The Caribbean Court of Justice (CCJ) on Friday freed Jarvis Small of the murder of 16-year-old daughter Neesa Gopaul, while commuting the sentence of her mother to 25 years behind bars for the gruesome killing.
Small is being freed owing to the finding by the CCJ that his trial seven years ago for the murder of the former Queen’s Col-lege student was plagued by prejudicial evidence.
The Trinidad-based final appellate court for Guyana via a majority ruling yesterday afternoon said that the prejudicial evidence led by the prosecution against Small, rendered his conviction unsafe.
It, however, affirmed the conviction of his former lover and co-defendant Sharima-Gopaul but reduc-ed a 45-year sentence, which had been imposed by the Guyana Court of Appeal, from her initial sentence of 106 years, following her trial.
Small had been sentenced to 96 years.
From their separate appeals, the local appellate court found the sentences to be excessive and instead reduced them to 45 years each. The CCJ would, however, find that the first set of sentences to be “manifestly excessive” and described the second as still being “too harsh.”
Justice Denys Barrow, who read the judgment of the five-panel Bench, said that regarding the case against Small, there were three matters of evidence—reports that he sexually assaulted Neesa, a pair of dumbbells found with the suitcase in which her body was discovered and reported to have belonged to him, and a statement by Small that he did not murder the teen, but knew who did.
The CCJ rejected the prosecution’s arguments that the reports of sexual assault provided motive, describing it as “pure speculation” that Small had the motive to kill Neesa to avoid prosecution for sexual assault.
The Court said it also found no evidence that Small had retained possession of the dumbbells to have placed them with the body.
Meanwhile, in relation to Small’s statement of knowledge of the identity of who had murdered Neesa, the final court said it was “impossible” to conclude that because Small said he knew about the killing, that he was the killer.
Justice Barrow said that as these considerations were the only evidence against Small, the Court was satisfied that the trial judge Navindra Singh should have upheld the submission made by Small’s attorneys that there was no case for him to answer and directed his acquittal.
‘Highly prejudicial’
The paucity of evidence against Small, Justice Barrow noted, would have been apparent at the beginning of the trial, when the application was made by him for a separate trial and when it was clear that evidence of a confession that Gopaul had made to her cellmate Simone Diane De Nobrega “was inadmissible against Small and would be highly prejudicial to him.”
The Court said that these circumstances made it an exceptional case where the trial judge ought to have directed that there would be separate trials.
“Small was gravely prejudiced by the joint trial,” Justice Barrow said, adding that “he was convicted on the strength of evidence which was completely inadmissible against him.”
Regarding the evidence against Gopaul, the Court referenced her testimony of telling De Nobrega that she and Small shared an extramarital affair, and that it was he who eventually encouraged Gopaul to kill her husband, which she did, by poisoning him.
Recalling the testimony presented at trial, Justice Barrow noted where it said that Neesa, who later found out about the poisoning and made a report to the police, spoke about pursuing the report and that it was that which led Small and Gopaul to make plans to “get rid” of the teen.
By majority the judges rejected the arguments advanced by Sharima-Gopaul’s attorney that there was no material evidence connecting her to the murder of her daughter.
The Court pointed out the several items from her home, which were found with the body, including her daughter’s passport and a piece of decorative rope wrapped around the suitcase, which it said a jury could reasonably find came from the home and were provided by her.
Regarding the issue of sentencing, which was delivered by Justice Peter Jamadar, the CCJ found that there had been “no fair and just sentencing process.”
It found that the 106 years imposed on Sharima-Gopaul exceeded the life expectancy of a human being and was “grossly disproportionate” and “manifestly excessive.”
The Court said that the sentence, and the manner in which the trial judge went about it, were contrary to the constitutional guarantees in Article 144 of a fair hearing by an independent and impartial court—and to Article 141 as the disproportionate and excessive penalty imposed—was tantamount to “inhuman and degrading punishment.”
While not as “grossly disproportionate” as the original sentences, the CCJ said that the 45 years terms imposed by the Guyana Court of Appeal were still too harsh, noting that it made no discount for pretrial custody nor eligibility for parole as is set out in case law precedent and legislation respectively.
Noting all of the circumstances of the case, especially the fact that it was a minor who was killed at the hands of her mother who would have breached her trust and who failed to act as her protector and displayed no remorse, the regional Supreme Court said that there was justification for those to be reasons warranting additions.
As a result, to its base of 22 years, the Court then added eight years for the aggravating factors. From the total of 30 years, it, however, then deducted five years for the time Sharima-Gopaul spent behind bars awaiting trial.
It ordered that she is not to be considered eligible for parole before serving 15 years, which it said would meet the penological objectives of sentencing.
Lack of quality evidence
Meanwhile, in a dissenting judgment, Justice Jacob Wit opined that both the convictions of Small and Sharima-Gopaul were unsafe “due to the lack of quality evidence.”
Justice Wit did not agree that the personal items found with the body were tantamount to the strength of fingerprints.
The court heard that in his opinion, “it was a stretch to conclude that the personal items materially connected” Sharima-Gopaul to the disposal of her daughter’s body or the actual murder.
He found that while De Nobrega’s evidence was substantial, it could not be safely used by the jury, since studies show that testimony from a prisoner awaiting trial, “a jail-house snitch,” was “unreliable.”
Justice Wit found further that not only was De Nobrega’s evidence uncorroborated, but unnecessary as there was “serious investigative flaws,” and that other supporting evidence was weak or equivocal.
More than a decade on, Neesa’s killing, which had caused public outrage, continues to attract widespread attention locally.
Following the discovery of her battered body stuffed in a suitcase dumped at a creek along the Soesdyke/Linden Highway, several non-governmental organizations came out in protest, saying that the “system had failed” Neesa.
At the trial, the High Court had heard that Neesa 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.
Neesa was said to have been clobbered to the extent that her head appeared bashed in.
In separate appeals, Small and Sharima-Gopaul had argue that not only were their sentences too harsh but for his part, Small has specifically contended that he should have been tried separately from Sharima-Gopaul.
Through his battery of attorneys, led by Nigel Hughes, Small strongly held the view that it was prejudicial to him that he had been tried jointly with his ex-lover, arguing that not an iota of evidence had been presented linking him to the murder.
His lawyers had argued that the local appellate court erred in finding that the trial judge had properly admitted certain “background evidence” in the case against their client, arguing that any probative value was far outweighed by its “prejudicial effect.”
During the hearing of the appeal, the CCJ was blunt in its doubt regarding the testimony used to convict Small.
Both appellants complained of myriad errors, which they say the trial judge made and led to their convictions, with Sharima-Gopaul also arguing that prejudicial evidence was led against her.
It was, however, Small’s claim of prejudice that gripped the attention of the regional supreme court with the five-panel Bench being visibly unmoved from their positions that the evidence used to convict Small was “prejudicial” at best.
In a bid to dissuade the judges from their otherwise apparent view, Director of Public Prosecutions (DPP) Shalimar Ali-Hack desperately tried to justify her position that the evidence led against Small was not prejudicial.
Ali-Hack was at pains to convince the judges that the testimony of main prosecution witness De Nobrega, who was a former cellmate of Sharima-Gopaul, was in no way unfair to Small.
Small’s legal team has always 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.
De Nobrega who was serving time for fraud-related charges had told the trial court that despite her assurance to Sharima-Gopaul not to say anything, 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.
Sharima-Gopaul is being represented by defence attorney Arudranauth Gossai.
The appeals were heard by Justices Barrow, Jamadar and Wit; along with President of the CCJ, Justice Adrian Saunders and Maureen Rajnauth-Lee.
