Jan 15, 2021 News
Kaieteur News – Director of Public Prosecutions (DPP) Shalimar Ali-Hack, SC, has defended her right to order a Magistrate to reinstitute charges on former murder accused, Marcus Bisram, during the case which continued on Wednesday at the Appeal Court in Kingston.
Bisram was extradited from the United States to face a murder charge for Berbice carpenter, Fiazz Narinedatt, over a year ago. He was however discharged of the crime by Magistrate Renita Singh – something that the DPP has challenged in the Court.
As part of her arguments, the DPP pointed to Section 72 of the Criminal Law Offences Act, which she said gives her the right to direct the Magistrate to reopen the Preliminary Inquiry (PI) and commit the accused for trial.
On this preface, the DPP said that her directive for Bisram to be committed to stand trial was proper, reasonable and lawfully made. She stressed among other things that the Magistrate erred in finding there was not enough evidence to commit Bisram for trial.
In her argument, the DPP told the court that there is sufficient evidence against Bisram for him to be committed, based on evidence that was given by the main witness. She also stated that while the Magistrate did not make out a prima facie against him or did not find sufficient evidence for Bisram to be committed, she believes that there is sufficient evidence and the case should be reopened and the jury should be allowed to decide on the credibility of the evidence.
“This was the function of the jury not the Magistrate,” she said. “Section 72 (2) (1) and (2) (a) and (b) empowers the DPP to direct the Magistrate…,” she emphasized.
She also stated among other things that with a jury properly directed, there can be a conviction for the murder of Narinedatt, who was killed between October 31, 2016 and November 1, 2016.
The DPP had previously contended too that there were several errors in the judgment of Justice Simone Morris-Ramlall, who ruled in June that Bisram was unlawfully committed to stand trial in the High Court for the capital offence of murder.
She noted that the Judge had granted orders quashing the decision of the Magistrate to commit Bisram to stand trial in the High Court for the offence of murder; prohibiting the DPP from proffering an indictment in the High Court charging Bisram with the offence of murder again.
In response to the contentions, Attorney-at-Law, Arudranauth Gossai, contended that the DPP stepped outside her realm in her order to the Magistrate.
“It offends the separation of powers’ doctrine,” the lawyer said, adding that Article 122 A of the Constitution “created an independent judiciary, and expressly provides that all courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any form of direction and control.”
He contended further that the determination of whether a prima facie case was made out is a judicial process that has to be determined by the Magistrate in the Preliminary Inquiry.
Gossai said that in his view, the provisions of Section 72 (2) (ii) (a) seek to encroach on the judicial determination of a Magistrate. Such an encroachment, he pointed out, would offend the separation of powers doctrine.
“The DPP cannot seek to determine the outcome of the preliminary inquiry. If the Court were to hold that the DPP had such powers, it would, respectfully, mean that the DPP (the Executive) would be reaching into the affairs of the court,” he added.
He noted too that “When one considers a directive to Magistrate Renita Singh, by Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, for Guyana-born US citizen, Marcus Bisram, to be committed to stand trial for murder in the High Court, even though he was discharged after a preliminary inquiry, it amounts to obvious judicial interference, having regard to the above constitutional provision.”
As such, the lawyer urged the Court of Appeal to strike down, as being unconstitutional, the offending parts/provisions /words in the aforementioned Section of the Act.
The DPP had asked the Appeal Court to set aside an order granted by High Court Justice, Simone Morris-Ramlall, quashing as unlawful her directive to the Magistrate.
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