Appeal Court refuses Marcus Bisram’s bid for urgent hearing of challenge to judgment

-finds abuse of process after filing of multiple applications

Marcus Bisram

Guyanese murder accused Marcus Bisram yesterday suffered another setback in his bid to prevent his extradition to Guyana when the Court of Appeal refused his application for an urgent hearing of his challenge to a ruling by a local judge and noted that the filing of multiple identical applications on his behalf amounts to an abuse of the court process.

Bisram, who is also fighting the extradition order issued in the United States by Judge Peggy Kuo, is attempting to avoid being extradited to Guyana to face a charge over the murder of Number 70 Village carpenter Faiyaz Narinedatt.

Justice of Appeal Arif Bulkan yesterday read the 16-page decision constructed by himself and Justices of Appeal Rishi Persaud and Rafiq T Khan SC.

Through his mother, Sharmila Inderjali, Bisram filed the motion on February 6th seeking that an appeal filed against the decisions of Justice Navindra Singh, made on November 24th, 2017, be heard urgently, and an order treating the application for an urgent hearing as the hearing of the substantive appeal in question.

In the proceedings brought before Justice Singh, Bisram had sought two prerogative orders against the Director of Public Prosecutions (DPP); one to prohibit the DPP from proceeding with the murder charge against him and a second compelling the DPP to withdraw and discontinue the said matter. Justice Singh subsequently refused the orders and dismissed the applications.

Justice Bulkan noted that the application before Justice Singh was the third of its kind seeking broadly similar reliefs, which essentially sought from the High Court orders to compel the DPP to discontinue the prosecution against Bisram.

This fact, the Justice of Appeal noted, was not frontally disclosed and therefore rendered a re-hearing before a differently constituted panel of judges. This also was apparently not disclosed in another matter and led to its dismissal for material non-disclosure. The judges concluded that the repeated litigation is undeniably an abuse of the court’s process, and for that reason alone ought to disentitle the applicant from the relief sought in the motion. They also noted that the repeated litigation possibly demonstrates the lack of merit of the substantive appeal. It was pointed out, too, that at each development in the matter, the applicant seemed to file another application, so that the picture before the court has been unfolding in a piecemeal fashion.

Additionally, Inderjali’s application claimed that Justice Singh, in refusing to grant the orders, stated that the DPP had no continuing duty to be satisfied and that there was a reasonable prospect of a conviction after the filing of a criminal charge and also that the DPP cannot be subjected to prerogative writ proceedings once a charge is filed. Those were the grounds for the appeal used.

However, a certified copy of the judge’s ruling, extracted from his minute book, which was brought to the Court’s attention by Solicitor-General Kim Kyte-Thomas, revealed that the reasons listed by Bisram’s mother were not the reasons behind Justice Singh’s dismissal of the orders.

“This misrepresentation of the Judge’s ruling is yet another troubling feature of this case,” Justice Bulkan noted.

It was pointed out that the preliminary inquiry (PI) into the charge against Bisram has not yet started, yet the court is being asked to speculate as to its outcome on the basis of testimony in another inquiry. Bisram’s lawyer Siand Dhurjon had argued that the sole witness implicating him in the murder had recanted during his own inquiry. The Solicitor-General, in response, had refuted this claim and said it was just an interpretation by the lawyer and not a statement of fact. “There can be no guarantee that the witness in question, who is to have alleged deviated from his statement in one PI, will not testify according to the statement initially given to the police, and to assume that is to speculate,” judges said.

‘Justice delayed’

Meanwhile, Justice Bulkan noted that as clichéd as the well-known aphorism “justice delayed is justice denied” may seem, the principle of efficiency in the administration of justice which it represents is not just aspirational but a fundamental right encoded in many Constitutions, including Guyana’s. But he noted that despite the lofty status, the principle of speedy justice does not operate in a vacuum, since any system of legal administration exists within a wider context, which inevitably has implications for the manner and speed with which justice is administered.

“Factors, such as time, cost and caseload, pose inevitable tensions in any justice system, even the most efficient, and they take centre stage in this matter,” he said, while delivering the judgment.

However, later on in the ruling the Justice of Appeal noted that an individual litigant’s entitlement to a trial within a reasonable time cannot be the sole consideration in determining whether to grant an urgent hearing in any given application as if that is done it will introduce an element of caprice or arbitrariness in the management of the Court’s workload.

During oral arguments, Bisram’s lawyer was asked why his client should be allowed to “jump the queue” and he had responded by noting that the applicant was incarcerated and that the case against him was a weak one. But the court noted that incarceration of potentially innocent person “is a hazard of all criminal prosecutions” and therefore it could not decide the application on such narrow basis. They judges added that should the application be granted, in a system where appeals are heard on a first-come basis, ongoing hearings would be displaced or delayed and some would have their matters heard before others. “This court cannot automatically or reflexively accede to any application that seeks an expedited hearing, for that would indirectly privilege litigants with the resources to bring them. Rather, this court must be concerned with treating all appeals even-handedly,” the ruling said.

And while Article 144 of the Constitution provides that “any person charged with a criminal offence… shall be afforded a fair hearing within reasonable time by an independent and impartial court established by law,” it does not contain a standard limitation clause by which all of the rights therein are subject to the general public interests of health, safety, morality and so on. But the absence of such limitations, the judges found, does not render the right an absolute one and also the concept of an individual right is rare in human rights law.

‘Public perception’

Another downside in failing to adhere to a known system of fixing and hearing appeals, according to Justice Bulkan, is the public perception of the administration of justice.

“If some are seen to have preferential access to the courts, that could lead to the perceptions of bias on the part of the

judiciary in favour of the rich and powerful,” the Justice of Appeal noted.

Having said that, the judges acknowledged that a rational and effective justice system cannot be inflexible in how it operates. They said there ought to be provision for deviating from standard procedures in order to accommodate exceptional cases but added that preferential treatment cannot be accorded merely as a consequences of resources but rather must be for some good reason, justifiable on its face.

It was the view of the three Justices of Appeal that an applicant seeking preferential access to the court must satisfy two criteria; first, proving some exceptional circumstance in the case that justifies urgency, and, second, that his or her appeal has strong prospects of success.

It was pointed out that Bisram is one of hundreds whose alleged involvement in murder are currently at some stage in the criminal justice system and that there are multiple stages in the process of prosecution for any criminal offence before a person actually serves his or her sentence of imprisonment. These include investigation, arrest, charge, preliminary inquiry, committal to trial, conviction, appeal, consideration of mercy, and commutation if applicable. “In this regard, therefore, Marcus Bisram is far from unique,” the court found, before pointing out, “Bisram has advanced absolutely no reason as to why his case should take precedence over all the others that are in the system before his, including those which may well have merit.”

It was pointed out that the offence of murder is one of the most serious crimes under Guyana’s law and therefore there is a very strong public interest in all of the state’s criminal justice procedures being allowed to progress.

Bisram, a US-based Guyanese, is accused of procuring and commanding Orlando Dickie, Radesh Motie, Diodath Datt, Harri Paul Parsram, and Niran Yacoob to murder Narinedatt between October 31st and November 1st, 2016, at Number 70 Village, Berbice.

He is currently fighting his pending extradition to Guyana and he has filed habeas corpus proceedings in which he is once again challenging the existing treaty between Guyana and the United States as well as the evidence implicating him in the murder.

That matter is ongoing.

 

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