The first criminal appeal filed by the State of Guyana at the Caribbean Court of Justice (CCJ) was heard by the region’s highest court earlier this month and on Friday it overturned a majority-decision by the Guyana Court of Appeal.
The case related to the application of Section 8(2) of the Summary Jurisdiction (Appeals) Act which provides that upon receipt of the Magistrate’s Memorandum of Reasons for decision, the Clerk shall forthwith, and at latest within 21 days of the receipt thereof, prepare a copy of the proceedings including the reasons for the decision, and when the copy is ready he shall notify the appellant in writing and, on payment of the proper fees, deliver the copy to him.
According to a statement from the Chambers of the Director of Public Prosecutions (DPP), Sichan Harrychan, after being found guilty of demanding with menace on November 4th, 2010, had been sentenced to three years imprisonment but filed an appeal on 18th November, 2010. Harrychan was a former employee of the Guyana Power and Light Inc and had been charged on September 28th, 2007.
The appeal came up for hearing on July 10th, 2015. There were no grounds of appeal filed by Harrychan’s attorney and the State sought to have the appeal deemed abandoned in the absence of grounds. However, the appellant applied for more time within which to submit grounds of appeal as he argued that even though he did not comply with the statutory requirements, the Clerk also failed to do so and was in breach of Section 8(2) since his Notice was sent, not within 21 days after receipt of the Magistrate’s Memorandum of Reasons but about 17 months thereafter.
In a majority decision by Justices B S Roy and Rishi Persaud, the Guyana Court of Appeal on 15th October, 2015 ruled that Section 8(2) of the Act had to be strictly complied with by the clerk and non-compliance would render the Notice sent outside that stipulated period invalid. The majority ordered that a fresh notice be sent by the clerk to the appellant. The decision also held that the clerk could apply for an extension of time within which to comply. The majority also ruled that the Notice sent by the Clerk to the appellant’s attorney instead of to the appellant at his last fixed place of abode was void and of no legal effect.
Chief Justice Yonette Cummings-Edwards in a dissenting judgement, ruled that non-compliance by the clerk would not invalidate the notice and service of the Notice on the attorney equates to service on the appellant.
Subsequently, the statement said, on 17th November, 2015, Assistant DPP Judith Gildharie-Mursalin moved to the CCJ to appeal the majority ruling. The statement said that the State submitted that even if the Clerk, constrained by limited resources available to the administration of justice, failed to comply with the time period, his subsequent act of sending the notice was not invalidated since the Section was to be read as directory.
Additionally, the State argued that the remedy for the Clerk’s non-compliance could not be an application for an extension of time since the Clerk was not a party to the proceedings and Section 2 of the said Act defines Clerk to mean the Clerk of the Magisterial District from which an appeal is brought and if there is no clerk includes a magistrate.
The State contended that Parliament would not have envisaged that a Magistrate performing the duties of Clerk, failing to perform the functions under Section 8(2) would have to apply under Section 14 for an extension of time to do so.
The State submitted that the remedy for the Clerk’s failure to perform his duties was for the Appellant to apply for a Prerogative Writ of Mandamus to compel him to act. Section 37 of the said Act also provides for an application by way of motion to the Court to compel a Magistrate to do an act relating to the duties of the office.
The statement said that on April 7, 2016 the CCJ granted special leave to the Applicant to appeal and on Friday allowed the appeal and ordered that section 8(2) of the Act should be strictly followed by the Clerk of Court and although there may be non-compliance, that would not invalidate the service of the Notice outside that time period.
The Court also ruled that service of the Notice on the Counsel who signed the Notice of Appeal equates to service on the Appellant.
According to the statement, the substantive appeal by Harrychan of his imprisonment was remitted to the Court of Appeal for hearing with directions that the Court of Appeal take into consideration the considerable delay in the matter.
The decision was delivered via video conference held at the Court of Appeal in Kingston. Director of Public Prosecutions Shalimar Ali-Hack was present.
