KARTEL APPEAL DOCUMENTS PART 6

[179] The judge specifically addressed the most critical parts of the data evidence as
produced by the prosecution. In respect of the chop up message, the judge told the jury,
at Vol IX page 4999 of the transcript, that the defence challenged that message as being
a fabrication and that the time-stamp suggested that it was not made at any time that
was relevant to this case.
[180] The evidence concerning the chop up message demonstrates that it was part of
an exchange of messages between the exhibit 14C instrument and another Blackberry
phone. The exchanges were contained in a file on the exhibit 14C instrument (Vol VI,
pages 3282-3285 of the transcript). Each message carried meta-data as to the date and
time that it was sent and which was the sending and which the receiving phone. The
evidence also demonstrates that there are four distinct dates, which should be considered
in this context. They are:
a. 6 July 2011, which is the date of the creation of the file
containing the conversation between the two BB
phones (Vol VII, page 3789 of the transcript);
b. 19 August 2011, which is the date that the chop up
message was sent from the exhibit 14C instrument to
the other BB phone (Vol VI, page 3402 of the
transcript);
c. 30 September 2011, which is the date that the last
message in that conversation was sent (Vol VII, page
3794 of the transcript); and
d. 18 October 2011, which is the date that the file was
accessed (Vol VII, page 3790 of the transcript).
There was detailed cross-examination as to the time at which the message of 30
September 2011 was sent (Vol VII, pages 3794-3798). This was to determine whether it
had been sent during the time the exhibit 14C instrument was in the custody of the police.
Its contents were not revealed in the transcript, but an examination of the file shows that
the last entry in that exchange was a message sent from the other Blackberry phone to
the exhibit 14C instrument.
[181] The judge reminded the jury of the contents of the chop up message, and of the
fact that it had been challenged as being a fabrication, as not having been done at a time
that would make it relevant (Vol IX, page 4999 of the transcript). Despite the submissions
of Mr Buchanan in respect of the chop up message, it cannot be said that there was truly
a discrepancy as to when the message was sent. The cross-examination sought to
introduce the other dates as being important but Sergeant Linton did not resile from his
evidence as to the date that the chop up message was sent.
[182] The judge reminded the jury of the evidence about the Epoch time of the message.
Sergeant Linton testified that the Epoch time is a record of every second since 1 January

1. That time, he said, was also used to identify the time, down to milliseconds, that
   messages are sent (Vol VI, pages 3284-3285 of the transcript). He said that the
   conversation, which included the chop up message, also had the Epoch time to identify
   when it took place (Vol VI, page 3401 of the transcript). The judge’s directions on this
   point are recorded at Vol IX, pages 5001-5003 of the transcript.
   [183] In respect of the video file and the BB messages, the judge reminded the jury that
   they were required to decide on the authenticity of that material, bearing in mind that:
   a. there had been a break in the chain of custody;
   b. it was possible to alter that material; and
   c. Sergeant Linton was accused of manipulating the
   material.
   (Vol IX, pages 5033-5035 of the transcript)
   [184] The judge directed the jury on the evidence concerning JS2 and the significance
   of the absence of JS1 (Vol IX pages 4955-4958 of the transcript). He made it clear that
   JS2, by itself, had to be closely examined for reliability. He also directed them on the
   significance of the photographs that were made from the frames from the video (Vol IX
   pages 5037-5039 of the transcript).
   [185] There was a mass of evidence adduced during this long trial and the judge carried
   out a comprehensive review of the major items. There were items which received more,
   or less, emphasis than the appellants’ counsel would have liked, but it cannot be said that
   the summation was unfair.
   [186] Based on that analysis the complaints concerning the judge’s summation, in
   respect of the technology evidence, cannot succeed.
   Conclusion on the technology issues
   [187] The grounds containing the complaints about the technology evidence and the
   judge’s directions in respect of it, therefore fail.
   Issue B – The judge’s handling of the jury management issues which arose
   during the trial
   [188] There are several grounds of appeal that give rise to what might conveniently be
   referred to collectively as the “jury-management issues”. One of these grounds, for each
   appellant, seeks to establish that the fact that the jury was sent out to deliberate, relatively
   late in the day, resulted in undue pressure being placed on its members, rendering the
   verdict unsafe. That ground is ground number 7 in the appeal brought by the appellant
   Shawn Campbell; and ground number 8 in the appeals of the other appellants.
   [189] Grounds 5, 8a and 8b (for the appellant, Shawn Campbell) and 11 (for the other
   appellants) challenge the conviction by seeking to establish that the appellants’
   constitutional rights were infringed and that they were denied due process at common
   law by the manner in which the trial judge on two occasions, namely, on 6 February 2014
   and on 13 March 2014, conducted separate enquiries into issues concerning the jury. They
   were:
   a. a report of severe anxiety by juror number 11, when
   she realised that her son was being detained at the
   same remand centre as at least one of the appellants,
   whom she saw at the time of visiting her son; and,
   b. allegations of attempts at jury tampering by one
   member of the jury. (It was alleged that one member
   of the jury attempted to bribe the others to dispose of
   the case in a certain way).
   [190] Specifically, the appellants contend that the correct procedure was not followed
   and that the enquiries ought not to have been conducted in their absence. The challenge
   also relates to the circumstances surrounding the discharge of juror number 11 after the
   enquiry on 6 February 2014.
   [191] Another complaint, which may also conveniently be addressed under this heading,
   is that represented by ground 6 for the appellant Campbell, and adopted by the other
   appellants at the hearing of the appeal. It seeks to demonstrate that there was
   prosecutorial misconduct in relation to the guidance given to the court below by the
   Director of Public Prosecutions (‘the DPP’) as to how the said “jury management issues”
   were to have been resolved. The contention was that that advice was such as to render
   the trial unfair.
   [192] We now proceed to a discussion of these grounds.
   The time at which the jury was sent to deliberate
   [193] This is how the grounds asserting that undue pressure was placed on the jury,
   were stated:
   Ground 8 (Messrs Palmer, Jones & St John):
   “The Learned Trial Judge, after months of trial, retired the
   jury at a time so late in the day, as to bring undue pressure
   on them to arrive at a rushed verdict.”
   Ground 7 (Mr Campbell):
   “The learned trial judge’s (LTJ’s) decision to have the jury
   retire on Thursday, March 13, 2014 at 3:42 pm (v9- p5142,
   L.11), after seventeen (17) weeks of trial, in all the
   circumstances, amounted to the imposition of undue pressure
   on the jury to return a verdict.”
   Submissions
   [194] On behalf of the appellants, their counsel drew the court’s attention to chapter 25-
   2, section 5 of the Supreme Court of Judicature of Jamaica Criminal Bench Book, (‘the
   Bench Book’), where the following is stated:
   “5. 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.”
   [195] Counsel for the appellants used this as a launching pad to argue that undue
   pressure was likely brought to bear on the jury by the very fact that they were made to
   retire so late in the day. It was pointed out that: (i) the jury was made to retire at 3:42
   pm; (ii) they returned at 5:35 pm with a verdict that was not unanimous; (iii) after the
   prosecutor pointed out that the prescribed time for the taking of a majority verdict had
   not expired, the judge sent them out again at 5:46 pm; and (iv) roughly 20 minutes
   thereafter, the jury returned with their verdict.
   [196] It was emphasised, especially on behalf of the appellant Campbell, that the jury
   was made to retire just 18 minutes before the normal end-of-day adjournment of 4:00
   pm. There were also, it was submitted, several factors that compounded the problem
   created by the late retirement of the jury, namely: (i) this was not a trial of a single
   defendant; but of five defendants, each of whose cases had to be considered
   independently of the others; (ii) the length of the trial (17 weeks); (iii) more often than
   not during the course of the trial, court adjourned before 4:00 pm each day; (iv) 24
   witnesses testified for the Crown and six for the defence; (v) five unsworn statements
   were given; (vi) 25 exhibits were tendered into evidence; and (vii) the trial involved issues
   of some complexity. It was submitted, inter alia, that in all those circumstances, it was
   the judge’s duty to have informed the jury that they could have continued their
   deliberations the following morning, if the circumstances so warranted.
   [197] It was further submitted that the entire manner in which the jury was made to
   retire offended: “… a cardinal principle … that in considering their verdict, concerning, as
   it does, the liberty of the subject, a jury shall deliberate in complete freedom …” (R v
   McKenna; R v McKenna; R v Busby [1960] 1 All ER 326, 329G), thus rendering the
   verdict unsafe.
   [198] Submissions were also made to the effect that the judge, in sending the jury to
   deliberate for a second time, used words that might have conveyed to them that they
   were to return merely to “carry out a perfunctory exercise of simply waiting for the
   remaining seven minutes (before the expiry of the two-hour statutory minimum
   requirement for the acceptance of a majority verdict) to pass and then return”. The jury
   would also have been led to believe, it was submitted, that they had no more than the
   two hours to deliberate.
   [199] A complaint was also made that the enquiry made by the registrar of the
   forewoman, was made only in respect of the appellant, Palmer, and there was no enquiry
   as to the verdicts for the other appellants. The enquiry as to how the jury were divided at
   that point was also impermissible at the stage at which it was made, it was argued. This
   is the record of what transpired (Vol IX, pages 5143-5144 of the transcript):
   “REGISTRAR: …. Madam Foreman and members of the jury,
   in respect of the accused man, Adidja Palmer, have you
   arrived at a verdict?
   MADAM FOREMAN: Yes, we have.
   REGISTRAR: Madam Foreman and members of the jury, is
   your verdict unanimous? That is, are you all agreed?
   MADAM FOREMAN: No sir.
   REGISTRAR: Madam Foreman and members of the jury, how
   are you divided?
   MADAM FOREMAN: 10 to one.
   MR. J. TAYLOR: M’Lord, the two hours, according to statute
   has not yet past [sic].
   HIS LORDSHIP: Madam Foreman and your members, the time
   that you can take a majority verdict has not been arrived at.
   I ask you once more to retire to continue your deliberation. I
   am not able to take the verdict at this time. So you will have
   to retire once more in order for me to do so…”
   [200] The case of Holder (Peter) v The State (1996) 49 WIR 450 was cited,
   specifically highlighting the Board’s advice that “a late retirement of the jury in a capital
   case is undesirable”. Otherwise, it was submitted, Holder v The State could not be
   interpreted in any other way as to sanction the late retiring of the jury.
   [201] On behalf of the Crown, Mr Taylor argued that, although the advice is given in the
   Bench Book as to the desirability of adhering to a 3:00 pm bench mark, no authoritative
   foundation is given for that advice. Additionally, no such authoritative foundation existed
   at the time the appellants were tried. He submitted that it was, therefore, a matter of
   judicial discretion as to what time the jury was to have been sent out. It does not
   necessarily follow, he further submitted, that because a jury was sent out after 3:00 pm,
   they were subjected to undue pressure.
   [202] In support of his submissions, he placed reliance on Holder v The State, in which
   a jury had retired at 6:40 pm and yet the conviction that ensued was upheld by the Privy
   Council. The Crown also referred to several other cases (such as, R v Tommy Walker
   (unreported), Court of Appeal, Jamaica, Supreme Court Criminal Appeal No 105/2000,
   judgment delivered 20 December 2001; and R v Clive Barrett, Ivan Reid and Linton
   Barrett (1994) 31 JLR 221) which were put forward as examples of circumstances in
   which judges’ interaction with juries were held to have “crossed the line”. It was submitted
   that none of the features in those cases were present in the instant appeal.
   Analysis
   [203] Whilst acknowledging that the Board in Holder v The State commented on the
   undesirability of a jury being made to retire late, especially in a murder case; and whilst
   the correctness of that position is accepted, it should be noted that that remark was made
   in a wider context, which. That context might be seen by setting out in full the paragraph
   in which that comment was made, appearing at pages 453-454 of the Board’s advice,
   delivered by Lord Steyn. It reads as follows:
   “Finally, counsel for the appellant submitted that the judge
   erred in directing the jury to retire and deliberate at 6.40
   p.m. That the jury did not feel under undue pressure is
   demonstrated by the fact that they retired for more
   than an hour before bringing in their verdict. That is
   a substantial retirement in local conditions. Their
   Lordships agree with the Court of Appeal that no prejudice to
   the appellant was caused by the late retirement.
   Nevertheless, in agreement with the Court of Appeal, their
   Lordships must record that such a late retirement of the jury
   in a capital case is undesirable.” (Emphasis added)
   [204] In Holder v The State, the jury was made to retire some two-and-a-half hours
   after the usual time of 4:00 pm, when the court proceedings would normally have ended.
   Additionally, the jury retired for more than an hour before returning their verdict. That
   period of retirement, which, in the circumstances, the Board found to be substantial, was
   regarded as an indication that the jury did not feel any undue pressure to return its verdict.
   Accordingly, the Board was unable to say that the appellant suffered any real prejudice
   by virtue of the late retirement.
   [205] In the instant appeal, the jury was sent out some 18 minutes before 4:00 pm and
   took in excess of two hours to return the verdict (one hour and 53 minutes in the first
   instance of deliberation and 20 minutes upon the second retirement). In our view, a similar
   approach to that taken in Holder v The State ought to be taken in these appeals,
   resulting in a similar finding: that is, that the appellants suffered no prejudice. This is so
   because, in this case, the jury retired at an earlier time than in Holder v The State, and
   also took a longer time to arrive at the verdicts (thus indicating that it was under no undue
   pressure).
   [206] The issue of pressure on a jury arising from the time at which it is sent to deliberate
   was discussed in the case of Shoukatallie v R (1961) 4 WIR 111. In that case, the
   summation ran from 10:14 am to 4:50 pm, with the lunch break from 11:20 am to 12:30
   pm. The jury was asked to retire at 4:50 pm (later than the jury in the instant case), which
   they did. At 8:40 pm, they returned into court, returned to the jury room at 8:49 pm and
   went back into court at 10:00 pm for further directions, retiring again at 10:15 pm. The
   verdict was delivered at 1:35 am the following day. The conviction was challenged, mainly
   on the basis of the contention that the jury had been coerced by the trial judge, whose
   words to them had included the following (reported at page 114 B-C):
   “Now, you must return to that jury-room and consider the
   matter again and then make up your minds one way or the
   other. If you feel one way and another member of the jury
   thinks another way, then you must examine the arguments of
   each other and accept reason. You must not be pig-headed.
   Not because you may feel one way or the other does it mean
   that you must never give way, even though sound
   commonsense [sic] and good reason are placed before you.
   The community is looking to you to return a verdict in
   accordance with the evidence and in accordance with your
   own conscience. If you fail to do that you will not only be
   bringing disgrace upon the community but you will be bringing
   disgrace upon yourselves, which is perhaps even worse.
   Gentlemen of the jury, I am now going to order you to return
   to that jury-room and consider the matter calmly and
   dispassionately, and give you an opportunity of arriving at an
   honest verdict in this case. Please see that you do not
   besmirch the fair name of your country. Please return to the
   jury-room.”
   [207] The appeal was dismissed. In doing so, the Board observed, among other things,
   the following (at page 116, B-C):
   “The question in this case is whether the judge went beyond
   exhortation which is permissible, and exerted some measure
   of coercion which is not … It was perhaps, as the Federal
   Supreme Court said, too strongly worded and might have
   been differently put. But the Federal Supreme Court did not
   see in it such a measure of coercion as to invalidate the
   verdict. Nor do their Lordships. The more especially as the
   conduct of the jury shows that they were not in the least
   coerced by it. They deliberated for more than an hour and
   then came back with a request for further directions on a
   pertinent point …”
   [208] It is acknowledged that, in Shoukatallie v R, the focus of the appeal appears to
   have been more on the alleged coercion of the jury than on the time at which the jury
   was asked to retire. That notwithstanding, in that case the jury was asked to retire at 4:50
   pm – that is, an hour and eight minutes later than the jury in the instant case was asked
   to retire – and even that, coupled with the strong words used by the judge in
   Shoukatallie v R, was not enough to win the appeal for the appellant, Shoukatallie. In
   our view, the time of retirement in these appeals is earlier; the entire time span of
   deliberation, far shorter than in Shoukatallie v R, and the language used nowhere as
   exhortative or directory as in Shoukatallie v R. Nor are the times and utterances in the
   instant case otherwise objectionable so as to render the verdict unsafe.
   [209] In this regard, the Bench Book is not inflexible but must be considered guidance
   as to the best practice. Where, however, the circumstances require a departure from the
   usual time, then that departure cannot be fatal to the conviction. This was certainly a set
   of circumstances, bearing in mind the situation with the allegation against the juror, which
   required the earliest deliberation by the jury. Departure from the usual time was justified.
   [210] In relation to the registrar’s failure to enquire about the verdicts in respect of the
   other defendants, whilst it is an irregularity, we do not see it as rising to the level of
   causing any injustice to the appellant Campbell; or to any of the other appellants. The
   trial, after all, was a joint trial in which the Crown’s case was advanced on the basis of,
   inter alia, a joint enterprise. It is entirely speculative to contend that the other appellants
   about whom no enquiry was made could have been deprived of a verdict of acquittal. If
   the jury had in fact arrived at verdicts in respect of the appellants other than the appellant
   Palmer, those verdicts could also equally have been for conviction.
   [211] Having reviewed all these matters, we are firmly of the view that these grounds
   of appeal cannot succeed.
   The enquiries into jury issues
   [212] Ground 11 (Palmer, Jones & St John) states that:
   “The Learned Trial Judge erred when he had hearings into a
   critical aspect of the trial and the jury in the absence of the
   accused. He further erred in failing to conduct the
   appropriately transparent enquiry and to resolve the issue
   correctly. These errors are constitutional breaches as well as
   abrogation of established principles designed to protect the
   rights of citizens on trial.”
   [213] For the appellant, Shawn Campbell, the challenge in this area is to be found in
   grounds 5, 8a and 8b, which read as follows:
   Ground 5
   “The Learned Trial Judge (LTJ) infringed upon the Appellant’s
   right to due process at Common Law and as enshrined in the
   Charter of Rights, when he conducted jury investigations in
   Chambers on February 6, 2014 and March 13, 2014, in the
   absence of the Appellant, resulting in a substantial
   miscarriage of justice.”
   Ground 8a
   “The LTJ erred in law by failing to invoke the proper procedure
   and/or apply the proper test in respect of the complaint of
   alleged jury tampering made by the forewoman, resulting in
   a substantial miscarriage of justice.”
   Ground 8b
   “The LTJ failed to embark upon a fulsome investigation of the
   effect of juror no. 11’s personal difficulty on the other
   members of the jury, with the result that there was a real risk
   that the verdict may [not] have been rendered by an impartial
   jury, contrary to the Constitution.”
   Submissions
   [214] The submissions made here on behalf of the appellant Campbell were also adopted
   by the other appellants. On behalf of the appellant, Campbell, it was emphasised that a
   challenge was being mounted to the conduct of the proceedings in chambers in the
   absence of the appellant on two dates: (i) 6 February 2014 – when juror number 11 was
   discharged; and (ii) 13 March 2014 – when the forewoman was heard in relation to
   possible attempts at jury tampering.
   [215] The substance of the submissions made on behalf of the appellant Campbell in
   relation to his ground 5, might be seen in paragraphs 40 and 41 (pages 16 and 17) of his
   skeleton submissions contained in Core Bundle 2A filed on 2 July 2018. They read as
   follows:
   “40. It is submitted that the presence of an accused at
   hearings involving investigations into jury tampering,
   are required by the rules of natural justice, the
   Common Law and the Constitution and also finds
   support in statute (the Jury Act, s. 33(1)); the
   requirement is therefore absolute.
2. The exclusion of the Appellant from the two (2) in
   chambers proceedings (volumes 7 and 10), during
   which the two (2) jury matters were decided on,
   deprived the Appellant of a fair trial by an impartial
   jury, as the allegations and decisions made in
   chambers on both occasions, fundamentally concerned
   the composition of the judges of fact, which ultimately
   rendered a verdict against him.”
   [216] The submissions were anchored primarily on section 16(1), (3) and (4)(c)(i) and
   (6)(g) of the Charter, in relation to what was put forward as the appellants’ constitutional
   right to have been present during those proceedings. In relation to what was put forward
   as the appellants’ common law right to have been present, reference was made to several
   cases, including Neville Lewis and Others v Attorney General of Jamaica and
   Another (2000) 57 WIR 275 and Annamunthodo v Oilfields Workers’ Trade Union
   (1961) 4 WIR 117.
   [217] In relation to ground 8(a) (concerning the procedure adopted in respect of the
   complaint of jury tampering), the substance of the submissions might be seen in
   paragraph 37 (page 59) of the appellant Campbell’s skeleton submissions, also contained
   in Core Bundle 2A. This is how the submission reads:
   “37. It is submitted that the LTJ’s failure to conduct a more
   detailed investigation by inviting all the jurors to be
   questioned under oath, he failed to take into account all
   relevant considerations before coming to his decision to
   proceed with the trial despite the allegations made by the
   forewoman. The result of this approach of the LTJ was to
   potentially deny the Appellant his right to be tried by an
   impartial and independent jury, resulting in a substantial
   miscarriage of justice.”
   [218] In the skeleton arguments, it was sought to emphasise the circumstances leading
   up to the hearing as well as the fact that “[n]o other jurors, including the alleged briber,
   were called by the learned trial judge to be questioned” (paragraph 2 d of page 45).
   [219] One possibility in dealing with the matter, it was submitted, was to have
   discharged the individual juror against whom allegations were being made. The effect of
   that discharge would have been to cause the entire panel to be discharged for falling
   below the minimum number. Heavy reliance was placed on the case of R v Blackwell
   and others [1995] 2 Cr App Rep 625, 633-4, as outlining (in the submission) the
   approach that ought to have been taken. It was also submitted that the learned trial judge
   considered irrelevant matters (namely the possibility of aborting a trial that had gone on
   for some 17 weeks) in making the decision to continue the case. Reliance was additionally
   placed on the case of R v Putnam and others (1991) 93 Crim App Rep 281, as also
   being similar to the facts of this appeal. There was a complaint that a recording, said to
   have been made by the forewoman of the alleged attempt at jury tampering, was also
   not listened to by the learned trial judge. The decision of this court in the case of Delroy
   Laing v R [2016] JMCA Crim 11 was also referred to in relation to the submission as to
   the need to conduct a proper investigation. It was desirable for sworn testimony to have
   been taken, it was submitted.
   [220] In relation to ground 8(b), concerning the discharging of juror number 11 on 6
   February 2014, the substance of the complaint can be seen in paragraph 25 (page 67) of
   the appellant Campbell’s skeleton submissions (contained in Core Bundle 2A). This is how
   that paragraph reads:
   “25. The LTJ’s treatment of, and the circumstances
   surrounding the discharge of juror no. 11 makes it
   clear, it is submitted, that not only had the forewoman
   become demonstrably impartial, [sic] but the pivotal
   question as to whether the other jurors had become so
   persuaded, was left unanswered. Such circumstances,
   it is submitted, was [sic] unsatisfactory and carried
   with it the real risk of a verdict rendered by a jury which
   was, contrary to the Appellants fundamental rights,
   ‘partial’’. This state of affairs viewed at the end of a
   trial, amounted to a substantial miscarriage of justice,
   rendering the verdict so unsafe that the proviso is
   inapplicable.”
   [221] It was also submitted that the judge ought to have made enquiries of juror number
   11 herself as to whether she had discussed the matter with any other juror. (The judge
   had only interviewed the forewoman on the issue.) It was submitted as well that the
   judge’s sole question to the forewoman (which was: “Do you think you are in a position
   to continue to listen to the matter objectively?”) was inadequate. The judge also wrongly
   relied on the registrar’s word that he was informed that only the forewoman had been
   told about the matter. He ought to have explored further the possibility of contamination
   of the other jurors. The response of the forewoman (she said: “…I just want to ensure
   that she is safe, that’s my only concern…”), it was submitted, revealed that she was
   infected: she must have believed that the accused men were capable of jeopardizing the
   safety of juror number 11.
   [222] On behalf of the Crown, it was submitted that: (i) while it is accepted that, as a
   general rule, no part of a trial should be conducted in the involuntary absence of the
   defendant, that rule is not inflexible. In support of this submission, counsel cited the case
   of Nash Lawson v R [2014] JMCA Crim 29 in which Panton P observed at paragraph
   [17] as follows:
   “…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.”
   [223] It was pointed out that the learned judge’s approach and the decision taken in
   respect of the first matter (the discharge of juror number 11) were not opposed by any
   of the counsel who were there representing all the defendants. Neither, it was submitted,
   was there a dissenting voice from counsel when the judge indicated that he would have
   been announcing, in dismissing her, that she had a personal difficulty. The juror, it was
   also pointed out, was discharged in open court in the presence of all the defendants. The
   judge, in discharging the juror, exercised an option that he had pursuant to section 31(3)
   of the Jury Act, specifically, to discharge a juror for “sufficient cause”.
   [224] In continuing the submissions, it was stressed that there are no statutory
   provisions, rules of court or practice directions in Jamaica laying down the specific
   procedure to be adopted in conducting an enquiry into suspected jury impropriety. The
   cases of Delroy Laing v R and R v Taylor (2013) 83 WIR 442 were cited. Reference
   was also made to the Bench Book, which, it was pointed out, does not state that such
   enquiries must be done in the presence of defendants. Additionally, reference was made
   to the Practice Direction (Crown Court: Jury Irregularities) [2013] 1 WLR 486. In
   essence, that practice direction advises that jury enquiries should be conducted in open
   court in the presence of defendants, unless there is good reason not to do so.
   [225] In relation to the enquiries made by the learned trial judge on 6 February 2014, it
   was also pointed out that the learned trial judge gave the jury a direction tailored to the
   circumstances, although it was not in the form recommended in the practice direction.
   [226] It was submitted that, in all the circumstances, no miscarriage of justice was
   caused to any of the defendants.
   Analysis
   [227] These grounds of appeal embrace three inter-connected issues, namely: (i)
   whether the judge erred by failing to conduct the enquiry correctly; (ii) whether the judge
   erred in conducting hearings in the absence of the accused; and (iii) whether the judge
   should have discharged the jury.
   [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).
   [229] The fact that we are without specific guidance in this jurisdiction as to how such
   enquiries are to be conducted also robs of their force submissions made on the basis of
   cases from other jurisdictions according to their rules, which are not in force in this
   jurisdiction. Such cases include: R v Blackwell and others and R v Putnam and
   others, on which the appellants placed heavy reliance.
   [230] The case of Sangit Chaitlal v The State (1985) 39 WIR 295, is helpful in
   providing some guidance as to the judge’s paramount duty where jury impropriety is
   alleged. In that case, the judge conducted an enquiry in his chambers, with counsel for
   both sides present, on being informed that a juror had been seen speaking with a witness
   during a break. No evidence was taken on oath. Both the witness and the juror denied
   the occurrence of the incident. The murder trial was allowed to continue with the juror on
   the panel. A verdict of “guilty” was returned. On appeal, the question arose as to whether
   failing to have evidence on oath taken at the enquiry vitiated the verdict. This is what was
   held (as recorded in the head note):
   “Held, dismissing the appeal … once a complaint regarding
   such a matter had been raised, the paramount duty of the
   trial judge was to determine whether there was a
   possibility of a miscarriage of justice; whether or not
   evidence on such an inquiry should be on oath was a matter
   entirely within the discretion of the trial judge, as was the
   question whether any or all the jurors should be discharged.”
   (Emphasis added)
   A similar stance was taken by this court in R v Oliver Whylie, (unreported) Court of
   Appeal, Jamaica, Supreme Court Criminal Appeal No 143/1978, judgment delivered 17
   December 1980. The court did consider whether the issue could have been dealt with by
   a voir dire (see page 6 of the judgment). It was satisfied that as long as the audi alteram
   partem rule had been followed there was no basis for interfering with the exercise of the
   trial judge’s discretion. (It should be noted that this court’s decision in that case was
   overturned on appeal to the Board in the case of Reid, Roy Dennis and Oliver Whylie
   v. The Queen and Errol Reece, Robert Taylor and Delroy Quelch v. The Queen
   (Jamaica) [1989] UKPC 1 (27th July, 1989). The appeal was allowed (as, for example,
   paragraph 46 of the Board’s advice shows) on the basis of challenges in relation to the
   identification evidence and the directions given on that issue.)
   [231] This seems to us to give a trial judge dealing with such an enquiry a very wide
   discretion in how the enquiry is to be handled, the paramount consideration being to avoid
   a miscarriage of justice. So that, unlike other cases in other jurisdictions that might have
   rules or established procedures for dealing with such enquiries, in this jurisdiction, apart
   from the parameters of justice and the avoidance of a miscarriage of it, a trial judge is
   given significant leeway. Our focus therefore has to be to discern whether the course
   adopted by the judge in respect of each of the issues caused any miscarriage of justice to
   any of the appellants.
   [232] In examining the issues, it is also important to recognise and accept as correct
   guidance, the dictum from this court at paragraph [17] of the case of Nash Lawson v R
   cited by the Crown, that circumstances may arise during a trial where the judge may need
   to confer with counsel for both sides in the absence of the accused. This leads us to a
   consideration of the circumstances of the hearings on both dates.
   [233] In the first instance (involving juror number 11), it is important, in our view, to
   note that, although the defendants were absent from the hearing in chambers, they were
   all represented by counsel. In the course of the enquiry (and, in fact, even just before he
   adjourned to deal with the issue) the judge indicated that he was seeking the input of
   counsel on both sides, in trying to find the best way of dealing with an unexpected
   development. The record shows that he received this input. There was no demur in
   chambers to the course proposed; and, similarly there was no demur even when the
   course proposed in chambers was acted on in open court. As time passed between when
   the enquiry was disposed of in chambers and when the matter resumed in open court,
   that would have allowed counsel to have dialogue with the appellants, to apprise them of
   what had taken place in chambers and, if necessary, to take instructions as to any
   particular course of action. It is also important to note that, on this occasion, in keeping
   with the guidance in Nash Lawson v R, what transpired in chambers was recorded by a
   court reporter.
   [234] The procedure adopted and the circumstances were quite similar in relation to the
   second instance of an enquiry being conducted in chambers: counsel representing the
   appellants were present and the judge consulted with them before coming to a decision.
   No objection was taken to the procedure adopted. In one instance, a concern was
   expressed (that is, that the jurors, being aware of the attempt at bribery, might have
   overcompensated against that threat, by ensuring that a guilty verdict was returned,
   regardless of the evidence). However, the judge, in his discretion, came to a decision on
   what he clearly thought was the best way to deal with the situation that confronted him.
   [235] The decision whether or not to discharge the jury, in response to the second jury
   situation, was also one that fell within the judge’s discretion. At Vol X, page 10, lines 5-7
   of the Supplemental Record of Appeal, it is clear that he considered, then ultimately
   rejected, the option of discharging the jury and stopping the trial. The following is
   recorded:
   “HIS LORDSHIP: Can we possibly continue or we have to bring
   it to an end? That is the decision I have to make.”
   Based on our reading of the transcript and our consideration of the submissions, we can
   see nothing manifesting an improper exercise of that discretion. The question of the
   amount of time spent in the trial of the case was not, contrary to the submissions for the
   appellants, an irrelevant matter. The proper administration of justice does require the
   consideration of such issues as well as the issue of prejudice to the persons accused.
   [236] In relation to the complaint that the learned trial judge ought to have listened to
   the recording of the alleged attempt at bribery, it should be noted from the outset that
   doubt was cast on the quality and extent of the recording in the first place. For example,
   when asked whether she had a recording of the conversation between herself and the
   allegedly erring juror, the forewoman replied: “Somewhat” (Vol X page 5, line 3 of the
   transcript). She also said: “The recording is low, I don’t know if you can hear it” (Vol X
   page 6, lines 14-15 of the transcript). Line 16 of page 6 shows that an attempt was in fact
   made to play the recording and that the judge asked whether there was some way of
   amplifying the recording: he was told that “the cyber people” could do so. He indicated
   an intention to listen to it, then proceeded to hear from the forewoman. So, it is not clear
   that the recording was audible at all or enough for the judge to have listened to it. If it
   was not, was the hearing of the recording absolutely necessary for the judge’s decision,
   that he should have deferred his decision pending the amplification of the recording
   (however long that might have taken)? We think not. Any recording could be used in
   further criminal proceedings against the juror in question.
   [237] During the course of that enquiry, the judge also had the forewoman’s assurance
   that none of the jurors was being influenced by the juror in question and that she was
   reminding the other jurors to be guided by the evidence.
   [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.
   [239] It is important to note as well that, in relation to section 16(3) of the Charter, it is
   difficult to see how the fact that the defendants were not present when the jury
   management issues were being dealt with could be fatal to the convictions. At every turn,
   they were all represented by counsel, who would have apprised them (or have had the
   opportunity of apprising them) of all the details of what had occurred in chambers, taking
   their instructions and proceeding as those instructions required. At all material times the
   defendants’ rights and interests were protected by their legal representatives. The same
   instructions which the defendants could have given to their counsel if they had been
   present at the enquiries are the same instructions that they could have given to their
   counsel after being informed of what had transpired in chambers.
   [240] There was the submission that the judge did not use or apply the correct test in
   dealing with the jury management issues, in particular the second situation. That test is
   enunciated in cases such as Magill v Porter; Magill v Weeks [2001] UKHL 67. At
   paragraph [103], Lord Hope of Craighead said as follows:
   “… The question is whether the fair-minded and informed
   observer, having considered the facts, would conclude that
   there was a real possibility that the tribunal was biased.”
   There is, however, nothing compelling that we can discern from our review of the matter
   that shows the existence of any possibility, risk or danger that a fair-minded and informed
   observer could or would have come to such a conclusion. This submission must therefore
   be rejected.
   [241] We find that the following words used by the Privy Council in R v Taylor at
   paragraphs [22] and [23] to describe the situation with which the judge in that trial was
   confronted, and his approach in dealing with it, might be applied to the circumstances
   which faced the judge in this case:
   “[22] …The question how then to deal with the situation was
   at the judge’s discretion. It was for him to take the course
   which he regarded as best suited to the circumstances: R v
   Orgles [1993] 4 All ER 533 at 538, [1994] 1 WLR 108 at
   112 per Holland J. In R v Thorpe (9 October 2000,
   unreported) (Court of Appeal, Criminal Division), para [12],
   Kay LJ said of a recorder, faced with unusual circumstances
   which had come upon him with little warning, that it was not
   surprising that he took a course which he no doubt believed
   at the time was a fair course and would properly deal with the
   circumstances in which he found himself….
   [23] …The general rule is not in doubt. It is the duty of the
   trial judge to inquire into and deal with the situation so as to
   ensure that there is a fair trial: R v Orgles [1993] 4 All ER
   533 at 538, [1994] 1 WLR 108 at 112. Here again, however,
   much has to be left to the discretion of the trial judge.”
   The sum total of this is that the appellants have failed in respect of these grounds relating
   to the jury management issues.
   Complaint of prosecutorial misconduct
   Ground 6
   [242] Ground 6 is concerned solely with the hearing in chambers on 13 March 2014. It
   reads as follows:
   “The assistance sought from and rendered by the Learned
   Director of Public Prosecutions to the LTJ, 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.”
   [243] The complaint made under this ground came in several documents: (i) the
   “Additional Grounds of Appeal and Skeleton Arguments on behalf of Shawn Campbell”
   (‘the first document‘); (ii) a document entitled: “Supplemental Skeleton Arguments in
   Support of Ground 6” (‘the second document‘); and (iii) a document headed: “Is the test
   for Misfeasance in a Public Office a relevant consideration for Prosecutorial Misconduct?”
   (‘the third document‘).
   [244] 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.
   Submissions
   [245] The most salient features of the challenge contained in the 43 paragraphs of the
   first document, may be identified as being reflected in paragraphs 16, 30 and 43, which
   are reproduced as follows:
   “16. It is submitted that the learned DPP’s decision not to
   discontinue at that stage of the trial, amounted to a
   failure to perform her functions, both as a minister of
   justice and pursuant to her powers given under s.94 of
   the Constitution, in accordance with the Appellant’s
   Constitutional right to a fair hearing (s.16(1)) and her
   obligation at Common Law to ensure that best
   practices are maintained throughout in a criminal trial
   (see R v Randall [2002] UKPC 19).
   ….
3. It is submitted that the advice given by the learned DPP
   to the LTJ, to continue with the case in the face of
   contamination, though given in the confines of the
   judge’s chambers and thus, outside of the hearing of
   the jury, it having been acted upon by the LTJ,
   ultimately contributed directly to the breaches of the
   Appellant’s Constitutional right to, inter alia, due
   process, involving his entitlement to trial by an
   impartial tribunal and thus to the substantial
   miscarriage of justice meted out to the Appellant.
   Therein lies a clear case of prosecutorial misconduct.
   ….
4. The aforementioned assistance rendered by the DPP
   was so gross a departure from good practice, as to
   amount to prosecutorial misconduct. Said advice
   having been sought and adopted by the LTJ, it
   undoubtedly had the effect of undermining the
   integrity of the trial in a material respect, in that it
   directly affected the question of the ability of the
   tribunal of fact to render an impartial verdict in
   accordance with the Constitution.”
   [246] In the second document, the appellants made reference to the Legal Profession
   Act; The Legal Profession (Canons of Professional Ethics) Rules (‘the canons’), canons
   III(f) and (h); and section 16(1) of the Charter. The appellants contended that the DPP,
   by encouraging the judge to retain the juror against whom allegations of tampering were
   being made, knowingly and deliberately acted contrary to the laws of the land and
   encouraged the learned trial judge to do the same. The relevant provisions are as follows:
   Canon III(f):
   “An Attorney shall not act contrary to the laws of the land, or
   aid, counsel or assist any man to break those laws.”
   Canon III(h):
   “An Attorney engaged in conducting the prosecution of an
   accused person has a primary duty to see that justice is
   done…”
   Section 16(1) of the Charter:
   “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.”
   [247] The gravity of the breach of the canons by the DPP, it was submitted, lends itself
   to the irresistible conclusion that the integrity of the trial was undermined, rendering it
   unfair and resulting in a breach of the appellants’ constitutional right to due process.
   [248] In the third document, the appellants argue that the principles enunciated in the
   tort of “misfeasance in a public office” can be of assistance in determining whether there
   has been prosecutorial misconduct. In this regard, counsel referred to the cases of Ashby
   v White (1703) 2 Ld Raym 938 (which, it was submitted, gave rise to the tort) and Three
   Rivers District Council and others v Bank of England [2000] 3 All ER 1 (‘Three
   Rivers’), as a basis for contending that the DPP, a public officer, contrary to the principle
   outlined in the Three Rivers case, used her power for improper purposes. Her actions, it
   was further contended, were in breach of the common law and she “aided and abetted in
   the offence of attempting to pervert the course of justice”. It was further submitted that,
   in addition to being in breach of section 16(1) of the Charter, the actions of the DPP also
   amounted to a breach of section 13(2)(b) of the Charter in that the action had the effect
   of abrogating, abridging and infringing on the fundamental rights of the appellants.
   [249] On behalf of the Crown, it was submitted as a starting point that guidance as to
   the role and duties of a prosecutor could be found in the case of Berger v United States
   (1935) 295 US 78 at page 88, per Sutherland J, who said: