CCJ upholds “Smallie”, “Sally” acquittals for Lusignan massacre

The Caribbean Court of Justice (CCJ) on Friday upheld the 2013 decision of the High Court, which found that insufficient evidence was presented to convict Mark Royden Williams and James Anthony Hyles for the 2008 Lusignan massacre.
“The appeal was allowed and the decision of the Court of Appeal set aside, and the jury’s verdict of acquittal of the appellants is restored,” CCJ’s President, Sir Dennis Byron said while delivering the verdict on Friday morning.

A 12-member jury before Justice Navindra Singh found Hyles, called “Sally” and Williams, called “Smallie”, not guilty on each of the 11 counts of murder in August of 2013.
Williams and Hyles were allegedly part of the notorious criminal gang headed by Rondel “Fine Man” Rawlins and were accused of killing 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 Coast Demerara in the wee hours of the morning.
Following the not guilty verdict, the Director of Public Prosecutions, Shalimar Hack, appealed the decision in the Guyana Court of Appeal contending that Attorney for Hyles, Nigel Hughes, failed to disclose that he represented the jury foreman, Vernon Griffith, in a civil matter for approximately six years. Following the trial, Justice Singh placed a life ban on Griffith from jury service due to his non-disclosure.
The DPP’s Chambers, during the appeal, contended that Hughes needed to disclose his relationship with Griffith, which constituted to material irregularity, noting that it was “significant given the fact that at the commencement of the trial on the July 15, 2013, before the jury was selected and empanelled, the learned trial Judge specifically called out the names of all the attorneys involved in the case and told the entire panel that if they know or are associated with any of the attorneys, they ought to so indicate and would be excused.”
On March 10, 2016, the Appeal Court found that Griffith had a legal and ethical duty to disclose his relationship with Hughes, hence the reason for them ordering a retrial.
Following the decision, the men’s attorney approached the CCJ. Attorneys Nigel Hughes, Stephen Roberts and Savannah Barnwell represented Hyles while Roger Yearwood appeared on behalf of Williams. Sir Fenton Ramsahoye, SC; Shalimar Ali-Hack; and Sonia Joseph represented the Chambers of the DPP.
It was submitted to the CCJ that the trial Judge allowed a request by Hyles’s attorney to question jurors, before they were sworn in, due to the widespread pre-trial publicity of the case. The trial Judge as well as State and defence counsel actively participated in this exercise with the main prosecution witnesses being two former members of the “Fine Man” gang.
On appeal to the CCJ, the appellants urged the Court to allow the appeal on the basis that the DPP’s new power to appeal an acquittal breached their constitutional right to the protection of law. In their view, the new law offended the principle against double jeopardy, which prevents an accused person from being tried again on the same, or similar, charges and on the same facts. However, the CCJ rejected this argument and reminded the appellants that the wording of the Constitution contemplated the possibility of such an appeal and that in principle, the rule against double jeopardy only protected acquittals which were affirmed by the appellate courts.
The court held that the appellants’ acquittals did not fall into that category.
Before considering the specific procedural issues, the CCJ acknowledged that the requirement, that the acquittal had to be the result of a procedural error(s) or flaw(s) of the trial Judge, was a steep hill for an appellate court to climb. As such, the CCJ constructed a test specifically for application in prosecution appeals against acquittals.
The Court held that the prosecution must satisfy the Court that “given, on the one hand, the nature and weight on the evidence 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 the acquittal of the accused”.
While the Court did not agree fully with the findings of the court below, it found that there were some material irregularities, including the way in which the questioning of the jurors was conducted and the failure of the trial Judge to investigate an allegation of improper communication between a juror and man alleged to be Hyles’ father.
However, on application of the test, the Court held that it could not with the required degree of certainty infer that the acquittals were the result of the errors and that it was possible that the jury simply did not believe, beyond reasonable doubt, the evidence presented by the State.
Both men are still in prison on other offences. Williams was convicted of eight counts of murder for the Bartica massacre. He was also jailed for escaping from Camp Street prison.