After finding that accused Marcus Bisram was unlawfully committed to stand trial for murder, Justice Simone Morris-Ramlall on Monday also granted him an order prohibiting the Director of Public Prosecutions (DPP) from bringing an indictment in the High Court charging him with the capital offence.
The judge on Monday found the directive given by the DPP that Bisram be committed to stand trial for the murder of Faiyaz Narinedatt to be unlawful and ordered his immediate release from custody.
The judge ruled among other things that Bisram’s continued incarceration since his arrest on March 30th was unlawful and also granted an order to Bisram nullifying the DPP’s direction to Magistrate Renita Singh to re-open the preliminary inquiry into the charge against him, saying that it was unreasonable and ignored relevant considerations.
Bisram had contended that the DDP’s actions infringed his constitutional rights provided for in Articles 122 A and 144 (1) and the separation of powers doctrine.
Section 72 (2) (i) and (ii) (a) and (b) of the Criminal Law Procedure Act empowers the DPP to order a Magistrate to re-open a PI and commit an accused for trial.
Article 122 A provides, “all Courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.”
Meanwhile, Article 144 (1) stipulates, “if any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law.”
Citing case law authority on this constitutional point raised by Bisram, Justice Morris-Ramlall rejected his submission that Section 72 is unconstitutional or contravenes the doctrine of separation of powers.
The judge said, however, that while in her analysis Bisram did not produce admissible and definitive evidence regarding the sequence of events leading up to the exercise by the DPP of her Section 72 powers, the evidence of the state in this regard was inadequate.
She said that it is the state which bears the burden of satisfying the Court that the statutory procedure was complied with.
On this point, she said that cogent evidence was required in relation to the chronology of events, noting that no details were provided of precisely what the perusal of documents by the DPP and State Counsel containing the magistrate’s decision and evidence from the inquiry entailed and how this perusal of hundreds of pages was conducted in what appears to be a relatively short period of time and without the physical presence of the DPP.
Bisram had argued that on April 2nd it was disclosed in open court that the record of proceedings was provided to the DPP sometime after 4pm on March 30th.
Bisram also stated that the Magistrate and the Clerk of Court disclosed in open court that at 3:17pm on March 30th the Magistrate received a letter dated the said date via email from the DPP directing her to, among other things, reopen the inquiry.
It is on the basis of these pleaded facts that the Bisram contended that the request and/or direction made by the DPP is unlawful because it was made in violation of the procedure prescribed by Section 72. He contended that the DPP had to first send for and receive the depositions before deciding to take any steps pursuant to Section 72 and that she did not in fact do so.
The State in its defence advanced that all acts done by the prosecutor in the course of the inquiry were in effect acts of the DPP and argued that the DPP was briefed on every occasion that the prosecutor appeared in court.
The State sought to note further that the only witness who testified in the matter had been cross-examined on February 13th and the decision to discharge was made on March 30, 2020. Against this background it averred that by this time the DPP was fully apprised of the evidence in the matter as she was always briefed by the Prosecutor and that, given the distance of the court from the DDP’s Chambers, an email was sent on March 30th requesting the depositions along with a letter instructing the re-opening of the inquiry.
It was the State’s evidence that shortly after the email was sent, the Prosecutor printed the request for the depositions and it was handed over to the Clerk of Court. Upon receipt of the depositions, the Prosecutor together with the DPP then perused them to confirm that they accurately represented the evidence taken during the inquiry and upon the instructions of the DPP the Prosecutor then submitted the letter requesting that the matter be re-opened by handing over a copy to the Clerk of Court.
In response, Bisram disputed that the Prosecutor “stands in the shoes” of the DPP in the exercise of her statutory powers. He contended that the affidavit-in-defence addressed none of the matters he raised and contained no evidence to counter his evidence in relation to the exercise of the DPP’s Section 72 powers.
No presumption
Justice Morris-Ramlall said that even if one were to accept that on the day of the discharge the DPP was aware of what the evidence should have been, no presumption can be made as to the content of the record which the magistrate acted upon.
She said that careful perusal of the record which formed the basis of the magistrate’s decision to discharge was imperative at the very least for confirmation purposes and that particular attention had to be given to the evidence of the witness, which, in itself is recorded on 37 handwritten pages.
“There is no evidence that, unlike as with the police statements, the DPP had the benefit beforehand of Chunilall’s (the witness) evidence, as recorded by the Magistrate,” the judge said.
She went on to reason that Section 72 (1) is a prerequisite for the important purpose of ensuring that the DPP is in a position “to make a considered decision and to properly exercise her discretion.” “The DPP must be in a position to and must actually and personally consider all of the depositions and other documents and things which formed the record before determining whether to remit the matter to the Magistrate with directions,” Justice Morris-Ramlall said.
The judge said she accepts the State’s evidence that the Prosecutor duly briefed the DPP about the inquiry as it progressed and that given the inquiry was conducted mostly by way of paper committal and that the case for the prosecution had been closed for some time prior to the date of discharge, that the DPP would have been apprised of the evidence relied on by the prosecution.
The judge, however, said that this does not in any way relieve the DPP of the obligation to comply with the procedure prescribed in Section 72. “Indeed, compliance would have been necessary even if it were the DPP who was personally appearing in the matter. It is only upon perusal of the depositions and any other documents and things that a DPP can first confirm what the evidence that a Magistrate acted on was and then make an informed decision,” the judge declared.
She added that in any event, simultaneously issuing and emailing both the request for the record and the instructions to reopen suggests predetermination regarding the latter.
The judge then said that in all the circumstances, she was not satisfied that the request for the depositions or the receipt of it preceded the instruction to the magistrate to re-open the inquiry. She said that she was also not satisfied that prior to issuing the instruction to reopen the DPP personally perused and confirmed the deposition and other documents and things which formed the record in the proceedings.
Referencing case law, the judge said that “that the DPP must consider the whole of the evidence or the entire record before deciding whether to instruct the Magistrate to commit.”
The State had argued that the whole of that witness’s evidence needed to be placed before a jury for the due consideration and determination of its credibility and reliability, after receiving directions from a trial judge.
The State contended that given the state of the evidence, it was proper for the DPP to order the re-opening of the inquiry, while arguing that the presumption that the DPP acted fairly and honestly had not been rebutted by Bisram.
Against this background the State submitted that the DPP’s decision was not unreasonable given the evidence in the depositions.
Referencing a number of cases setting precedent on this area of the law, Justice Morris-Ramlall highlighted the point that the function of committal proceedings, whether by way of preliminary inquiry or paper committals, is to ensure that no one shall stand trial unless the prosecution has made out a prima facie case against the accused.
She emphasised that a committing magistrate should have regard to the reliability of the evidence not for the purpose of determining whether he personally is persuaded of guilt but for the purpose of determining whether any reasonable jury properly instructed could return a guilty verdict upon it.
During his testimony, the witness had recanted his story regarding witnessing an incident between Bisram and the deceased and, more importantly, the evidence of having heard him instruct others to beat and kill the Narinedatt.
‘Body and soul’
Justice Morris-Ramlall noted that the witness’ evidence was “the body and soul” of the case against Bisram. She said there is no other evidence, direct or circumstantial, linking the former accused to the charge he faced.
She said the exercise of the DPP’s Section 72 powers/discretion must be examined in this context as sufficiency of evidence is a relevant factor which ought to have underpinned the decisions made.
On this point the judge said that in her view the evidence disclosed in the depositions does not support the DPP’s decision to instruct the magistrate to re-open the inquiry or to subsequently instruct that Bisram be committed for trial.
She further said that at the close of the prosecution’s case, the evidence of the key witness was “totally discredited and rendered manifestly unreliable,” even as she noted that “the evidence remained substantially the same at the close of the case for the defence.”
The judge said that the evidence disclosed in the depositions did not meet the requisite evidentiary threshold to support calling upon the accused to lead a defence and that no prima facie case had been made out.
The same she said applied to his committal.
“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 said.
Concluding on that point she said that for those reasons she found the submissions made by Bisram’s attorneys that the DPP did not lawfully exercise her Section 72 discretion to be well founded and would therefore upheld, while stating that the committal by the Magistrate could not stand.
To his claim for damages, Justice Morris-Ramlall said that given her findings that there was no malice or bad faith on the part of the DPP she found it inappropriate to grant the damages he claimed.
Bisram had been seeking damages, including vindicatory damages.
Each party was ordered to bear their own costs.
Bisram was represented by attorneys Sanjeev Datadin and Arudranaught Gossai, while the state—the DPP, Attorney General and Commissioner of Police—was represented by Solicitor General Nigel Hawke and attorneys Chevy Devonish and L. Noel.
When Bisram was released from prison on Tuesday, it was the second time since his extradition to Guyana.
The charge against him 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 Faiyaz Narinedatt.
Bisram was extradited to Guyana from the United States in November last year. He was returned after a US appeals court ordered that he be extradited after denying both a rehearing of his appeal arguments and a motion to stay the extradition.
On November 21st, he was charged with the murder of Narinedatt and remanded to prison.
Following Magistrate Singh’s discharge of Bisram, he was rearrested mere hours after on the direction of the DPP.
It was on account of this that Datadin approached the High Court.
Counsel said that his client will be filing a lawsuit against the DPP and State.
Bisram was released around midday on Tuesday following the completion of all the necessary procedures, including the signing of all documents.
