CCJ ruling sends two GPL employees to jail

Apr 23, 2016 News

The first criminal appeal filed by the State of Guyana since the establishment of the Caribbean Court of Justice (CCJ) in 2005, was yesterday allowed by the Full Bench of the CCJ.
The Full Bench comprises five judges including Sir Dennis Byron sitting as the President of the Court, with Justices Saunders, Wit, Anderson and Mme. Rajnauth-Lee.
According to a statement from the Chambers of the Director Public Prosecutions (DPP), the appeal focused on the interpretation of Section 8(2) of the Summary Jurisdiction (Appeals) Act, Chapter 3:04.
The case related to the time restrains of a Clerk in filing an appeal. According to the Act, upon receipt of the Magistrate’s memorandum of reasons for decision, the Clerk shall forthwith, and at latest within 21days of the receipt thereof, prepare a copy of the proceedings including the reasons for the decision, and when the copy is ready he shall notify the appellant in writing and, on payment of the proper fees, deliver the copy to him.
The Clerk’s compliance to Act in a matter involving Sichan Harrychan v. Suraj Singh has been an issue for the Court.
Sichan Harrychan and another man, both GPL employees were charged on September 28, 2007, with the offence of demanding with menace.
They were found guilty on November 4, 2010 and were each sentenced to three years imprisonment. On November 18, 2010, a Notice of Appeal was filed on his behalf of Harrychand.
The appeal came up for hearing on July 10, 2015, before the Court of Appeal.
On October 15, 2015, the Majority of the Court of Appeal (Justice of Appeal B.S Roy and Justice Rishi Persaud, sitting as an additional judge) in hearing the appeal of Sichan
Harrychan v. Suraj Singh ruled that Section 8(2) of the Act had to be strictly complied with by the Clerk and non-compliance would render the Notice sent outside that stipulated period invalid.
The Majority ordered that a fresh notice be sent by the Clerk to the Appellant.
The Majority held that the Clerk’s non-compliance should be remedied by the Clerk seeking an extension of time within which to comply in accordance with Section 14 of the said Act.
However, in a dissenting judgment, Chief Justice Yonette Cummings-Edwards (a member of the Appeal panel) ruled that non-compliance by the Clerk would not invalidate the notice. And that applying the reasoning in the CCJ case of Watson v. Fernandes, service of the Notice on the Attorney equates to service on the Appellant.
The Chief Justice, (CJ) granted extension of time for the appellant to comply. She also held that having regard to the voluminous appeal records that have to be prepared, Parliament could not have intended that if the Clerk was dilatory in his duties and exceed the time frame that the proceedings that flowed from there including the hearing of the appeal could not become invalid.
Further, the presumption that Parliament does not intend absurd results lends support for the position taken that non-compliance with the time requirement is not fatal to the sending of notices. The Chief Justice also held that the absurdity would be compounded by the Clerks having to seek extension of time applications.
Assistant Director of Public Prosecutions Judith Gildharie- Mursalin on November17, last filed a Notice of Application to the CCJ seeking Special Leave to appeal the Majority Decision on this procedural issue in accordance with Section 8 of the CCJ Act.
Gildharie- Mursalin also sought an order that the application for special leave be treated as the hearing. The Respondent was represented by Attorney-at-Law, Mr. Ronald Burch-Smith.
On April 7, 2016, the CCJ granted Special Leave to the Applicant to appeal and on April 22, last, allowed the appeal and ordered that section 8(2) of the said Act should be strictly followed by the Clerk of Court. Although there may be non-compliance, that would not invalidate the service of the Notice outside that time period.
The Court also ruled that service of the Notice on the Counsel who signed the Notice of Appeal equates to service on the Appellant.
The substantive appeal was remitted to the Court of Appeal for hearing with directions that the Court of Appeal takes into consideration the considerable delay in this matter.
The decision was delivered via Video Conference held at the Court of Appeal in Kingston. Present at the Video Conference was Director of Public Prosecutions, (DPP) Mrs. Shalimar Ali-Hack.

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