High Court refuses permanent stay of murder charge against “Two Colours”

…orders DPP to present indictment by June 13

Finding no basis to grant a permanent stay of the murder charge against Lennox Wayne who claimed that his constitutional right to a fair trial within a reasonable time has been infringed due to the delay in his retrial, High Court Judge Navindra Singh on Friday dismissed a constitutional motion filed by the murder accused.
In doing so, Justice Singh ordered the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, to present the indictment against Wayne for the offence of murder at the High Court in Demerara within 30 days of his ruling. Wayne, called “Two Colours”, was ordered to pay $200,000 in court costs to Attorney General Anil Nandlall, SC – the lone respondent in the matter.

On September 3, 2014, Wayne was arrested and jointly charged on September 8, 2014, with Melroy Doris, a taxi driver, for the murder of Lusignan, East Coast Demerara cosmetologist, Ashmini Hariram, who was gunned down after disembarking a minibus in her community.

A Preliminary Inquiry was thereafter conducted and at its conclusion, Wayne and Doris were committed to stand trial for murder at the Demerara Criminal Assizes on November 16, 2015. Their trial commenced on April 6, 2017, before Justice Jo-Ann Barlow who on May 2, 2017, declared a mistrial after the jury was unable to arrive at a unanimous verdict.

Accordingly, the two murder accused were further remanded to prison pending a retrial at the June 2017 session of the Demerara Criminal Assizes.
On February 25, 2021, Wayne, through his lawyer, Nigel Hughes filed a constitutional motion and therein complained that his right to a fair trial within a reasonable time as guaranteed under Article 144 of the Constitution of Guyana has been infringed by the excessive delay in his retrial.

Not infringed
In his written judgement, Justice Singh pointed out that Wayne’s claimed period of delay in his retrial is from the end of his trial in May 2017, to the filing of the constitutional motion on February 25, 2021. The Judge found that the period of possible delay was 33 months given the fact that the retrial could not have been conducted until the next practicable sitting of the Assizes in June 2017.
The Judge said consideration also had to be given to the onset of the COVID-19 pandemic which resulted in the suspension of jury trials from March 2020 until October 2020.

The Judge also noted the fact that the DPP indicated that she was ready to proceed with Wayne’s retrial in January 2021. Moreover, he said it was necessary to assess where the murder accused’s conduct waived his right for any or all of the delay.
According to Justice Singh, in April and October 2020, Wayne indicated to the DPP that he wanted to plead guilty to the lesser count of manslaughter, and on both occasions, before Justice Priya Sewnarine Beharry could have considered such a course of action, he had a change of heart.
Justice Singh said that trials of indictments consisting of multiple accused commenced in January 2021 and once again Wayne indicted to the DPP that he wanted to plead guilty to the lesser count, however, when the matter was called before Justice Brassington Reynolds, he changed his mind.
Having regards to the foregoing, Justice Singh found, “…[Wayne] in indicating his willingness to plead guilty to the lesser offence of manslaughter and actively engaging in discussions about such a plea with the DPP, effectively waived any period of delay prior to such indication.”
Wayne’s counsel submitted that he was ready to proceed with the trial during the time that discussions were ongoing with his client and the DPP and therefore the DPP was still charged with the responsibility of proceeding with the retrial.
Justice Singh said this argument was untenable since there is a process involved in the preparation of a trial, least of all, notifying the witnesses of their obligation of being available to testify, and therefore the DPP cannot be expected to be in a state of preparedness to instantly commence.
“…[Wayne’s] indication of willingness to plead guilty to the lesser offence, therefore, forego a trial is diametrically opposed to his claim that his right to a trial within a reasonable time has been infringed, particularly when he shortly thereafter instituted this FDA [motion].”
In conclusion, the High Court Judge held that the murder accused’s “right to a fair hearing within a reasonable time as provided for in Article 144 of the Constitution has not been infringed.”
“The court finds that a period of 33 months for a retrial is not unreasonable. It is reasonable to afford the scores of other accused persons listed their trial in balancing the rights of all accused persons to a trial within a reasonable time.”

Unjustified
Further, Justice Singh found that no justifiable reasons were advanced for the granting of a permanent stay of prosecution of the pending charge for the offence of murder against Wayne.
In his application, the murder accused contended that the delay in his retrial was sufficient ground for a permanent stay of the charge.
The Judge, having found that there was no delay, relied on case laws which he described as “profound” and “uncomplicated” in setting out the applicable principles for courts to consider in determining an application for a stay of criminal proceedings.
Based on his findings on the issue, he held that a proper application of the case laws “leads to the irrefutable conclusion that there is no justifiable reason for this court to grant a stay of prosecution of the pending charge for the offence of murder against [Wayne].
“As long as a fair trial is possible it is in the public interest that cases should be tried,” he underscored. As such, the court refused Wayne’s application for a permanent stay of the criminal charge against him.

Plea deal not prejudicial
Before Justice Brassington Reynolds, Doris pleaded guilty to the lesser offence of manslaughter on March 11, 2021, and was sentenced to five years’ imprisonment.
Wayne’s lawyer had submitted that the DPP acted unlawfully in reaching a plea deal with Doris since the offence to which he pleaded guilty is not disclosed on the evidence. The lawyer further argued that his client would be further prejudiced if Doris is called as a State witness.
Noting that the offence of manslaughter is a lesser offence included in the offence of murder, which simply does not have the element of intent, Justice Singh held that counsel’s submission that Doris’ plea is unlawful because the offence of manslaughter is not disclosed in the facts that the State relies on to prove murder is “disingenuous and untenable.”
“…evidence that can result in the conviction of an accused person must be prejudicial to that person, so, the submission that should Melroy Doris testify as an eyewitness, this would result in prejudice to [Wayne] and put him at real risk of getting an unfair trial is illogical.”

Main witness
Wayne is the State’s main witness in the case involving long-serving former Police Sergeant Leyon Lindo, who is awaiting trial on a charge of conspiracy to commit murder. It is alleged that between July 8 and July 10, 2014, at Police Headquarters, Eve Leary, Georgetown, Lindo conspired with Wayne to murder businessman Mohamed Khan.
The businessman went missing on August 21, 2014. A month later, on September 22, 2014, his headless body was found at Cummings Lodge, East Coast Demerara. According to reports, Wayne provided Police with a statement in which he claimed he conspired with Lindo to kill Khan.
It was reported that 54-year-old Khan had earlier escaped another execution when a gunman, who reportedly turned out to be Wayne, shot him in his abdomen. Wayne had claimed that he was contracted by Lindo to kill Khan for a fee of half a million dollars.
Media reports state that there was a falling-out between the two after Lindo failed to honour his end of the bargain when the execution failed. Lindo has been released on bail pending the hearing and determination of his trial. (G15)