Guyana’s CoA erred – Bisram lawyers tell CCJ in appeal
Berbice carpenter’s murder
Lawyers for Marcus Bisram have filed a Notice of Appeal detailing the grounds on which they intend to rely to set aside a ruling by the Guyana Court of Appeal for their client to stand trial for the murder of Berbice carpenter and father of two Faiyaz Narinedatt. His legal team is led by Attorney-at-Law Dharshan Ramdhanie, QC, in association with Arudranauth Gossai, Sanjeev Datadin, and Dexter Todd.
Seeking to set aside the ruling of the Appeal Court, the lawyers argued that it failed to recognise that as a court in judicial review proceedings, it was duty-bound to assess and determine whether the Magistrate’s decision and equally the decision of the High Court Judge was respectively reasonable and rational when they both ruled that the evidence against Bisram was insufficient to commit him to stand trial.
According to counsel, the Court of Appeal erred when it concluded there was sufficient evidence against Bisram and that the credibility of a single witness was still a matter for the jury, where the evidence of that witness was the only evidence against him and where that witness had recanted his testimony and admitted that his evidence was not true.
They argued also that the Court of Appeal equally erred in failing to recognise that as a court in judicial review proceedings, it was duty-bound to assess and determine whether the Director of Public Prosecutions (DPP) Shalimar Ali-Hack’s decision for committal was reasonable and rational when she used the same evidence against their client to form a belief that the evidence was sufficient to commit him.
The Court of Appeal erred in law when having found that the procedure set out in Section 72 of the Criminal Law (Procedure) Act was not followed by the DPP and confirming it must be strictly followed still held that the discretion exercised in violation was valid and lawful, they contended.
Having failed to consider that this section must have been strictly complied with since their client’s liberty was at stake, the lawyers further contended that the appellate court erred, adding that failure to strictly comply rendered the DPP’s directive to commit their client unlawful, null, void and of no legal effect.
They contended, too, that the lower court erred when it held that Section 72(2) of the Criminal Law (Procedure) Act was not unconstitutional, as being saved by Article 152 of the Guyana Constitution as a pre-existing law.
Ahead of its hearing and later ruling in the matter, the CCJ has ordered the DPP not to take steps to arrest Bisram. In the meantime, he has been ordered by the regional court to remain in Guyana. He had to surrender his passport to the Registrar of the Supreme Court of Judicature last week.
He also has to report to the Police on Monday of every week until the matter is decided.
On May 31, 2021, the Guyana Court of Appeal overturned an order of certiorari quashing the DPP’s directive, which was granted by High Court Judge Simone Morris-Ramlall. In June 2020, Justice Morris-Ramlall issued the order which voided the DPP’s directive and an order prohibiting her from bringing an indictment for murder against Bisram.
Following a Preliminary Inquiry (PI) on March 30, 2020, Magistrate Renita Singh had discharged the charge against Bisram and informed him that he was free to go, after finding that the prosecution had failed to establish a prima facie case against him at the end of a Preliminary Inquiry (PI).
However, on the day of the discharge, the DPP exercised her powers under section 72 (1) and (2) (ii) (b) of the Criminal Law (Procedure) Act to request that the depositions be sent to her and directed the Magistrate to reopen the PI with a view to committing Bisram. The Magistrate complied, and thereafter called on Bisram, who had been rearrested, to lead a defence.
At the close of the case for the defence, the Magistrate found that there was insufficient evidence to support the charge, and adjourned the matter to April 6, 2020, for further directions from the DPP. On April 6, 2020, the DPP directed that Bisram be committed to stand trial in the High Court. This direction was duly complied with on the said date by the Magistrate.
Bisram then moved to the High Court, seeking judicial review of the DPP’s decision.
In ruling that the DPP’s directive for committal was unlawful and unreasonable, Justice Morris-Ramlall, among other things, held that the evidence disclosed against Bisram by the prosecution did not meet the required evidentiary threshold to support calling on him to lead a defence.
In fact, the Judge ruled that no prima facie case had been made out against him to put him on trial by a jury before a Judge. “…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.”
Ali-Hack then filed an appeal against Justice Morris-Ramlall’s ruling with the Appeal Court.
In overturning the decision of the High Court, Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, had underscored that the issues raised in the State’s case against Bisram would be better ventilated at the trial court by a jury.
“The issues raised, we think, would have been better ventilated at the trial court, where the trial Judge would have weighed all the issues in relation to the evidence and decided whether or not it would have been left for a jury,” she had said.
According to the Chancellor, “The decision to commit by the Magistrate would have had to be based on the evidence which the DPP ought to have reviewed… We are of the view that the committal proceedings by the Magistrate and the directive by the Director of Public Prosecutions would not have been invalid.”
In her ruling, Justice Morris-Ramlall had outlined that the evidence of Chaman Chunilall was the body and soul of the prosecution’s case against Bisram, and that there was no other evidence, either 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. The evidence remained substantially the same at the close of the case for the defence,” the High Court Judge had noted.
But relying on a plethora of case laws, the Court of Appeal, held that “It is not the Judge’s job to weigh the evidence and to decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the functions of the jury…”
Bisram was extradited from the United States to Guyana in 2019 to face the murder charge. This was after an extended fight in US courts to block his extradition.
It is alleged that on the day of the killing, 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 came up behind him and started “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.
Media reports are that they then drove over his body on the roadway at Number 70 Village Corentyne, Berbice, to make it appear like a vehicular accident. Five other men: Orlando Dickie, Radesh Motie, Diodath Datt, Harri Paul Parsram, and Niran Yacoob, are currently awaiting trial for Narinedatt’s murder. (G1)