whether the trial judge erred in advising jurors of the fact that they could deliver a

majority verdict before the time for doing so had properly arisen, therefore bringing
undue pressure on the jury to return a unanimous verdict of guilty ?

CASES

Patrick Facey et al v Queen

Facts: The appellants were charged with unlawfully and maliciously wounding Mr. Lorraine
Springer with intent to cause him grievous bodily harm. The prosecution’s case was that the
girlfriend of one of the appellants got into an argument with Mr. Springer on the night in
question. Mr. Springer received a threatening text message from one of the appellants. Later
that night the two appellants drove up Mr. Springer’s house and a struggle ensued. Mr. Springer
was chopped with a machete. The defence’s case was that Mr Springer was accidentally
wounded by the appellant when trying to get the machete out of his hand.

In summing up, the trial judge told the jurors that they should endeavor to arrive at a unanimous
verdict and that they can return at any time once they do. The judge then explained the
proportion of jurors acceptable to arrive at a majority verdict and stated that the time for a
majority verdict had not yet arrived. The judge also stated that the jury would have to stay for 2
hours if delivering a majority vote. The appellants argued that the jurors may have been unduly
pressured to arrive at a verdict based on the judge’s directions.

Issue: The issue on appeal, which is relevant for these purposes, is whether the trial judge
erred in advising jurors of the fact that they could deliver a majority verdict before the
time for doing so had properly arisen, therefore bringing undue pressure on the jury to
return a unanimous verdict of guilty ?

Held: When directing a jury on a majority verdict, the overriding principle is that no pressure
should be placed on them to return a verdict and they should be free to deliberate without any
promise or threat. If the judge issues an ultimatum or stipulates a deadline to the jury, the
conviction may possibly be set aside. The jury should not feel pressured to agree with a
particular perspective they do not agree with just because it might be inconvenient or tiresome
or expensive for the prosecution, the defendant or the victim if they do not do so. The trial judge
unnecessarily indicated to the jury at that stage of the proceedings the proportions in which they
would need to be divided before a majority verdict would be acceptable. However, the judge did
not inappropriately go any further to state any consequences of a failure of the jury to reach
agreement. Once the judge told the jury the legal requirements of a majority verdict, he ended
the matter by stating that “the time for a majority verdict has not yet arrived”- there was no hint
of prejudice suggested in the judge’s remarks and no pressure on the jury to arrive at the verdict
within a particular time. The jury returned a unanimous verdict after the expiration of the relevant
two hour period for a majority verdict, according to section 35 of the Jury Act of the Virgin
Islands. It could therefore not be said that the judge’s remarks imposed undue pressure on the
jury to arrive at their verdict.

Sheldon Anderson and John Morris v Regina

Facts:
The applicants, Sheldon Anderson and John Morris were charged jointly for the murder of Mr
Afflick Turner. They were tried by a judge and jury in the Home Circuit Court from 30 November
to 4 December 2009 and were each found guilty of the offence. On 16 December 2009, each
was sentenced to life imprisonment, to serve 20 years before being eligible for parole. They
applied for leave to appeal the convictions and sentences and on 4 November 2011, a single
judge refused leave to appeal. They renewed their applications before this court and on 31 May
2013, we refused those renewed applications and ordered the sentences to run from 16 March
2010. These are the reasons for that decision.

Ground of Appeal – Category 8

- The Ground of appeal relevant here was Category 8 relating to the directions on hung
jury. It was alleged that the learned trial judge had not assisted the jury with their enquiry as
to the meaning of a hung jury and as a consequence of their not being unanimous in their
verdict, her failure to clearly do so might have caused them to return the verdict of guilt as
they would not wish to return for a retrial.

- Counsel acknowledged that there was no pressure on the jury to arrive at a verdict. The
pressure, he submitted, was to be unanimous in the verdict. Crown counsel submitted that
the learned judge had given adequate directions in this regard. She reminded the jurors that
it was the evidence from the witness box that they should consider and the statements of
the applicants.

- It was clear that the jury was aware of the burden of proof and knew that the
prosecution had to satisfy them of the applicant’s guilt so that they were sure before they
could arrive at a decision.

Discussion of the Court

 - However, the decision of the Court revealed that the learned trial judge’s directions to
the jury showed no indication that the jury were being hastened to come to a unanimous
verdict or any at all.

- They had considered the verdict for a total of 3 hours and 22 minutes before reaching
their decision, which did not in the Court’s view, reflect a speedy decision. In their view, the
assistance which the learned judge gave to the jury in that regard was adequate.

NB: One of roles of the trial judge is to assist the jury to come to a proper verdict by giving
them clear and accurate directions on the law and by reminding them of the salient features of
the evidence.

The jury’s deliberations must be free of any pressure whatsoever and the jurors must be made
to understand that they should take as much time as necessary in their deliberations, in order to
reach a proper verdict.

Comment Critically on:

(a) The judge’s final direction”

On the authority of Flavia Richardson, the Court noted that the overriding principle is
that no pressure must be exerted on a jury to return a verdict and they should be free to
deliberate uninfluenced by any promise or unintimidated by any threat. This was affirmed
in the case of Sheldon Anderson and John Morris v Regina.

The Court in R v Watson pointed out that the jury must not be made to feel that it is
incumbent on them to concur with a view they do not truly hold simply because it might
be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim,
or the public in general if they do not do so.

Watson also referred to the Jury Act and more particularly Section 3(2) of the Criminal
Procedure Act which stipulates that the procedure and practice observed by and before
the Crown Court in England must be applied. The provision which is comparable to the
relevant portion of Section 13 of the St. Vincent Jury Act is Section 17(4) states that:

“(4) No court shall accept a verdict by virtue of subsection (1) or (2) above unless it
appears to the court that the jury have had such period of time for deliberation as the
court thinks reasonable having regard to the nature and complexity of the case; and the
Crown Court shall in any event not accept such a verdict unless it appears to the court
that the jury have had at least two hours for deliberation.”
The Jamaican Equivalent is Section 44(3) of the Jury Act which states that,

The court also referred to the Practice Direction (Criminal Proceedings: Consolidation
[2002] 1 WLR 2870. At IV.46 it states that: “It is important that all those trying indictable
offences should so far as is possible, adopt a uniform practice when complying with
Section 17 of the Juries Act 1874, both in directing the jury in summing-up and in
receiving the verdict or giving further directions after retirement. So far as the summing
up is concerned, it is inadvisable for the judge and indeed for advocates, to attempt an
explanation of the section for fear that the jury will be confused.

Once a jury has deliberated for over two hours the question whether to, and when to give
a majority direction is entirely one for the judge’s discretion. The Practice Direction
clearly advocates the undesirability of telling the jury before they retire how much time
they must reach a unanimous verdict, or a majority verdict.

It was pointed out that it is undesirable to specify to the jury how long it is likely to be
before a majority direction will be given cited by the authorities of R v Thomas and R v
Guthrie as the basis for this proposition.

Additionally, In the case of Sheldon Anderson John Morris v R, the directive that came to
the Court’s discussion also emphasized that one of roles of the trial judge is to assist the
jury to come to a proper verdict by giving them clear and accurate directions on the law
and by reminding them of the salient features of the evidence.

The jury’s deliberations must be free of any pressure whatsoever and the jurors must be
made to understand that they should take as much time as necessary in their
deliberations, to reach a proper verdict. (Paragraph 43)

Application:

The authorities outlined emphasize that the jury’s deliberations must be free of any pressure
and jurors must be made to understand that they should take as much time as necessary in
their deliberation to reach a proper verdict. Therefore, similarly to the principle coming out of R v
Watson, it is undesirable to specify to the jury how long it is likely to be before a majority
direction will be given.

· The judge in the final directions stated that he will wait for two hours before directing
them as to the jury endeavoring to reach a unanimous verdict. This may have had the effect
of possibly leaving the jury to feel pressured to come to a unanimous verdict and specifying
a time frame.

· The authorities also provide that the jury should be directed as to the fact they have the
right to disagree with the majority verdict and that if they are unable to reach a unanimous
verdict after the first deliberation, the judge is at liberty to send them back or give them more
time to come up with at the very least a majority verdict.

· The judge erred when she left out the fact that they have the right to disagree with a
verdict (right to share their opinions and voice their disagreement etc etc) and only
influenced them to come to a unanimous verdict, possibly suggesting that they cannot
disagree with the majority verdict.

· The judge also erred when he placed a time frame on when they would be directed on
reaching a unanimous verdict.

(b)His decision on an handling of the report of juror number four’s Facebook post

(i) Auger v R

Facts
The applicants were charged with one count of conspiracy to commit several murders and
several counts of first degree murder. These offenses were allegedly perpetrated between 1994
and 2002 and all the charges stemmed from a police operation, targeting some one hundred
and fifty-six (156) people. The majority of the arrests took place on April 15, 2009.
4 On October 5, 2009, the Prosecutor filed a privileged indictment and committed the accused
directly to trial, without a preliminary inquiry. The applicants are part of a group of people who
formed the Quebec group. The applicant sought several motions however the trial judge granted
them in part.

Motion
The Plaintiff sought several motions relating to strong intervention by the Court with the jurors
on the issue of the use of social media and other possibilities offered by the use of the Internet.

Other issues in question were whether the oath taken by the jurors and the usual instructions
from the judge are insufficient as well as whether jurors must formally sign a commitment not to
use certain social media under penalty of sanctions?

DISCUSSION
The learned judge highlighted that jurors are prohibited from using the Internet or any other
electronic device in connection with this matter in any way, which includes chat sites, Facebook,
MySpace, Twitter, applications (Apps) or any other social network. Electronic et al. Jurors are
neither to read nor post anything about the trial.

There was a request that the jurors have access only to a telephone and a computer with limited
Internet connectivity the judge found that in having access to a computer, there is no indication
of the usefulness of an Internet connection to accomplish their work. So that shouldn't be a
concern.
The learned judge also highlighted that the court decorum prohibits the operation of
phones/smartphones in the courtroom.
The applicants also sought the judge’s intervention from the start and throughout the
proceedings (conclusion 1) and in particular individual meetings several times during the trial, in
their office or elsewhere, in order to question the jurors on the consultation of the media and on
the use of the Internet and social networks (conclusion 9).
The judge found the former to be logical and important and that because of the length of the
trial, it would be appropriate to remind the jury from time to time of the importance of not
wandering off course. The judge therefore shared the opinion that periodic reminders will have
to be issued, the frequency of which remains to be established.
In relation to the request that I have the jurors sign a recognizance not to conduct outside
research under penalty of perjury or contempt of court (submission 4), along with a obligation to
inform (conclusion 5) and that they decline the social networks of which they are members
(conclusion 6). The jurors should also, at the end of the trial, sign a document confirming that
these instructions have been followed (conclusion 8).
The judge noted that jurors are presumed to follow the instructions of the judge. This fully
meets the concerns of the applicants.
In addition, it could have devastating effects on the working climate by generating conflict and
undermining the trust and cooperation that must be established between them. Such a climate
could even arise due to unfounded perceptions of one juror towards another.
In short, experience shows that jurors do not hesitate to question the judge in the presence of
behavior contrary to the oath they have taken by one of their own.
The applicants also sought that the judge prohibit jurors from using social networks such as
Facebook, Twitter, MySpace and any other network of this nature (conclusion 7) and
consequently that jurors be prohibited from using electronic devices during the trial at
(conclusion 2).
The judge indicated that he believes the jury will follow his instructions and that they will
understand that regardless of the medium, that they should not read or listen to anything about
the trial. From then on, faced with a “Twit” or a “Facebook” page, an email or other electronic
transmission about the trial, the jurors simply must not read, listen to or otherwise act on it.

Conclusion
The learned judge granted the motion in part in incorporating in the preliminary directives and
from time to time during procedures, instructions and reminders explaining the importance of not
consulting or seeking information from external sources, including the Internet and social
networks, and not to publish information or to discuss the file on these same platforms and with
anyone. However the other motions were rejected REJECTS for the rest, the conclusions
sought.

Application:
the aforementioned case is applicable in our jurisdiction and as such the principles highlighted
in relation to the use of smartphones/ social media can be applied. It is clearly outlined in the
case that jurors take an oath not read or listen or post anything about the trial to anyone or on
social media such as facebook. Considering this factor the action of the juror in the present case
of posting on facebook during deliberation of the verdict would amount to misconduct as it is in
breach of the oath . Where an issue arises in relation to misconduct of jurors, the principle is
outlined in Delroy Laing and other case law that when an issue arises as to the conduct of the
jury or individual jurors, it is incumbent on a trial judge to conduct a proper investigation into the
matter. A judge has the power to discharge individual jurors (and the jury) for misconduct or
impropriety as a matter of necessity. The judge in failing to carry out further investigations on
the report made in relation the juror posting on the social media platform “facebook” the learned
judge erred and this irregularity would result in the issue of fair trial being raised.

(c) Case

Lachlan Nanan v The State

Facts, the appellant lachlan Nanan was charged with the murder of his wife, following a trial
before Warner J and a jury, he was convicted of murder and sentenced to death. The appellant
was tried by a jury of 12. The trial judge did not in his summing up refer to the necessity for a
unanimous verdict.

The clerk of the court asked the foreman to stand in the presence of the Judge, of counsel and
all the members of the jury. Asked the foreman whether he and the other members of the jury
had agreed upon a unanimous verdict. The foreman replied affirmative, the reply being clear
and unhesitating. The clerk of the court asked what is then asked the foreman whether the
accused was guilty or not guilty as charged, to which the foreman replied loudly and clearly that
the accused was guilty. There was no protest from any jurors, none of whom said anything. The
judge then proceeded to pass a sentence. The foreman of the jury, accompanied by another
juror, called on the registrar of the Supreme Court and informed him that, when the clerk of the
court asked him whether the jurors had arrived at a unanimous verdict, he thought that the clerk
meant a majority verdict; and that although he answered the question in the affirmative, the jury
were really divided 8 to 4 in favour of a conviction.

He also said that he did not know the meaning of the word "unanimous". The other juror
informed the Registrar that she was one of the four jurors who had some doubt and that she
had given the benefit of the doubt to the accused. On 11th July the Registrar wrote to counsel
who had appeared for the appellant at his trial, and informed him of what had passed. On 15th
July the matter was brought to the attention of the trial judge, Warner J., on a motion that he
should state a case for the opinion of the Court of Appeal as to whether the verdict was valid;
but on 21st July he dismissed the motion, on the ground that the question was based on a
report made to the registrar on the day after the trial had been concluded.

Hassanali J.A. considered that, even assuming that there was such an error as was alleged in
the affidavits, the error did not constitute an infringement of any of the appellant's rights
guaranteed under section 4(a) of the Constitution, and the remedy for the alleged error was by
way of appeal to the Court of Appeal from the appellant's conviction.For that reason alone, in
his opinion, Braithwaite ,J.ought to have dismissed the motion.

PC Held: Appeal dismissed

The Board refixed to admit affidavits of four members of the jury including the foreman that they
were not aware of the need for unanimity in their verdict. The Board recognized that the fact that
a verdict had been produced in the sight and hearing of all the jury without protest, did not lead
to an irrebuttable presumption of assent. They expressed the view that they did not exclude
altogether the possibility that other cases might arise in the future where the presumption might
be rebutted.

Application:

The foreman's initial statement of "Not Guilty" followed by a correction to "Guilty" raises
concerns about the clarity and accuracy of the verdict. However, when the foreman clarified the
verdict as guilty, and the other jurors confirmed this, it appears that the jury had reached a
unanimous decision.

The judge's query to the foreman and subsequent confirmation from the other jurors solidify the
verdict as guilty. The registrar's role in ensuring the accuracy of the verdict is important, and the
foreman's correction followed by confirmation from the other jurors satisfies this requirement.

The same principle applies to discussions between jurymen in the jury. box itself. If a juryman
disagrees with the verdict pronounced by the foreman of the jury on his behalf, he should
express his dissent forthwith; if he does not do so, there is a presumption that he assented to it.
If follows that, where a verdict has been given in the sight and hearing of an entire jury without
any expression of dissent by any member of the jury, the court will not thereafter receive
evidence from a member of the jury that he did not in fact agree with the verdict, or that his
apparent agreement with the verdict resulted frou a misapprehension on his part.The need to
protect and preserve the finality of trial by jury as a justification for the exclusionary rule loses its
force where the evidence in question does not go to the substance of the jury’s deliberations,
but, rather, to demonstrate the disruption of the deliberative process.

Anything after will not have any effect and any changes should be done after.
(verdict)