Justice of Appeal Mark Mohammed –
Two decades after he was charged, a Couva man will not face a retrial for drugs and gun-related offences.
On Thursday, Justices Mark Mohammed, Maria Wilson and Ronnie Boodoosingh quashed the 2007 conviction Outar Maraj.
Maraj was arrested on September 30, 2002, and charged with possession of 404 kilogrammes of marijuana and 15.6 kilogrammes of cocaine as well as four firearms and 640 rounds of ammunition which were allegedly found in his Freeport apartment.
Last week, the same panel of judges expressed concern about ordering a retrial for a man convicted of a 2008 murder as 15 years and eight months had elapsed from the date of the alleged offence.
The new paradigm of the appellate court will not always result in retrials, even in serious cases, as the court will now also consider the age of the matter as well as the backlog of cases in the criminal justice system. The same applied in Maraj’s case.
At his appeal in April 2023, the State had conceded on three grounds of appeal relating to bad character evidence which was admitted as evidence at Maraj’s trial by the trial judge as it related to 2017 allegations.
The State, represented by special prosecutor Wayne Rajbansie, invited the judges to apply the proviso by dismissing the appeal even if there was some form of error at the trial.
In the alternative, he said a retrial should be ordered because of the seriousness and prevalence of the offences for which Maraj was charged and this, he maintained, overwhelmed the lengthy period of 20 years and seven months that had elapsed since the date of the alleged offences.
Maraj’s attorney, Pamela Elder, SC, however, submitted that it would be inappropriate to order a retrial nor could the proviso be applied by the court.
In an oral ruling on Thursday, the judges said the errors at the trial of the admission of bad character evidence and the failure by the judge to give a good character direction so the jury could assess the evidence led to Maraj losing out on an important direction on propensity and credibility.
The judge said because of the State’s concessions, they could identify no proper basis to apply the proviso as the judge’s material failures “led to a substantial miscarriage of justice in the trial.”
In considering whether to order a retrial, the judge said while “undoubtedly, the prosecution’s case embodied very serious allegations” and was axiomatic that these offences were prevalent, it had to be weighed against the time that had elapsed from the date of the alleged offences.
Mohammed referred to cases where retrials were ordered after lengthy delays but said recycling matters, when the period involved is lengthy, only add a burden to an already inundated and overburdened criminal justice system.
“In our view, given the circumstances of this case, the balance comes down in favour of not ordering a retrial because of the very lengthy period that has elapsed since the alleged date of commission of the offence.” This position was again articulated in another appeal also determined on Thursday.