DPP continues arguments against quashing of order that Bisram be tried
-defence contending that key section of law unconstitutional
The Guyana Court of Appeal yesterday morning continued hearing the Director of Public Prosecutions’ (DPP) appeal of a High Court ruling quashing her order that Marcus Bisram be tried for the murder of Faiyaz Narinedatt.
DPP Shalimar Ali-Hack during her virtual submissions argued at length and maintained that her directive for Bisram to be committed to stand trial was proper, reasonable and lawfully made in accordance with Section 72 of the Criminal Law (Procedure) Act.
Bisram who was extradited to Guyana from the United States a year ago was charged with the murder of Narinedatt and remanded to prison.
Following a preliminary inquiry (PI), however, he was discharged but rearrested mere hours after on the direction of the DPP.
The former murder accused subsequently filed a High Court action challenging the DPP’s directive. Justice Simone Morris-Ramlall would later rule in his favour quashing the committal order.
Among other things, Ali-Hack took direct aim at the Magistrate Renita Singh’s pronouncement at the conclusion of the PI that there was not sufficient evidence to have committed Bisram to stand trial.
On this point she argued that the determination of the credibility of evidence on which the magistrate based her decision was in fact not a function of the magistrate, but rather a jury—which is the arbiter of facts.
The DPP advanced that having admitted into evidence testimony which the Magistrate would later find to have been unreliable; the correct course was for that bit of evidence to be, on a factual basis, determined by the jury for its truth.
Against this background she strongly maintained that Bisram ought to have been committed to stand trial before a judge and jury at the High Court.
Section 72 (2) (i) and (ii) (a) and (b) empowers the DPP to order a Magistrate to re-open a PI and commit an accused for trial.
Attorney-at-Law Arudranauth Gossai who represents Bisram (the Respondent) has argued, however, that section 72 is unconstitutional in view of Article 122 A (1).
The Respondent wants the appellate court to declare section 72 repealed by Act No. 6 of 2001 enacted as Article 122 A (1).
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.”
Against this background, Gossai argues that Ali-Hack’s order to the Magistrate in effect contravenes Article 122 as an attempt to usurp the judicial function of the court by the DPP who falls under the Executive arm of government.
This, he argues, further contravenes the separation of powers doctrine that each arm of government—the Executive, Judicial and Legislature be independent of interference from the other.
The lawyer said that contrary to the DPP’s argument, her directive does not fall under an administrative function but is rather a judicial one reserved only for the court—in this case Magistrate Singh who conducted the PI and thereafter found that a prima facie case had not been made out against his client to have warranted him being committed for trial.
To further bolster his argument, Gossai said that in accordance with Article 187 of the Constitution, the DPP is empowered among things to prosecute cases, but never to make judicial determinations on the outcome of any case itself.
The arguments will continue on February 3 rd before acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory.