– says Defence Attorney and Jury Foreman kept acquaintance secret
By Dale Andrews
Some three years after they were freed by a jury, the Court of Appeal has allowed the appeal of the Director
of Public Prosecutions (DPP) and ordered a retrial of two Buxton residents for their alleged role in the massacre of 11 persons at Lusignan.
The two men, James Anthony Hyles, known as ‘Sally’ and Mark Royden Williams, called ‘Smallie’, were freed in August 2013, five years after they were charged for the gruesome killings that sent shockwaves throughout Guyana.
The High Court trial was heard before Justice Navindra Singh.
Immediately after their acquittal, the DPP, through Prosecutor Judith Gildharie-Mursalin, served a notice of appeal, using the avenue provided by the Court of Appeal Amendment Act 2008, which gives the DPP the right to appeal High Court decisions.
At the appeal, the state was represented by DPP Shalimar Ali-Hack, while Nigel Hughes represented number two accused James Anthony Hyles and Roger Yearwood appeared for Mark Royden Williams.
The Court of Appeal comprising Acting Chancellor Justice Carl Singh, Acting Chief Justice Yonette Cummings-Edwards and Justice BS Roy found that there were several irregularities at the trial and the cumulative effect rendered the not guilty verdict unsafe and unsatisfactory.
The court gave seven reasons for its decision.
One of the main grounds was the non-disclosure to the judge by the Foreman of the jury and Attorney for
the Number 2 accused James Anthony Hyles, Nigel Hughes, that the Foreman was a client of Counsel.
The Court of Appeal learnt that the Jury Foreman and Counsel Hughes were known to each other prior to the trial.
Hughes had appeared for the Foreman in a case spanning five years and neither of them disclosed this to the trial judge during the trial.
The Appeal Court found that the Foreman had an ethical and legal duty to disclose his relationship with Hughes, and by not doing so, the neutral role of the juror was compromised.
The court also found that Hughes too had an ethical duty to make this disclosure without affecting the lawyer-client relationship.
Chancellor Carl Singh in expressing his thoughts on this point said it was a serious error of judgement on Hughes’ part when he failed to disclose that he knew the jury foreman.
TRIAL JUDGE ERRED IN LAW
The Court of Appeal also ruled on the questioning of the jury by the defence before they were sworn. Justice Yonette Cummings-Edwards in her decision noted that there is no common or statutory provision for this to be done.
It was found that the trial judge erred in law by allowing this to be done at the trial. Justice Cummings-Edwards explained that the process of jury selection is based on the principle of random selection and questioning of the jurors is an interference of this principle.
She said that no foundation was shown by the defence for this to be done.
On the same point, Acting Chancellor Singh stated that this was clearly wrong, adding that it was inappropriate and contrary to the random selection process.
Another ruling of the Court of Appeal was on the exclusion of photographs during the trial.
The court ruled that 76 photographs ought not to have been excluded by the judge.
The court of appeal also agreed with the DPP that the jury was not adequately directed by the judge on the issue of joint enterprise.
And in another important consideration, the Court of Appeal found that Justice Navindra Singh did not hold an inquiry when it was brought to his attention by the Prosecution that a juror was seen showing the thumbs-up sign to the father of the Number 2 accused.
The court ruled that it was the duty of the judge to inquire into and determine what the juror’s action meant.
According to the Court of Appeal, once a complaint was made, it was the paramount duty of the judge to hold an inquiry.
On the question of caution statement tendered at the trial, the Appeal Court learnt that the trial judge directed the jury that they can determine whether it was made freely and voluntarily. It therefore ruled that the issue of voluntariness was not for the jury.
Taking all of this into consideration, the Court of Appeal ruled that the DPP arguments were valid and ordered that the two men face a new trial.
This is the first time that the Court of Appeal has overturned an acquittal that was appealed by the DPP under the Court of Appeal Amendment Act 2008.
One of the accused, James Anthony Hyles, is presently on a total of $1.1M bail which was granted by Justice Singh, pending the outcome of the appeal.
A condition of the bail was that he report to the Vigilance Police Station every Monday morning until the appeal is completed. However a police source indicated that this part of the bargain was not fulfilled. He was however rearrested yesterday and taken back to the Camp Street prison to await retrial.
The other accused, Mark Royden Williams, is presently still in prison since he has other pending matters.
On the morning of Saturday, January 26, 2008, gunmen stormed into the village of Lusignan, East Coast Demerara, and murdered eleven people, including five children. Five families were affected by the killings.
Police believed that the gunmen, who were armed with shotguns and AK-47s, entered the village around 2:00 am, and invaded the homes of five families. Within about 20 minutes eleven people were murdered.
The victims were Clarence Thomas, 48, Vanessa Thomas, 12, Ron Thomas, 11, Mohandan Goordat, 32, Seegopaul Harilall, 10; Seegobin Harilall, 4; Dhanwajie Ramsingh, 52; Seecharran Rooplall, 56; Raywattie Ramsingh, 11; Shazam Mohammed, 22; and Shaleem Baksh, 52.
The mastermind of the massacre was believed to be Rondell “Fine Man” Rawlins, who was subsequently tracked down and killed by members of the Joint Services.
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