Lawyers for James Hyles, who was charged with the 2008 Lusignan massacre, have moved to the High Court for his freedom, saying that he was charged almost five ago years but is still to get a fair trial.
Attorneys Nigel Hughes and Kendaise Rodney are seeking orders quashing or setting aside the 11 charges of murder against Hyles and having him admitted to bail pending the hearing and determination of the Notice of Motion. They are also seeking damages in excess of $100,000 for breach of the fundamental right to a fair hearing, among other things.
Attorney General Anil Nandlall is named as the respondent in the motion, which was filed in February this year.
Stabroek News understands that acting Chief Justice Ian Chang will soon set a date for ruling in the matter.
According to the court documents, seen by this newspaper, Hyles was 17-years-old when he was charged in July 2008. It was stated that the hearing commenced before Magistrate Sherdel Isaacs-Marcus and several witnesses testified.
On April 30, 2010, the documents said, Hyles was committed to stand trial in the High Court but on November 22 of that same year, the Director of Public Prosecutions (DPP) Shalimar Ali-Hack wrote to the magistrate remitting the matter and directing her to reopen the preliminary inquiry. The purpose for it being reopened was for ruling on the voluntariness of the caution statements of Mark Rodney and Dwane Williams and complying with sections 65 and 66 of the Criminal Law (Offences) Act, Chapter 10:01, with a view to committing the accused for the offence charged. Williams and Rodney were also charged in connection with the massacre.
The court documents said that on October 10, 2011, the DPP wrote to the magistrate directing her to reopen the preliminary inquiry for the purpose of taking the testimonies of 11 new witnesses. The magistrate, in a letter dated November 24, 2011, responded, informing that the testimonies of the witnesses had previously been taken and that she made her ruling on the admissibility of the caution statements on February 25, 2011.
In a later dated December 5, 2011, the DPP revoked the magistrate’s letter because the wrong names of the witnesses were inadvertently typed, according to the documents, which added that the magistrate to date had not complied with the DPP’s directions.
That magistrate, it was stated, has since been transferred to the Vreed-en-Hoop Magistrate’s Court and at present Magistrate Zamilla Ally is presiding at the Vigilance Magistrate’s Court.
‘A reasonable time’
Meanwhile, Hyles said in his affidavit in support of the motion that he believes that the state had consistently failed to provide him with a fair hearing within a reasonable time. He said that his right to a fair trial within a reasonable time has been adversely affected by the “unexplained failure” of the DPP to conclude the preliminary inquiry. He said too that he believes that he is entitled to an award of damages for the breach of his fundamental right.
“I am advised by my attorney at law and verily believe that I am incapable of securing a fair trial after the expiration of fifty six months after the institution of the charge of murder,” the court documents stated.
Hyles said that he believes that he is entitled to urgent and immediate relief.
Ali-Hack, in her affidavit in answer, said that on June 1, 2012, the additional evidence of Vishnu Seecharan was taken and the defence counsel for Hyles declined cross-examination of him along with Kassim Khan and Rajkumar Harrylall.
She said that Magistrate Isaacs-Marcus committed Hyles and his co-accused on June 5, 2012, to stand trial in the High Court and Hyles was indicted on January 7, 2013 to stand trial for 11 counts of murder. The indictment was filed on January 10, 2013.
According to the documents, the indictment was listed for hearing for the first time in the April 2013 Demerara Criminal Assizes before Justice Navindra Singh at Number 18.
The DPP pointed out that the length of the delay is dependent upon the peculiar circumstances of the fact and that judicial notice ought to be taken of the fact that since 2008, only two judges sat at one time in the Demerara Criminal Assizes. It was added that with effect from October 2012, three judges were appointed, resulting in a swift determination of criminal matters.
The DPP also urged the court to balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice “in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Guyana.”
However Hyles’ lawyers said in an affidavit in reply that the respondent in the case had failed to provide the court with a satisfactory explanation and/or reason for the undue delay of 36 months since April 30, 2010 when he was committed to stand trial at the June Assizes.
Clarence Thomas, 48, his 12-year-old daughter Vanessa Thomas and his son Ron Thomas; Mohandai Gourdat, 32, and her two sons, four-year-old Seegobind Harrilall and 10-year-old Seegopaul Harrilall; Shazam Mohamed, 22; Shaleem Baksh, 55; Seecharran Rooplall, 56, his wife Dhanrajie Ramsingh, 52, and their 11-year-old daughter, Raywattie Ramsingh, were killed when gunmen dressed in dark coloured clothing descended on Tract `A’ Lusignan and launched a 20-minute-long blitz on five houses on January 26, 2008.