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Jul 18, 2019 News
By Feona Morrison
Looking to set aside his manslaughter conviction, Mark Fraser has now taken his fight to the Caribbean Court of Justice (CCJ), where he is seeking special leave to challenge the decision of the Guyana Court of Appeal.
In 2007, Fraser was convicted for manslaughter by a 10-2 majority verdict and sentenced to four years’ imprisonment following a trial before Justice Winston Patterson.
He then appealed his conviction to the Court of Appeal and was granted bail pending appeal. It, however, took 10 years before the Court of Appeal heard the matter, and upheld his conviction. The court held that the inordinate delay in hearing of the appeal was a breach of Fraser’s right to a fair trial within a reasonable time. As such, the court stayed any further imprisonment for him.
According to reports, on October 26, 2006, Fraser, a former Guyana Defence Force soldier, was heading for patrol when he stopped and uplifted a gun. Whilst doing so, he shot and killed Oneal Rollins, his fellow soldier with an AK 47 rifle at an army base at Buxton, East Coast Demerara.
Based on reports, following his conviction on November 15, 2007, Fraser had been released on bail pending appeal through an application filed in that regard on December 4, 2007. During a hearing for special leave on Tuesday, Fraser’s lawyer, Kamal Ramkarran, argued this was a case of gross negligence manslaughter.
Advancing his case, Ramkarran told the panel of five judges included the CCJ’s President Justice Adrian Saunders, that Justice Patterson failed to give the jury proper directions on the standard of proof. In this regard, Ramkarran contended, that among other things, the conviction cannot stand having regard to the evidence adduced at trial.
Ramkarran is also arguing that the prosecution misrepresented the law when it demonstrated how Rollins might have been shot.
The lawyer has dubbed the prosecution’s actions “inappropriate”.
“There is no description in the judge’s notes of what the prosecutors did with the weapon. Prosecutors have a duty to be fair. If two people knew what happened one of those persons is dead, the other person is giving an account of what happened and if that account is different from the demonstration that you are doing, then your demonstration is unfair.”
For his part, Justice Saunders told Ramkarran that Fraser did not dispute his caution statement. But Ramkarran was not in agreement. In fact the lawyer responded, “Yes sir. It was disputed and there was a voir dire. The judge accepted it (the caution statement) without giving reasons.”
“No, No, No,” Justice Saunders replied to Ramkarran. The CCJ judge then sought to explain that the voir dire was done to determine the voluntariness of the caution statement. According to Ramkarran, “In his (Fraser’s) address from the (prisoner’s) dock the statement that he gave contradicted the (caution) statement. And he said that I never said that I heard the gun cranked or I never pointed it at the fellow (Rollins).”
Justice Saunders, however, said whatever Fraser said from then became a matter of fact for the jury to deliberate on. Furthermore, Ramkarran put forward that there was a case of bias against his client. He told the CCJ that the trial judge erred when he failed to conduct a proper inquiry of a real possibility of bias of a juror who was seen talking to a prosecution witness.
In her address to the CCJ, Director of Public Prosecutions (DPP) Shalimar Ali-Hack said that Fraser was convicted on November 14, 2007. Some 10 years later he filed an appeal.
According to the DPP, the Court of Appeal in staying the sentence followed the CCJ judgments in the cases of Suraj Singh v Sichan and Harrychan and Vishnu Bridgelall v Hardat Hariprashad.
It was DPP’s argument that since this is a criminal appeal, the criminal standards are now engaged and Fraser has to prove that he suffered a serious miscarriage of justice “as was the term used in some of the CCJ decision or that there was a potential miscarriage of justice.
Weighing in recently appointed CCJ judge Peter Jamadar said, “So that is the test. What is the standard?”
Justice Jamadar asked the DPP, “Do you believe that the standard is arguability?”
“Yes sir,” Ali-Hack replied adding that it has to be an arguable or deserving case.
“He (Fraser) will have to prove to this court that he has an arguable case that there was a miscarriage of justice. The reason why I mentioned this was because in his written submission, Ramkarran has asked this court to find that the standard applicable for this application is that of a civil case.
His (Ramkarran) main contention is the 10 years delay which is a breach of the applicant’s (Fraser) constitutional right to a fair hearing within a reasonable time.”
The DPP acknowledged that the Court of Appeal has recognized, accepted and granted redress. Ali-Hack said that while these proceedings are criminal, they involve a constitutional point as is not unusual in many criminal proceedings before the regional court.
In these circumstances, the DPP asked the CCJ not to grant the application for special leave to appeal.
Ali-Hack submitted, “I therefore ask your honours not to concede to counsel’s request to lower the standard to that applicable to civil cases as this is undoubtedly a criminal proceeding and the standard required in this application is for the applicant to establish that there is a realistic possibly of a miscarriage of justice if leave is not given for full hearing or they have raised a point of law of public importance if not overturned a questionable precedence might remain on the record.”
Addressing the point of gross negligence manslaughter raised by Ramkarran, the DPP said that this argument was fully vetted at the Court of Appeal which was satisfied that adequate directions were given to the jury by the trial judge.
The DPP stated that the Court of Appeal in its consideration on gross negligence manslaughter stated, “We feel therefore that the summing up taken as a whole did convey to the jury what was really required in relation to the elements of the offence and the burden of proof. And therefore we feel no complaint could be made in the circumstances.”
In relation to Ramkarran’s point of bias on the part of a jury, Ali-Hack stated that the trial judge did indeed conduct an investigation and that the trial continued. This, she said, was supported by the records of the trial and the record states that counsel for the state and prosecution consented for the trial to continue with 12-jurors after the probe.
“It is my respectful submission that it is improper now for counsel (Ramkarran) to have consented at the trial and then raise it as an issue on the appeal after there is a conviction. And this was considered by this honourable court in the CCJ decision of James Anthony Hyles v DPP and Williams v DPP.”
In all the circumstances, the DPP held that there was no serious miscarriage of justice having considered all the circumstances of this case. The CCJ has completed hearing arguments in this matter and has reserved its decision.
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