Roberts, Brangman, Smith-Williams v R
| Jurisdiction | Bermuda |
| Judge | Clarke P,Bell JA,Smellie JA |
| Judgment Date | 11 June 2021 |
| Court | Court of Appeal (Bermuda) |
| Docket Number | Civil Appeal 2020 Nos 4, 8 and 9 |
[2021] Bda LR 51
In The Court of Appeal for Bermuda
Clarke P; Bell JA; Smellie JA
Civil Appeal 2020 Nos 4, 8 and 9
Ms V Greening for the Appellant Roberts
Mr M Pettingill for the Appellant Brangman
Mr J Lynch QC and Ms S Tucker for the Appellant Smith-Williams
Mr C Mahoney and Ms K King-Deane for the Respondent
The following cases were referred to in the judgment:
R v English [1993] CanLII 3373
R v Sarson [1996] RCS 223
R v Bestel [2014] 1 WLR 457
Cadder v HM Advocate [2010] 1 WLR 2601
A v Governor of Arbour Hill Prison [2006] IESC 45
R v Canto [2015] ABCA 306
Grant v R [2018] JMCA 13
Ruddock and Jogee v R [2016] UKPC 7
R v Johnson [2016] EWCA Crim 1613
R v Chouan [2020] ONCA 40
Taylor v Lawrence [2002] EWCA Civ 90
R v Yasain [2015] 2 Cr App R 393
R v Gohil (Bhadresh) [2018] 1 Cr App R 30
Ferguson et al v AG [2016] UKPC 2
Principle of finality — Reopened appeal following the change on challenging jurors — Fresh evidence
JUDGMENT of Clarke P
1. On 24 August 2020, in the case of Jahmico Trott v DPP and AG of Bermuda[2020] Bda LR 47, in which counsel for the DPP had stood down 10 jurors, all of whom appeared to be of Afro-Caribbean descent and 9 of whom were male (Trott was an Afro-Caribbean male) the Chief Justice determined that section 519 (2) of the Criminal Code Act 1907 (“the Code”), as it then stood, was inconsistent with the fundamental right to a fair trial laid down in the Bermuda Constitution (“the Constitution”). That section gave markedly greater rights to the Crown to stand by potential jurors than it gave to the accused(s) to make a peremptory challenge.
2. In the final paragraphs of his judgment in Trott the Chief Justice said this:
“Conclusion
59. Having regard to the reasons set out above, I am satisfied that the disparity between the accused person's and the Crown's right to challenge jurors gives rise to a real possibility that the jury may be biased in favour of the Crown. Such a state of affairs offends the appearance of impartiality on the part of the jury which is an essential element of the fundamental right to a fair hearing by an independent and impartial tribunal guaranteed by section 6 (1) of the Bermuda Constitution. It follows that the provisions of section 519 (2) of the Code are inconsistent with the fundamental right to a fair trial established by section 6(1).
60. I am also satisfied that the extreme disparity created in the jury selection process also results in the infringement of the principle of equality of arms by making the position of the accused extremely weaker than that of the Crown, and results in a breach of the right to a fair trial under article 6 of ECHR and the right to a fair trial established by section 6(1) of the Constitution.
61. It was for these reasons that following the hearing on 17 July 2020, the Court declared that section 519(2) of the Criminal Code is inoperative to the extent that it allows for a disparity between the amount of standbys afforded to the Crown, and challenges without cause afforded to the accused person.”
The declaration was suspended pending the passing of legislation.
3. In the course of his judgment the Chief Justice said this:
“35 In previous cases it has been argued that even if there is an appearance of bias on part of the court, it does not necessarily follow that the accused person did not receive a fair trial. In Tyson, the Crown suggested that (a) it was necessary for the accused person to demonstrate that there was actual bias on the part of the jury, and (b) that when the trial was looked at as a whole, in relation to overall fairness, the appellant suffered no injustice. I agree with the decision and reasoning of Gonsalves JA (Ag), that the appearance of bias on the part of the jury (and therefore the court) is in itself sufficient to demonstrate a breach of an accused person's fundamental right to a fair hearing by an impartial court, and constitutes a breach of section 6 (1) of the Constitution.
…
39 In conclusion, it is my view that section 519(2) of the Code is so heavily weighted in favour of the Crown, that a fair-minded and informed observer would conclude that there was a real possibility that a jury, selected by the exercise of the Crown's right to stand-by, was biased in favour of the Crown. It follows that this conclusion necessarily means that the accused person is denied a hearing by an independent and impartial court and is sufficient to establish a breach of section 6 of the Constitution. It also follows that the provisions of section 519(2) of the Code can no longer be operative as they are inconsistent with the fundamental right established by section 6(1) of the Bermuda Constitution.”
4. In Tyson[2018] 5 LRC 270 the Appellant had been convicted of murder and sentenced to a term of life imprisonment without possibility of parole. At the trial the Crown had stood by 21 potential jurors when the defendant's right to challenge without cause was limited to 3. The accused appealed (within time) and included in ground 1 of his appeal the contention, not advanced at the trial, that the trial was unfair because of the disparity between the standbys allowed to the Crown compared with those allowed to the defence.
5. The Eastern Caribbean Supreme Court allowed the appeal, set the conviction aside and remitted it for retrial. Gonsalves JA, giving the judgment of the Court said [93]:
“I do believe that a fair-minded observer, knowledgeable of the pertinent aspects of the criminal trial system and particularly the operations of the jury selection process, would perceive a real possibility of bias in favour of the Crown in the potential application of section 27(b).
I am of the opinion that section 27(b) is unconstitutional. Due to the extreme disparity it creates in the jury selection process, it permits the infringement of the principle of equality of arms by making the position of the accused extremely weaker than that of the Crown. Further, apart from simply infringing the principle of equality of arms as a fair trial component, I am also of the opinion that section 27(b) infringes the substantive fundamental right to a fair trial by an impartial court. I do believe that the perception of bias in the jury selection process would contaminate and lead to a real perception of bias in relation to the trial itself. The two would be inextricably linked.
Having found that section 27(b) is unconstitutional because of the disparity that it provides for, it is still necessary to consider how that provision was utilized by the Crown in relation to the Appellant's case. In this case, the Crown stood by 21 potential jurors without ascribing any cause. I am of the opinion that a fair minded and informed observer would conclude that there was a real possibility of bias in the actual jury selection process of this trial and consequently in the performance of the jury and the trial itself. I do believe that a fair minded and informed observer would ask what possible reason could there be for standing by 21 potential jurors, no cause being assigned, other than the Crown seeking, on whatever grounds, to empanel a jury sympathetic to its case. This must not be interpreted as suggesting that this is in fact what happened — we are here concerned with perception. In this case, the accused's constitutional right to a fair trial by an impartial court was infringed.”
6. The original section 519 provisions were as follows:
“Challenge of jurors
519 (1) An accused person arraigned on an indictment for any indictable offence may effectively challenge without cause—
(a) if he is charged with an offence punishable with death, not more than five persons; or
(b) in any other case, not more than three persons, drawn to serve as jurors in connection with his trial.
(2) The Crown may apply that a person drawn to serve as a juror shall stand by until such time as his name is called a second time, and in such case the court shall order the juror concerned to stand by and shall order the proper officer of the Supreme Court to draw from and call upon the remaining names of the jurors in the panel.
(3) Where the panel of jurors available to serve at the trial is exhausted before a jury can be empanelled and sworn the names of the jurors who have been ordered to stand by upon the application of the Crown shall be called a second time in the order in which they were first drawn, and as each name is called, unless the Crown can effectively challenge a juror for cause in accordance with subsection (4) the juror whose name has been called a second time shall (subject to an effective challenge by the accused person) serve on the jury at the trial.
(4) Without prejudice to subsection (3), the Crown or the accused person may effectively challenge for cause any person drawn to serve as a juror in connection with the trial on the ground—
(a) that the person is not qualified by law to serve as a juror; or
(b) that the juror is not or may not be indifferent as between the Crown and the accused person.
(5) Any challenge to a juror for cause shall be tried by the court before whom the accused person is to be tried.”
7. As is apparent from those provisions, an accused person had a right of peremptory challenge of three potential jurors, except in a case where the offence was punishable with death where his right extended to five. Both the Crown and the accused person had a right to challenge any potential juror for cause on the grounds specified in subsection (4). Any such challenge should be tried by the court of trial. In other words, the decision should be that of the trial judge. In addition, the Crown had a right of standing jurors by without specifying any reason...
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