By: Feona Morrison
Contending that prejudicial evidence led to their clients’ wrongful conviction, lawyers for Bibi Shareema Gopaul and her younger lover Jarvis Small, who are each serving a 45-year jail sentence for the 2010 murder of Gopaul’s daughter, 16-year-old Queen’s College student Neesa Gopaul, are seeking to overturn those convictions at the Caribbean Court of Justice (CCJ).
Bibi Shareema Gopaul, 50, and Jarvis Small were initially sentenced to 106 years’ and 96 years’ imprisonment respectively, after they were unanimously found guilty of the teen’s killing following a trial before Justice Navindra Singh at the Demerara High Court in March 2015. The two convicts shortly after lodged separate appeals against their conviction and sentence at the Court of Appeal of Guyana, which in August 2021 affirmed their convictions but reduced their prison terms to 45 years each.
Dissatisfied with that court’s decision, the duo has now moved to the CCJ, which will determine whether their murder convictions were unsafe, and whether the appellate court’s variation of their sentences to 45-years was manifestly excessive, and not in keeping with established sentencing guidelines.
The case was heard by CCJ President Justice Adrian Saunders and CCJ Judges Maureen Rajnauth-Lee, Jacob Wit, Denys Barrow, and Peter Jamadar.
The decomposed and headless body of the younger Gopaul was found stuffed in a suitcase in a creek along the Linden-Soesdyke Highway. Also discovered were her passport and bank card. The suitcase was wrapped with rope and attached to dumbbells in an apparent effort to keep her body submerged.
The girl was found weeks after she was reported missing from her West Coast Demerara (WCD) home. Neesa Gopaul died from multiple blunt force trauma to the head.
During almost four hours of post-trial arguments before the CCJ on Tuesday, Small’s lawyer, Nigel Hughes, placed focus on an application he made at the commencement of their trial for the joint indictment for murder to be severed, which would have allowed for his client and his co-accused to have separate trials.
But the application was denied by Justice Singh, whom Hughes said did not provide any reasoning for his ruling. Hughes submitted that the test applicable in the consideration of such an application used by Justice Singh, as well as the manner in which it was reviewed by the Court of Appeal, “was deeply flawed”.
To amplify his point, he cited a specific case law in which he noted that the real risk of a positive injustice being caused as a result of the joint trial was considered.
The defence counsel explained that the test was whether the likelihood of positive injustice was real, and not inconsequential, and whether when you weigh the prejudicial material against the irrelevant material, it was likely to turn a potential acquittal into a conviction.
Hughes pointed to the evidence of the prosecution’s main witness, Simone De Nobrega, who was also a cellmate of Shareema Gopaul. De Nobrega had testified that the murder convict told her that it was Small who had killed her daughter by bashing her head with a piece of wood.
According to Hughes, there is no doubt that De Nobrega’s evidence, which was “strong and powerful”, implicated the mother in the crime, although it could not be used against his client.
He, however, argued that the likely prejudice inflicted on his client by De Nobrega’s evidence was “significant”, and could not have been rectified, even if Justice Singh had given appropriate directions to the jury. He said that even though Justice Singh acknowledged that he can give directions in that regard, he failed, regrettably, to give the proper warnings to protect against the prejudicial evidence which was admitted against Small, who denied committing the crime by giving a statement to that effect to the Police.
He went further to criticise Justice Singh for using a “single sentence” in the following language, “What you [jurors] accept Bibi Gopaul to have said is not evidence against [Jarvis Small]”, to address that witness’s evidence during his summation.
Hughes is of the view that it required more than a single sentence from the Judge to cure the prejudice.
Considering the weak evidence against Small, which only amounted to “suspicion”, Hughes contended, Small should have been acquitted on a no-case submission, since the evidence against him, taken at its highest, could not have yielded a verdict of guilty.
Shareema Goopaul’s lawyer, Arudranauth Gossai, also took issue with the prejudicial evidence admitted against his client. He, too, highlighted the testimony of De Nobrega, which he noted was manifestly unreliable, as she had been previously convicted of crimes of a “dishonest character”.
De Nobrega was convicted of the offence of obtaining by false pretence, and also had similar charges pending against her. He said that Justice Singh failed to inform the jury of this witness’s criminal record.
As such, he contends, this resulted in a fundamental flaw in the summing up.
In light of this, he submitted that the Court of Appeal ought to have set aside Shareema-Gopaul’s conviction for her daughter’s murder.
At this point, Justice Barrow interjected to remind Gossai that there was other evidence linking his client to the crime. “The dumbbell at her house, the red rope, and the documentation [passport, bank card] only a mother would have in relation to a 16-year-old child,” Justice Barrow said, as he went on to tell Gossai that his fixation on De Nobrega’s evidence was a “non-point”.
The lawyers are also challenging the convicted killers’ jail sentences, which they again argue are manifestly excessive. Gossai, in relying on case law authorities from the Caribbean, submitted that a sentence between eight and 15 years with the necessary deductions would be appropriate, given the circumstances of this case.
In relation to sentencing in Guyana, he argued, “Numbers are randomly plucked”, without any reason given as to how the Judge arrived at the starting point. To make his point, he said that Justice Singh gave no reason how he arrived at a starting point of 60 years. As such, he said, there is an urgent need for sentencing uniformity in Guyana, and he urged the CCJ to consider this when deliberating on this appeal.
Addressing the issue of sentencing on behalf of Small was Hughes’s associate, Attorney-at-Law Ronald Daniels, who asked the court to revisit the sentences handed down by the Court of Appeal in light of the “prescription” enunciated by the CCJ in Calvin Ramcharran vs the Director of Public Prosecutions (DPP) of Guyana.
He submitted that in those cases, the apex court highlighted four considerations an appellate court should make in reviewing sentences, which are: to provide clarity and guidance to lower courts, to ensure sentences are not unfit and unjust, to ensure that the principles of sentencing are properly applied, and to help develop the law. He also relied on the case of Linton Pompey vs the DPP of Guyana. Both cases cited by Daniels are for sexual offences. According to Daniels, the Court of Appeal departed from the guidance given in those cases, in that it failed to engage in a “forensic exercise” before arriving at a starting point of 35 years in the instant case.
For her part, Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, argued that the dumbbells found at the crime scene belonged to Small, and that they implicated him in the murder.
Justice Wit, however, told the DPP that there is no “clear evidence”, no evidence “beyond a reasonable doubt” to suggest that Small used those dumbbells to commit the murder.
Considering this, Justice Saunders remarked that the decision by Justice Singh not to have separate trials was “extremely unfortunate”.
The CCJ President went on to ask the DPP to furnish him with directions that could disabuse the jury of the notion that Small should not be prejudiced by De Nobrega’s evidence.
Ali-Hack replied: “Yes, Your Honour. There are directions that could have been given, and the direction was given.” The DPP agreed with Justice Saunders that De Nobrega’s testimony was not relevant in proving Small’s guilt. In light of this, the CCJ President asked her, “So, how was it humanly possible…you opposed the split trials? You opposed that?”
To justify her decision to have Small and Shareema Gopaul tried jointly, Ali-Hack explained that “It was one criminal transaction, it was one murder, and the prosecution’s case is that it was committed by both parties, and the evidence against Small is that he had the dumbbells, the dumbbells were heavy, he was the person who lifted them, he was the person who took them to [Bibi] Gopaul’s house, he was strong… after he took them to Gopaul’s house…these dumbbells were found attached to the suitcase wherein [Neesa Gopaul’s] body was found…”
She said the dumbbells were heavy, and had to be lifted by someone strong. “So, Jarvis Small is the only strong man there is in Guyana?” Justice Saunders queried. Justice Wit opined that there is not sufficient evidence against Small.
He added, “We cannot assume that these things [dumbbells] were so heavy that you must have had help from somebody. You could think most probably Small, but most probably is not enough…must be beyond a reasonable doubt. Where is the other evidence? This is what puzzles me; I don’t see it. It’s a terrible case, and it would be best to do justice. But to do justice must be based on solid evidence.”
The DPP nevertheless went on to argue that there is enough circumstantial evidence to convict the teenager’s mother of her murder. For his part, Justice Jamadar pointed out that Justice Singh gave a “very general, generic and almost legalistic” direction to the jury when he addressed De Nobrega’s evidence.
Justice Barrow also expressed the view that the trial Judge did not adequately direct the jurors. But the DPP begged to differ, and maintained her position that adequate directions were given.
Also, in his remarks, Justice Saunders reminded that the “criminal justice system has rules, and when we start bending the rules, we find ourselves on a very, very slippery slope”.
He expressed that it is very unfortunate that there was not any serious forensic evidence in this case to help provide proof of who committed this very, very serious crime.
In closing, Ali-Hack contended that the 45-year sentence imposed on each of the convicts was fitting, and therefore urged the CCJ to affirm the decision of the Court of Appeal of Guyana.
She noted that this was gruesome murder in which a mother conspired with her lover to kill her daughter.
The CCJ has reserved its decision in this matter.
