CCJ throws out ex-soldier’s bid to overturn manslaughter conviction

Oct 26, 2019 News

The Caribbean Court of Justice (CCJ) yesterday dismissed an application for Special Leave to appeal the decision of the Court of Appeal refusing to set aside a conviction for gross negligence manslaughter against Mark Fraser.

CCJ’s President Adrian Saunders

The ex-soldier was found guilty of the crime on December, 2007 and sentenced to four years’ imprisonment by Justice Winston Patterson.

The CCJ found that there was no potentially serious miscarriage of justice on the part of the Court of Appeal, as contended by Fraser’s lawyer, Kamal Ramkarran.

Shortly after he was convicted and sentenced, Fraser, a former member of the Guyana Defence Force (GDF) filed an appeal against the conviction and sentence and was granted bail pending the hearing of the matter on December 17, 2007, he received no information about his appeal until July, 2017, almost 10 years later. His lawyer had been informed that the appeal was fixed for hearing on July 24, 2017, but it faced two adjournments.
The first being until October 5, 2017 as neither the defence nor prosecution had been served with the record of appeal. The matter was once again adjourned, this time because Fraser’s lawyer was only served with the records of appeal the day before the matter was scheduled for hearing.
At the hearing of the appeal, his attorney stated that his client’s right to a fair hearing within a reasonable time, as guaranteed by Article 144 (1) of the Constitution, had been breached from the time of the filing of the appeal, to the availability of the record of the appeal, and the hearing of the appeal. The attorney stated that this unfairly impacted his ability to conduct his appeal. The decision of the Court of Appeal to hearing the preliminary point and the substantive appeal together were challenged at the CCJ.

The CCJ, however, dismissed the challenge. On 8 June, 2018, the Court of Appeal dismissed the substantive appeal, but agreed that the delay in the hearing of the appeal breached his constitutional right and stayed any further imprisonment. Fraser’s application for leave to appeal to the CCJ was refused by the Court of Appeal. He then sought Special Leave to appeal to the CCJ to set aside the Court of Appeal’s decision.

In his argument for Special Leave, Fraser contended that the Court of Appeal’s decision was flawed in three ways; in that the court refused to separate the constitutional delay arguments from that of the substantive appeal, the court failed to set aside the conviction based on the constitutional delay arguments and it also failed to set aside the conviction based on the merits of the substantive appeal alone, or taken together, with the constitutional delay arguments.

In dismissing Fraser’s application for Special Leave, the CCJ found the approach of the Court of Appeal in hearing the constitutional delay challenge and the substantive appeal together to be wise and prudent, as it allowed the Court to properly consider what might be a just and effective remedy for the breach of Mr. Fraser’s right under Article 144(1) of the Constitution.

The CCJ indicated that it did not find any flaws in the Court of Appeal’s conclusion that the conviction was sound, and that there were no special or exceptional circumstances established to justify cancelling the conviction. There was therefore no proper basis upon which to grant special leave to Fraser. The CCJ, thereby, dismissed his application. The panel of CCJ Judges included its President Adrian Saunders, Winston Anderson, Jacob Wit, Peter Jamadar and Denys Barrow.

Director of Public Prosecutions (DPP) Shalimar Ali-Hack, lawyers from the DPP’s chambers Fraser’s counsel viewed the judgment delivery via video conference from the Court of Appeal in Kingston, Georgetown.

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