Hyles v Director of Public Prosecutions; Williams v Director of Public Prosecutions

• Jurisdiction: Caribbean States
• Judge: Wit, J.CCJ.,Wit,Hayton,Sir Dennis Byron,Saunders,Rajnauth-Lee,Mr Justice Wit
• Judgment Date: 11 May 2018
• Neutral Citation: [2018] CCJ 12 AJ
• Date: 11 May 2018
• Docket Number: CCJ Appeal No. GYCR2016/001; Guyana Criminal Appeal No. 21 of 2013; CCJ Appeal No. GYCR2016/002; Guyana Criminal Appeal No. 21 of 2013,CCJ Appeal Nos. GYCR2016/001 Guyana Criminal Appeal No. 21 of 2013
• Court: Caribbean Court of Justice (Appellate Jurisdiction)

Caribbean Court of Justice

Byron, P.CCJ.; Saunders, J.CCJ.; Wit, J.CCJ.; Hayton, J.CCJ.; Rajnauth-Lee, J.CCJ.

CCJ Appeal No. GYCR2016/001; Guyana Criminal Appeal No. 21 of 2013; CCJ Appeal No. GYCR2016/002; Guyana Criminal Appeal No. 21 of 2013

James Anthony Hyles

and

The Director of Public Prosecutions

Mark Royden Williams

and

The Director of Public Prosecutions

Appearances:

Mr. Clarence Anthony Nigel Hughes, Mr. Stephen Roberts and Ms. Savannah Barnwell for the Appellant James Anthony Hyles, and Mr. D. Roger Yearwood for the Appellant Mark Royden Williams.

Sir Fenton Ramsahoye, SC, Mrs. Shalimar Ali-Hack and Ms. Sonia Joseph for the Respondent.

Criminal law - Murder — Appeal by Director of Public Prosecutions against acquittals — Whether section 33B of the Court of Appeal Act, CAP 3:01 which allowed the DPP to appeal acquittals was unconstitutional — Whether the acquittal was a result of the judge's error, flaw or irregularity.

JUDGMENT SUMMARY

1 This appeal concerned the ‘Lusignan Massacre’ which took place on 6 January 2008 in Guyana. In the wee hours of that morning, intruding gunmen went from house to house in the peaceful village of Lusignan in Demerara with high powered rifles on a shooting rampage. Eleven innocent persons, five of whom were children, were murdered in cold blood as they slept in their homes. The Appellants, James Hyles, also referred to as Sally (‘Hyles’) and Mark Williams also referred to as Smallie (‘Williams’), were indicted on 11 counts of murder. They pleaded not guilty to the charges and a trial by jury proceeded.

2 At trial, before the jurors were empanelled, counsel for Hyles, Mr. Nigel Hughes, made an application to question jurors in a voir dire prior to jurors being sworn and prior to peremptory challenges, reserving the right to further question jurors after peremptory challenges were taken. Neither counsel for Williams, Mr. D. Roger Yearwood nor counsel for the State objected to this application. The questions centred on familiarity with and views on the Lusignan massacre and media coverage of the event, the level of confidence in the police and the ability to follow directions from the trial judge. Both State and Defence counsel exercised their right to challenge the prospective jurors and agreed in seven cases that for several reasons the prospective jurors ought to be discharged.

3 The main prosecution witnesses were Dwane Williams (‘Dwane’) and Durwin Wright (‘Durwin’), two members of the gang allegedly responsible for the massacre. Dwane, who accompanied the gang on the night of the massacre, testified that though he was arrested and charged in relation to the massacre, the charges against him were withdrawn two weeks before the trial began. Durwin, who was committed to stand trial for a murder charge in May 2009 with Williams and two others, testified that Hyles visited his home on the morning of 26 January 2008 and confessed to the killings. Both Hyles and Williams denied involvement in the killings in unsworn statements from the dock with Williams alleging police misconduct which resulted in an involuntary caution statement in 2008.

4 The jury rendered its verdict on 2 August 2013. The Appellants were found not guilty of all counts. Some days after the verdict, controversy arose surrounding an alleged association between Mr. Hughes and Mr. Griffith, the foreman of the jury. It was revealed that Mr. Hughes had represented him in a civil matter, which concluded on 29 October 2008, for approximately six years.

5 The Director of Public Prosecutions (‘DPP’) appealed the acquittals under section 33B of the Court of Appeal Act as amended in 2010 on the basis that there were material irregularities in the trial which, despite, on the DPP's assertion, strong and compelling evidence, resulted in the not guilty verdicts. The Court of Appeal rendered its decision on 10 March 2016. It allowed the DPP's appeal, unanimously overturned the verdicts of not guilty against the Appellants and remitted the matter to the High Court. The court held that there were several material irregularities in the trial, including the questioning of the jury, the trial judge's failure to order an inquiry following a complaint made by the Prosecution in relation to a member of the jury making a ‘thumbs up’ gesture to a man believed to be the father of Hyles and the trial judge's failure to direct the jury that suggestions of police impropriety should be supported by evidence. In the court's view, the cumulative effect of those irregularities resulted in an unsafe verdict and an unfair trial and a new trial was ordered in the interest of justice.

6 The Appellants' first argument before the CCJ related to the constitutionality of the Court of Appeal Act as amended in 2010 [Cap 3:01]. They argued that section 33B, which allowed the DPP to appeal the acquittals, was unconstitutional as it breached their right to protection of the law under Article 144(5) of the Constitution. In essence, the Appellants argued that the right to appeal an acquittal was in contravention of the rule against double jeopardy. The Court did not agree with this argument noting that the very wording of Article 144(5) contemplated the possibility of an appeal against acquittal [The words “save upon the order of a superior court in the course of appeal proceedings relating to the conviction or acquittal”]. Additionally, the Court held that the rule against double jeopardy was not absolute and in principle it only protected acquittals which had become final after being affirmed by an appellate court [See: Article 14(7) of the International Covenant on Civil and Political Rights, to which Guyana is a signatory, which states that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”]. The Appellants did not fall into that category as they were not ‘finally acquitted’ and were still subject to the appellate process.

7 The Court also held that the principle of fundamental fairness in Article 144(1) of the Constitution required the protection of the rights of all stakeholders, not only those of the accused, in the criminal justice process and it demanded to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of criminal justice. The Court did, however, caution the legislature on the need to ensure that there were proper safeguards against irrationality, unreasonableness and unfairness when designing a legal framework which involves the complexity of opposing rights. In the Court's view, there were adequate safeguards in section 33. The DPP has a limited time to file an appeal against acquittal, the right to appeal is limited to serious offences and must be a result of the expressly stated procedural flaws and errors in the Act. Additionally, the Court of Appeal is not mandated to order a retrial and can dismiss the appeal even if there are good reasons for allowing it, if, for example, there was a long delay which could lead to an inaccurate verdict or a violation of the right to a fair trial. The Court also dismissed the Appellant's arguments that the amendment to the Act offended the principle of separation of powers and that it did not apply to them as the new provisions were not operative at the time the charges were instituted against them and it did not expressly state it was retrospective [Affirming the decision in The State v. Boyce (Brad) [2006] 2 A.C. 76 which held that proceedings by indictment are commenced by the filing of the indictment and not when the indictable information was laid.].

8 The Court then turned its attention to the procedural element of the appeal, starting with the requirement in section 33B that the acquittal had to be ‘the result of’ the judge's error, flaw or irregularity. The Court acknowledged that this was a steep hill for an appellate court to climb given the secrecy of the jury's deliberations and held that an appropriate test had to be constructed for application in prosecution appeals in Guyana. In an effort to construct this test, the Court analysed over eight decades of jurisprudence from Canada, where the right to an appeal against acquittal existed since 1930 and several variations of tests [See, for example, R v. Curlett (1936) 66 CCC 256, R v. Probe (1943) 79 CCC 289, White v. The King (1947) SCR 268. This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or to be used in any later consideration of the Court's reasons] had been applied.

9 The Court eventually held that in a prosecution appeal against an acquittal in proceedings by indictment in the High Court, the prosecution must satisfy the Court that, given, on the one hand, the nature and weight of the evidence as a whole 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 an acquittal of the accused. If that inference cannot be made with the required degree, the Court stated, the acquittal must stand, even if the error(s) or flaw(s) were substantial.

10 The Court also considered the meaning of ‘material irregularity’ in the context of an appeal against an acquittal as there was no guidance in the Court of Appeal Act. The Court held the concept of a material irregularity [That is, a significant material irregularity going to the root of the case.] remained the same whether in the context of a conviction or an acquittal appeal, but whether it will lead to quashing the verdict or upholding it will be measured against a much stricter standard. That is, whether it could be inferred that the irregularity resulted in the acquittal...