The High Court will rule on Monday on an application for the withdrawal of the capital charge against United States-based Guyanese Marcus Bisram, who is accused of the murder of Number 70 Village carpenter Faiyaz Narinedatt.
Bisram, who is currently in a US jail, is fighting extradition to Guyana, where he has been named a co-defendant in Narinedatt’s killing.
Justice Gino Persaud, who is hearing the application to have the charge quashed, yesterday heard from Bisram’s attorney Sanjeev Datadin, who vehemently argued that the charge is “without legal foundation, null, void, unreasonable and unfair.”
According to Datadin, the only evidence which the state purports to have against his client is a statement of its key witness, Chaman Chunilall, alleging to have heard Bisram saying words to the effect “kill him.”
During the preliminary inquiry (PI) into the charge against Bisram’s five co-accused, before Magistrate Charlyn Artiga at the Springland’s Magistrate’s Court, however, Chunilall, under cross examination, purportedly recanted his story by saying that he knows nothing about the incident. As a result, Datadin argued that the recantation is sufficient to warrant the Director of Public Prosecutions (DPP) to withdraw the charge levelled against Bisram.
Datadin said the witness could not have known what the police claims he said in his statement, as he cannot read nor write—and told the court that when he told the police he knew nothing about the incident, they must have omitted it from his statement.
Datadin said the only purported evidence the state has against his client, and which it does not challenge in its affidavit, is that which Chunilall later recanted.
Solicitor General Kim Kyte-John and State Counsel Stacy Goodings, who appeared for the DPP, however refuted Datadin’s contention that the purported recantation should be a reason to withdraw the charge against the accused.
Instead, they advanced that these are issues which the magistrate is called upon to examine and determine at the conclusion of the PI, as to whether a prima facie case has been made out to commit the defendant to stand trial before the High Court. Goodings posited that whether Chunilall did or did not change his story are issues to be weighed by the magistrate when considering the witness’s credibility and reliability.
Datadin has argued on the other hand, however, that in light of the recantation, the DPP is “duty bound” and ought to exercise her statutory power to withdraw the charge and not simply rely on a magistrate to make a determination at a PI.
Datadin questioned what would be the position if five years down the line, should his client’s case be sent to a jury, he is acquitted because of Chunilall’s recantation. Kyte-John, however, observed that such determinations are for a jury—the arbiters of fact. She explained that it would be for a jury to deliberate and decide what it believes or not, and what weight it wishes to attach to Chunilall’s statement.
Supporting her arguments, Goodings said that should the case against Bisram eventually progress to trial, Datadin’s concerns will be addressed in directions the trial judge would have to give to a jury prior to its deliberations on the matter.
She said, too, that the court has an option to even exercise its discretion by upholding a possible no-case submission, but added that a purported recantation is not sufficient to throw out the charge all together. “Such a determination is first for the magistrate and then for the trial judge—upholding a no-case submission or a jury to decide should the case go to trial,” Goodings stressed.
But Datadin remained adamant that a person should not have to wait for such a time, being imprisoned in the interim, when there is a possibility that he would be acquitted at the end of such a lengthy process.
In a forceful rebuttal, Datadin argued that this cannot be justice, nor a standard to which the law can conform, when someone’s freedom hangs in the balance.
According to him, when the DPP decides to lay such a charge aginst someone, it must be based on a belief that there is a “real possibility” upon which a conviction can be secured beyond reasonable doubt, and that in the absence of this standard being held by the DPP, then a jury cannot itself be expected to make a judgement call to convict. “If you act without evidence, you act without jurisdiction as it is evidence which gives you the latitude to act,” Datadin said as he emphasised that the state has no evidence against his client.
Kyte-John, however, fired back by further observing that since a PI against Bisram has not yet commenced, Datadin is in essence asking the court to make a determination on what may happen in the future.
She noted that it is Magistrate Artiga who knows the details of the case and before whom Chunilall would have appeared. “This court (the High Court) does not have the benefit of questioning the witness about which incident he is saying he knows nothing about or observing his demeanour. Those are matters for the magistrate,” Kyte-John argued.
She noted that Datadin is asking the judge to embark upon a speculative exercise in a civil inquiry regarding a criminal matter, which the court ought not to be allowed to do, and she urged that it therefore not grant Bisram’s application for the charge to be withdrawn.
Owing to issues surrounding the alleged recantation application before the High Court, the PI against Bisram’s co-accused was aborted. A new one will commence after the court would have delivered its judgement.
Datadin has noted that while there were recantations by two other witnesses in the case, he has not pursued those, as they have no direct bearing on the case against his client. Justice Persaud is expected to deliver his ruling on Monday afternoon.
Bisram was arrested and placed behind bars in the US on July 4 in New York pursuant to a warrant issued on June 16 by Magistrate Judge James C Francis IV.
Police here have alleged, that he procured and commanded Orlando Dickie, Radesh Motie, Diodath Datt, Harri Paul Parsram, and Niran Yacoob to murder Narinedatt between October 31 and November 1, 2016, at Number 70 Village, Berbice.
Bisram’s application before the High Court was presented by Datadin, in association with attorneys Siand Dhurjon and Ganesh Hira.
