…Court of Appeal rejects motion for early hearing

MURDER accused Marcus Bisram’s case is far from unique, the Court of Appeal said as it refused a motion which sought an order directing that an appeal filed against the decision of Justice Navindra Singh be heard urgently.

The decision was handed down on Tuesday by Justice Rishi Persaud, Justice Arif Bulkan and Justice Rafiq Khan. Bisram, who is incarcerated in the U.S., is wanted in Guyana for the murder of Berbice carpenter Faiyaz Narinedatt, whose lifeless body was found on the Number 70 Public Road on November 1, 2016. Bisram is expected to be extradited; however, there have been attempts to block the move. Through a Fixed Date Application in November, 2017, two orders were sought against the director of public prosecutions (DPP)–one order, prohibiting the DPP from further proceeding with the decision to prosecute Bisram for the murder of Narinedatt, and the second, an order compelling the DPP to wholly withdraw and discontinue the charge against the accused; but Justice Navindra Singh on November 24, 2017 in the High Court, refused the orders sought and dismissed the application. An appeal was subsequently filed at the Appellate Court.

Urgent appeal
On February 6, 2018, Shermella Inderjali, by way of a motion, sought an order directing that an appeal filed against the decision of Justice Singh be heard urgently. Justice Bulkan, in delivering the ruling on Tuesday in the Court of Appeal, pointed out that during the hearing of the application, Bisram’s attorney Siand Dhurjon, in justifying why his client should be entitled to ‘jump the queue’ of pending cases, said in addition to him being incarcerated, the prosecution’s case is weak. Justice Bulkan noted that under the current system of administration, appeals are generally heard in the order in which they are filed, and as such, if an application of such nature is approved, it would result in ongoing cases being delayed.

“Depending on the conditions at any given time the disparity could be stark. While a lucky few would be heard within weeks or months, those subject to the normal course would have to wait years. This court cannot automatically or reflexively accede to any application that seeks an expedited hearing, for that would indirectly privilege litigants with the resources to bring them. Rather, this court must be concerned with treating all appeals even-handedly,” Justice Bulkan reasoned.

The Court of Appeal, he said, is cognizant of the right by all to trial within a reasonable time, as enshrined in Article 144 of the constitution, but alluded to the fact that it does not contain a standard limitation clause by which all of the rights therein are subject to the general public interests of health, safety and morality.

“A consistent feature of the cases decided under Article 144 (1) and its equivalent in constitutions across the Caribbean is that the right to be tried within a reasonable time is not absolute, but must be balanced against the public interest in the attainment of justice,” Justice Bulkan further pointed out.

But he made it clear that a rational and effective system of justice cannot be inflexible, and as such there ought to be provision for deviating from standard procedures in order to accommodate exceptional cases. “Any exceptions must be for good reason, justifiable on its face and transparently applied,” he emphasised.

Such was the case in the Application by Basdeo and St. Hill in the Court of Appeal in late 2017.

“It involved representatives of two prominent unions who were acting on behalf of sugar workers facing retrenchment. This was clearly a matter of national significance having immediate and material consequences for a large section of the population,” Justice Bulkan justified.

In the case of Bisram, Justice Bulkan said there is nothing unique about his matter.
“Marcus Bisram is one of hundreds whose alleged involvements in murder are currently at some stage in the criminal justice system. There are multiple stages in the process of prosecution for any criminal offence before a person actually serves his or her sentence of imprisonment: investigation, arrest, charge, preliminary inquiry, committa, trial, conviction, appeal, consideration of mercy, and commutation if applicable,” the Justice of Appeal (ag) stated.

He said while there are others who may, as in the case of Bisram, feel that they have been wrongly charged or prosecuted, they would only secure freedom at the appropriate time, when their case is heard in due course. Bisram, he stressed, 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. Other than a subjective assertion of innocence, he has not even attempted to say what makes his situation exceptional.”
Bisram’s mother and next friend, in her affidavit accompanying the motion, stated that unless an urgent hearing is granted, the appeal could be rendered trivial by the extradition of the accused murderer to Guyana from the United States. That, however, is not a special reason, the judge said. In considering the ‘appeal’s prospect of success,’ the Appellate Court took note of the issue of prematurity.

“The preliminary inquiry into Bisram’s charge has not yet begun, yet the court is being asked to speculate as to its outcome on the basis of testimony in another inquiry. There can be no guarantee that the witness in question, who is alleged to have deviated from his statement in one PI, will not testify according to the statement initially given to the police, and to assume that it is to speculate,” Justice Bulkan stated.

He added that the situation is further complicated by the fact that multiple applications have been brought on behalf of Marcus Bisram. There are at least three applications filed seeking to direct the DPP in the exercise of her discretion–which is a clear breach of the process.

“This 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 this motion. But the repeated litigation possibly demonstrates the lack of merit of the substantive appeal. At each development in the matter the applicant seems to file another application, so that the picture before the court has been unfolding in piecemeal fashion,” Justice Bulkan explained. It was also noted that there was a misrepresentation of Justice Singh’s ruling when the motion was filed.

The state was represented by Solicitor-General Kim Kyte and Attorney-at-law, Stacy Goodings.

In making her submission, the solicitor-general had alluded to the issue of abuse of procedure. “In summary, the court is being asked to exercise its discretion from evidence in a Preliminary Inquiry which touches and concerns the co-accused persons involved in the commission of the murder committed on Faiyaz Narinedatt, while Marcus Bisram, though charged has not appeared to answer same and as such, his Preliminary Inquiry has not commenced facing a charge for as well,” she had argued, noting that the court is being asked to usurp the functions of the magistrate.