Appeal Court reserves ruling in case seeking to overturn order freeing Bisram
Was a High Court Judge wrong to quash a directive by the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, to a magistrate for Guyana-born US businessman Marcus Bisram to be committed to stand trial for the 2016 murder of Berbice carpenter Faiyaz Narinedatt?
This is the question three Guyana Court of Appeal judges will answer when they deliver their decision in an appeal filed by the DPP, in which she is asking that an order granted by High Court Judge Simone Morris-Ramlall quashing as unlawful her directive for committal be overturned.
The judge’s order essentially sets Bisram free and prohibits the DPP from bringing a murder indictment against him in the High Court.
On Wednesday, Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud concluded hearing arguments in the matter, which spanned close to three hours. During the hearing, both Ali-Hack and Bisram’s lawyer Arudranauth Gossai elaborated on their written submissions, which were previously filed with the court.
The Court of Appeal has reserved its decision in the case.
During the virtual hearing, the DPP maintained that her directive for Bisram to be committed to stand trial was lawfully made, and the court should, as such, nullify the erroneous decision of Justice Morris-Ramlall.
In support of her contention, the DPP relied on Section 72 (2) (i) and (ii) (a) and (b) of the Criminal Law (Procedure) Act, which states that whenever there is a discharge of an accused person, the DPP may request the depositions and direct the Magistrate to reopen the case and commit the accused for trial, if the DPP believes there is sufficient evidence for a trial.
For his part, Gossai argued that a prima facie case was not made out against his client. In his arguments, he relied on the ruling of Justice Morris-Ramlall in judicial review proceedings filed on behalf of Bisram, challenging the DPP’s directive for committal.
In that ruling, Justice Morris-Ramlall held that, “The evidence is insufficient; or, in other words, it is not of the quality that a reasonable jury properly directed could safely convict on it. The state or extent of the evidence is a relevant factor that should have been taken into account by the DPP in arriving at her decisions.”
Justice Morris-Ramlall noted that, after reviewing the depositions, the evidence of Chaman Chunilall was the body and soul of the prosecution’s case against Bisram, and there was no other evidence, direct or circumstantial, linking him to the crime.
“At the close of the case for the prosecution, the evidence of Chunilall was totally discredited and rendered manifestly unreliable. This is the kind of case that required the Magistrate to be particularly concerned about credibility, as the evidence of Chunilall is, to my mind, worthless,” the judge underscored.
Against this backdrop, she noted that a sufficient case had not been made out against Bisram to put him on trial for the capital offence.
The DPP is, however, contending that the decision of Justice Morris-Ramlall is clearly against the weight of the evidence. She argues that the evidence is sufficient, and any reasonable jury, if properly directed, can safely convict. According to the DPP, the evidence of Chunilall was admissible evidence, and the issue that arises is the issue of credibility, which was raised by the High Court judge as an issue for a jury to determine after proper directions.
But Bisram’s lawyer is of the view that the DPP’s directive for committal amounts to judicial interference, given the provision at Article 122 A of the Constitution of Guyana.
According to Gossai, the directive from the DPP to the Magistrate, to commit Bisram to stand trial, offends the separation of powers’ doctrine. He argues that the determination of whether a prima facie case was made out is a judicial process that has to be determined by the presiding Magistrate.
In a cross-appeal, Gossai is urging the court to strike down the offending parts/ provisions/words of Section 72 of the Criminal Law (Procedure) Act, since they are unconstitutional and infringe on Articles 122 (a) and 144 (1) of the Constitution and the doctrine of the separation of powers.
Media reports are that Narinedatt had gone to a party Bisram was hosting. Bisram had reportedly followed him to the back of the yard and had made sexual advances to him. Narinedatt had reportedly rejected Bisram’s advances by slapping and chucking him.
It is alleged that Bisram had then directed his friends to kill Narinedatt. According to reports, several men had beaten Narinedatt and dumped his body on the roadway at Number 70 Village, Corentyne, Berbice. It is reported that they had then driven over his body to make it appear like he was a victim of a vehicular accident.
Five other men: Orlando Dickie, Radesh Motie, Diodath Datt, Harri Paul Parsram, and Niran Yacoob, are currently awaiting trial at the High Court for Narinedatt’s murder. (G1)