibility of the witnesses called by the prosecution.
The Appeal Court agreed with submissions proffered by State Counsel Glasford in which she argued that the prosecution submitted sufficient evidence which required the trial Judge to send the case to the jury for deliberation on a verdict.
Citing case laws, the Chancellor pointed out that is not the duty of the trial Judge to weigh the evidence to decide “which witness is speaking the truth and which witness is not speaking the truth.”
The Appeal Court further rejected the convicts’ contention that the trial Judge did not give the jury adequate directions, guidance and warning on how to treat the inconsistencies and discrepancies in the prosecution’s case.
Relying on the records of appeal, the Chancellor said that the court was of the view that the trial Judge provided the jury with adequate directions on how they should deal with the case of the prosecution and defence. The Chancellor noted that the records show that the trial Judge reminded the jury of their duty to reject part or all of a witness’s testimony.
According to Justice Cummings-Edwards, evidence related to the identification of Persaud and Morrison was an important ground of appeal.
During the hearing of the appeal, both defence counsels challenged the evidence led by the prosecution’s two main witnesses, who testified to seeing when Persaud and Morrison attacked the teenager.
The Chancellor held that the trial Judge properly directed the jury on how they should deal with the evidence by these witnesses. She noted that the trial Judge recapped their testimony about the lighting conditions at the time of the attack and the distance they were from the beating.
Justice Cummings-Edwards noted that the trial Judge cautioned the jury that if they had any doubts that it was Persaud and Morrison who committed the crime based on the evidence led by these two witnesses – one whose sense might have been impaired due to alcohol consumption – then they had to set them free.
On the appeal ground of fair trial within a reasonable time, while Justice Cummings-Edwards conceded that it has “some merit”, she pointed out that the defence counsel failed to justify that the six-year delay in the hearing of the appeal amounted to an abuse of the court process.
The judge admitted that all appellants are faced with delays in their appeals as a result of the case backlog the Judiciary is facing. Lawyers for the murder convicts had asked the court to stay any further imprisonment if the conviction and sentence were affirmed.
They cited the local case of Mark Fraser vs the DPP. While Fraser’s appeal against his conviction was dismissed by the Court of Appeal, the court agreed that the delay in proceedings breached his Article 144(1) right to a fair hearing within reasonable time. As a result, the court stayed any further imprisonment.
The Appeal Court, however, noted that the circumstances in this case and Fraser’s are different. Also, the appellate court held that the 20-year sentence imposed on the convicts was duly served. Accordingly, their appeal against conviction and sentence was dismissed.
The appellate reduced the convicts’ sentence, in so far, to reflect the time they spent on remand in keeping with the principles outlined in the Caribbean Court of Justice (CCJ) case of Romeo Da Costa Hall vs The Queen.
The CCJ, in that case, held that full credit should be granted for the time an accused person spent in pre-trial custody. It was further ordered by the court that the sentence imposed on Persaud and Morrison will take effect from the time of their conviction in April 2014.