Contending that Justice Navindra Singh erred in law when he failed to rule on the voluntariness of the alleged caution statements of Hosfosuwa Rutherford, who is serving a 98-year prison sentence for killing her two young children, defence lawyer Dexter Smartt has argued that this is a sufficient ground for his client’s convictions and sentences to be overturned.
Convicted killer: Hosfosuwa Rutherford
Rutherford, 30, was found guilty of two counts of manslaughter in regard to the deaths of her two children — four-year-old Hodascia Cadogan and one-year-old Jabari Cadogan — by a jury in the High Court of Demerara following a trial in 2018.
On the first count, for the killing of Hodascia, Rutherford was sentenced to 45 years in jail; while on the second count, for the killing of Jabari, she was sentenced to 53 years’ imprisonment. The prison terms were ordered to be served consecutively; her cumulative sentence is 98 years.
When the Court of Appeal opened arguments in Rutherford’s appeal recently, Smartt contended that the trial Judge erred by not ruling on the voluntariness of the caution statements.
“There were three statements made under caution: one written and two oral. And in none of these statements were any rulings on voluntariness made. We believe that the Judge erred in not ruling on voluntariness before allowing the jury to hear those statements…”
While these caution statements were not challenged by Rutherford’s then counsel, Adrian Thompson, defence counsel submitted that case law mandates that a caution statement is only admissible evidence against the accused if it is proven by the prosecution, beyond a reasonable doubt, to have been freely and voluntarily given.
Moreover, Smartt argued that the sentences imposed by the trial Judge were manifestly excessive and not in keeping with sentencing guidelines given by the Caribbean Court of Justice (CCJ) in the sexual offences case, Linton Pompey v the Director of Public Prosecutions (DPP) of Guyana 2020.
To make his point, he reasoned that since both deaths “stemmed from the same incident on the same day”, the sentences should have been concurrent, starting at 45 years.
Disproportionate, excessive
For her part, Assistant Director of Public Prosecutions (DPP), Teshana Lake acknowledged that it is a condition precedent for the Judge to rule on the voluntariness of the caution statements. She also conceded that there was no express ruling in that regard on the record of appeal.
“But despite the fact that there was no written ruling by the trial Judge, when one examines the summation of the evidence and sees the manner in which the caution statements were treated, the State is of the view that it was for the jury, at the end of the day, to determine whether or not these statements were freely and voluntarily given,” Lake contended.
In interjecting, acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, who was among the three Judges that heard the appeal, said that even though the Judge might have been “careful” in his summation, “the obligation remains on [the Judge] to make a ruling or to write…make a record of the fact that he did consider” the voluntariness of the statements.
The other Judges that heard the appeal were Justice Rishi Persaud and Justice Dawn Gregory.
In relation to Rutherford’s ground of appeal that the sentences were excessive, the Deputy DDP contended that the CCJ in Vishnu Bridgelall v Hardat Harprashad 2017, held consecutive sentences may be given where the offences arise out of unrelated facts or incidents and that consecutive sentences may be imposed where the offences are of the same or similar kind but where the overall criminality will not sufficiently be reflected by concurrent sentences.
When the facts and circumstances of the extant case are examined, Lake said that “concurrent sentence may have been the way to go, especially since the overall criminality from the sentences of 45 years and 53 years would have been reflected based on the sentence.”
She agreed with defence counsel that the 98 years’ sentence is disproportionate and excessive.
Bearing in mind that the Court of Appeal stated that the starting point for manslaughter would be 25 years, Lake submitted that the sentences ought to have run concurrently and asked the court to consider the totality principle when resentencing Rutherford.
The Court of Appeal has reserved its judgement in this matter.
Background
During the woman’s trial in 2018, the State had adduced evidence that this mother had given each of her children half of a tablet of aluminium phosphide (rat poison) on March 27, 2014, at Supply Branch Road, Mahaicony, East Coast Demerara, where they all resided.
Rutherford’s defence was that she had bought cold tablets at the Plaisance bus park in Georgetown from a man who sells rat poison, but the logic behind this story was not accepted by the jury. Rutherford had been hospitalised for seven days after the poisoning of her offspring, and she had said she had drunk two rat poison tablets after giving the same to her children.
“No one in this world loves my children more than I do. I love them to my soul. I am sorry for my shortcomings and my faults,” the convicted children killer had stated at her sentencing hearing. She had then turned her attention to Justice Singh, whom she begged to have mercy on her.
“Justice Singh, even God in Heaven above is merciful, and I am asking you to grant me a second chance, so I can make things right,” a crying Rutherford had pleaded.
Justice Singh had, however, seemed perplexed as to why the State had indicted this mother for the lesser offence of manslaughter. He had contended that “everything points to murder.” (G1)
