Marcus Bisram moves to CCJ for urgent hearing of challenge to judge’s refusal to discontinue murder charge

Marcus Bisram

United States-based murder accused Marcus Bisram has moved to the Caribbean Court of Justice (CCJ) to challenge the Guyana Court of Appeal’s recent refusal to grant his application for an urgent hearing of his challenge to a ruling made by a local judge, who refused to grant orders to dismiss the charge against him.

The resort to the CCJ is the latest action taken by Bisram to avoid being extradited to Guyana to answer a charge of murder allegedly committed on Number 70 Village carpenter Faiyaz Narinedatt. Bisram and five others have been charged with the murder. Police have alleged that he procured and commanded 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.

Bisram, who is also fighting the extradition order issued in the United States by Judge Peggy Kuo, was nabbed in the United States on July 16th last year.

In an application to the Trinidad-based final appeal court, dated August 1st, 2018, the murder accused, through his mother, Shermella Inderjali, is asking for three orders: an order that the time to be fixed for the hearing of the application be abridged; an order granting special leave to appeal against the decision of the Guyana Court of Appeal (GCA) made on 31st July, 2018; and an order treating the application for special leave to appeal as the hearing of the appeal against the decision of the GCA.

The CCJ application was prepared by attorneys Sanjeev Datadin, Ganesh Hira, Ryan Crawford and Siand Dhurjon on behalf of Inderjali, who is listed as the applicant and next friend of Bisram. The Director of Public Prosecutions (DPP) is listed as the respondent.

Inderjali, in her affidavit in support of application, said that the DPP caused charges to be instituted against Bisram based on the evidence of Chaman Chunilall only. “No other admissible material that may be constructed as adverse evidence to Bisram has been disclosed to date,” she charged.

She said that her attorney, acting on her behalf, wrote two letters to the DPP in November, 2017, informing of the sworn evidence of the witness recanting the original statement allegedly given to the police and “seeking that she exercise her discretion to review the charges against Bisram with a view to discontinuing same.” According to her, only one response was received and it contained “a bare denial without more.”

She also made mention of a complaint made by the DPP, which led to the removal of the magistrate hearing the matter. Subsequently the preliminary inquiry commenced “de novo” before another magistrate. This was the doing of the Judicial Service Commission, which Inderjali said had no such lawful authority.

The applicant also charged that the DPP failed to take steps to prevent the reporting of “wild speculation” in the media and that such an omission, in violation of her duties and obligations, permits and encourages the “continuation of hopeless prosecution of Bisram and the prosecution is now almost entirely driven by public sentiment and not facts or evidence.”

After pointing out the High Court’s refusal on two occasions to have the criminal charge quashed, she said that she was advised that the DPP “has a duty to commence and continue only prosecutions that can yield a ‘reasonable prospect of conviction.’ The DPP has a corresponding duty to discontinue all prosecutions that cannot yield a ‘resonable prospect of a conviction.’”

The continuation of the charges against her son, she stressed, “is an abuse of process and an abuse of authority by the DPP.”

Inderjali said that in relation to the charge against Bisram, “the unique and exceptional circumstance” which has arisen is that all of the evidence against him is exactly what is being presented in the prosecution of his five co-accused in the two preliminary inquiries before two separate magistrates. “The unusual circumstances give the DPP an opportunity to be able to receive an assessment of the evidence and even its veracity. The DPP is not entiltled to ignore its obvious lacunae, weakness and retraction. The refusal of the DPP to discontinue the charges is an abdication of her responsibilities and duties,” she stressed.

Unabated

According to Inderjali, she believes that the actions of the DPP are improper as she has failed to fairly and reasonably consider whether, in light of the police statement and sworn testimony of Chunilall on two occasions, there is a realistic prospect of a conviction being obtained on that evidence against Bisram, and by omitting to take steps to prevent “false and inflammatory” press reports to continue “unabated.”

She had filed the GCA 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 DPP; one to prohibit the DPP from proceeding with the murder charge against him and a second one compelling the DPP to withdraw and discontinue the said matter. Justice Singh subsequently refused the orders and dismissed the applications.

Justice of Appeal Arif Bulkan, who read a 16-page decision constructed by himself and Justices of Appeal Rishi Persaud and Rafiq Khan SC, said that the application before Justice Singh was the third of its kind seeking broadly similar reliefs. Those orders essentially sought from the High Court orders to compel the DPP to discontinue the prosecution against Bisram.

Not frontally disclosed

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.

He made it clear 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.

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.

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