Director of Public Prosecutions Shalimar Ali-Hack found herself in the hot seat on Tuesday before judges of the Caribbean Court of Justice (CCJ) whom she tried to dissuade from their apparent view that the evidence used to convict Jarvis Small for the murder of former Queen’s College student—Neesa Gopaul—was “prejudicial” at best.
Against this background, President of the court, Justice Adrian Saunders during the heated exchange between Ali-Hack and the Bench, expressed the view that the case was a perfect one where Small should have been tried separately from his co-convict Bibi Sharima-Gopaul.
Sharima-Gopaul is Neesa’s mother and Small’s former lover.
Following the conclusion of a joint trial back in 2015, the two were convicted for the gruesome murder of the 16-year-old whose battered decomposing remains were found on October 2nd, 2010, stuffed in a suitcase that was dumped in a creek at the Emerald Tower resort on the Soesdyke/Linden Highway.
High Court Judge Navindra Singh who presided over the trial had sentenced Sharima-Gopaul to 106 years in jail, and Small, to 96 years.
They appealed their conviction and sentence and last August the Guyana Court of Appeal upheld the convictions, but reduced both their sentences to 45 years each.
In separate appeals, they are now before the Trinidad-based court of last resort for Guyana where they are arguing not only that their sentences are still too harsh; but for his part, Small is contending that he should have been tried separately from Sharima-Gopaul.
Small through his battery of attorneys led by Nigel Hughes holds the view that the local appellate court erred in finding that the trial judge had properly admitted certain “background evidence” in the case against him, arguing that any probative value was far outweighed by its “prejudicial effect.”
Both appellants complain of myriad errors which they say the trial judge made that led to their convictions, with Sharima-Gopaul also advancing prejudicial evidence being led against her.
It was, however, Small’s claim of prejudice that gripped the attention of the regional supreme court and saw a vociferous Ali-Hack in an impassioned bid to justify to the visibly unmoved five-panel Bench her position that the evidence led against Small was not prejudicial.
During what escalated into a heated debate, Guyana’s Director of Public Prosecutions (DPP) seem-ed at pains to convince the judges that the testimony of main prosecution witness Simone Diane De Nobrega, who was a former cellmate of Sharima-Gopaul, was in no way unfair to Small.
Small’s legal team has taken particular issue with De Nobrega’s testimony that Sharima-Gopaul had confided in her that it was Small who murdered her daughter by bashing her head in with a piece of wood.
During the trial De Nobrega had said that Sharima-Gopaul related to her that Small told her that they needed to get Neesa “out of the picture” and that he eventually killed the teen in her presence.
Serving time
De Nobrega who was serving time for fraud-related charges had told the trial court that despite her assurance to Sharima-Gopaul, she would not have been able to live with herself if she had kept such a secret. She said as a mother herself of two sons, “I couldn’t carry such a weight.” The woman added, “Neesa deserved to get justice and no matter what, Neesa didn’t deserve to die by the hands of someone she trusted; someone that was supposed to protect her.”
Given the several fraud charges for which she was convicted, Hughes and team took direct aim at De Nobrega’s credibility, arguing that she could not be trusted nor taken at her word.
During her presentation, Ali-Hack began by outlining what she said amounted to pieces of circumstantial evidence against Small, on which the prosecution relied.
On this point she adverted to the dumbbells which became a central feature at the trial, for its use in anchoring the suitcase in which Neesa’s body was found, in the creek.
Justice Saunders, however, immediately enquired whether they had been used for any other purpose, to which the DPP noted that they belonged to Small who at the time owned a gym.
The court’s president then reasoned that the dumbbells could therefore have been of no probative value peculiar to murder but rather only peculiar to Small who was the owner of a gym.
Ali-Hack in her response, however, said that those very dumbbells had been found at the home of Sharima-Gopaul and attached to the suit case in question at the creek.
At this point, Justice Denys Barrow intervened, pointing out to the DPP that the circumstances she outlined confirmed only that when the dumbbells were supposedly attached to the suitcase, they had come from Sharima-Gopaul’s home and not from Small’s possession.
Justice Barrow told Ali-Hack that from those very circumstances on which the prosecution sought to rely, he had “considerable difficulty” connecting Small, the dumbbells and the murder.
What it did connect, however, he reasoned, was Sharima-Gopaul and the murder, in light of the dumbbells last being at her home, before expressing his view that there was no nexus between Small, the dumbbells and the murder.
Distinct
Justice Barrow said that this was distinct from the nexus which the dumbbells provided between Sharima-Gopaul and the murder.
The DPP in response pointed the court to testimony of a welder who had testified to welding, painting and adjusting the dumbbells “on the instruction” of Small. Justice Barrow intervened, however, to clarify that he was not disputing that the dumbbells at some point were Small’s, but rather that he could not see how, supposedly last leaving Sharima-Gopaul’s home, they connect Small to the murder.
Ali-Hack recalled the testimony of witnesses who said that Small had taken the dumbbells to Sharima-Gopaul’s home and for convenience used them while he temporarily lived there with her; but Justice Barrow was adamant that when the dumbbells became attached to the suitcase, it was presumably from Sharima-Gopaul’s home, and not Small’s possession.
The DPP was unable to point the Court when it asked, to direct evidence to substantiate her claim that Small used the dumbbells while at Sharima-Gopaul’s home. Justice Saunders enquired from her whether she had been misleading the Court regarding that bit of evidence.
Referencing witness testimony, however, she said that an inference could be made that Small had taken the dumbbells to Sharima-Gopaul’s house so that he could use them while there.
With the presumption that he was using the items there to exercise, Justice Jacob Wit then enquired, “so what?” as he pressed her for the nexus between Small and the murder.
Ali-Hack then advanced that given the weight of the dumbbells, it is the prosecution’s case that because they were “so heavy,” it was Small who had to have attached them to the suitcase.
Justice Wit, however, said that while there may be an inference that Sharima-Gopaul needed a “strong man” to help her; and while it may be likely and probable that it was Small, there is no proof beyond a reasonable doubt that it was him.
It was at this point that Justice Saunders said that the decision not have done separate trials for Small and Sharima-Gopaul was “extremely unfortunate.”
He then enquired from Ali-Hack whether there was any direction which the trial judge could have given the jury regarding De Nobrega’s evidence to disabuse their minds of the notion that Small should not be prejudiced by her evidence.
Ali-Hack in response said that such directions were given and were sufficient.
Justice Saunders enquired from the DPP if she agreed that there was nothing said by De Nobrega which was relevant to Small’s guilt to which she responded in the affirmative, and further agreed that had there been split trials De Nobrega would not have been a witness since her testimony is irrelevant to Small.
The president of the court then asked the DPP “how was it humanly possible” that the two were tried jointly, and whether it was she who had opposed them being tried separately.
She said she agreed to the now-convicts being tried together because it was the prosecution’s case that the murder had been committed by both Small and Sharima-Gopaul.
She then went on to comment on the weight of the dumbbells which had been taken to his co-convict’s house , while adding that the manner in which the teen’s head was “bashed in,” that had to have been done “by someone who was strong.”
Justice Saunders pressed Ali-Hack as to whether that very evidence could not have been presented at a split trial, but she remained resolute in her position that it was one criminal transaction executed by both appellants.
The judge then asked her whether a conviction could have been secured for Sharima-Gopaul without De Nobrega’s testimony to which she said yes, further adding that “there was circumstantial evidence.”
When asked, she said that apart from De Nobrega, there were other bits of evidence which connected Sharima-Gopaul to murdering her daughter.
Justice Saunders then asked the DPP whether any of those things linked Small to the murder; to which she said there was circumstantial evidence so connecting him.
On this point she referenced the dumbbells, to which Justice Saunders enquired if she did not think that Small would have occasioned “significant prejudice” from the jury hearing all that Sharima-Gopaul is alleged to have said to De Nobrega.
The DPP, however, submitted that the evidence De Nobrega gave would have been cured the directions of the trial judge to the jury in cautioning them that the evidence of one accused is not the evidence against the other.
To his enquiry of whether she felt that those directions were sufficient, the DPP said “it could have been more detailed.”
Justice Peter Jamadar then interjected stating that given the “highly prejudicial” nature of the evidence, the trial judge should have at least cautioned the jury that “when De Nobrega said (what she said) about Small, disregard that. That is not evidence in this case,” against Small.
Generic
Justice Jamadar said that what was in fact done was a very “generic”, “legalistic” direction given by the trial judge.
Justice Barrow described it a particularly “egregious instance” of the separation of the inadmissible evidence as against Small.
Ali-Hack, however, disagreed, and was adamant that the trial judge did give to the jury the level of direction to which Justice Jamadar referred. She said that there was sufficient evidence on which the jury properly directed as she contends it was; convicted the two accused and that there was therefore no miscarriage of justice.
But Justice Barrow told the DPP that she was still missing the point, as the trial judge ought to have directed the jury in such a manner that in summing up the case against Small, there ought to have been absolutely no mention of De Nobrega’s testimony.
“There should have been two separate strands of summing-up. The evidence against Gopaul and then the evidence against Small”, Justice Barrow stressed.
Justice Wit interjected, stating that the combined manner in which the summation was done by the trial judge could have been difficult for the jury “as lay persons” to distinguish in any attempt to consider the evidence separately.
“I have not seen a clearer case that cried out for separate trials quite frankly,” Justice Saunders then interjected to add, advancing that it is “impossible for any human being” to separate what De Nobrega said her cellmate told her that Small did, from what is probative against Small.
Justice Saunders opined that it was a difficult task for a professional judge to so do, “much less a lay jury.”
“It’s a terrible case!” Justice Wit remarked, stating that what troubles him is that he does not see evidence beyond reasonable doubt which connects Small to the murder, adding that while justice must be done, it must be substantiated by “solid evidence.”
Justice Saunders then said that the criminal justice system has rules, “and when we start bending the rules, we find ourselves on a slippery slope.”
He said that the rules may not always work as planned, but noted that when the rules start being bent, the result is a very slippery slope.
The DPP, however, argued that her case was a circumstantial one in which the sequence of events needed to be viewed together to present a whole picture. The court’s president said that “all the circumstances” to which Ali-Hack referred, however, was really the prejudice of De Nobrega being used against Small.
The DPP said that the prosecution was not relying on any prejudice. In highlighting what she said were the circumstances on which the State’s case rested, she said that when one considers the weight of the dumbbells, they had to have been lifted by someone strong.
Clearly agitated by the DPP’s response, Justice Saunders immediately enquired from her rhetorically whether Small was the only strong man in Guyana.
She held to her point, however, that the case was a strong circumstantial one.
She said too, that it had to have been someone strong with the requisite force who had “bashed in” the teen’s head.
To this Justice Saunders enquired whether there was forensic evidence that it was the very dumbbells which had been used to inflict the fatal injury on the deceased.
“No. But the head was bashed in” was the DPP’s response, referencing the autopsy.
“So we don’t know whether the head was bashed in by a dumbbell or by a hammer or by anything else,” Justice Saunders asked.
Ali-Hack in response to a visibly irritated Justice Saunders then said that the State was not attempting to say that that injury was caused by the dumbbells, but that it had to have been by the hands of someone strong who she contends had to have been Small.
“Ms. Ali come on. Because force was used against the deceased, it means that Jarvis inflicted that force?” the court’s president sought to clarify.
She maintained that given all the circumstances that is the prosecution’s contention.
At the conclusion of the almost four-hour long hearing, Justice Saunders informed that the court will announce when it is ready to rule.
In addition to Justices Saunders, Wit, Jamadar and Barrow, the appeal is also being heard by Justice Maureen Rajnauth-Lee.
Sharima-Gopaul is being represented by defence attorney Arudranauth Gossai.
Neesa Gopaul’s killing had sparked protests from several non-governmental organisations which had said that the “system had failed her.”
At the trial, the High Court had heard that Neesa Gopaul had made several police reports of Small sexually assaulting her.
Pathologist Dr. Nehaul Singh, who performed the autopsy on the teen’s body, had testified that she was missing 50% of her head and that the multiple blunt trauma that caused her death had been forcefully inflicted.
She was said to have been clobbered to the extent that her head appeared bashed in.
