The Caribbean Court of Justice (CCJ) yesterday affirmed the acquittals of James Anthony Hyles and Mark Royden Williams, who in 2013 were found not guilty by a jury of the 2008 murders of 11 persons—including five children who were shot and killed during what has become known as the Lusignan massacre.
Delivering the ruling of the court, Sir Dennis Byron noted among other things that even in the midst of several irregularities during the trial, it was quite possible for a jury to have acquitted the appellants simply because it did not believe beyond reasonable doubt, the evidence presented by the state.
This reasoning by the regional court of last resort formed part of the basis for allowing Hyles’ and Williams’ appeal and setting aside a previous decision of the Guyana Court of Appeal that the men be retried.
Resultantly, the jury’s verdicts of acquittal on all 11 counts of murder against the men were restored.
Hyles, called ‘Sally’ and Williams, called ‘Smallie,’ had been on trial for the murders of 48-year-old Clarence Thomas, his 12-year-old daughter Vanessa Thomas and his son Ron Thomas; 32-year-old Mohandai Gourdat and her two sons, four-year-old Seegobind Harrilall and 10-year-old Seegopaul Harrilall; 22-year-old Shazam Mohamed; 55-year-old Shaleem Baksh; Seecharran Rooplall, 56, his wife Dhanrajie Ramsingh, 52 and their 11-year-old daughter Raywattie Ramsingh, on January 26, 2008, at Track ‘A’ Lusignan, East Bank Demerara.
Gunmen had stormed their homes in the wee hours of the morning and begun shooting.
Only Hyles, however, benefits from the ruling as his former co-accused had been convicted last year and sentenced to death for his involvement in the Bartica massacre during which 12 persons, including a number of police officers had also been shot and killed just over three weeks after Lusignan’s bloodbath.
Apart from this conviction, Williams has a number of other pending cases. He was identified as the mastermind behind last year’s fiery revolt at the Camp Street prison.
After the August 2, 2013 acquittals, trial judge, Justice Navindra Singh had granted Hyles bail to the tune of $1.1M pending the state’s appeal.
After losing its case, the state appealed the acquittals to the Court of Appeal, arguing among other things, that several “material irregularities,” committed during the trial, rendered the “verdicts unsafe and unsatisfactory.”
The Director of Public Prosecutions (DPP) argued in its appeal that the not guilty verdicts were the result of those irregularities in spite of the “strong and compelling” evidence it led.
Unanimously allowing the DDP’s appeal, the Court of Appeal in its ruling of March 10, 2016 overturned the jury’s verdicts, thereby remitting the matter to the High Court for retrial.
The local appeal court held that there had been several irregularities during the trial including among them, the questioning of jurors by the defence before they were sworn in, the trial judge’s failure to order an inquiry following a complaint made by the prosecution in relation to a member of the jury motioning a ‘thumbs up’ gesture to Hyles’ father and the trial judge’s failure to direct the jury that suggestions of police impropriety should be supported by evidence.
It was the view of the Court of Appeal that the cumulative effect of those irregularities resulted in an unsafe verdict and an unfair trial and as a result ordered that a new trial be conducted in the interest of justice.
That appeal was heard by then acting Chief Justice Yonette Cummings-Edwards, then acting Chancellor of the Judiciary Justice Carl Singh and Justice of Appeal B.S. Roy.
Constitutionality
In their appeal to the CCJ, however, Hyles and Williams questioned the constitutionality of the Court of Appeal Act as amended in 2010, arguing that section 33B, which allowed the DPP to appeal the acquittals, was unconstitutional as it breached their right to protection of the law under Article 144(5) of the constitution.
That provision states, “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal proceedings relating to the conviction or acquittal.”
Counsel for Hyles, Nigel Hughes, in his arguments to the court, sought to address the constitutional aspects and separation of powers, including the protection of double jeopardy afforded in the constitution.
He argued that an amendment of the Court of Appeal Act to allow for an appeal at any stage of the criminal cause or matter, encroached upon Article 144 (5). “[It is] clearly an encroachment on the right that was protected.”
Essentially, the argument of the appellants was that the right to appeal an acquittal was in contravention of the rule against double jeopardy.
The CCJ did not, however, agree with this argument noting that the very wording of Article 144(5) contemplated the possibility of an appeal against acquittal. Additionally, the court held that the rule against double jeopardy was not absolute and in principle it only protected acquittals which had become final after being affirmed by an appellate court.
The court held that the appellants did not fall into that category as they were not ‘finally acquitted’ and were still subject to the appellate process, noting it was of the view that there were adequate safeguards in section 33.
The CCJ pronounced too, that the Court of Appeal is not mandated to order a retrial and can dismiss the appeal even if there are good reasons for allowing it, if, for example, there was a long delay which could lead to an inaccurate verdict or a violation of the right to a fair trial.
The Court also dismissed the appellants’ arguments that the amendment to the Act offended the principle of separation of powers and that it did not apply to them as the new provisions were not operative at the time the charges were instituted against them and it did not expressly state it was retrospective.
Steep hill
Addressing the procedural element of the appeal, beginning with the requirement in section 33B that the acquittal had to be ‘the result of’ the judge’s error, flaw or irregularity, the CCJ acknowledged that this was “a steep hill” for an appellate court to climb given the secrecy of the jury’s deliberations and held that an appropriate test had to be constructed for application in prosecution appeals in Guyana.
In an effort to construct this test, the court said it analysed over eight decades of jurisprudence from Canada, where the right to an appeal against acquittal existed since 1930 and several variations of tests had been applied.
The court held that in a prosecution appeal against an acquittal in proceedings by indictment in the High Court, the prosecution must satisfy the court that, given, on the one hand, the nature and weight of the evidence as a whole and, on the other hand, the seriousness of the judicial error(s) or procedural flaw(s), it can with a substantial degree of certainty be inferred that had the error(s) or flaw(s) not occurred, the trial would not have resulted in an acquittal of the accused.
If that inference cannot be made with the required degree, the court stated, the acquittal must stand, even if the error(s) or flaw(s) were substantial.
Considering the meaning of “material irregularity,” in the context of an appeal against an acquittal in the absence of guidance in the Court of Appeal Act, the court held that the concept of a material irregularity remained the same whether in the context of a conviction or an acquittal appeal, but whether it will lead to quashing the verdict or upholding it will be measured against a much stricter standard.
That is, whether it could be inferred that the irregularity resulted in the acquittal of the accused and not whether it resulted in a miscarriage of justice.
The court then considered the specific procedural complaints made by the appellants and agreed with them in respect of three issues.
The first related to the questioning of the jurors.
The court disagreed with the Court of Appeal that the trial judge ought not to have allowed the cross-examination of the jury. It was held that due to the exceptional circumstances of the case, including widespread and prejudicial pre-trial publicity, the trial judge could not be faulted for allowing the questioning.
Nevertheless, the CCJ found that Justice Singh made some errors in conducting the exercise, including failing to record a ruling or reasons for allowing defence counsel’s application to question the jurors, failing to record whether counsel had laid a foundation of fact in support of his application and failing to conduct the questioning in accordance with section 39 of the Criminal Law (Procedure) Act which mandated the appointment of two triers to oversee the exercise.
Highly irregular
The court viewed this as being highly irregular as it was undertaken with “little to no regard to established criminal practice and statutorily prescribed procedure in Guyana.”
Meanwhile, regarding Justice Singh’s failure to order an investigation into the alleged improper “thumbs up” gesture, the court noted that the correct approach to such an occurrence was for that judge to investigate the matter to ascertain whether the fairness of the trial had been compromised.
Thirdly, the CCJ agreed with the Court of Appeal that in the circumstances of the case, Justice Singh should have appropriately directed the jury that allegations of police impropriety should be supported by evidence.
Williams had given an unsworn statement from the prisoner’s dock where he alleged police misconduct which had never been tested under cross-examination.
The court pointed out that jurisprudence indicates that if this evidence is not tested, then the trial judge should make the necessary statement to the jury as to the conduct of the accused. The court viewed this failure on the part of the trial judge as a non-direction which constituted a substantial misdirection.
As regards the remaining procedural issues raised by the DPP, the Trinidad-based CCJ did not agree that the failure of the jury foreman and Hughes to disclose their previous relationship affected the fairness of the proceedings.
Though the court found that the appropriate course was for both to disclose, it was satisfied that a fair-minded observer would not have perceived a real possibility of bias considering the hostile relationship between the two individuals.
The DDP had advanced that this nondisclosure to the judge by jury foreman Vernon Griffith being a former client of attorney Hughes, constituted a material irregularity; more so since at the commencement of the trial Justice Singh had specifically called out the names of all the attorneys involved in the case and had told the entire panel that if they know or are associated with any of the attorneys, they ought to so indicate and would have been excused.
The lawyer had represented Griffith in a civil case for a period of six years commencing in 2002.
In a release after the delivery of the CCJ’s ruling yesterday, Hughes noted that during the several stages of the subsequent appeal which followed his client’s 2013 acquittal, he refrained from any comment on the issue of the relationship between the foreman and himself as defence counsel for Hyles.
He noted the various news reports published which he said included but were not limited “to the allegation that the foreman of the jury was a past client of mine as a matter which was not disclosed at the time of the trial.”
Hughes quoted from the judgment where the court said, “we are satisfied that if the judge had applied that test and analysed the history of the relationship between Mr. Hughes and the foreman he would have concluded that a fair-minded observer would not have perceived a real possibility of bias.
As mentioned, the matter in which Mr. Hughes had represented the foreman, which he lost, had concluded in 2008, some five years before the trial. Since that time, not only had counsel appeared in a court matter in opposition to the foreman, but the foreman had publicly demonstrated himself to be an adversary of counsel by participating in a picket against him. These facts do not indicate a relationship that would have been favourable to Mr. Hughes or his client Hyles.
“We therefore do not agree with the finding of the Court of Appeal on this ground of appeal. In light of the foregoing, the failure to disclose could not reasonably have affected the impartiality of the jury or the fairness of the trial and therefore give rise to no material irregularity.”
After the trial, Justice Singh had imposed a life ban on the foreman ever again performing jury services.
Photographs
Also dealt with by the CCJ, was the DPP’s complaint of the trial judge not admitting certain photographs in evidence. The court found that photographs excluded by the trial judge were ‘undoubtedly admissible’ but noted that he had a discretion to exclude evidence in order to secure a fair trial for the accused which it saw no reason to interfere with.
The DPP had argued that the judge erred when he excluded 76 photographs depicting the crime scene at Lusignan and the victims that the prosecution sought to enter as evidence on the basis that they would evoke emotional responses in the jury.
The Court also held that neither the trial judge’s approach to the caution statement nor the direction to the jury on joint enterprise amounted to substantial misdirections.
The issue of the judge’s direction regarding the legal principle of joint enterprise was also cited as one of the grounds for appeal as was the contention that the trial judge erred in directing the jurors that they could determine whether the caution statement of the accused was freely and voluntarily made.
As to whether it could be inferred that the acquittal was the result of the irregularities and misdirection, the CCJ concluded that it could not with the required degree of certainty conclude that a jury not having been selected in the manner it was, would have reached a different verdict.
It was held that it was quite possible for the jury to have acquitted the appellants because they simply did not believe, beyond reasonable doubt, the evidence presented by the state.
In the circumstances, the court allowed the appeal, set aside the decision of the Court of Appeal and restored the jury’s verdict of acquittal of Hyles and Williams.
The CCJ noted that the prosecution made no objections to the defence’s application of questioning the jurors prior to them being sworn.
Counsel for Williams, Roger Yearwood, had previously argued that the fact that Prosecutor Judith Gildharie-Mursalin indicated that there was no objection to this exercise and then subsequently partaking in the procedure, the state ought not to have been afforded the opportunity to raise that as a ground of appeal.
The appeal before the CCJ was heard by Sir Dennis along with Justices Adrian Saunders, Jacob Wit, David Hayton and Maureen Rajnauth-Lee.
In addition to Hughes, Hyles was represented by attorneys Stephen Roberts and Savannah Barnwell.
The state was represented by DPP Shalimar Ali-Hack, Sir Fenton Ramsahoye SC, and Sonia Joseph.
The state’s case in the Lusignan massacre had rested on key witnesses, including former co-accused Dwane Williams, who it had said implicated Hyles and Williams in the fatal attack.
The charge against Dwane Williams was withdrawn by the DPP, who in turn used him as a witness.
In his testimony he had said that he, the two accused and other members of Rondell ‘Fineman’ Rawlins’ gang committed the murders in revenge for the disappearance of Tenisha Morgan, Rawlins’ girlfriend.
He had said that he and the accused along with the others went to Lusignan, where he stood on a dam and shortly after he heard gunshots.
He had also given the police a caution and an ordinary statement, which was taken days before the trial had started.
Another former murder accused, Durwin Wright, who said he used to hang with Rawlins, had also testified for the state, saying that Hyles went to his home on the morning after the shootings and told him he had gone to Lusignan and had participated in the killings.
But Wright also disclosed under cross examination that he had picked out Hyles in an identification parade although he never gave a description of Hyles to the police and that when he was arrested, he was trying to save his “skin.”
The state had also used Mark Williams’ caution statement to the police as evidence in the case in which he was alleged to have told police that he was only armed with a cutlass during the attack and was a lookout for the others.