DPP’s power to overturn magistrates decisions not sitting well with the CCJ

The Caribbean Court of Justice on Tuesday ruled that Guyana’s Director of Public Prosecution erred when she overturned the decision of a magistrate, committing him to stand trial for murder when the magistrate has already found that the state provided insufficient evidence to commit the dual Guyana/ United States citizen for the capital offense. The CCJ ruling was unanimous.

The court found ruled that nothing prevents the DPP, Shalimar Ali-Hack from causing Marcus Bisram to be re-arrested for the murder charge but such action must be based on the availability of new evidence that links him to the crime.

Bisram was arrested and charged after he was extradited from the United States to Guyana to answer questions in relation to the murder of carpenter Faiyaz Narinedatt, a father of two back in 2016 on the Corentyne Coast, Berbice.

As the matter went to court, Magistrate Renita Singh found that there was insufficient evidence to commit the accused to stand trial in the high court and as such, she set him free. The magistrate was later instructed by the DPP in accordance with power given to the DPP by the constitution where she can direct a magistrate to commit someone to stand trial in the High Court.

Queen’s Counsel Darshan Ramdhani, on behalf of Bisram, filed judicial review proceedings asking the High Court to quash the orders of the DPP and Magistrate and to strike down, as being unconstitutional, the offending parts/provisions/words in section 72 (1) and (2) (ii) (b) of the Criminal Law (Procedure) Act.

High Court Judge Simone Morris-Ramlall quashed the decisions of the DPP and Magistrate, thereby freeing Bisram. Aggrieved by that decision, the DPP challenged the Judge’s decision at the Court of Appeal of Guyana.

In its ruling, the local appeal court quashed Justice Ramlall’s decision which essentially restored the committal directive given by the DPP to the Magistrate. Bisram appealed against the Court of Appeal’s decision at the CCJ which ordered him to stay in Guyana and lodge his passport until the case is decided.

At the CCJ, Bisram contended that these directives by the DPP were unlawful and that section 72 of the Criminal Law (Procedure) Act,  which empowers the DPP to so direct a Magistrate, is incompatible with the Constitution of Guyana.

He argued that Ali-Hack’s directions were unconstitutional because section 72 was contrary to Article 122A of the Constitution of Guyana which entrenched the principle of judicial independence, Article 144 which secures the right to the protection of the law, and the separation of powers doctrine.

In delivering the ruling, CCJ’s President Justice Adrian Sauners, said that a PI, though not a trial, is a  judicial proceeding in which the accused is entitled to a variety of legal rights similar to at a trial.

The CCJ, however, noted that a discharge at the PI is not an acquittal, and issues of autrefois acquit do not apply as Bisram was never placed in jeopardy.

Irrespective of the DPP’s independence, the court held that what was pertinent was whether Parliament could validly authorize that high official [the DPP]  to instruct a judicial officer [a Magistrate] on how a matter should be decided.

“Made up her mind”

On the question of compliance with section 72, the regional court noted that the statute required the DPP to first receive the depositions and other material and form an opinion from them that a prima facie case has been made out, before directing the Magistrate to reopen the PI and give the accused an opportunity to make a statement or call witnesses.

But in Bisram’s case, the CCJ pointed out that the DPP made up her mind, before receiving the depositions, that the PI should be re-opened with a view to committing the accused.

In so doing, Justice Saunders said that the Director of Public Prosecutions “failed to follow the carefully crafted procedural steps of section 72, which embody substantive principles of fundamental fairness and natural justice conducive to the goal of a fair hearing”.

This failure, the regional court underscored, rendered the subsequent acts of both the DPP and the Magistrate susceptible to being declared anullity.

Regarding the constitutionality of section 72 and with respect to the separation of powers, the CCJ added that Article 122A speaks to “official” influence and control which is broader than “executive” influence and control and that the Article itself makes reference to freedom from ‘political, executive and any other form of direction and control’.

The CCJ held that a law that renders the Magistrate’s professional decision-making subject to the dictates of another official “cuts straight through” Article 122A and must be “declared void to the extent of its inconsistency” with that Article.

Finally, on the question of the consequences that follow its decision, the CCJ separated these into two sets: first in relation to Bisram and secondly in relation to the future of section 72.

As to the first, the apex court agreed with Justice Morris-Ramlall  that, even if section 72 were constitutional, the DPP’s second directive to the Magistrate must be declared a nullity. Further, the Court thus agreed with the trial judge that everything that followed the issuance of this directive must be quashed.

“Fresh evidence”

Moreover, the CCJ found that it would be unjust, in all of the circumstances, for Bisram to be made to answer any charge of murder in this case on the same evidence as was presented to the Magistrate.

However, the CCJ noted that because Bisram, at least in terms of the law, was never placed in jeopardy, nothing stops the DPP from having him re-arrested and charged again if fresh evidence is obtained linking him to the crime.

In relation to section 72, the Court noted that simply striking it down would leave a substantial gap in the criminal procedure, without any certainty as to when that gap will be closed.

“Thus, until the National Assembly addresses this matter, section 72 should be modified to provide that a DPP, who is for good reason disappointed with the decision of a magistrate to discharge an accused person, may place before a judge of the Supreme Court the depositions and other material that were before the magistrate on an ex parte application for the discharged accused to be arrested and committed if the judge is of the view that the material justifies such a course of action,” the CCJ said.

In all the circumstances, the CCJ allowed Bisram’s appeal and restored the decision to discharge him.