CCJ rules against DPP pursuing murder charge against Marcus Bisram without new evidence
– Bisram says justice has been served
In a ruling that has effectively freed US-based Guyanese Marcus Bisram of a murder charge, the Caribbean Court of Justice on Tuesday ruled that the Director of Public Prosecutions (DPP), Shalimar Ali-Hack does not have the power to direct a Magistrate to commit an accused person to stand trial.
Bisram was charged for the 2016 murder of Berbice carpenter Faiyaz Narinedatt, and was extradited from the United States to Guyana in 2019 to face the murder charge following a prolonged fight in the US courts to block the extradition.
In 2020, a Magistrate dismissed the matter after finding that the prosecution’s case against the accused was weak – and as such, Bisram was freed.
But the Director of Public Prosecutions then instructed the Magistrate to reinstitute the murder charge, resulting in Bisram being rearrested.
The Magistrate was also instructed by the DPP to commit the matter over to the High Court for a jury trial.
Bisram’s lawyers challenged the DPP’s instructions and in 2020, he was again freed of the charge after Justice Simone Morris-Ramlall ruled that the DPP’s instructions were unlawful.
However, the DPP moved to the Court of Appeal to challenge this ruling. The DPP won its appeal – clearing the way for the charge to be filed again.
But Bisram’s lawyers challenged the matter before the Caribbean Court of Justice – Guyana’s court of final resort.
The Trinidad-based court ruled that the DPP does not have the power to direct a Magistrate to commit an accused person to stand trial.
Delivering the ruling, President of the CCJ, Justice Adrian Saunders ordered the decision made by the Magistrate to discharge the murder charge against Bisram to be restored.
It was also ordered that Bisram may not be committed for trial only on the evidence led before the Magistrate. Justice Saunders further declared that nothing prevents the DPP from re-arresting and charging the accused if new evidence surfaces.
“The Court also found that it would be unjust, in all of the circumstances, for Bisram to be made to answer any charge of murder in this case on the same evidence as was presented to the Magistrate. However, because Bisram, at least in terms of the law, was never placed in jeopardy, nothing prevents the DPP from having him re-arrested and charged again if fresh evidence was obtained linking him to the alleged murder,” he said.
It was also declared that Section 72 of the Criminal Law (Procedure) Act with respect to the separation of powers, does not align with Article 122 A of the Constitution.
“Until the National Assembly makes suitable provision, [Section] 72 is modified to excise those provisions permitting the DPP to direct the Magistrate. In lieu thereof, a DPP aggrieved at the discharge of an accused by a Magistrate after the whole of the proceedings at a PI, may apply ex parte to a Judge of the Supreme Court for an order that the discharged person be arrested and committed, if the Judge is of the view that the material placed before the Judge justified such a course of action,” Justice Saunders said.
The charge that was brought against Bisram alleged that between October 31, 2016, and November 1, 2016, at Number 70 Village, Corentyne, he counselled, procured, and commanded Harri Paul Parsram, Radesh Motie, Niran Yacoob, Diodath Datt, and Orlando Dickie to murder Narinedatt.
Reports are that Bisram had a party at his home, which Narinedatt and others attended. Media reports are that Narinedatt went to the yard and was followed by Bisram, who reportedly began “feeling him up.”
It was reported that Narinedatt slapped and chucked Bisram, who allegedly directed his friends to kill him. According to reports, several men had beaten the carpenter and dumped his body on the Number 70 Village Corentyne, Berbice road.
It was reported that they then drove over his body at Number 70 Village Corentyne, Berbice, to make it appear like a vehicular accident.
The power of the DPP to direct a committal was the focal point of arguments presented before the CCJ, with Bisram’s lawyer, Darshan Ramdhani, QC, urging the regional court to strike down as being unconstitutional Section 72 of the Criminal Law (Procedure) Act. Apart from arguing that the DPP’s directive to the Magistrate amounts to judicial interference which violates the doctrine of the separation of powers, he contended that her directive is also unlawful because it violates Article 122 A of the Constitution and infringes on his client’s right to a fair trial within a reasonable time guaranteed under144 (1) of the Constitution.
Prima facie case
The DPP, however, submitted that as a constitutional office holder, she was merely exercising a quasi-judicial function when she directed the Magistrate to commit Bisram. She argued: “That direction itself does not affect any judicial powers. I say this because the PI is only a stage in the trial. When the DPP directs the Magistrate to reopen and to commit, who hears those matters? It goes before a Judge and jury. The DPP has no control over what decision the Judge…or jury makes.”
According to Ali-Hack, the powers vested in her pursuant to Section 72 of the Criminal Law (Procedure) Act are just a matter of convenience to expedite the charge and do not in any way collide with Articles 122 A and 144 of the Constitution.
While noting that the evidence against Bisram established a prima facie case, the DPP said that any reasonable jury, if properly directed, might convict. The DPP argued that the Magistrate in Bisram’s case was assessing the credibility of the prosecution’s main witness, Chaman Chunilall. But this, she pointed out, is “strictly” a duty for the jury, noting that the Magistrate’s only task is to assess whether the evidence is sufficient and admissible.
Considering this, Ali-Hack submitted that Chunilall’s evidence is admissible, that her directive to the Magistrate was lawful, and that there is nothing unconstitutional about Section 72.
But CCJ President Justice Adrian Saunders during the hearing expressed that he found it very “incongruous” that some other authority other than the appellate court is vested with the power to direct a court.
He asked the DPP, “In this day and age, does it sit comfortably with you that an authority, even if that authority is not considered to be part of the Executive, but an authority which is not a Court of Appeal, is not a part of the core Judiciary, can actually direct a court as to how it must dispose of a matter before that court… doesn’t that strike you as being incongruous?”
“Whether the DPP is or is not a member of the Executive, to me, it does not detract from the fact whether a court ought not to be directed by some other authority other than a Court of Appeal; only a Court of Appeal can direct a court. It is very incongruous if someone is invested with a power to direct a court,” he added.
The DPP agreed with Justice Saunders’s point that Article 122 A is intended to secure the court’s financial and administrative independence, and, therefore, ensures that “no one can direct a court how it must decide cases”.
For his part, CCJ Justice Jacob Witt described the provisions in Section 72 of the Criminal Law (Procedure) Act as a “really remarkable concept”. He said that he does not know of any legal system in which the DPP is empowered to direct a Magistrate.
“I also wonder, if that is the case, why, in the first place, do we have the committal procedure? Why is it necessary that the Magistrate should commit, because if he doesn’t, then you [DPP] can tell them to do it anyway,” he said to the DPP.
Meanwhile, CCJ Justice Denys Barrow said the statute is unfortunately framed in a way “where it seems as though the DPP is telling the Magistrate what to do”.
He said that the Belize law regarding indictable matters allows the DPP to ask the Magistrate to send the depositions to him/her, or a High Court Judge and the Judge would then examine the depositions upon the DPP’s request to commit an accused.
Justice Barrow opined that the Guyanese legislation did not intend for the DPP to be a Judge over, or to interfere with, the judicial functions of the Magistrate, but rather to take the process to another tribunal for determination.
In the end, the CCJ said it would engage the DPP and Bisram’s lawyer on a possible modification of Section 72 of the Criminal Law (Procedure) Act, which would allow the DPP to ask a High Court Judge to review the depositions from a PI and exercise his/her independent discretion on whether to direct a committal or not.
With the law revised this way, CCJ Judge Peter Jamadar noted that the PI process will “stay within the separation of powers, it stays within the [Judiciary], preserves the independence of the Judiciary, and in terms of the human rights…conforms to the right to a fair hearing by an independent and impartial court.”
Meanwhile, after the ruling by the Caribbean Court of Justice (CCJ), Bisram said he feels vindicated and he believes that justice has been served.
“I feel great, justice has been served and I am very happy that my name is cleared and I could go back to my normal life.”
Bisram was represented by a team of lawyers led by Queens Counsel Darshan Ramdhanie and included Sanjeev Datadin. Ramdhanie stated that his client has expressed satisfaction with the CCJ’s ruling.
“They [CCJ] have blazed the trail again and demonstrated that the rule of law is alive and strong in Guyana. It takes time to get to this place and I do share Mr Bisram, his own agony, of having to go through this process for so many years but we are at the end of it, the court has ruled on justice is served,” Ramdhanie stated.
On the other hand, Datadin added that the CCJ has taken the first step to right a wrong. “It is not right that the DPP, who is a prosecutor and one of the adversaries in the fight, can tell the adjudicator of the fight – the Magistrate – what to do…that is inherently wrong,” he explained.
He further stated that the US-based Guyanese is considering taking actions against the State.
“That will come after we have had some time because as you can imagine, the first and primary focus has been to ensure that Mr Bisram clears his name and that he is restored as a free citizen.”