Carvel Hines v R
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA |
| Judgment Date | 29 July 2022 |
| Neutral Citation | JM 2022 CA 82 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 27/2017 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA App 25
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mr Justice Brown JA (AG)
THE HON Mrs Justice Brown Beckford JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 27/2017
APPLICATION NO COA2021APP00012
IN THE COURT OF APPEAL
Mrs Jacqueline Samuels-Brown QC for the appellant
Jeremy Taylor QC and Nicholas Edmond for the Crown
On 10 February 2017, following a trial by a judge sitting with a jury in the Circuit Court for the parish of Westmoreland, Mr Carvel Hines (‘the appellant’) and his co-accused, Mr Bruce Lamey, were convicted for the offences of murder and wounding with intent. On 22 March 2017, both were sentenced to life imprisonment at hard labour for the offence of murder and ordered to serve 33 years before becoming eligible for parole. For the offence of wounding with intent, they were sentenced to 18 years' imprisonment at hard labour. Both sentences were ordered to run concurrently.
Dissatisfied with the outcome of his trial, the appellant sought leave to appeal against conviction and sentence. He was granted leave by a single judge of this court to appeal against sentence but was denied leave to appeal against conviction. The appellant has since renewed his application for leave to appeal against conviction and is pursuing his appeal against sentence.
Subsequent to the filing of his renewed application for leave to appeal conviction, the appellant filed another application by way of notice of application for court orders, seeking an order “[t]hat the Registrar of the Supreme Court be ordered to provide the List of Jurors for the parish of Westmoreland selected by the Registrar of the Supreme Court for the respective terms in the years 2016 and 2017”. It is this application that falls for determination by this court.
The application relates to the following further supplemental grounds of appeal filed on 10 June 2020, which the appellant intends to pursue at the hearing of the appeal:
“9. The selection of the jury as triers of the fact was to a probability irregular and accordingly the learned trial judge erred in proceeding with a trial presided over by the selected jurors, whereby the applicant's/appellant's trial has been rendered unlawful.
10. The verdict of guilty cannot stand as the jurors who presided over the trial and delivered the verdict were not selected in accordance with the law.
11. The learned trial judge's refusal to carry out an enquiry as to the lawful composition of the jury amounts to an error of law; whereby the applicant/appellant has been deprived this [sic] constitutional right to a ‘court established by law’.”
Mrs Samuels-Brown QC, on behalf of the appellant, took issue with the composition of the jury engaged in the trial of the appellant because of the commonality in the surname of them all. She referred the court to three affidavits sworn to by defence counsel who appeared at the trial: two from Miss Yolanda Kiffin and one from Mr Oswest Senior-Smith. The relevant evidence derived from these affidavits are, in summary, that:
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(a) Of the 21 prospective jurors who were called during the empanelling of the jury, 16 of them bore the surname “Reid”.
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(b) After exhausting all peremptory challenges, the jury selected consisted of persons all having the surname “Reid”.
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(c) There was concern that this commonality and sharing of the surname indicated a likelihood that the jurors were relatives and/or close family members sitting together, adjudging the case and that this could impact their independence and consequently the fairness of the trial.
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(d) Audience was sought with the trial judge, in chambers, where the concern was brought to his attention and an application made for him to enquire of each member of the empanelled jury whether they were related and how and to what extent this could affect their deliberations.
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(e) The learned trial judge indicated that he would make the necessary enquires in open court, however, this was not done.
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(f) Provision of the jury lists is of relevance to the matters raised at the trial by defence counsel in chambers with the trial judge.
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(g) All administrative avenues have been exhausted and so the appellant is constrained to make this application.
Mrs Samuels-Brown submitted that a full investigation of the issues surrounding the composition of the requisite jury lists and compliance with the Jury Act is relevant to the appellant's concern about the connectivity and/or consanguinity among members of the jury, which could have affected the independence of each jury member. She maintained that “if it is shown, on a balance of probabilities, that the jury panel was not comprised ‘according to law’ and/or not ‘summoned equally’ or for any reason, the presiding jurors are not ‘independent and [or] impartial’”, then, the appellant has not been tried by an independent and/or impartial court according to law.
Based on our understanding of the submissions made by Mrs Samuels-Brown, the Registrar of the Supreme Court (‘Registrar’) should be ordered to provide the list of jurors for the parish of Westmoreland, selected by her for the respective terms for the years 2016 and 2017 because: (1) the list of jurors is a matter of public record and is meant to be accessible to members of the public; (2) the lists would be of assistance to determine whether apparent bias arose or was attendant on breach or error on the part of the Registrar; and (3) the lists are needed for the court to examine whether there was a breach of the appellant's constitutional right to a fair hearing. We have considered these points, in turn.
Mrs Samuels-Brown argued that the law contemplates that the public would have access to the jury lists. She contends that the jury lists are created with reference to documents, which are of public record and that “the process of jury selection from start to finish is not a secret one but rather one to which the public is entitled to have access, more so an accused person”. In support of this submission, Queen's Counsel relied on sections 7 – 13, 15 – 18 and 51 of the Jury Act, which provide for the making up and settlement of jury lists and the impanelling and summoning of jurors.
Queen's Counsel further submitted that pursuant to section 11 of the Jury Act, the Chief Officer of Police shall cause a copy of the jury list to be displayed in a conspicuous place in each court house and police station within his parish so that any objection to the jury list may be taken. Mrs Samuels-Brown acknowledged that the Jury Act does not speak to the jury list being made public after it has been settled and finalised in that process. However, she argued that there is also nothing in the Jury Act, which says that the settling of the jury list is to be done in camera and that barring provision by statute, the jury list does not become private but remains public.
Mr Taylor QC, on behalf of the Crown, expressed concern regarding the appellant's request for disclosure of the jury list for three court terms when the jury involved in the trial of the appellant sat only during the term in which the appellant was tried. Queen's Counsel argued that there must be some evidence before the court demonstrating why the jury lists for the two years are required. He submitted that the appellant has not placed such evidence before the court and there is nothing evidencing a departure from or breach of the provisions of the Jury Act by the Registrar.
Mr Taylor also noted that the jury list is only open to the public when it is a provisional list (see section 11 of the Jury Act). After time is given and had passed for objection to be taken to that provisional list, the final list is then settled and certified as a true and proper list and transmitted to the Registrar, the Clerk of the Courts and the Chief Officer of Police for the particular parish (section 13 of the Jury Act). After that, there is no statutory requirement for the list to be displayed or made available to the public for viewing.
The Crown's position has found favour with the court. The making up of the jury lists is governed by sections 7 – 15 of the Jury Act. Section 7 specifies the sources from which the names appearing on the jury list should be drawn. A special panel of Justices is to be selected by the Custos of each parish for the purpose of settling the jury list for that parish (section 8). From this special panel, a number of Justices, as the Parish Court Judge in each parish considers necessary, shall be summoned and the Parish Court Judge and the Justices attending pursuant to such summons shall in each parish constitute a Special Petty Session for the provisional settlement of the jury list (section 9). Section 10 permits the Justices to make corrections to the list at the Special Petty Session. Section 11 then provides a mechanism for objections to be taken to the jury list prior to the final settlement of the list and transmission to the Registrar for preservation by her as part of the records of the court. The section, as amended in 2015, reads:
“11. The list, after such omissions, additions and corrections have been made, shall be allowed by the Justices present, or two of them, who shall sign the same with their allowance thereof, and deliver the same to the Chief Officer of Police; and such officer shall, on or before such date and at such time as may be prescribed, cause a copy thereof to be displayed in a conspicuous place in each Court House and Police Station within his parish, having first subjoined to every such copy a notice stating that all objections to the list will be heard by the Justices at the Court House at the head station of the parish on such date and such time as may be prescribed, to the end that notice may be given of persons qualified, who are...
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