Marcus Bisram v The Director of Public Prosecutions
| Jurisdiction | Caribbean States |
| Judge | Mr Justice Saunders,Justices Wit,Anderson,Rajnauth-Lee,Barrow,Burgess,Jamadar,Mr Justice Adrian Saunders |
| Judgment Date | 15 March 2022 |
| Docket Number | CCJ Appeal No GYCR2021/002 |
| Court | Caribbean Court of Justice |
[2022] CCJ 7 AJ (GY)
Mr Justice A Saunders, PCCJ
Mr Justice J Wit, JCCJ
Mr Justice W Anderson, JCCJ
Mme Justice M Rajnauth-Lee, JCCJ
Mr Justice D Barrow, JCCJ
Mr Justice A Burgess, JCCJ
Mr Justice P Jamadar, JCCJ
CCJ Appeal No GYCR2021/002
Guyana Criminal Appeal No 45 of 2020
IN THE CARIBBEAN COURT OF JUSTICE
APPELLATE JURISDICTION
ON APPEAL FROM THE COURT OF APPEAL OF GUYANA
Constitutional law — Separation of powers — Independence of Judiciary — Power of Director ofPublic Prosecutions after discharge of the accused to direct magistrate to open preliminary inquiry and commit the accused for trial — Whether such power is unconstitutional — Whether DPP followed the requiredprocedure in exercise of that power — Whether existing law contravening fundamental rights must first be modified — Constitution of the Co-operative Republic of Guyana Act, Cap 1:01, arts 122A, 144, 152 — Criminal Law (Procedure) Act, Cap 10:01, s 72
Cases referred to:
1. A-G v Mohammed (1985) 36 WIR 359 (TT CA); A-G v Richardson [2018] CCJ 17 (AJ) (GY), (2018) 92 WIR 416; A-G of Fiji v DPP [1983] 2 WLR 275; Belize International Services Limited v A — G of Belize [2020] CCJ 9 (AJ) BZ, [2021] 1 LRC 36; Bowe v R (2006) 68 WIR 10 (BS PC); Boyce v Barbados (Preliminary Objection, Merits, Reparations and Costs) Inter — American Court of Human Rights Series C No 169 (20 November 2007); Boyce v R (2004) 64 WIR 37 (BB PC); Brooks v DPP (1994) 44 WIR 332 (JM PC); Browne v R (1999) 54 WIR 213 (KN PC); DPP v Mollison (No 2) [2003] 2 LRC 756 (JM PC); Ferguson v A-G of Trinidad and Tobago [2016] 2 LRC 621; Halstead v Commissioner of Police (1978) 25 WIR 522 (GD); Hinds v R [1977] AC 195 (JM PC); Inderjali v DPP [2019] CCJ 4 (AJ) (GY), (2019) 94 WIR 381; Maximea v A-G (1974) 21 WIR 548 (DM CA); Matthew v The State (2004) 64 WIR 412 (TT PC); McCulloch v Maryland 17 US 316 (1819); McEwan v A-G of Guyana [2018] CCJ 30 (AJ) (GY), (2019) 94 WIR 332; Nervais v R [2018] CCJ 19 (AJ) (BB), (2018) 92 WIR 178; Nicholas v R (1998) 193 CLR 173; R v Canterbury and St Augustine's Justices ex p Klisiak [1981] 2 All ER 129; R v Hussain ex p DPP (1965) 8 WIR 65 (GY); R v Jones (2007) 72 WIR 1 (BS SC); R v Manchester City Stipendiary Magistrate ex p Snelson [1978] 2 All ER 62; Roodal v The State (Trinidad and Tobago CA, 17 July 2002); Roodal v State of Trinidad and Tobago [2004] 2 WLR 652 (TT PC); Seepersad v A-G of Trinidad and Tobago [2013] 1 AC 659 (TT PC); State v Maraj-Naraynsingh (Trinidad and Tobago CA, 19 December 2006); Suratt v A-G [2007] 71 WIR 391 (TT PC); Watson v R (2004) 64 WIR 241 (JM PC); Williams, Re (1978) 26 WIR 133 (GY CA); Zuniga v A-G of Belize [2014] CCJ 2 (AJ) (BZ), (2014) 84 WIR 101.
Legislation referred:
Antigua and Barbuda — Criminal Procedure Act, Cap 117, Magistrate's Code of Procedure Act, CAP 255 as amended by Act 13 of 2004; The Bahamas — Criminal Procedure Code Act, CH 91; Barbados - Constitution of Barbados 1966, Criminal Procedure Act, Cap 127; Dominica — Criminal Law and Procedure Act, Chap 12:01; Grenada — Criminal Procedure Code, Cap 72B; Guyana — British Guiana (Constitution) Order in Council 1961, Constitution (Amendment) (No 4) Act 2001, Constitution of the Co-operative Republic of Guyana Act 1980, Constitution of the Co-operative Republic of Guyana Act, Cap 1:01, Constitutional Offices (Remuneration of Holders) Act, Cap 27:11, Court of Appeal Act, Cap 3:01, Criminal Law (Procedure) Act 1893, Criminal Law (Procedure) Act, Cap 10:01, Guyana Independence Order 1966, Narcotic Drugs and Psychotropic Substances (Control) Act, Cap 10:10; Jamaica — Criminal Justice (Administration) Act, Cap 83; St Kitts and Nevis — Criminal Procedure Act, Cap 4.06; St Vincent and the Grenadines — Criminal Procedure Code, Cap 172; Trinidad and Tobago — Constitution of the Republic of Trinidad and Tobago Act, Chap 1:01, Indictable Offences (Preliminary Inquiry) Act, Chap 12:01.
Treaties and International Materials referred to:
American Convention on Human Rights 1969 (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123.
Other Sources referred to:
Alexis F, ‘When is an “Existing Law” Saved?’ (1976) PL 256; ‘Report of the Constitution Reform Commission to the National Assembly of Guyana’ (17 July 1999); Raznovich L J, ‘The Privy Council's Errors of Law Hinder LGBTI Rights Progress in the Caribbean’ (2002) 1 E H R L R 65; Seetahal D S, Commonwealth Caribbean Criminal Practice and Procedure (3rd edn, Routledge 2010); Shahabuddeen M, The Legal System of Guyana (1973); UNODC, ‘Commentary on the Bangalore Principles of Judicial Conduct’ (2007).
Mr Darshan Ramdhani, QC with Mr Sanjeev Datadin, Mr Dexter Todd and Mr Arudranauth Gossai for the Appellant
Mrs Shalimar Ali-Hack, SC, Director of Public Prosecutions with Mrs Teshana James-Lake, Assistant Director of Public Prosecutions and Mr Nigel Hawke, Solicitor General for the Respondent
Marcus Bisram, the Appellant in these proceedings, is accused of murder. A Preliminary Inquiry (“PI”) into his murder charge was held and, after hearing the evidence, the magistrate discharged him. The Director of Public Prosecutions (“the DPP”) nevertheless directed the magistrate that Bisram should be committed for trial. Bisram contends that the directives by the DPP were unlawful and unconstitutional. He states that the law that empowered the DPP to so direct the magistrate, namely s 72 of the Criminal Law (Procedure) Act 1 (“the Act”), is itself incompatible with the Constitution. He seeks an order from this Court declaring the alleged unconstitutionality and invalidating the acts of the DPP. We agree that those acts should be invalidated and that s 72 is unconstitutional. We shall address later the consequences that arise from these findings.
In or around November 2016, Bisram hosted a party at his home in Corentyne. Among those attending was Faiyaz Narinedatt. Shortly after the party ended, Narinedatt's corpse was discovered on the Corentyne public road. The police had
reason to believe that his death was the result of a homicide. Bisram and five others were subsequently charged with his murder. It was alleged that Bisram “counselled, procured and commanded” the other men to murder the deceasedBisram left Guyana for the USA. The PI into the proceedings brought against him and the other men could not take place in his absence. The charge against him was therefore severed from that against the other five. The case proceeded against the five and a fresh charge was laid solely against Bisram. On the basis of this charge, he was extradited from the USA and taken into custody on his arrival in Guyana on 21 November 2019. A separate PI was held in relation to his charge.
The case against Bisram was based on statements a witness named Chaman Chunilall had provided to the police. It was agreed that at the PI it would only be necessary to hear Chunilall's evidence. At the PI, under cross-examination, Chunilall basically recanted his earlier statements to the police. At the conclusion of the case for the prosecution, the magistrate formed the view that no prima facie case had been made out against Bisram. The magistrate accordingly discharged him on 30 March 2020. Bisram went home, an apparently free man. His freedom was short. Later that same day, he was re-arrested, detained and brought back before the magistrate on 2 April 2020.
The DPP was not personally in court when the magistrate discharged Bisram on 30 March 2020. The prosecution was represented by one of her assistants. On that day, the DPP sent an email message to the Assistant DPP who had appeared before the magistrate. Two letters, both signed by the DPP, were attached to the email. One letter required the magistrate to send to the DPP a copy of the depositions taken at the PI. The second letter directed the magistrate ‘to reopen the PI and to comply with ss 65 and 66 of [the Act], with a view to committing the accused for the offence for which he was charged.’ Both letters were purportedly written under the authority of s 72.
The Assistant DPP received the email, printed the first letter and gave it to the Clerk of Court who then handed over the depositions. The Assistant DPP then briefed the DPP by telephone on their contents following which the DPP instructed her Assistant to print and submit the second letter.
The magistrate reopened the PI on 2 April 2020. Bisram was called upon to lead a defence. He merely indicated that he was innocent of the charge. At the close of Bisram's case, the magistrate reiterated that there was insufficient evidence to support the murder charge. The magistrate adjourned the hearing to 6 April 2020 for further directions from the DPP. In a subsequent letter dated 3 April 2020, the DPP directed the magistrate to commit Bisram for trial. The magistrate complied with this directive on 6 April 2020.
Bisram filed two applications in the High Court of Guyana. The applications were consolidated. He applied to quash the DPP's directives to the magistrate, as well as the decision of the magistrate to commit him to stand trial. He also applied for a number of other orders, including one precluding the magistrate from taking any action other than to discharge him, and another prohibiting the DPP from proffering an indictment in the High Court charging him with murder. He claimed that the decisions of the DPP were unconstitutional because s 72, on which they were based, was contrary to...
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