[2020] JMCA App 41

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CRIMINAL APPEAL NOS 29-32/2014

MOTION NOS COA2020MT00006-9

BEFORE: THE HON MR JUSTICE BROOKS JA

THE HON MRS JUSTICE MCDONALD-BISHOP JA
THE HON MISS JUSTICE STRAW JA

SHAWN CAMPBELL
ADIDJA PALMER
KAHIRA JONES vR
ANDRE ST JOHN

Bert Samuels, Miss Bianca Samuels and Isat Buchanan instructed by Knight
Junor Samuels for the applicant Shawn Campbell

Isat Buchanan and Ms Alessandra LaBeach for the applicant Adidja Palmer

John Clarke for the applicants Kahira Jones and Andre St John

Jeremy Taylor QC, Orrett Brown and Miss Syleen O’Gilvie for the Crown

29, 30 June, 1, 2 July and 25 September 2020

BROOKS JA

[1] The applicants, Messrs Shawn Campbell, Adidja Palmer, Kahira Jones and Andre

St John, on 13 March 2014, were convicted for the murder of Mr Clive Williams. They

were each sentenced to imprisonment for life, with various periods to be served before

being entitled to be considered for parole. They were sentenced on 3 April 2014.
[2] In April 2020, their respective appeals to this court from those convictions were

dismissed, but the sentences were each reduced to account for time spent on pre-

sentence remand. All four have filed motions applying for this court’s leave to appeal to

Her Majesty in Council (the Privy Council or the Board or their Lordships). A prominent

theme in questions, which the applicants wish to have posed to the Privy Council, is the

issue of whether they had a fair trial. The Crown has opposed the applications. It

contends that only one of the issues raised by the applicants meets the requirements of

the Constitution and the relevant legislation, regarding the grant of leave to appeal to

the Privy Council in criminal cases.

[3] The applications have been made pursuant to section 110 of the Constitution.

They will be considered in the context of the relevant portions of that section. Hereafter,

all references to sections, unless otherwise stated, will be to sections in the Constitution.

The questions posed by the applicants

[4] The number of questions filed by the applicants is unusually large when the

relevant principles governing such applications are considered. The questions contained

in the respective applications have been set out in full in the appendix to this judgment.

[5] It is apparent from their formulation of the majority of the numerous questions,

that the applicants have not taken account of the requirements of section 110(1)(c). As

a result, only the issues which satisfy section 110(1)(c) will be discussed in the next

section of this judgment. The applicants have helpfully identified the issues which they

wish referred pursuant to section 110(2)(b) and its expansion by section 35 of the
Judicature (Appellate Jurisdiction) Act (JAJA). Those will be discussed after the

consideration of the section 110(1)(c) issues.

[6] Learned counsel who advanced arguments before the court, on behalf of the

applicants, all adopted each other’s submissions. Accordingly, the oral submissions of

Miss Samuels, Mr Buchanan and Mr Clarke will not be individually identified, but will be

addressed collectively. They have identified that the questions broadly raise the

following issues:

a. jury management;

b. prosecutorial misconduct;

c. admissibility of evidence;

d. publicity affecting the case;

e. the judge’s directions to the jury;

f. the sentencing procedure; and

g. the delay in the delivery of this court’s judgment.

Mr Taylor QC, addressed the court on behalf of the Crown. The court is grateful to all

counsel for their assistance.

The principles governing an application for leave to appeal to the Privy

Council in criminal cases pursuant to section 110(1)(c) of the Constitution

[7] Leave to appeal to the Privy Council, as of right, is governed by section 110(1).

The relevant section for this case is section 110(1)(c). Section 110(1) states, in part:

"(1) An appeal shall lie from decision of the Court of

Appeal to Her Majesty in Council as of right in the following
cases-

...
 (c) final decisions in any civil, criminal or other
proceedings on questions as to the
interpretation of this Constitution;

...”

[8] The requirements of paragraph (c), for these purposes, are that the decision from

which appeal is sought must be:

a. a final decision of this court;

b. in respect of a criminal case; and

c. on a question as to the interpretation of the

Constitution.

All three requirements must be satisfied.

[9] It has been established that even for cases where the appeal is as of right under

section 110(1), it is for this court to ensure that the appropriate conditions have been

met. This principle was confirmed in Alleyne-Forte (Learie) v Attorney-General of

Trinidad and Tobago and Another [1997] UKPC 49; (1997) 52 WIR 480, where their

Lordships said in their concluding paragraph:

“An appeal as of right, by definition, means that the Court of

Appeal has no discretion to exercise. All that is required, but
this is required, is that the proposed appeal raises a
genuinely disputable issue in the prescribed category of
case…”

[10] Their Lordships of the Privy Council have asked that appellate courts, such as this,

be vigilant in protecting the process of appeals to the Board from being debased by

frivolous applications for leave to appeal. They did so in Eric Frater v R [1981] UKPC
35; (1981) 18 JLR 381, which arose from a decision of this court. After stressing that the

question before this court, in that case, was not about an interpretation of the

Constitution, their Lordships, concluded the point by saying:

"In Harrikissoon v. Attorney-General of Trinidad and Tobago

[1980] A.C. 265 this Board had occasion to point out the
danger of allowing the value of the right to apply to the High
Court for redress for contravention of his fundamental rights
and freedoms which is conferred upon the individual by…the
Constitution…to become debased by lack of vigilance on the
part of the courts to dispose summarily of applications that
are plainly frivolous or vexatious or are otherwise an abuse of
process of the court. In their Lordships’ view similar vigilance
should be observed to see that claims made by appellants to
be entitled to appeal as of right under section 110(1)(c) are
not granted unless they do involve a genuinely disputable
question of interpretation of the Constitution and not one
which has merely been contrived for the purpose of obtaining
leave to appeal to Her Majesty in Council as of right."

That guidance was reinforced by their Lordships in Joseph v The State of Dominica

[1988] UKPC 20; (1988) 36 WIR 216 and Meyer v Baynes [2019] UKPC 3.

[11] The Caribbean Court of Justice (CCJ) has also accepted, as being applicable to

appeals to its jurisdiction, their Lordships’ stance on the assessment of cases for referral

to the final court. The CCJ did so in the context of considering the assessment, for

referral, of cases in which the issue of the constitutional right to a fair trial has been

raised. That court considers appeals from jurisdictions, which have similar constitutional

provisions to section 110, and therefore its judgments are of persuasive value.

[12] In R v Mitchell Lewis [2007] CCJ 3 (AJ); (2007) 70 WIR 75, all the judges in

the seven-member panel of the CCJ concurred on the decision of whether the issue of a

fair trial, had been properly raised for its consideration. de la Bastide PCCJ delivered a
judgment, with which five other judges agreed. In considering legislation with similar

import to section 110(1)(c), de la Bastide PCCJ said, in part, at paragraph [42] of his

judgment (all extracts are taken from the judgment as published on the CCJ’s website):

“We would respectfully adopt the remarks of Lord Diplock [in

Eric Frater v R] and Lord Keith [in Joseph v The State of
Dominica [1988] UKPC 20; (1988) 36 W.I.R. 216] with
regard to the need for vigilance by the Court of Appeal when
dealing with claims to appeal as of right on the ground that
the case involves a question of interpretation of the
Constitution.”

[13] Pollard JCCJ said that he utilised a different route from the other six judges, in

arriving at the same result. It is necessary to point out, however, that both de la Bastide

PCCJ and Pollard JCCJ disagreed, somewhat, with an element of the Privy Council’s

decision in Joseph v The State of Dominica, which was delivered by Lord Keith. de la

Bastide PCCJ, departing from a broader restriction that the Privy Council had

promulgated, held that there were some instances when the issue of whether an

accused had had a fair trial, could involve an interpretation of the Constitution. An

example of those instances, de la Bastide PCCJ said, would be when some novel element

or feature arose. The deciding criterion, de la Bastide PCCJ determined, is when the

complaint is whether the appellate court misinterpreted, rather than misapplied, a

constitutional provision. The learned President said, in part, at paragraph [43] of his

judgment:

“We do not, however, accept what appears to have been the

view of Lord Keith that the question whether a case has
received ‘a fair hearing’ within the meaning of the relevant
constitutional provision, can never be a question of
interpretation of that provision. More often than not what
 will be involved in the answering of this question, is
the application of some well established rule as to
what does or does not constitute a fair hearing, to the
facts of the particular case. In the instant case, that rule
was that the hearing must be before an unbiased jury. There
may be cases, however, in which the fairness of the
hearing is challenged by the inclusion of some novel
element or feature in the concept of what constitutes
a fair hearing….It is a truism that a court of appeal must
first of all understand what a fair hearing connotes before it
can apply that concept to what transpired before the trial
court. For the purpose of applying a provision like [the
equivalent of section 110(1)(c)], however, it is crucial to
consider whether the party seeking to appeal to the final
court is complaining that the Court of Appeal either (i)
applied a rule or standard not necessary for a fair hearing or
conversely failed to apply a rule or standard that is necessary
for a fair hearing, or (ii) simply misapplied an accepted rule
or standard to the facts of the case. It is quite clear that
in the instant case the Crown’s complaint was in
essence of a misapplication, and not of a
misinterpretation, of the constitutional provision.”
(Emphasis supplied)

[14] In his judgment, Pollard JCCJ opined that the question of whether a party had

had a fair hearing, “unavoidably engages an interpretation of the Constitution”

(paragraph [89]). Those words, taken literally, would undoubtedly mean that every

aggrieved party who alleges that he did not have a fair trial, would be entitled, as of

right, to appeal to the final court. Pollard JCCJ, however, blanched such an

understanding by stating that it is for the court to determine whether there has already

been a judicial interpretation of the issue before that court. He said at paragraph [89]:

“In my opinion, a judicial determination whether, on the basis

of the facts established in any given case, the constitutional
right of an accused to a fair trial guaranteed by Section 18(1)
has been breached, unavoidably engages an interpretation of
the Constitution. Nevertheless, in any particular case it is for
 the courts to determine if, on the facts found, a judicial
interpretation of a fair trial in accordance with the
Constitution has already been made by a court of competent
jurisdiction and all that remains to be done is to apply the
relevant principles to the instant case.”

[15] The relevant principles, for these purposes, that may be extracted from the

judgments in R v Mitchell Lewis are:

a. the Constitution guarantees a fair hearing to all;

b. an assertion that there has been a departure from the

standard of a fair hearing, requires an understanding

of the concept of a fair hearing; and

c. an understanding of the concept inherently involves an

interpretation of the term “fair hearing”, as used in the

Constitution; but

d. the concept of a fair hearing is comprised of a number

of established principles, which have been the subject

of numerous judicial decisions; and, therefore,

e. in the majority of cases where the fairness of a trial is

challenged, the exercise for the court is more of an

application of the established principles, rather than an

interpretation of the term ‘fair hearing’.

[16] The learned judges of the CCJ accepted, however, that the Constitution is

designed to be broadly interpreted so that it can adapt to changing times. Accordingly,

they conceived that there will be occasions that the consideration of a challenge to the
fairness of a hearing will require a fresh look at interpreting the constitutional provision,

which stipulates a “fair hearing”, rather than the usual approach of an application of the

established principles.

[17] If that understanding is correct, then no violence has been done to the view of

the Privy Council in Joseph v The State of Dominica. From the CCJ’s decision, it may

be held that, in cases where there is an assertion that the constitutional right to a fair

hearing has been infringed, it is for the court to decide on the facts of each case, the

approach that is to be adopted. A case of genuine interpretation will give rise to an

appeal as of right, whilst a case of application of the established principles, will not.

[18] Although the learned judges of the CCJ did not give any examples of the well-

established principles that would coalesce to constitute a “fair hearing”, it may be said,

without any hint of being exhaustive, that they would include the requirement to:

a. manage a trial so as to exclude from evidence,

material that is more prejudicial than probative;

b. inform the jury in criminal cases of the general rule

that the prosecution bears the burden of proof and

that the standard of proof is beyond a reasonable

doubt;

c. give fair and clear guidance to the jury as to the

assessment of evidence;
 d. warn the jury of the caution to be exercised in

particular instances, such as visual identification and

for the desirability of corroboration in others;

e. properly guide the jury on the relevant law in the case;

f. allow the accused’s defence to be fairly presented and

to place the defence fully and fairly before the jury;

g. properly direct the jury on the implications of good

character evidence;

h. remind the jury that it should decide the case based

on the evidence, and to ignore all extraneous matter;

and

i. sentence the convicted offender as an individual.

Some of these principles will be mentioned below in the consideration of the questions

that the applicants have asserted that they are entitled as of right, or should be allowed,

to ask the Privy Council to consider.

Do any of the issues qualify for referral under section 110(1)(c) ?

[19] The questions, which an applicant may propose for referral to the Privy Council,

pursuant to section 110(1)(c), must be “on a question as to the interpretation of the

Constitution”. These applicants have sought to have numerous issues referred to the

Privy Council by including, in the majority of their proposed questions, a reference to the

constitutional right to a fair trial. These issues, include:

a. the prosecutorial misconduct issue;

 b. the publicity issue;

c. the privacy of communication issue;

d. the delay issue;

e. sentencing and other issues.

The applicants included jury management issues as part of their submissions in

connection with the right to a fair trial. The notice of motion, however, did not include it.

These issues will be dealt with under the section dealing with section 110(2)(b) matters.

[20] The applicants have sought to justify their approach by relying on the extracts,

cited above from the judgments of de la Bastide PCCJ and Pollard JCCJ in R v Mitchell

Lewis. What the applicants have not done, however, is to show that in considering the

issue of a fair hearing or trial, this court, in its judgment, considered elements that are

so unique or novel that they are not well-established principles that help to comprise a

fair hearing. Indeed, it is noted that, despite their comments, on which the applicants

rely, the judges of the CCJ found that Mr Lewis’ appeal did not satisfy the requirement in

the legislation that is the equivalent of section 110(1)(c). To be plain, therefore, the

inclusion of the term “fair hearing” in a proposed question does not automatically qualify

it for referral to their Lordships’ Board.

[21] That is not to say that this court, in its judgment, did not specifically consider the

constitutional requirement of a fair trial. It did. The judgment specifically considered that

concept in two contexts, namely:

 a. the conduct of the Director of Public Prosecutions

during a consultation by the learned trial judge with

counsel; and

b. the extensive publicity surrounding the trial.

a. The prosecutorial misconduct issue

[22] The judgment dealt with the issue of prosecutorial misconduct as a discrete issue

(see paragraphs [242] – [267]). The alleged misconduct, the applicants assert, is the

Director of Public Prosecutions’ (the Director) failure, in the face of allegations of

attempted jury tampering, to halt the trial and, more egregiously, to encourage the

learned trial judge to continue the trial with only a warning to the jurors to be true to

their oaths.

[23] The court, at paragraph [242] outlined the ground of appeal that raised the issue.

The ground stated:

“The assistance sought from and rendered by the Learned

Director of Public Prosecutions to the LTJ [learned trial
judge], which was ultimately adopted by him, amounted to
prosecutorial misconduct and led the Court into error, in that
it was so gross and prejudicial a departure from good
practice, as to render the trial unfair.”

[24] At paragraph [244], the judgment provided the context for the ground of appeal.

The paragraph stated:

“As would have been seen from the ground itself, the
challenge to the conviction under this ground relates to the
DPP’s contribution to a discussion in chambers when the
judge consulted with counsel on both sides. The DPP herself
 was not one of the two attorneys-at-law conducting the trial
on behalf of the Crown, but attended the discussion in
chambers along with counsel. The DPP’s contribution to the
deliberations was to urge the judge to continue the trial, but
to remind the jury members of the oath that they had each
taken.”

[25] This court, in its judgment, considered submissions that included arguments

based on section 16(1) dealing with the right to a fair trial. The section states:

"16-(1) Whenever any person is charged with a criminal

offence he shall, unless the charge is withdrawn, be afforded
a fair hearing within a reasonable time by an
independent and impartial court established by law."
(Emphasis supplied)

[26] The applicants complain about the conduct of the learned Director. The judgment

also considered it as an issue. It was, therefore, the application of the established

principles surrounding prosecutorial misconduct, with which the court was concerned;

not an interpretation of the constitutional provision. The court decided the issue based

on whether there had been prosecutorial misconduct. It said at paragraphs [261] –

[262] of its judgment:

“[261] Again, whether the advice was right or wrong, the

giving of the advice, it is important to note, was not an action
the consequence of which was final. The advice given was
considered by the judge (who had requested it in the first
place) who was not bound by it and under no compulsion to
accept it. The judge sought the assistance of counsel on both
sides, received contrasting submissions, and made his
independent decision at the end.

[262] We are unable to conclude (as counsel for the

appellants submitted) that the suggestion made by the DPP
resulted in an abridging of the appellants’ constitutional rights
and/or that it occasioned a breach of any of the cannons of
 the legal profession. We also find that the conduct of the DPP
in, at the judge’s invitation, making a suggestion as to a valid
course to be adopted in the circumstances, cannot possibly
approach being an instance of misfeasance in a public office,
as outlined in the Three Rivers case [Three Rivers
District Council and others v Bank of England [2000] 3
All ER 1]. Any attempt to get guidance from this case would
be stymied by the lack of any evidence of the third limb of
the tort, as outlined by Lord Steyn as follows:

‘(3) The third requirement concerns the state of

mind of the defendant

The case law reveals two different forms of liability for

misfeasance in public office. First there is the case of
targeted malice by a public officer i.e. conduct
specifically intended to injure a person or persons.
This type of case involves bad faith in the sense of the
exercise of public power for an improper or ulterior
motive. The second form is where a public officer acts
knowing that he has no power to do the act
complained of and that the act will probably injure the
plaintiff. It involves bad faith inasmuch as the public
officer does not have an honest belief that his act is
lawful.’” (Emphasis as in original)

[27] Based on that analysis, the court’s discussion of the complaint concerning

prosecutorial misconduct does not satisfy the requirement of section 110(1)(c). The

applicants, however, contended that this issue also falls under the purview of the

provisions dealing with public importance. It will be again considered in that context.

b. The publicity issue

[28] The applicants’ complaint in respect of the issue of publicity also fails to

demonstrate that there was an interpretation, as opposed to an application, of the

constitutional provision requiring a fair trial. Again, however, the applicants contend that
this issue may also be placed before their Lordships as one, which satisfies the

requirements of section 110(2)(b), as expanded by section 35 of the JAJA. The essence

of the complaint at the core of this issue is that given:

a. the significant public (local and international) profile of

the applicants, Messrs Campbell and Palmer;

b. the publicity given to the case prior to the trial;

c. the publicity given to the case during the trial,

including prejudicial social media postings by the

police communications arm; and

d. the publicity given to the case since the trial,

the applicants did not receive a fair trial and cannot receive a fair trial in Jamaica.

[29] This court, in its judgment, outlined the principles involved in this issue. It

considered the relevant authorities against the backdrop of section 16(1) (see paragraph

[462] of the judgment). It then summarised its understanding of the principles, as

distilled from the decided cases. It said, at paragraph [484] of the judgment:

“In any event, as the authorities make clear, courts are

generally loath to prevent trials from continuing on the
ground of adverse publicity, preferring instead, as Lord
Phillips CJ put it in R v Hamza [[2006] EWCA Crim 2918],
the view that ‘directions from the judge coupled with the
effect of the trial process itself will result in the jury
disregarding such publicity...’”

[30] Thereafter the court applied those principles to the complaints concerning the

publicity surrounding the case, as well as certain occurrences during the trial. It
assessed the manner in which the occurrences were brought to the attention of the

learned trial judge and how he dealt with them, both in the absence of the jury and in

his directions to them during his summation. Its concluding paragraph on the issue, is

manifestly an application of the principles concerning the issue of publicity and the trial

process, rather than an interpretation of meaning of the term “fair hearing”, as used in

section 16(1). The court said, at paragraph [499]:

“In these circumstances, the actual language and format

chosen by the judge to deal with the problem posed by the
adverse publicity in this case were matters entirely for him.
Rather than overloading the summing-up with references to
the very material which he wished the jury to ignore, the
judge chose to be as pointed and direct as he possibly could
in telling the jury to have regard solely to the evidence given
at the trial and not to anything reported in the press; nor to
any product of speculation or conjecture; nor to any notion of
morality or concern for the state of crime in the country. In
our view, the judge’s directions on the matter of adverse
publicity were entirely appropriate in the circumstances and
would have adequately conveyed to the jury that they were
to decide the case purely on the basis of the evidence.”

[31] The complaints by the applicants as to the court’s approach, and their

disagreement with the court’s analysis of the learned trial judge’s treatment of the issue

of publicity, do not raise the issue of an interpretation of section 16(1), so as to warrant

a referral to their Lordships as of right.

The privacy of communication issue

[32] The judgment of this court also considered another constitutional issue, namely,

the constitutional right to privacy of communication (section 13(3)(j)(iii)), which forms

part of the 2011 Charter of Fundamental Rights and Freedoms (the Charter). The

relevant portion of section 13 states:

“(2) Subject to sections 18 and 49, and to

subsections (9) and (12) of this section, and save only as
may be demonstrably justified in a free and democratic
society–

(a) this Chapter guarantees the rights and freedoms set

out in subsections (3) and (6) of this section and in sections
14, 15, 16 and 17; and

(b) Parliament shall pass no law and no organ of

the State shall take any action which abrogates,
abridges or infringes those rights.

(3) The rights and freedoms referred to in

subsection (2) are as follows–
…

(j) the right of everyone to-

(iii) protection of privacy of other property

and of communication.

…” (Emphasis supplied)

(None of the provisions mentioned in subsection (2) affect this issue, and so they need

not be quoted.)

[33] The court considered section 13(3)(j)(iii), while dealing with the admissibility into

evidence of a compact disk (CD), dubbed “JS2”. The admission was made pursuant to

common law principles, where the acquisition of the CD contravened the right to privacy,

and had not been done in conformity with the provisions of the Interception of

Communications Act (ICA).

[34] The court considered the issue in the context of a ground of appeal, and said, in

part, at paragraph [136]:

“The appellants’ complaints in respect of exhibit JS2 are

twofold. The first complaint, without any admission of the
authorship of the communication, is that the data provided
by Digicel, which are on JS2, were obtained in breach of the
ICA and of the constitutional right to privacy. The second
issue is that there were doubts about the provenance of JS2
and that it ought not to have been admitted into evidence.”

[35] In its consideration, the court dealt with the basis for statutory derogation from

the constitutional right to privacy as well as a trial court’s authority to admit evidence in

breach of that constitutional right. This court not only compared section 13(3)(j)(iii) with

the previous section 22, which formed part of the repealed Chapter III of the

Constitution, but it also compared section 13(3)(j)(iii) with the relevant provisions of the

Constitutions of both Canada and the United States of America.

[36] In that analysis, the court said at paragraphs [142] and [143]:

“[142] The provisions of the Charter, in this context, are

similar to the aim expressed in the repealed section 22.
Section 13(3)(j)(iii) addresses the issue of the privacy of
communication. It guarantees to all persons in Jamaica, the
right to ‘protection of privacy of other property and of
communication’.

[143] There is no gainsaying the importance of the right to

privacy. It is said to be ‘a basic prerequisite to the flourishing
of a free and healthy democracy’ (paragraph [38] of the
judgment of Côté J in R v Jones 2017 SCC 60, [2017] 2 SCR
696). The right is, however, not absolute. It is guaranteed by
the Charter, only to the extent that it does ‘not prejudice the
rights and freedoms of others’ (section 13(1) of the Charter).
The right may also be curtailed ‘only as may be demonstrably
 justified in a free and democratic society’ (section 13(2)).
Two observations may be made about the relevant
provisions of the Charter:

a. there seems to be a reversal of the onus

of proof as regards constitutionality, in
that the Charter places the onus on the
party seeking to assert justification of the
curtailment; and

b. there is no provision which exempts

previously existing law from the
entitlement to the right to privacy.”
(Emphasis supplied)

[37] The applicants contend that, those analyses inherently involve an interpretation of

section 13(3)(j)(iii), and therefore this issue falls within the ambit of section 110(1)(c).

They rely, in part, on the reasoning in Mitchell Lewis v R, which has been cited above,

as support for that assertion.

[38] Although the court did consider the importance of the right to privacy it cannot

properly be said that there was any attempt at interpreting section 13(3)(j)(iii). The

court’s statement at paragraph [143] of its judgment was not an interpretation of the

meaning of that section of the Charter as a distinct issue arising in the appeal. It was,

rather, an emphasising of the importance of the right to privacy and an examination of

its application in a free and democratic society.

[39] In the circumstances, no questions connected to the privacy of communication

issue may properly be referred pursuant to section 110(1)(c). That is not, however, the
end of the discussion of this issue as the applicants have asserted that it may also be

referred pursuant to section 110(2)(b). That aspect will be analysed below.

Sentencing and other issues

[40] The applicants raised the issues of sentencing and delay among the many matters

that they wished to refer to the Privy Council pursuant to section 110(1)(c), but these,

like so many of the others, did not satisfy the requirements of the subsection. There is

no aspect of the decision of the court that involves a genuine dispute regarding the

interpretation of any provisions of the Constitution in respect of those several issues.

The issues of sentencing and delay will be addressed in considering the aspect of the

application that concerns section 110(2)(b). No further consideration will be made of any

of the other matters.

Conclusion on the section 110(1)(c) points

[41] Based on the reasoning above, it is concluded that there has been, in this case,

no interpretation by this court of any provision of the Constitution that warrants a

referral, as of right, to the Privy Council.

The principles governing an application for leave to appeal to the Privy

Council in criminal cases pursuant to section 110(2)(b)

[42] Section 110(2) deals with applications, not as of right, as in subsection (1), but

with the permission of this court. Paragraph (a) of subsection (2) gives greater latitude

to this court, in civil cases, to grant leave to appeal to Her Majesty in Council. The

provision allows the court to exercise a discretion to grant leave, when it is of the view

that the issue in those civil cases involves a matter of “great general or public
importance or otherwise”. Paragraph (a) of the subsection does not apply to criminal

cases (see R v George Green (1969) 11 JLR 305). Paragraph (b) confers on Parliament

the authority to specify other categories of cases, in which appeals to Her Majesty in

Council may be allowed. Subsection (2) states, in part, as follows:

“(2) An appeal shall lie from decisions of the Court of

Appeal to Her Majesty in Council with the leave of the Court
of Appeal in the following cases-

(a) where in the opinion of the Court of Appeal the

question involved in the appeal is one that, by
reason of its great general or public importance
or otherwise, ought to be submitted to Her
Majesty in Council, decisions in any civil
proceedings; and

(b) such other cases as may be prescribed by

Parliament.

…” (Emphasis supplied)

[43] Parliament, by section 35 of the JAJA, has prescribed, pursuant to section

110(2)(b), the types of criminal cases that may be sent on appeal to the Privy Council.

Section 35 mirrors, in some ways, the standard prescribed, in respect of civil cases, by

section 110(2)(a). Section 35 provides:

"The Director of Public Prosecutions, the prosecutor or the

defendant may, with the leave of the Court appeal to Her
Majesty in Council from any decision of the Court given by
virtue of the provisions of Part IV, V or VI, where in the
opinion of the Court, the decision involves a point of
law of exceptional public importance and it is
desirable in the public interest that a further appeal
should be brought." (Emphasis supplied)
[44] The civil standard, it will be noticed, is “great general or public importance or

otherwise”, while the criminal standard is “exceptional public importance” and the

public’s interest that there be a further appeal. The difference in terminology suggests a

higher standard in criminal cases. That difference may stem from the traditional attitude

of the Privy Council that it is only in exceptional cases that it grants leave to appeal in

criminal cases. In Edith May Hallowell Carew v The Queen [1897] UKPC 32, the

Board, at page 2, stated the principle as follows:

“…it is only necessary to say that, save in very exceptional

cases, leave to appeal in respect of criminal
investigation is not granted by this Board. The rule is
accurately stated as follows, in the case to which their
Lordships referred in the course of argument, re Abraham
Mallory Dillett ((1887) 12 App. Ca. 459): ‘Her Majesty will not
review or interfere with the course of criminal proceedings
unless it is shown that by a disregard of the forms of legal
process, or by some violation of the principles of natural
justice, or otherwise, substantial and grave injustice has been
done’.” (Emphasis supplied) (Italics as in original)

[45] Another case from the Privy Council is Nirmal son of Chandar Bali v The

Queen [1971] UKPC 39. In that case, the Privy Council dealt with the standard for

allowing appeals in criminal cases. It quoted with approval from Lord Sumner’s judgment

in Ibrahim v R [1914] AC 599. The Board said, in part at pages 5-6:

“…In Ibrahim v. R. Lord Sumner said at pp. 614 615 ‘…Their

Lordships’ practice has been repeatedly defined. Leave to
appeal is not granted ‘except where some clear departure
from the requirements of justice’ exists: Reid v Reg. (1885)
10 App. Cas 675; nor unless ‘by a disregard of the forms of
legal process, or by some violation of the principles of natural
justice or otherwise, substantial and grave injustice has been
done’: Dillet’s case. It is true that these are cases of
applications for special leave to appeal, but the Board has
 repeatedly treated applications for leave to appeal and the
hearing of criminal appeals as being on the same footing:
Reil’s case. Ex parte Deeming [1892] A.C. 422. The Board
cannot give leave to appeal where the grounds suggested
could not sustain the appeal itself: and, conversely, it cannot
allow an appeal on grounds that would not have sufficed for
the grant of permission to bring it. Misdirection, as such,
even irregularity as such, will not suffice: Ex parte Macrea
[1893] A.C. 346. There must be something which, in the
particular case, deprives the accused of the substance
of fair trial and the protection of the law, or which in
general, tends to divert the due and orderly
administration of the law into a new course, which
may be drawn into an evil precedent in the future: Reg
v. Bertrand.’” (Emphasis supplied) (Italics as in original)

[46] Although that guidance assists greatly, the reference to section 110(2)(a) is also

pertinent because this court has previously provided careful guidance as to the approach

to considering the issue of public importance. That guidance is also of significant help in

determining the approach to considering the cases that meet the standard set by section

35 of the JAJA. In the civil case of The General Legal Council v Janice Causewell

[2017] JMCA App 16, McDonald-Bishop JA, with whom the rest of the panel agreed,

considered several previously decided cases on this court’s approach to applications

under section 110(2)(a). The learned judge of appeal, at paragraph [27] of her

judgment, set out a clear synopsis of the relevant principles:

“The principles distilled from the relevant authorities may be

summarised thus:

i. Section 110(2) involves the exercise of the

court's discretion. For the section to be
triggered, the court must be of the opinion that
the questions, by reason of their great general
or public importance or otherwise, ought to be
submitted to Her Majesty in Council.
 ii. There must first be the identification of the
question involved. The question identified must
arise from the decision of the Court of Appeal,
and must be a question, the answer to which is
determinative of the appeal.

iii. Secondly, it must be demonstrated that the

identified question is one of which it can be
properly said, raises an issue, which requires
debate before Her Majesty in Council. If the
question involved cannot be regarded as
subject to serious debate, it cannot be
considered one of great general or public
importance.

iv. Thirdly, it is for the applicant to persuade the

court that the question identified is of great
general or public importance or otherwise.

v. It is not enough for the question to give rise to

a difficult question of law; it must be an
important question of law or involve a serious
issue of law.

vi. The question must be one which goes beyond

the rights of the particular litigants and is apt to
guide and bind others in their commercial,
domestic and other relations.

vii. The question should be one of general

importance to some aspect of the practice,
procedure or administration of the law and the
public interest.

viii. Leave ought not [to] be granted merely for a

matter to be taken to the Privy Council to see if
it is going to agree with the court.

ix. ...”

[47] Two more principles should be added to those eight. The first of which, was

recognised by the Court of Appeal of the Commonwealth of the Bahamas in Nyahuma

Bastian v The Government of the USA and others (unreported), Court of Appeal,
Bahamas, SCCrApp & CAIS No 199 of 2017, judgment delivered 23 January 2020 (see

paragraph 20). It is that the court should not refer a question to the Privy Council if the

Board has previously given its opinion on that question. This principle expands on

principle iii. above, for if the issue has been previously decided by the Board, in respect

of materially similar circumstances, then it cannot be regarded as being open to serious

debate. This is similar to the point made by Pollard J at paragraph [89] of Mitchell

Lewis v R, cited above.

[48] The second additional principle is one pointed out by Mr Taylor. That principle

was stressed by their Lordships in Michael Gayle v The Queen [1996] UKPC 18;

(1996) 48 WIR 287. Lord Griffiths, in delivering the judgment of the Board, said, in part,

at page 289 of the report of the case:

“Furthermore, it is not the function of the Judicial Committee

to act as a second Court of Criminal Appeal.”

That case was, however, an appeal by way of special leave from their Lordships. It is

debatable if the principle is relevant to applications made pursuant to section 110 of the

Constitution or section 35 of the JAJA. Both provisions use the term “appeal” in

reference to the referral of cases to the Privy Council. Section 110 states that “[a]n

appeal shall lie from decisions of [this court]”. Section 35 states that the parties, there

listed, “may…appeal” to Her Majesty in Council”. That terminology suggests a different

connotation than that indicated by Lord Griffiths and advocated for by Mr Taylor.

[49] Having identified the relevant principles, the questions proposed by the applicants

may now be considered.

Do any of the issues qualify for referral under section 35 of the JAJA?

[50] Section 110(2)(b) allows for the consideration of issues in the context of section

35 of the JAJA. There is no dispute about the need to satisfy the basic requirements of

section 35, namely that the issues in this case arise from a final decision in a criminal

case on appeal from the Supreme Court. The dispute between the applicants and the

Crown is whether the issue “involves a point of law of exceptional public importance and

it is desirable in the public interest that a further appeal should be brought”.

[51] The applicants, in their written submissions, have argued that there are four

issues which meet the requirements of section 35, namely:

a. jury management;

b. prosecutorial misconduct;

c. the admissibility of the technology evidence; and

d. the publicity surrounding the case.

[52] In their joint speaking notes, they sought to add additional matters, including:

a. this court’s delay in the delivery of its judgment;

b. the failure to leave the alternative verdict of

manslaughter;

c. the treatment of the applicants’ respective unsworn

statements;

d. general matters including the learned trial judge’s

general directions to the jury; and

 e. the treatment of the sentencing.

a. Jury management

[53] This issue mainly arose from two incidents, involving the jury, during the trial.

Both were investigated by the learned judge in his chambers with counsel on both sides

present. The investigation was recorded by the court reporters. The applicants and the

jury, as a body, were, however, absent. The learned trial judge’s treatment of those

issues and his reaction to them are the matters raised by the applicants.

[54] In the first investigation, one of the jurors told the learned trial judge that she

had gone to see her son at a correctional institution and discovered that at least one of

the applicants was being remanded at that institution, on the same block as her son.

She expressed fear for her son’s safety in the circumstances. The learned judge, after

discussing the matter with counsel, discharged the juror.

[55] In the second investigation, the foreman of the jury informed the learned judge,

in the latter stages of his summation, that one of the jurors had offered bribes to other

members of the jury, with a view to affecting the outcome of the case. The learned

judge, after hearing the foreman and consultation with counsel, decided not to discharge

the jury, but to complete his summation that afternoon and leave the case to the jury

for the deliberation of its verdict.

[56] This court, prior to hearing the appeal, allowed fresh evidence to be adduced

concerning the second investigation. The relevant fresh evidence adduced before this

court concerned the accounts of two of the jurors as to the events leading to the second
investigation. Despite mentioning that the evidence had been adduced, the court failed

to assess the issues raised by the evidence.

[57] The applicants assert that at least four issues are raised in this context:

a. the learned judge’s failure to allow questioning in court

of the relevant persons involved in each incident;

b. the exclusion of the applicants from the investigations;

c. this court’s failure to treat with the fresh evidence

from the jurors; and

d. the time at which the jury was sent to commence its

deliberation.

They contend that these issues are matters of great importance, which not only affect

them but also affect the conduct of trials in the future. In addition, the applicants assert,

the manner in which this court resolved these issues in its judgment differed from the

guidance that it has given in other decisions, which it has previously made.

[58] They point to the fact that this court has, not only in its judgment in this appeal,

but in other cases such as Delroy Laing v R [2016] JMCA Crim 11, pointed out that

there is no established procedure, statutory provision, rule of court or practice direction

in respect of handling issues such as these. Learned counsel for the applicants also

contended that the court’s judgment in this case conflicted with the guidance that it

gave in Delroy Laing v R. Learned counsel for the applicants submitted that the

appropriate procedure, as recommended in Delroy Laing v R, was to have questioned,

on oath, in open court, the various persons involved in each incident. In the
circumstances, the applicants assert, it is necessary to obtain guidance from the Privy

Council on these issues.

[59] Counsel for the Crown contended that there is no basis for referring this issue to

the Privy Council. Firstly, learned counsel stated, there is no conflict between the

decision in the appeal in this case and that in Delroy Laing v R. Learned counsel also

asserted that the Privy Council has already given guidance on this issue and that to

again refer this issue to their Lordships is contrary to the guiding principles concerning

referring matters to the Board. Learned counsel relied on Bonnett Taylor v The

Queen [2013] UKPC 8 in support of the latter submission.

[60] The two previously decided cases, which have been cited in the submissions,

require some analysis. Firstly, in its judgment in this case, the court examined Delroy

Laing v R and accepted a principle, stated therein, as to the authority to be left to a

trial judge in dealing with jury-management issues that arise during a trial. The court, in

its judgment in this case, said at paragraph [228]:

“The best starting point in the discussion of these issues is to

recognise, as this court stated in Delroy Laing v R, that
there is, in Jamaica, no set procedure, statutory provision,
rule of court or practice direction governing how an enquiry
as to jury misconduct or alleged tampering is to be
conducted. The only guideline that can be definitively stated
is that the judge must conduct a proper investigation into the
matter. The realization or acceptance that, in this jurisdiction,
there is no set format or procedure for such an enquiry,
immediately undermines the way in which ground 8(a) for
the appellant, Campbell, is framed, as contending that the
judge failed: ‘…to invoke the proper procedure…’, as there is
no set procedure. It further undermines, in our view, every
positive assertion made in challenge to the manner in which
the enquiries were conducted, such as, for example, the
 contention that: (i) the hearings should have been conducted
on oath; (ii) each juror should have been questioned on the
second occasion and (iii) the judge ought to have made
enquiries of juror number 11 herself, as to whether she has
discussed the matter with any other juror (and ought not to
have relied only on the word of the registrar). ” (Underlining
as in original)

[61] Both the judgment in this case and that in Delroy Laing v R considered a

number of authorities concerning the correct course that should have been adopted at

the respective trials. In Delroy Laing v R, more stress was placed on a thorough

enquiry, including circumstances in which it may be desirable for making enquiries on

oath. In the end, the court found that the trial judge in that case failed to do enough to

ensure that justice was seen to be done. The court said, at paragraph [98]:

“We believed that in failing to conduct a more thorough

investigation into the circumstances of this case, the learned
trial judge may have failed to take into account all relevant
considerations before coming to his findings that the
appellant was not prejudiced or that there was no danger of
him being prejudiced or the trial undermined. We have
recognised that each case will turn on its own peculiar facts
but the ultimate goal must always be the attainment of
justice. As is often said, ‘justice should not only be done, but
should manifestly and undoubtedly be seen to be done’. In
the circumstances as obtained in this case, we found
ourselves unable to say that no injustice was caused simply
because the investigation carried out by the learned trial
judge was not sufficiently thorough.”

In the present case, the court found that the learned judge had conducted a sufficient

enquiry to see that justice was done. It said, at paragraph [238]:

“It seems to us that the judge had before him enough

information on which to base his discretion to continue with
the trial with warnings or directions to the jury, which he
ultimately did. There was nothing that could have been
gained (at best a denial by the accused juror), and a great
 deal that would have been lost (the possibility of having to
discharge the jury), by questioning the accused juror. We can
see no basis to interfere with the exercise of that discretion.
It should also be observed in relation to this enquiry as well
that what transpired in chambers was also recorded by a
court reporter, again in keeping with the guidance in Nash
Lawson v R [[2014] JMCA Crim 29].”

It must be said, however, that the facts involved in this case are unique in terms of jury

management. Among the unique aspects is the fact that the last jury misconduct issue

came during the latter part of the summation of what is perhaps the longest criminal

trial that has ever been conducted in this jurisdiction.

[62] Secondly, it is to be noted that the Privy Council has previously given guidance on

the issue of managing jury impropriety. Bonnett Taylor v The Queen is a decision of

the Privy Council on an appeal from this jurisdiction. It is therefore binding on this court.

In that case, it was brought to the trial judge’s attention, in the presence of the entire

jury, that one of the jurors had indicated a, more than passing, prior acquaintance with

the accused. The judge had no prior notice of the issue and dealt with it, immediately,

by making enquiries of the juror, in the presence of the other jurors. Upon hearing her

enquiries, the judge discharged the juror. In addressing the jury on the issue, the judge

warned the remaining jurors to decide the case on the evidence and to disregard

anything extraneous that may have been communicated to them by any of their

members, then, or previously sitting among them.

[63] The Board, albeit by a majority, decided that the judge had done sufficient to

avoid a miscarriage of justice. Their Lordships referred to a number of authorities on the

point and provided guidance, which they intended for the courts in this jurisdiction.
[64] Their Lordships, in the majority, gave close guidance on the point at paragraphs

22-28 of their judgment. It is unnecessary for these purposes to repeat them here. It

will be sufficient to observe that the guidance exists. Importantly, however, their

Lordships concluded their discussion on the issue with the view that it is for the judiciary

of this country to decide, for itself, the matters of practice, involved in this issue. They

said at paragraph 29:

“These are matters of practice that are, of course, best left to

the judiciary in Jamaica to decide upon for themselves. But it
is possible that, if those steps [set out in their Lordships’
guidance] had been taken in this case, the juror would have
made her position known at the outset and that, if this had
been done, there would have been time for another juror to
be selected to take her place.”

[65] Although, in addition to their Lordships’ guidance, there now exists the guidance

in in this area in the Supreme Court of Judicature of Jamaica Criminal Bench Book (the

Criminal Bench Book), the latter was not available at the time of this trial. Their

Lordships were also not unanimous in their decision in Bonnett Taylor v The Queen.

It will be of assistance to have their further consideration of the issue and to determine

whether the learned trial judge had done sufficient to avoid a miscarriage of justice.

[66] Neither Bonnett Taylor v The Queen nor the Criminal Bench Book deal with

the aspect of the presence of the accused for enquiries into jury-management issues.

There is, however, a general requirement, at pages 25-28, of the Criminal Bench Book

for the accused to be present at his trial. That issue of an accused’s right to be present

at every stage of a trial, was dealt with in the judgment in this case with a reference to
Nash Lawson v R [2014] JMCA Crim 29, in which it was said that there are occasions

which justify the absence of that accused from an aspect of the proceedings.

[67] Nash Lawson v R was a judge-alone trial and therefore it is not on all fours with

this case. In its judgment in that case, the court, at paragraph [17], referred to the

guidance in R v Lee Kun [1914-15] All ER Rep 603; [1916] 11 Cr App R 293:

“R v Lee Kun may be described as an exceptional case [it

dealt with an accused who did not understand English, which
was the language in which the trial was being conducted];
however, the principle holds true in all instances, that
an accused is not to be excluded from any portion of
his trial unless there are very good reasons. There may
be circumstances during a trial when a judge and counsel for
the defence and the prosecution need to confer in chambers
in the absence of the accused. On such occasions, it is
important that a court reporter be present to record what
transpires.” (Emphasis supplied)

In R v Lee Kun, Lord Reading CJ said, in part, at page 604 of the former report:

“No trial for felony can [be] had except in the presence of the
accused, unless [he] creates a disturbance preventing a
continuance of the trial: R v Berry [(1897) 104 LT Jo 110; 14
Digest (Repl) 293, 2710] per WILLS, J. Even in a charge of
misdemeanour there must be very exceptional circumstances
to justify proceeding with the trial in the absence of the
accused. The reason why the accused should be present at
the trial is that he may bear the case made against him and
have the opportunity of answering it. The presence of the
accused means not merely that he must be physically in
attendance, but also that he must be capable of
understanding the nature of the proceedings. The prisoner
may be unable, through insanity or deafness or dumbness, or
the combination of both conditions, to understand the
proceedings or to hear them, either directly or by reading a
record of them, or to answer them either by speech or
writing.” (Italics as in original)
[68] There are other instances which justify the exclusion of an accused, such as

disruptive behaviour (as mentioned by Lord Reading CJ), but, again, that is not the

situation in this case. It will, therefore, be of assistance to obtain their Lordships’

guidance on the principles governing the absence of accused persons during the course

of jury-management enquiries.

[69] The final aspect of the issue of jury-management, is that concerning the time at

which the jury in this case were sent to deliberate.

[70] The applicants assert that it was unreasonable, given the length and complexity

of the case, for the learned judge to have sent the jury, after 3:00 pm, to deliberate on

its decision, with the end of the court day being 4:00 pm. The Crown contends that,

given the unusual situation with the allegations as to jury-tampering that had been

brought to the learned judge’s attention that afternoon, it was not unreasonable for him

to have sent the jury to deliberate at that time.

[71] In its judgment, this court referred to the decisions of the Board in Shoukatallie

v R (1961) 4 WIR 111 and Holder v The State (1996) 49 WIR 450, as well as to the

Criminal Bench Book. It took the view that there was no definitive time beyond which it

was unreasonable for the jury to be asked to retire to deliberate on its verdict. It held

that, in the circumstances, it was not unreasonable for the learned trial judge to have

asked the jury to retire at the time that he did.

[72] Guidance is given at page 346 of the Criminal Bench Book:

 “The jury should not be placed under any pressure to arrive at
a verdict. It is for that reason that the summation should not
be concluded close to the end of the court day; the jurors
should not have any anxiety, for example, about getting
home etc, affecting their deliberations. For that reason a 3:00
p.m. benchmark has been adopted. Only in the simplest of
cases would it be not unreasonable to send the jury to
deliberate after that time. But the time is not an inflexible
one. In more complex cases, it may well be unreasonable to
conclude the summation during the afternoon session. In
such cases, it is best to delay concluding the summation until
early the following day in order to give the jury adequate
time to consider all the issues before it.”

[73] It is to be noted that the jury is not permitted to separate once it has been asked

to deliberate on its verdict. Undoubtedly, the Criminal Bench Book will be sufficient in all

but the rarest of cases. For the less usual cases, such as this, it will be of assistance to

secure their Lordships’ guidance as to this aspect of jury management. Undoubtedly,

there will be no two cases that are exactly alike but their Lordships may be asked to

state the principles, which govern the time at which a jury may be asked to retire to

consider its verdict.

b. Prosecutorial misconduct

There is absolutely no merit in the issue as advanced by the applicants. The learned

Director gave her opinion to the learned judge, as did defence counsel. As the court held

in its judgment, it was for the learned judge to make a decision and he did so. The

constitutional aspect of the issue has already been discussed above. The fact that she

was not the prosecutor in charge of the case, the prosecutor was, nonetheless, her

representative. Her input cannot be said to be improper.

 c. The admissibility of the technology evidence

[74] The technology evidence has two main aspects to it. The first is an offshoot of the

analysis of the effect of the admission of the CD, JS2, on the right to privacy. The

second is the admissibility of a cellular telephone that is said to have been taken from Mr

Palmer during the course of the investigation of Mr Williams’ death.

[75] On the issue of the admissibility of JS2, although the analysis conducted above

has concluded that the issue does not qualify for reference under section 110(1)(c), it

does appear that it gave the court some concern, given the departure by the police, for

at least a second time, from the provisions of the ICA. The court also considered the

importance of the application of the constitutional right to privacy. Accordingly, it does

seem that the issue warrants referral to their Lordships by virtue of section 35 of the

JAJA. Mr Taylor conceded that this was an area of exceptional public importance.

[76] The applicants formulated the proposed questions in different ways. Mr Campbell

formulated them thus:

“v. What is the correct test to be applied to the

admissibility of evidence which is obtained in breach of
section 13 (3) j (iii) of the Charter of Fundamental
Rights and Freedoms?

vi Whether the Court, being an organ of the state

pursuant to s.13(2)(b) of the Charter of Fundamental
Rights and Freedoms, has a duty to exclude material
obtained in breach [of] an Appellant’s Constitutional
rights, in light of the new landscape of the Charter of
Fundamental Rights and Freedoms, 2011.”

Messrs Palmer, Jones and St John used a common formulation:

“7) Whether Jamaican trial court judges:

 a. Have a constitutional duty (pursuant to section
13 (2) (b) of the Jamaican Constitution) or a
common law duty or some other duty to
exclude evidence which was obtained in a
manner that infringes or denies rights or
freedoms guaranteed by the Jamaican
Constitution on the basis that the admission of
it in the proceedings would bring the
administration of justice into disrepute?

b. Alternatively, have to apply a restricted

discretion to exclude evidence which was
obtained in a manner that infringes or denies
rights or freedoms guaranteed by the Jamaican
Constitution that takes account of matters such
as the importan[ce] of upholding that
constitution?

c. Alternatively, have to [sic] an unrestricted

discretion to exclude evidence which was
obtained in a manner that infringes or denies
rights or freedoms guaranteed by the Jamaican
Constitution that takes account of matters such
as the importan[ce] of upholding that
constitution?”

[77] In light of Mr Taylor’s concession on the point, he was invited to submit, in

writing, a suggested wording of an appropriate question. He formulated his questions

thus:

“[1] Whether or not in the absence of an express provision

in the Charter of Fundamental Rights and Freedoms
2011 that a court shall exclude evidence that was
obtained in a manner that infringed or denied any
rights or freedoms guaranteed by the Charter,
Jamaican trial courts are entitled to exercise its
discretion as to whether or not to admit into evidence
material that may have been obtained in breach of a
Charter Right?
 [1.a] Did the fact that the information which was
provided by the communication's provider
DIGICEL to the police about the use of exhibit
14C (a BLACKBERRY cellular telephone) on the
communications provider's network in
circumstances where there was not strict
compliance with the procedure laid down
provisions of the Interception of
Communications Act give rise to a breach of
the Charter of Fundamental Rights and
Freedoms 2011?

[1.b] And if the answer to [1.a] is yes what is the

effect of that breach on the admissibility of the
evidence?

[2] Whether the Learned Trial Judge erred in admitting

exhibit 14C into evidence and accordingly this meant
a failure to discharge his duty to ensure the overall
fairness of the proceedings in accordance with section
13(2) (b) of the Charter of Fundamental Rights and
Freedoms 2011 owing to the issues surrounding the
chain of custody of exhibit 14C from the time it was
taken from Mr Palmer by the police such as:-

[2.a] its integrity because of the unexplained use of

exhibit 14C while it was in the custody of the
police;

[2.b] the discrepancies in the evidence concerning

the presence of an SD card in the exhibit 14c
at the time that it was handed over to the
police, where it was examined;

[2.c] the admissibility and integrity of a video clip

said to have been found on the internal
memory of exhibit[.]”

[78] Each formulation has its merits, but none fully reflects this court’s consideration in

its judgment, of the issue, or the juridical basis for the referral. Accordingly, the
following are the questions on this issue, that are certified for consideration by their

Lordships:

a. Does the Charter of Fundamental Rights and Freedoms

(the Charter) affect the court’s authority to admit into

evidence material acquired, secured or collated in

breach of the rights and freedoms that the Charter

guarantees, and if so, in what way?

b. How does the answer to that question affect the

admission into evidence of JS2, which was acquired in

breach of the right to privacy of communication and

the Interception of Communications Act?

[79] On the issue of the admissibility of the cellular telephone, which is a crucial part

of the prosecution’s case, the applicants assert that the use and handling of the

instrument is plagued with uncertainties that should have prevented its admission into

evidence. According to the applicants, the uncertainties surrounding the instrument and

its contents are such that, not only was the learned judge wrong to have admitted it into

evidence, but this court erred in principle in holding that the mere possibility of

tampering is insufficient to prevent admission into evidence. The applicants argue that

this court’s approach reduces the standard of proof that the prosecution bears. The

applicants extend that reasoning to the admission of JS2, which also suffered from the

uncertainty that it may be different from the master, or control copy of the CD, JS1,

which had gone missing.

[80] Although Mr Taylor submitted questions in respect of exhibit 14C, the applicants

are not on good ground in this regard. The handling of the chain of custody, and the

question of fact which it entails, are matters, which have been well traversed. The fact

that the principles had to be applied to the, previously unchartered, area of

telecommunication does not require adjustment of the principles. This court, in its

judgment in the appeal, reasoned that the issues of fact were properly placed before the

jury for its consideration. It is not an issue that is of exceptional public importance and

desirable in the public interest that a further appeal should be brought.

d. The publicity surrounding the case

[81] The applicants contend that, apart from the issue of their constitutional right to a

fair trial, there is need for guidance to trial judges for handling situations where incidents

occur during the trial which may prejudice the trial process. They contend that this

court, in its judgment in this case, failed to give that guidance. They argue that it is

necessary for the matter to be referred to their Lordships for their guidance.

[82] Learned counsel for the Crown opposed this aspect of the application on the basis

that it had already had the attention of this court in R v Porter and Williams (1965) 9

WIR 1, and their Lordships’ Board, in Desmond Grant and Others v The Director of

Public Prosecutions and Another [1981] UKPC 20; [1982] AC 190.

[83] The publicity issue has already been considered in this judgment in the context of

being a constitutional issue. This court also considered it in R v Porter and Williams,

when the assertions on appeal were that occurrences during the trial would have
affected the jury and prejudiced the appellants’ case. The court also considered steps

taken by the learned trial judge to prevent a recurrence of the unfortunate events and

his directions to the jury concerning the matter. It dealt with the issue by saying, in part,

at page 9 of the report:

“What this court has to determine is whether it can draw the

inference that the jury must have concentrated upon the
disorderly behaviour of the crowd and its evident hostility to
the applicants rather than upon the evidence in the case, or
that they probably were intimidated by such behaviour and
thus biased against the applicants for the purpose of the trial.
Having carefully considered the evidence and the relevant
portions of the transcript we find ourselves quite unable to
draw either of these inferences.”

[84] In similar manner, this court in its judgment in this case, considered the

previously decided cases and the actions of the learned judge and held that no prejudice

had been shown. The court’s assessment, at paragraph [484] of its judgment, has

already been quoted above.

[85] Desmond Grant v DPP was concerned more with pre-trial publicity and is

therefore not on all fours with the present case. Nevertheless, Counsel for the Crown is

correct in the submission that this is not a matter to be referred to their Lordships.

[86] The issues as, as outlined in the joint speaking notes will now be discussed.

a. The delay issue

[87] Apart from the constitutional issues that arose in the judgment, the applicants

have complained that the delay in having a decision on their respective appeals
constituted a breach of their right to a fair hearing in a reasonable time, as set out in

section 16(1) of the Constitution. The applicants point, in particular, to this court’s delay

in delivering its judgment. They assert that the delay also manifested itself, to their

prejudice, when this court failed to consider some statements that it had admitted, at

their request, as fresh evidence. The statements, the applicants contend, concern the

issue of a trial by an impartial tribunal, as guaranteed by section 16(1). They also

contend that this is an issue that satisfies section 35 of the JAJA.

[88] The complaints concern the facts that:

a. the appeal was heard in July 2018 and the judgment

was handed down in April 2020; and

b. although the court, at paragraph [44] of the judgment,

recorded the fact that it had admitted the relevant

statements into evidence, it did not consider them any

further in the written judgment.

[89] The applicants rely on the fact that this court has, fairly recently, recognised that

the issue of delay is worthy of the consideration of the Privy Council. It did so, they

contend, when it referred the issue to the Privy Council, in the case of Lescene

Edwards v R [2018] JMCA App 48.

[90] There are two basic flaws with this aspect of the applications. The first, is that the

issue raised by the applicants does not involve an interpretation of section 16(1). In

Melanie Tapper v Director of Public Prosecutions [2012] UKPC 26, the Privy
Council held that the question of delay was more an issue of the application rather than

the interpretation of section 20(1). Section 20(1) has, since that judgment, been

replaced by section 16(1), but they are in identical terms.

[91] Their Lordships said, at paragraph 9 of their judgment:

“Leave was granted under section 110(1)(c) of the

Constitution, which gives a right of appeal in respect of final
decisions ‘on questions as to the interpretation of this
Constitution’. Although no point was taken by the Crown, the
Board doubts respectfully whether either point justified leave
to appeal under that sub-section. The first issue did not arise,
since the Court of Appeal accepted, and there is no dispute,
that section 20 extends to post-conviction delay. On the
second issue, it is not now contended that, in the event of a
breach arising from such delay, section 20 ‘requires’ a
conviction to be quashed. The submission is that the
Court erred in the exercise of its discretion. On this
basis, the issue seems properly characterised as one
of application of the constitutional provision, rather
than interpretation.” (Emphasis supplied) (Italics as in
original)

[92] The second flaw in the applicants’ position on this point is that their Lordships

have previously pronounced on the issue of delay. They have determined that it is for

this court to determine, by virtue of its knowledge of local conditions, whether or not the

delay has been so inordinate as to amount to a breach of the right guaranteed by

section 16(1). Their Lordships said, at paragraph 19 of Melanie Tapper v DPP:

“…On their exercise of discretion it would require something

exceptional to justify the Board substituting its opinion for
that of the domestic court. In particular, the domestic court is
much better placed to judge the significance of delay having
regard to local conditions and pressures on the courts (see
Bell v Director of Public Prosecutions [1985] AC 937, 953E-
G). In the circumstances, the Board finds no grounds to
 question either their decision to reduce the sentence, rather
than to adopt some other remedy, or the amount of the
reduction.” (Italics as in original)

[93] It is recognised that the issue of delay, by itself, is different from the issue of any

prejudice that that delay may cause. In this case, it cannot be said that the delay in

delivering the judgment caused any prejudice to the applicants. Their Lordships in

Melanie Tapper v DPP said, in part, at paragraph 28 of their judgment:

“…even extreme delay between conviction and appeal, in

itself, will not justify the quashing of a conviction which is
otherwise sound. Such a remedy should only be considered in
a case where the delay might cause substantive prejudice, for
example in an appeal involving fresh evidence whose
probative value might be affected by the passage of time.”

Although there was fresh evidence adduced in the instant case, this court did not seem

to consider it important to the outcome of the appeal. It cannot be said, as the

applicants contend, that the delay caused the court to forget about the submissions

concerning the fresh evidence, because it did mention the fact that it was adduced.

[94] It must also be stated that Lescene Edwards v R does not assist the applicants.

The complaint in that case involved a 10-year delay before Mr Edwards’ trial

commenced. He asserted that his defence was prejudiced as a result. That is a very

different set of circumstances from the applicants’ case. In addition, at paragraph [16] of

the judgment in Lescene Edwards v R, this court recognised the fact that Mr Edwards’

case was, despite those factors, a borderline one:

“As a consequence, it appears to us, that the circumstances of

this case may fall for consideration under section 110(1)(c)
and (2) of the Constitution. In whichever case (for it may be
 that with regard to section 110(1)(c), this matter is a
borderline one, it not being a specific interpretation of the
Constitutional provision), such delay in the conduct of the
matter, during which period several other events have taken
place, may have been to the detriment of the applicant in the
conduct of his case.”

[95] For those reasons, there is no basis to refer this issue for the consideration of

their Lordships, either as an issue falling under the purview of section 110(1)(c) or under

section 35 of the JAJA.

b. The failure to leave the alternative verdict of manslaughter

[96] The applicants criticised this court’s handling of the ground of appeal dealing with

the learned trial judge’s failure to leave the alternative offence of manslaughter for the

jury’s consideration.

[97] The court identified the issue at paragraphs [412]-[413] of its judgment:

“[412] And, on ground 16, with specific reference to Messrs

St John and Jones, Mr Senior-Smith submitted that the judge
ought to have directed the jury that the limited involvement
which [the eyewitness] Mr Chow attributed to them was an
insufficient basis upon which to find them guilty of murder.

[413] Mr Senior-Smith relied heavily on the already very well-

known joint decision of the United Kingdom Supreme Court
and the Privy Council in R v Jogee and Ruddock v The
Queen (‘Jogee & Ruddock’) [2016] UKSC 8, [2016] UKPC
7, which we will consider in a moment.”

[98] It resolved the issue partly by stating that the applicants had not provided any

basis for the learned judge to have left the alternative offence to the jury. The court said

at paragraph [421]:
 “...As Mr Taylor [for the Crown] pointed out, the appellants
were indicted jointly for murder. The case for the prosecution
was that they acted together and in concert in murdering the
deceased. Their defences were a denial that they committed
the offence. There was therefore nothing in the
evidence to ground a suggestion that any of them
may have had an intention other than the intention to
kill or to cause grievous bodily harm. In these
circumstances, in our view, the question of manslaughter did
not arise and the judge was entirely correct to remove it from
the jury’s consideration.” (Emphasis supplied)

[99] It must be said that the applicants are not on good ground on this issue. The case

of Jogee and Ruddock has already explained their Lordships’ stance in respect of the

issue of “parasitic accessory liability”. There is therefore no extraordinary public

importance, in the sense that the issue needs clarification, or in the sense that there has

been “a disregard of the forms of legal process, or by some violation of the principles of

natural justice, or otherwise, substantial and grave injustice” (Abraham Mallory

Dillett v R). There is no basis for referring the issue to their Lordships under the

purview of section 35 of the JAJA.

c. The treatment of the applicants’ respective unsworn statements

[100] There is a plethora of cases dealing with the treatment of unsworn statements by

accused persons. Nothing new arises in this case in respect of that issue. It does not

qualify under section 35 of the JAJA.

d. General matters including the learned trial judge’s general directions to the
jury

[101] The applicants have complained about a number of other issues. These are set

out in their questions in the appendix. Included in these issues are matters such as:
 a. the treatment of the evidence of the sole eyewitness,

Mr Lamar Chow;

b. the treatment of evidence of efforts to identify the

whereabouts of an alleged deceased person; and

c. the treatment of the good character evidence

adduced on behalf of the applicants.

[102] The issues raised in these complaints do not give rise to questions of exceptional

importance. An extract from Michael Gayle v The Queen is relevant to this point. Lord

Griffiths, said, in part, at pages 289-290 of the report of the case:

“Matters such as the weight properly to be given to evidence,

and inferences that may or may not legitimately be drawn
from evidence and whether a presumptive or final burden of
proof has been discharged, are to be determined by the
Court of Appeal in the local jurisdiction, and save in
exceptional circumstances the Judicial Committee will not
enter upon a rehearing of such issues (see Muhammad
Nawaz v King-Emperor (1941) LR 68 Ind App 126, Badry v
Director of Public Prosecutions [1983] 2 AC 297 at pages
302, 303, and Sattar Buxoo v R [1988] 1 WLR 820 at page
822).” (Italics as in original)

[103] Similarly, the treatment of good character evidence has already been the subject

of several definitive decisions from their Lordships’ Board, including Teeluck (Mark)

and John (Jason) v The State [2005] UKPC 14; (2005) 66 WIR 319, France and

Vassell v The Queen [2012] UKPC 28 and Lawrence v The Queen [2014] UKPC 2.
 e. The sentencing issue

[104] The applicants accept that this court only disturbs a sentence where it is found to

be manifestly excessive or out of the usual range of sentencing. They submit, however,

that that approach is too limited, as the court is empowered, by section 14(3) of JAJA to

review a sentence, even if it is not manifestly excessive as the sentence could be wrong

procedurally or based on an incorrect principle of law. Section 14(3) of the JAJA states:

“On an appeal against sentence the Court shall, if they think

that a different sentence ought to have been passed, quash
the sentence passed at the trial, and pass such other
sentence warranted in law by the verdict (whether more or
less severe) in substitution therefor as they think ought to
have been passed, and in any other case shall dismiss the
appeal.”

[105] The applicants also contend that the court should have obtained a social enquiry

report to determine a fair sentence. They further argue that some of the cases on

sentencing, to which the Crown referred in the appeal, included cases that involved

social enquiry reports. Accordingly, the use of those cases is unfair.

[106] Additionally, it was argued that Messrs Jones and St John were young at the time

of the incident, yet the youngest applicant received the second highest sentence.

[107] The applicants are not on good ground with these submissions. The ground of

appeal complained that the sentence was manifestly excessive. This court will disturb a

trial judge’s sentencing if it is founded upon a wrong principle of law. In Matthew Hull

v R [2013] JMCA Crim 21, this court set out the guiding principle at paragraph [9]:
 “[9] An appellate court does not alter a sentence merely
because the members of the court might have passed a
different sentence. A sentence is only altered when
there…appears to have been an error in principle. If a
sentence is manifestly excessive, that is an indication of a
failure to apply the right principles - see R v Ball 35 Cr App
Rep 164.”

[108] In the present case, the court considered the authorities and found that the

sentences were not manifestly excessive, and that the learned judge had not erred in

principle, save that he did not consider the time the applicants had spent on remand.

[109] The court relied on Sylburn Lewis v R [2016] JMCA Crim 30, and held that a

social enquiry report is not mandatory (see paragraph [527] of the judgment). The court

also relied on Michael Evans v R [2015] JMCA Crim 33 for the point that it would need

to consider whether the social enquiry report would benefit the applicants.

[110] In relation to Messrs St John and Jones, the court acknowledged that the learned

judge, in his sentencing remarks, considered each applicant separately. Section 35 of the

JAJA has not been satisfied.

Conclusion

[111] Although the applicants proposed almost 40 questions for referral to the Privy

Council, the vast majority do not fall for consideration under either section 110(1)(c) or

section 110(2)(b) (as extended by section 35 of the JAJA). There are, however, three

issues which fall for consideration by their Lordships, pursuant to section 110(2)(b), as

being of exceptional importance and desirable in the public interest that a further appeal
 should be brought, not only for the result of this case, but also for the guidance of the

judiciary for future cases.

[112] The issues concern:

a. the admissibility of evidence which has been acquired

in breach of a constitutional right guaranteed by the

Charter of Fundamental Rights and Freedoms;

b. the handling of issues involving an enquiry as to jury

misconduct or impropriety; and

c. the time at which it may be inappropriate to have a

jury retire to deliberate on its verdict.

[113] As a consequence, the following orders are made:

1. The applicants are granted conditional leave to appeal to Her Majesty in

Council, the decision of the Court of Appeal delivered on 3 and 17 April

2020, pursuant to section 110(2)(b) of the Jamaican Constitution for

consideration of the questions set out below:

a. Does the Charter of Fundamental Rights and Freedoms

affect the court’s authority to admit into evidence

material acquired, secured or collated in breach of the

rights and freedoms that the Charter guarantees, and

if so, in what way?

b. How, if at all, does the answer to that question affect

the admission into evidence of JS2, which was

 acquired in breach of the right to privacy of

communication and the Interception of

Communications Act?

c. How are enquiries involving jury impropriety or

misconduct to be handled when they arise?

d. Whether the convictions of the applicants for murder

are rendered unsafe by:

(i) the trial judge’s management of the issue of

jury impropriety that occurred during the course

of the trial, in particular, the procedure that

was adopted and the extent of the enquiry that

was conducted;

(ii) the trial judge’s refusal to discharge the jury (or

any juror) following his enquiry into the issue of

jury impropriety;

(iii) any inadequacy in the trial judge’s directions to

the jury following the enquiry into the issue of

jury impropriety; and

(iv) the failure of the Court of Appeal to expressly

demonstrate its findings and conclusions in

respect of the fresh evidence that was adduced

 concerning the issue of jury impropriety at the

trial.

e. What principles govern the latest time at which a jury

may be asked to retire to consider its verdict?

f. How, if at all, does the answer to question e. affect

the convictions of these applicants?

2. The conditions on which leave is granted are:

(a) that the applicants shall each pay the sum of $1,000.00 within 30

days of the date hereof for the due prosecution of the appeal; and

(b) that within 90 days of the date hereof the applicants should take the

necessary steps for the purposes of procuring the preparation of the

record and its dispatch thereof to England.

3. The costs of and incidental to this application shall be costs in the appeal to

Her Majesty in Council.

 APPENDIX

THE APPLICANTS’ QUESTIONS

[1] Mr Campbell’s questions are as follows:

“i. Whether the learned trial judge’s failure to:

a. Give an express warning to the jury to be cautious
before accepting the evidence of Mr. Chow, as there
was evidence to support a finding that he was a
witness who may have been serving his own interest
in giving evidence;
b. Direct the jury’s attention to the said evidence on
which that issue arose; and
c. Explain the significance of said evidence,
breached the Applicant’s Constitutional right to a fair trial
pursuant to section 16 of the Constitution, resulting in a
substantial miscarriage of justice.

In the alternative, whether testimony from a witness,

whose evidence does not rise to the level of being evidence
of a confession but is nonetheless tainted by an improper
motive, triggers the need for a direction from the judge to
be cautious before accepting and acting upon that evidence.

ii. Whether the right to a fair trial is compatible with the view
that in all trials relating to murder, in which a body has not
been found, evidence purportedly demonstrating ‘the extent
of the efforts made to exclude any possibility that the person
allegedly murdered was still alive’, regardless of its
prejudicial effect, will always be admissible.

iii. Whether the Learned Trial Judge’s directions on evidence,

having regard to the unique circumstances of this case, were
sufficient to ensure a fair trial pursuant to the Applicant’s
right to a fair hearing.

In the alternative, whether in all cases in which clear

directions on the standard of proof have been given to a
jury, it will be unnecessary for the judge to further direct the
jury that they must rule out all inferences consistent with
 innocence before they can find that an inference of guilt had
been established, in light of the decision of Ian McKay v R
[2014] JMCA Crim 30.

iv. Whether the manner in which the Learned Trial Judge

presented the Applicant’s defence, in his summation,
deprived him of an accurate, fair and balanced consideration
of his defence, resulting in a departure from his entitlement
to a fair trial pursuant to section 16(1) of the Constitution of
Jamaica, in particular, the Learned Trial Judge’s failure to:
a. adequately alert the jury to the significance of the
prosecution’s evidence of the cell-cite positioning of
the Applicant, to his defence that he did not
participate whatsoever in what has been alleged to
have happened at Swallowfield on 16 August 2011;
and
b. give directions as to the relevance of Shawn
Campbell’s good character as it affects the issue of his
propensity to commit the offence of murder.
In the alternative, whether, in a joint trial, good character
directions can be fairly given without tailoring said directions
in respect of each accused person separately.

v. What is the correct test to be applied to the admissibility of

evidence which is obtained in breach of section 13 (3) j (iii)
of the Charter of Fundamental Rights and Freedoms?

vi. Whether the Court, being an organ of the state pursuant to

s.13(2)(b) of the Charter of Fundamental Rights and
Freedoms, has a duty to exclude material obtained in breach
[of] an Appellant’s Constitutional rights, in light of the new
landscape of the Charter of Fundamental Rights and
Freedoms, 2011.

vii. Whether, the Court of Appeal’s treatment of the statement

of Mr. Chow dated 24 August 2011, adduced as fresh
evidence, breached the Applicant’s right to a fair trial
pursuant to section 16 of the Constitution.

viii. Was the Court of Appeal’s conclusion that a direction on the

verdict of manslaughter was not appropriate in this case in
 keeping with the Applicant’s right to a fair hearing pursuant
to section 16(1) of the Constitution?

ix. Given the nature, extent and volume of the publicity in the
instant case, did the trial judge’s actions, rulings and
directions to the jury breach the Applicant’s Constitutional
right to a fair trial pursuant to section 16(1) of the
Constitution?

x. Whether, in light of the Applicant’s right to a fair hearing

pursuant to section 16(1) of the Constitution, the Court of
Appeal was wrong to find that the appellant’s sentence was
proper despite the errors of the trial judge in relation to the
sentencing exercise at the trial?
In the alternative, whether in a difficult case with multiple
Appellants, a Court of Appeal’s reliance on antecedent
reports in the absence of social enquiry reports is sufficient
in determining whether the sentences imposed are
appropriate, even if the Court is satisfied that the sentences
are within range.

xi. Whether the delay between the hearing of the Appeal and
delivery of judgment violated the Applicant’s right to a fair
trial under section 16(1) of the Constitution of Jamaica and
impacted the Honourable Court of Appeal's recall of
submissions presented, having regard to the unusually
voluminous nature of the record of appeal herein, within the
context of the Jamaican criminal practice.

xii. What is the procedure that ought to be followed by a trial

judge in this jurisdiction, where allegations of jury
misconduct and/or impropriety arise during a jury trial[?]

In the alternative, whether the procedure adopted by the

Learned Trial Judge in relation to the allegations of jury
misconduct and/or impropriety was sufficient to ensure the
Applicant’s right to a fair hearing pursuant to section 16 of
the Constitution.

xiii. Whether trial judges have a Constitutional duty to

investigate matters that give rise to a real possibility that a
jury is neither independent nor impartial?
 xiv. Did the Court of Appeal err in concluding that the Appellant’s
right to a fair trial pursuant to section 16 of the Constitution
was not breached, despite their absence when matters were
determined in the learned trial judge’s chambers[?]

xv. Whether the Court of Appeal’s failure to consider and/or its

treatment of the fresh evidence, in the form of the affidavit
of Miss Kymberli Whittaker and witness statements of
Claudine Bullens and Charmaine Page, breached the
Applicant’s right to a fair trial pursuant to section 16 of the
Constitution.

xvi. Whether the Learned Trial Judge’s treatment of the

technological evidence, that is, exhibit 14C and JS2, in
particular, their admission into evidence and directions given
in relation thereto is compatible with section 16(1) of the
Constitution of Jamaica.

xvii. Whether the conduct of the Director of Public Prosecutions

during the trial breached the Applicant’s right to a fair trial
pursuant to section 16 of the Constitution.

xviii. Whether, in light of section 13(2)(b) of the Constitution, the

powers under section 94(c) ought to be invoked by a
Director of Public Prosecutions where it comes to her
attention that the right of an accused to a fair hearing by an
independent and impartial jury, pursuant to section 16 of the
Constitution, is or has been abrogated.

xix. Whether the Learned Trial Judge's management of the jury

between (and including) the conclusion of the summation
and the rendering of the final verdicts, was in breach of the
Appellant's right to a fair hearing, in particular, his right to a
fairly considered verdict.” (Underlining removed, bold type
and italics as in original)

[2] The questions which Mr Campbell wishes to pose to the Privy Council are also

raised by some of the questions which the other applicants wish to pose.
[3] Mr Palmer’s questions are as follows:

“1) Did the conduct of the trial breach the Applicant’s

constitutional or common law rights (including the
Applicant’s right to a fair trial)?

2) Did the trial judge erred [sic] by failing to ensure that

the jury was sufficiently independent and impartial?

3) Without prejudice to the generality of the second

question, should the trial judge have taken further
action when faced with allegations of matters that
raised questions about the independence and
impartiality of the jury?

4) Without prejudice to the generality of the second and

third question[s], was the trial judge subject to a
constitutional duty to investigate matters that might
suggest a juror/the jury lacked independence and
impartiality?

5) Did the trial judge’s actions during the trial and his
directions to the jury ensure a fair trial for the
Appellant given the widespread nature and sources of
adverse publicity in this case?

6) Did the Court of Appeal err by concluding that the

Applicant enjoyed a fair trial despite their absence
when matters were determined in chambers?

7) Whether Jamaican trial court judges:

a. Have a constitutional duty (pursuant to section

13 (2) (b) of the Jamaican Constitution) or a
common law duty or some other duty to
exclude evidence which was obtained in a
manner that infringes or denies rights or
freedoms guaranteed by the Jamaican
Constitution on the basis that the admission of
it in the proceedings would bring the
administration of justice into disrepute?

b. Alternatively, have to apply a restricted

discretion to exclude evidence which was
 obtained in a manner that infringes or denies
rights or freedoms guaranteed by the Jamaican
Constitution that takes account of matters such
as the importan[ce] of upholding that
constitution?

c. Alternatively, have to [sic] an unrestricted

discretion to exclude evidence which was
obtained in a manner that infringes or denies
rights or freedoms guaranteed by the Jamaican
Constitution that takes account of matters such
as the importan[ce] of upholding that
constitution?

8) Whether it was correct to allow exhibit 14c and its

contents (JS2) into evidence in light of the inability of
the technological experts to vouch for the integrity of
the material?

9) Is the conviction of the Applicant safe in light of the

trial judge’s failure to give a warning to the jury that
Mr. Chow had an interest to serve?

10) Was the Court of Appeal correct to find that a direction

on the verdict of manslaughter was not appropriate on
the facts of this case given that the Learned Trial
Judge erred in not directing the Jury on the availability
of an alternative verdict of manslaughter in respect to
Adidja Palmer :

a. that an alternative verdict of manslaughter was

available on evidence adduced at trial;

b. that such a direction ought to have been given

irrespective of the wishes of the Prosecution or
Defence Counsel;

c. that such a direction ought to have been given

not withstanding [sic] it was inconsistent with
either how the Prosecution put their case
against AP; that such a direction ought to have
been given not withstanding it was inconsistent
with either how the Defence put their case for
[Mr Palmer];
11) Were the trial judge’s directions on the law, evidence
and the defence’s cases sufficiently complete,
balanced and fair to ensure the Applicant’s
constitutional and common law rights?

12) Is the conviction of the Applicant safe in light of the

fresh evidence that was admitted in the Court of
Appeal which was not assessed in the decision of the
court?

13) Whether the Court of Appeal was wrong to apply the

general guidelines to refuse to further examine the
appellant’s sentence despite finding that the trial judge
could have been assisted by social enquiry reports?

14) Whether the Court of Appeal’s approach to the

sentencing exercise was consistent with fair trial rights
of the Applicant who may be now subjected to a
lengthier sentence than is just because the Court
declined to get social enquiry reports or to follow now
established sentencing guidelines which are steeps in
common law practices of fair hearing sentencing
considerations and procedure to assist judges in
arriving at the appropriate sentences for the Applicant
based on the peculiar circumstances of his and the
relevant sentencing objective?

15) Whether the delay between the hearing of the Appeal

and delivery of judgment violated the Applicant’s right
to a fair trial under section 16(1) of the Constitution of
Jamaica and impacted the Honourable Court of
Appeal's recall of submissions presented, in particular
the submissions concerning Exhibit 14c as well as the
unchallenged narrative of events in relation to what
the Jurors had knowledge of resulting in complete
contamination of the panel before rendering its
verdict.

16) Whether the conduct of the Director of Public

Prosecutions during the trial breached the Applicant’s
right to a fair trial pursuant to section 16 of the
Constitution.
 17) Whether, in light of section 13(2)(b) of the
Constitution, the powers under section 94(c) ought to
be invoked by a Director of Public Prosecutions where
it comes to her attention that the right of an accused
to a fair hearing by an independent and impartial jury,
pursuant to section 16 of the Constitution, is or has
been abrogated.” (Underlining removed)

[4] Questions 1–9 and 11-13 of the respective list of questions proposed by Messrs

Jones and St John are identical to each other and to their equivalent numbers in the

questions proposed by Mr Palmer. Questions 1-13 and 15, by Messrs Jones and St John

are identical. Those questions will not be repeated here. Question 10 is one of those

common to both Messrs Jones and St John:

“10) Was the Court of Appeal correct to find that a direction

on the verdict of manslaughter was not appropriate on
the facts of this case?”

[5] Question 14, for both Messrs Jones and St John, is of the same effect, although

there is a slight variation between them. Question 15 is identically worded, but follows

from question 14. Mr Jones’ questions 14 and 15 are:

“14) Whether the applicant (who was 22 years at time of

incident received a fair sentencing hearing, pursuant
to section 16 of the Constitution, in light of the Court
of Appeal's finding that the trial judge did not get a
desirable social enquiry report which would have
assisted the court to determine whether the sentences
imposed were appropriate for the applicant?

15) If the answer to the above question is no, can a mere

reference to the sentencing guideline range be
sufficient to fulfill [sic] a fair sentencing hearing when
the possibility exists that an individualized social
enquiry report could result in the appellant receiving a
shorter period to be eligible to apply for probation (of
 up to 5/10 years) in light of his own factual
circumstances and the relevant sentencing
objectives?”

Mr St John’s question 14 is:

14) Whether the Appellant’s [sic] received a fair

sentencing hearing, pursuant to section 16 of the
Constitution, in light of the Court of Appeal's finding
that the trial judge did not get a desirable social
enquiry report which would have assisted the court in
determining whether the sentences imposed were
appropriate for the particular applicant?