CCJ restores acquittals of ‘Smallie’, Hyles for Lusignan massacre

May 12, 2018 News

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The Caribbean Court of Justice (CCJ) yesterday restored the 2013 acquittals of James Anthony Hyles and Mark Royden Williams called ‘Smallie’ and ‘Durant’ for their alleged involvement in what has been dubbed the ‘Lusignan Massacre’, despite substantial procedural errors at trial.
However, Hyles is now back home but Williams will have to remain in jail after being sentenced to death last year for the Bartica massacre.
According to the CCJ, on 6 January 2008, gunmen went from house to house in the peaceful village of Lusignan in Guyana with high powered rifles and killed eleven persons, five of whom were children, as they slept in their homes.
The case shocked Guyana with other members of the gang a few months later attacking Bartica, a riverain community in Region Seven, up the Essequibo River.
Hyles and Williams were indicted on eleven counts of murder for the Lusignan massacre.
At trial, the judge allowed a request by Hyles’ 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. The main prosecution witnesses were two members of the gang allegedly responsible for the massacre, one of whom was charged in connection with the massacre. However, the charges against him were withdrawn a mere two weeks before the trial began, CCJ explained.
Hyles and Williams both denied involvement in the killings.
The jury rendered its verdict on 2 August 2013 and both men were found not guilty of all counts.
The Director of Public Prosecutions (DPP) appealed the acquittals, under the newly amended Court of Appeal Act, on the basis that there were material irregularities in the trial.
The Court of Appeal agreed, allowed the appeal, overturned the verdicts of not guilty and sent the matter back to the High Court for a retrial.
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 Court 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 Court 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 court 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 a 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.
The CCJ allowed the appeal, set aside the decision of the Court of Appeal of Guyana, and restored the jury’s verdict of acquittal of the appellants.
Meanwhile, defence lawyer for Hyles, Nigel Hughes, came out and spoke about reports about his “relations” with a juror. He noted that after the acquittal of James Anthony Hyles and Mark Royden Williams in 2013 by a mixed jury at the Demerara Assizes, several news reports carried various stories about the relationship between the foreman of the jury and himself as defence counsel for Hyles.

“The reports included but were not limited to the allegation that the foreman of the jury was a past client of mine as a matter which was not disclosed at the time of the trial. During the several stages of the subsequent appeal, I refrained from any comment on the issue.”
According to Hughes, the finding of the Caribbean Court of Justice on this issue vindicates him.
“We are satisfied that if the judge had applied that test and analysed the history of the relationship between Mr. Hughes and the foreman, he would have concluded that a fair-minded observer would not have perceived a real possibility of bias,” the CCJ said in its decision.
As mentioned, the matter in which Mr. Hughes had represented the foreman, which he lost, had concluded in 2008, some five years before the trial.
“Since that time, not only had counsel appeared in a court matter in opposition to the foreman, but the foreman had publicly demonstrated himself to be an adversary of counsel by participating in a picket against him. These facts do not indicate a relationship that would have been favourable to Mr. Hughes or his client Hyles.”
According to the CCJ, it therefore did not agree with the findings of the Court of Appeal on this ground of appeal.
“In light of the foregoing, the failure to disclose could not reasonably have affected the impartiality of the jury or the fairness of the trial, and therefore gave rise to no material irregularity.”
The judgment of the CCJ and a detailed judgment summary are available on the CCJ’s website at www.ccj.org.

 

 

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