The Caribbean Court of Justice (CCJ) on Friday heard arguments on the appeals challenging the decision to retry prison escapee Mark Royden Williams and former co-accused James Anthony Hyles, who were acquitted of the murders committed during the 2008 Lusignan massacre.
Williams, who is now on the run after Sunday’s Camp Street prison revolt, and Hyles were accused of killing 48-year-old Clarence Thomas, his 12-year-old daughter Vanessa Thomas and his son Ron Thomas; 32-year-old Mohandai Gourdat and her two sons, four-year-old Seegobind Harrilall and 10-year-old Seegopaul Harrilall; 22-year-old Shazam Mohamed; 55-year-old Shaleem Baksh; Seecharran Rooplall, 56, his wife Dhanrajie Ramsingh, 52 and their 11-year-old daughter Raywattie Ramsingh, on January 26, 2008, at Track ‘A’ Lusignan.
Gunmen had stormed their homes in the wee hours of the morning and began shooting.
Although Williams and Hyles were foundnot guilty by a 12-member jury on each of the 11 counts of murder in 2013, the state appealed and the Court of Appeal subsequently ordered a retrial.
Attorneys Roger Yearwood and Nigel Hughes represented the applicants Williams and Hyles, respectively, while Senior Counsel Sir Fenton Ramsahoye and Director of Public Prosecutions (DPP) Shalimar Ali-Hack represented the respondent before the CCJ in Trinidad on Friday.
Hearing arguments were CCJ President Sir Dennis Byron and other members of the court.
In his submissions, Yearwood told the court that one of the grounds of appeal raised by the DPP was the fact that the learned trial judge’s decision to allow counsel for the appellant to examine potential jurors offended the principle of random selection as contemplated by the Criminal Procedure Act.
Yearwood, however, said, “Our contention is that the fact that the prosecutor indicated that they had no objection to then subsequently partaking in the procedure that was employed, that they ought not to have been afforded the opportunity to raise that as a ground of appeal.”
Hughes, in his arguments to the court, sought to address the constitutional aspects and separation of powers, including the protection of double jeopardy afforded in the constitution.
He argued that an amendment on the Court of Appeal Act to allow for an appeal at any stage of the criminal cause or matter, encroached upon Article 144 (5) of the constitution. “[It is] clearly an encroachment on the right that was protected.”
Article 144 (5) states, “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal proceedings relating to the conviction or acquittal.”
In relation to the separation of powers, the attorney said, “the DPP as a member of the executive ought not to have the power to select whether to appeal on a point of law or appeal the actual appeal which have two completely different consequences. As a member of the executive, that power ought not to reside in the executive as to what the consequences of an acquittal may be.”
Meanwhile, Ramsahoye, in his submission, argued that the case is not one dealing with separation of powers.
“This is a case about legislative power…in this case, Parliament, by legislation in 2012, gave the DPP the right to appeal an acquittal on certain limited legal grounds… there has been a question about the constitutional validity of the act under which the acquittal was appealed. That contention is without substance. It is wholly without substance,” he said.
“…Parliament gave the Court of Appeal the jurisdiction to deal with acquittal. The argument that the offence was committed in 2008, when the amendment had not been passed, doesn’t have any substance because the amendment was passed in 2010 but it was only triggered in 2013 when the trial took place,” Ramsahoye argued.
Among the grounds for appeal of the High Court acquittal of the duo was the nondisclosure to the judge by the jury foreman and attorney Hughes, who represented Hyles, that the foreman, Vernon Griffith, was a former client of the lawyer.
After the conclusion of the trial, trial judge Navindra Singh had placed a life ban from jury service on Griffith for his non-disclosure.
The DPP had also maintained, after conveying its intention to appeal, that Hughes needed to disclose that he had represented Griffith in a civil case for a period of six years starting in 2002. This non-disclosure, the DPP argued, constituted a “material irregularity.”
The DPP further contended that the non-disclosure was “material and significant” given the fact that at the commencement of the trial on July 15, 2013, before the jury was selected and empanelled, “the learned trial judge specifically called out the names of all the attorneys involved in the case and told the entire panel that if they know or are associated with any of the attorneys, they ought to so indicate and would be excused.”
Court of Appeal judge, Justice Yonette Cummings-Edwards, subsequently noted that the court found that the foreman had an ethical and legal duty to disclose his relationship with Hughes.