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Aug 28, 2022 Features / Columnists, Freddie Kissoon
Kaieteur News – There are widespread disagreements with the acquittal by the Caribbean Court of Justice of co-accused Jarvis ‘Barry’ Small in the murder of Neesa Gopaul. Some of those dissenters need to understand that judges are not lay people.
They are trained, experienced minds that have to be meticulous if justice is to survive to be the fulcrum on which civilisation rests. Small was freed on several points and several weaknesses which have occurred with other cases in this country. However, there is a but. But judges are human.
They do make bad decisions and while at the time, they may be genuinely convinced that they made the right judgment, academics that have no relation to the particular trials are better able to see the flaws from a distance.
I’ll provide you with one example before I look at how judges treat the confession statement. I think lawyers and legal scholars need to look at the following rape case. The son of a very famous politician in Guyana was sentenced to 45 consecutive years for using his fingers for vaginal insertion of an “underage” victim.
No birth certificate was tendered but what the prosecution did was to produce a statement from the Georgetown Hospital that said on a certain date, a mother (in this case, the victim’s mother) gave birth to a female baby on a specific date. But the jury did not know if that baby was the same person as the victim. The judge should not have accepted that as evidence and in her summing up.
In the Neesa Gopaul trial, a person jailed for fraud made a statement that Gopaul’s mother made a confession to her while they were both in the cell. There was supposed to be a deal between the State and the person who spoke about the confession for a reduced sentence.
Once that person struck a deal, prosecutors should have been wary of such behaviour. Can the prosecution rely on such people? The answer in most cases is no. Secondly, there was a statement attributed to the fraud convict that the co-accused implicated her fellow co-accused, Small.
The traditional approach to confession is for it to be rejected if the others charged with the same crime deny it and there was no proof. I do not accept that. I think each confession statement is particularistic and specific.
A judge and a magistrate have to meticulously examine a confession statement even though there are strenuous denials of those that the confession implicated. This was the crucial point on which Kwame McCoy and Shawn Hinds were freed in the charge that they assaulted me by throwing a miasmic substance on me.
I repeat for the third time. It was not faeces. The then editor at Kaieteur News was laughing about using the word faeces; the staff encouraged him. It was a joke but it was printed and so it has now gone down in history as faeces thrown on me. Lal Balkaran in his book, “Timelines of Guyanese History,” wrote that faeces was thrown on me.
Jason Abdulla was found guilty based on his confession. He implicated McCoy and Hinds who said they knew nothing about what Abdulla had put in his confession. Magistrate Judy Latchman agreed with McCoy and Hinds and freed them. But she erred badly on the nature of Abdulla’s statement.
I was fortunate to see the confession from the prosecutor. I asked for a photocopy but was told that cannot be allowed. Abdulla could not have invented those details with such lucidity; with such neat descriptions of the role played by McCoy and Hinds.
This was an elaborate confession of how several persons composed a plan, first to harm me physically then, changed the plan to run me off the road to shooting me then changed the plan to the final decision to throw a miasmic substance on me.
Abdulla’s confession was elaborate and described the role each actor contributed to the shaping of the plan. Abdulla named the person who was identified to throw the substance and who would forward the payment to him and who would arrange for the thrower to be killed after he did the act.
A judge and a magistrate simply cannot throw out a confession without what I call the integrity of the contents. The Neesa Gopaul case and the Abdulla trial should inform future judges that the courts are not bound to accept the denial of co-defendants in a confession by one of the accused.
In each confession, profound study must be made of all the angles and logical deduction arrived at. Any judge looking at the Abdulla confession had to know he could not have imagined all those details and describe them so poignantly.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)
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