Roberts v the Queen
|Court of Appeal (Grenada)
|31 January 1969
|GD 1969 CA 3
|31 January 1969
|Criminal Appeal. No. 7 of 1968
Court of Appeal
Lewis, C.J., Gordon, J.A.; Lewis, J.A.
Criminal Appeal. No. 7 of 1968
H.E.L Hosten for appellant.
W.F Cenac; Director of Public Prosecutions; for the respondent.
Practice and procedure - Trial by jury — Separation of juror. — Appellant was convicted of murder, and sentenced to death. He appealed his conviction on the ground that the jury was not kept together as required by s. 33 of the Jury Ordinance, Cap. 151 of the Revised Laws of Grenada. During his trial, one of the jurors became ill, and was taken away from the hotel at which the jury had been sequestered, to the hospital. He was left there, alone and later placed in a ward. The trial proceeded upon his return some days later. — Conviction quashed, new trial ordered. The fact that the one juror was separated from the other did not in and of itself require a new trial. However, the fact that this juror was not during his separation, in the custody or presence of the bailiff, but in a public waiting room and then in a ward with other patients, make the irregularity a grave one. The juror had ample opportunity for some member of the public to have tampered with him and there was nothing before the court to indicate that this could have been occurred. This could only be regarded as an essential departure from the procedure laid down in the Jury Ordinance for the protection of an accused.
After a trial which lasted for seven days, the appellant in this case was on a jury verdict, found guilty of murder and sentence of death passed on him on the 7th November, 1968 by St. Bernard, J., the trial judge.
The appellant has appealed against this conviction on several grounds, but the only ground on which argument was heard was that:–
“The jury was not kept together as directed by the court, as required by section 33 of the Jury Ordinance Cap. 151 of the Revised Laws of Grenada.”
At the hearing of the appeal on the 14th January 1969, counsel for the appellant submitted that in the circumstances (which will be detailed later in this judgment), the trial was abortive and consequently the conviction should be quashed and the appellant discharged.
The court, after hearing argument, took the view that the circumstances constituted a grave irregularity which rendered the trial abortive and accordingly quashed the conviction and ordered a new trial.
In accordance with its undertaking to put its reasons for this course in writing the court now does so.
Because of the procedural irregularity which forms the main ground of this appeal, it as unnecessary to refer to the events out of which the trial resulted, but merely to advert to the circumstances which constituted the irregularity complained of.
The circumstances of the irregularity have been disclosed by:–
(a) The records
(b) An affidavit of P.C. Garcia which the court gave leave to read, on the application of counsel for the appellant,
(c) The evidence of Dr. Marcel Clyne and P.C. Garcia, who were called as witnesses by the court,
(d) a report of the trial judge, on the circumstance, which had been requested by the court, and a copy of which was supplied to the Director of Public Prosecutions and to counsel for the appellant.
The circumstances referred to above are to the following effect:–
In keeping with section 33 of the Jury Ordinance Cap. 151 Laws of Grenada, the jury was housed at an hotel and placed in charge of two constables who on each adjournment were sworn to see that the jurors had no contact with the public. This procedure was followed on Saturday the 2nd November when the court adjourned to Monday 4th November.
On the night of the 2nd November a juryman was taken ill at the hotel and on medical advice was taken to the hospital for treatment. He was accompanied to the hospital on the 3rd by P.C. Garcia who left him there in a waiting room in the presence of other people. He was subsequently admitted as a patient to the hospital and was placed in a ward with other patients.
When the court resumed on Monday the 4th the juryman was absent, and the circumstances of his illness reported to the trial judge. After consultation in his Chambers with the Director of Public Prosecutions and counsel for the accused (who also now appears for the appellant), and after counsel for the appellant had signified his willingness to await the return of the juryman rather than proceed with a reduced panel of jurors, the trial judge returned to court and adjourned the matter to the following day.
On the 5th November, when the court resumed, the juror was present. After a further consultation in his chambers with the Director of Public Prosecutions and counsel for the appellant, and after the latter had indicated his preference for continuing with the full panel of jurors rather than discharging them and starting the trial de novo, the trial judge returned to court and the trial was continued with the full panel of jurors, until its conclusion on the 7th November.
Counsel for the appellant admitted in this court that in chambers he had given the trial judge the assurance that in the event of an appeal he did not propose to raise this irregularity as a ground of appeal. When however he was engaged to settle the notice and grounds of appeal and had a fuller opportunity to consider incident in its relation to the law, than he had when the matter arose at the trial, he consulted the trial judge, who readily relieved him of his undertaking.
Counsel for the appellant urged on the court that the circumstances indicated that the separation of the Juryman from his fellow jurors constituted a grave irregularity and such a departure from the law of the state as to render he trial invalid.
In support of his argument he cited from the judgment of Darling, J. in 5 Cr. App. R. 255 and he invited the court to quash the conviction and to discharge the appellant.
Having regard to the circumstances as disclosed to the court, the Director of Public Prosecutions quite properly conceded that although there was no evidence that the Juryman who was separated from his fellow jurors had in fact discussed the case with anyone outside of his group, there was ample opportunity for him to nave done so. This however constituted an irregularity. He however submitted that despite the irregularity no miscarriage of justice had occurred and he cited in support of his argument 13 Cr. App. R. 177 and 5 W.I.R. 450 where in spite of certain irregularities concerning the behaviour of jurymen during the respective trials the court nevertheless dismissed the...
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