GEORGETOWN, Guyana, November 15, 2021 - The Caribbean Court of Justice (CCJ) last Thursday frowned heavily on what they regard as the power of Guyana’s Director of Public Prosecutions (DPP) to direct a court to recommit an accused person for fresh proceedings.
“Whether the DPP is pr is not a member of the executive, to me it does not detract from the fact whether a court ought not to be directed by some other authority other than a Court of Appeal; only a Court of Appeal can direct a court,” said CCJ President, Justice Adrian Saunders. “It is very incongruous if someone is invested with a power to direct a court,” he added, in response to a request by Attorney-at-Law Darshan Ramdhani to state whether the DPP is part of the executive.
He and other judges made known similar positions after the DPP Shalimar Hack said she merely exercised an administrative function in a quasi-judicial capacity so that a Magistrate could first conduct a preliminary inquiry as a “stage” to determine whether there was sufficient evidence for Birsam to face trial in the High Court.
But the CCJ President was not at all convinced, suggesting very strongly that the law that allows the DPP to do so amounted to a conflict of interest by a party in a case. “Whether you call it a stage or whatever you call it, the point is that we have a situation in Guyana where, as Mr. Justice Wit pointed out to you, a litigant before that court is vested with the power to direct the court on what it should and should not do in a matter in which that litigant is a party and I’m asking you : does that strike you as being too odd,” she said.
While the DPP was explaining the roles of the Magistrates Court and the High Court, Justice Barrow said “it seems to me that you cannot get away from the fact that there is a decision to commit or not to commit… and therefore the Director is overruling or imposing on the magistrate that you should commit.
The court made known its position even as Ms. Hack defended her decision to instruct a Magistrate to recommit murder accused Marcus Bisram for a second preliminary inquiry.
Mr. Saunders said he might ask the DPP and Bisram’s lawyer, Darshan Ramdhani on possible modifications to Guyana’s laws to allow the DPP to seek a High Court review to determine whether a new preliminary inquiry should be conducted.
Justice Denys Barrow pointed to Belize where the DPP could request a warrant of committal from a High Court judge who would then decide whether it should be granted. DPP Shalimar Hack remarked that “we have never had that procedure here in Guyana.” Justice Peter Jamadar also made a similar recommendation.
The DPP defended her decision to write two letters to a Magistrate who had heard the preliminary inquiry into Bisram’s murder charge. She said two letters had been sent to the magistrate by email and the second one had been followed up by hard copy.
Ms. Hack said that it was after she and the Assistant Director of Public Prosecutions Ms. Gooding had reviewed the depositions that the second letter had been dispatched for the committal because she (DPP) had been very familiar with the evidence. She added that it was necessary to act with speed because of “all of the shenanigans” that had been going on with the case against Bisram. “It was a proactive action taken by the DPP in the public’s interest,” she said.
The Court remarked to the DPP that “you cannot get around the fact” that the second letter had been prepared before the depositions had been sent to her for a review together with the Assistant DPP.
Ms. Hack sought to justify her decision to recommit Bisram to a new preliminary inquiry because the magistrate was focusing heavily on the credibility of the witness. The witness, Chunilall, had recanted his evidence. But Ms. Hack said the DPP had to focus on the sufficiency and admissibility of the evidence and the credibility of the witness.
The DPP asserted that she “has not usurped the function of the judiciary”, adding that inconsistences are to be trialed by a jury rather than the admissibility of the evidence.