Lawyers raise contention over ‘prejudicial’ evidence used in High Court trial

May 11, 2022 News

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– as Neesa Gopaul appeal gets underway at CCJ

By Rehanna Ramsay

Kaieteur News – A review of the Neesa Gopaul trial and appeal got underway at the Caribbean Court of Justice (CCJ) on Tuesday, with defence attorneys representing the duo convicted of murder raising contentions over what they believe to be prejudicial evidence used in their High Court trial.

Neesa Gopaul’s case had gripped the nation in March of 2015, when her mother, Bibi Shareema Gopaul, and her stepfather, Jarvis ‘Barry’ Small, were placed on trial for her gruesome murder.
In October, 2010, Gopaul, 15, a student of Queens’ College was reported missing from her Leonora, West Coast Demerara home.
Her disappearance took a sudden twist when a partially decomposed body was found in a suitcase submerged in the Madewini Creek on the Soesdyke/Linden Highway – attached to the suitcase were two dumbbells and a red rope which was purportedly used to anchor the suitcase and keep it submerged.
A passport was also discovered in the suitcase and an investigation later confirmed that the passport and the decomposed remains were that of Neesa Gopaul. A subsequent probe led to the arrest of her mother and stepfather.
Following a joint trial in the High Court before Justice Navindra Singh, Bibi Shareema and Small were convicted. They were sentenced to 106 years and 96 years in prison respectively. However, an appeal to the Court of Appeal in Guyana saw the duo’s sentence being reduced to 45 years each.
Obviously not satisfied with the deduction, the two moved to the CCJ in hopes that the court will overturn the conviction and sentence and set them free.
PREJUDICIAL
During the oral addresses, attorney representing both appellants raised issues with the trial and appeal conducted in the lower courts.
Attorney-at-law, Nigel Hughes, who is representing Small in association with attorney Ronald J. Daniels, specifically raised the issue of inadmissible evidence which was used to convict his client.
Hughes told the panel of CCJ judges, inclusive of the Court’s President Justice Adrian Saunders, Justice Denys Barrow, Justice Peter Jamadar, Justice Maureen Ragnaught Lee, Justice Jacob Wit, that an injustice was carried out against his client by having the prejudicial evidence of Simone De Nobrega, the prosecution’s main witness, admitted in a single trial for both persons.
De Nobrega had testified that Gopaul confided in her that it was Small who had killed her daughter by bashing in her head with a piece of wood.
As such, Hughes noted that De Nobrega’s testimony ought to have been used in a separate trial and not in one which included Small. He noted that the evidence should have never been used to implicate Small.
The lawyer held that by including the prejudicial material in the trial of his client that turned a potential of acquittal into a conviction. Hughes said that while De Nobrega’s testimony was strong and implicated the victim’s mother, the same cannot be said of his client.

“All the alleged evidence of the use of the dumbbells which belonged to Small was not enough to tie the appellant to the crime …It was De Nobrega’s testimony that created severe prejudice against him,” Hughes said. Therefore, he held that the trial judge should have ordered separate trials for the two accused.
“…Given the level of prejudicial evidence that was allowed in trial, I don’t think any direction by the trial judge could have guaranteed a safe trial…” he added.
Hughes submitted that the Court of Appeal in Guyana “wrongly considered” certain legal principles which led to the “gravest miscarriage of justice” that resulted in his client being convicted. As such, the lawyers are asking the court to set aside their clients’ conviction and sentence.
For his part, Daniels contended that the sentencing hearing was not competently informed, in that, the Court of Appeal did not indicate how it arrived at a starting point of 35 years.
Similarly, Bibi Shareema’s attorney, Arudranauth Gossai held that the trial judge “failed fundamentally” when he did not highlight the indicators that would trigger the necessary warnings in relation to evidence given by De Nobrega who was convicted of crimes of a “dishonest nature” and also had similar charges pending against her.
He claimed that the CCJ had one narrow issue to consider that was on behalf of the appellant that the trial judge failed to warn the jury to be cautious before accepting and acting on the evidence of De Nobrega, as he was bound by law to do.
“He also failed to give any warning to the jury on the danger of acting on such type of evidence,” Gossai added. Gossai noted that the Court of Appeal agreed, accepted and held that the trial judge failed to direct the jury to view De Nobrega’s evidence with caution and that the word “careful” should have been used by the judge instead of the word “needful”… And that if the word “careful” was used the judge would have given the appropriate directions,” he added.
Interjecting, Justice Barrow said, “Are you saying Mr. Gossai, that Ms. De Nobrega’s evidence is the only thing tying Ms. (Bibi Shareema) Gopaul to the crime. What about the red rope, the dumbbells, the documentation…all found at the home of the appellant?”
To this, the lawyer insisted that there was not enough to convict his client. Further, in relation to the sentence, he argued that the Appeal Court should have taken a more suitable approach in calculating the deduction.
He held that “the laws of Guyana provides that the sentence for murder should be life imprisonment or such other term as the court considers appropriate, not being less than 15 years.”
NO MISCARRIAGE OF JUSTICE
Meanwhile, Director of Public Prosecutions (DPP), Shalimar Ali-Hack, S.C., submitted that there was no miscarriage of justice. She urged the CCJ to consider that even without De Nobrega’s testimony there were other circumstantial evidence that links Bibi Shareema and her co-accused to the crime.
The DPP said, “The evidence of the witness (Ashram) Tiwari draws the inference that (Bibi Shareema) Gopaul could not have used the dumbbells alone.”
Tiwari, she noted, had testified that the dumbbells belonged to Small who lived between two houses – Bibi Shareema’s home and his (Small’s) wife’s residence.
The DPP noted that the dumbbells were very heavy and there is no way that Bibi Shareema could have lifted them on her own. She added that Small was strong enough to lift the dumbbells and inflict the injuries on the victim.
The DPP was then warned by the Court’s President Justice Saunders that though there may be inference that however, is not enough to prove beyond reasonable doubt that Small committed the crime.
“…But there were the dumbbells your honours and there is evidence that it belonged to him,” she responded. “But was there any forensic evidence to tie him to the crime?” the judge enquired.
“No your honours,” replied the DPP. As such, Justice Saunders noted that the decision not to have split trials was an extremely unfortunate one since Small was only linked based on the circumstances of the evidence.
Justice Saunders later added that “It is unfortunate that there was not any serious forensic evidence to provide proof as to who committed this crime…”
“This was a very serious case. It concerned a mother betraying her [daughter’s] trust with her lover killing… The daughter was sexually molested by that lover and later suffered a brutal murder…” the DPP said repeatedly as she implored the Court to hold the convictions and sentence.
But the CCJ President cautioned her to be mindful of her statements. “That is not the evidence before the Court Madam DPP…,” the judge cautioned.
Ali-Hack, nevertheless, argued that there were no mitigating factors favourable to the convicts. “The aggravating circumstances were overwhelming,” the DPP submitted, urging the judges to return a ruling that reflects society’s condemnation of the heinous and gruesome act committed on Neesa Gopaul.
The CCJ has reserved its ruling for a later date.

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