KARTEL APPEAL DOCUMENTS PART 8

[430] Mr Taylor responded to Mr Lorne’s concern with the comment that the evidence
“touches and concerns the alleged death of the deceased”. DSP Thompson then went on
to say, without objection or further comment, that “[t]his alleged report named a suspect
as Clive Lloyd Williams otherwise called Lizard who was armed with a firearm”. Further,
based on this report, he gave instructions for investigations “to be conducted into Gaza
Slim’s report … specifically to record further statements from the relatives and friends of
the suspected deceased, Clive Lloyd Williams, now being treated as a suspected robber”
(Vol VII, page 3861 of the transcript).
[431] Lastly on this point, DSP Thompson testified that, having reviewed these
statements, he continued to direct the efforts to find the body of Mr Williams.
[432] In the course of reviewing Miss Jackson’s evidence for the benefit of the jury, the
judge said the following (Vol IX, pages 4760-4763 of the transcript):
“And then she went on to tell us that she knows – she is
familiar with members of the Portmore Empire and she
describes it as a group of disc jockeys otherwise known as the
Gaza Family. They go to stage shows, and they perform and
in reciting the members that she was aware of, of that family,
she talks about ‘Vybz Kartel’, ‘Shawn Storm, ‘Black Rhyno,
‘Javinci’, and they were some female associates. She
mentioned a person by the name of ‘Gaza Slim’. Now, that
name, ‘Gaza Slim’, you will recall the evidence of
Superintendent Thompson, which was to the effect that one
of the things, one of the reports that he received on the 29th
of October, 2011, he received certain reports in respect of an
alleged case of robbery against a person called Vanessa
Sadler, otherwise called ‘Gaza Slim’. And the alleged report
named a suspect, Clive Williams. So, this person who she has
identified as a part of the – what she calls the Gaza Family,
had made a report, shortly after — if not shortly, on the date
the 29th of October, he having gone missing on the 16th of
October [sic], that Clive ‘Lizard’ Williams had held her up with
a firearm. The important point in that – is that the officer said
that he gave instructions on the report for investigations to
be conducted on Gaza Slim’s report, and specifically, to record
statements from the relative of Williams, now being called a
suspected robber. The statements were recorded and he
having received the report about it, he continued, his evidence
says, to look for the body. He then continued to look for the
body of ‘Lizard’, Clive ‘Lizard’ Williams.
Well, you didn’t hear anything further at this trial of this
person, a member of the ‘Gaza Family’, as it is described,
about any robbery that Lizard Williams would have been
involved in subsequent to the 16th of August.”
[433] As foreshadowed by ground of appeal 12, Mr Samuels made two complaints arising
out of the history we have described in the foregoing paragraphs. First, that the judge
erred in allowing DSP Thompson to give inadmissible and prejudicial evidence about the
alleged report that the deceased had been involved in a robbery. Mr Samuels developed
the submission more fully in his written submissions, with the observation that –
“The clear inference to be drawn from the evidence
concerning Gaza Slim … is that the accused men were
involved in soliciting help from Gaza Slim one of the members
of the ‘Gaza family’, to take advantage of the missing body,
by bringing Clive Williams to life, with an invented story that

[he]

had been involved in robbing her, at gun point, some two
(2) months after the 16th of August 2011.”
[434] Second, that the judge’s directions to the jury in relation to DSP Thompson’s
evidence were unfair and only served to heighten its prejudicial effect.
[435] For his part, Mr Taylor submitted that “the evidence led by DSP Vernal Thompson
was not prejudicial and recounted evidence that was admissible, relevant and probative
to the issues at trial” (Skeleton Submissions filed on 25 June 2018).
[436] We would first observe that DSP Thompson’s evidence was received without
objection from counsel for any of the appellants. Mr Lorne’s very mild enquiry was made,
as he himself put it, with a view to urging Mr Taylor “to be cautious lest it become
prejudicial”. No ruling was sought from the judge, nor was any ruling made as to the
admissibility of the evidence regarding the Gaza Slim robbery report.
[437] But it seems to us that, in any event, evidence of the report of an alleged robbery
in which Mr Williams was said to have been involved, some two and a half months after
the date on which he was allegedly murdered by Mr Palmer, was plainly relevant to the
viability of the charge against Mr Palmer for his murder. So, in our view, DSP Thompson’s
evidence was admissible to demonstrate the extent of the efforts he made to exclude any
possibility that Mr Williams was still alive in October 2011.
[438] Any question of hearsay could only have arisen if DSP Thompson’s evidence of the
Gaza Slim robbery report were being relied on “testimonially”, that is, to prove that such
a robbery did in fact take place, a matter which was not an issue in the case at all. As
Lord Wilberforce explained in his well-known judgment in Ratten v The Queen [1971]
3 WLR 930, 930-934:
“The mere fact that evidence of a witness includes evidence
as to words spoken by another person who is not called, is no
objection to its admissibility. Words spoken are facts just as
much as any other action by a human being. If the speaking
of the words is a relevant fact, a witness may give evidence
that they were spoken. A question of hearsay only arises when
the words spoken are relied on ‘testimonially’, i.e., as
establishing some fact narrated by the words.”
(See also Subramaniam v Public Prosecutor [1956] 1
WLR 965, 970)
[439] As far as the judge’s summing-up is concerned, it seems to us that, save in one
respect, it was a perfectly accurate summary of the evidence given by both Miss Jackson
and DSP Thompson. Our single reservation has to do with the fact that the transcript of
Miss Jackson’s evidence records her as having described one of the female associates of
the Gaza family as “Gaza Kim”, and not, as the judge put it, “Gaza Slim”.
[440] It could of course be that Miss Jackson’s evidence was inaccurately recorded. This
view may in fact derive some support from Mr Samuels’ written submission (see paragraph
[433] above), which appears to proceed on the basis that Miss Jackson’s evidence was
the source of the description of “Gaza Slim” as “one of the members of the ‘Gaza family’”.
The fact that the way the judge put it failed to attract correction from anyone at the trial,
or protest from Mr Samuels on appeal, may also support this view.
[441] But, even if the name given by Miss Jackson was in fact “Gaza Kim”, it would not
detract from what the judge described as “the important point” of DSP Thompson’s
evidence: that is, that having received and investigated a report of Mr Williams’
participation in a robbery in late October 2011, he continued to look for Mr Williams’ body.
[442] In our view, the judge’s juxtaposition of Miss Jackson’s evidence with DSP
Thompson’s evidence in the passage complained of, as indeed we have done for the
purposes of this part of the judgment, was a helpful means of enabling the jury to, so to
speak, connect the dots in evidence spread over an extended period of trial. Any inference
to be drawn from that evidence was entirely a matter for the jury and we can see nothing
in what the judge said that might have inclined them one way or another.
[443] In our view, Mr Campbell’s ground 12 must therefore fail.
Issue E – The impact of publicity
[444] In ground 13, the appellants complain that:
“Given the nature, extent and volume of the publicity regarding this
trial (pre-trial, during trial, post-trial) the Appellants cannot receive a
fair trial in JAMAICA.”
[445] Mrs Neita-Robertson submitted that the case against the appellants was saturated
with media publicity prior to the start of the trial, during the trial and up to the current
date; that the material in the public domain was littered with grossly prejudicial
information, often inaccurate and misleading; and that this prevented them from having
a fair trial at every stage of the proceedings.
[446] In support of this submission, the appellants directed the court to a non-exhaustive
list of 24 instances of media reports released to the public, electronically or otherwise,
before, during and after the trial. Some of them consisted of articles ostensibly reporting
on what had taken place at the trial on a particular day, while a smaller number of them
consisted of public comment on aspects of the trial.
[447] Among those in the first category were, for instance, (i) an article published in the
Daily Gleaner newspaper (‘a Gleaner article’) dated 7 January 2014, entitled ‘Shawn
Storm’s text Were about Daughter, Not Lizard – Lawyer”; (ii) a Gleaner article dated 15
January 2014, entitled “Kartel, Shawn Storm Called Lizard Day Before Murder”; (iii) an
article published in the Daily Observer newspaper (‘an Observer article’) dated 10 February
2014, entitled “Head of police information unit, Steve Brown Summoned in Kartel”; (iv)
an Observer article dated 11 February 2014, entitled “Kartel attorney takes issue with
another police press release”; (v) an Observer article dated 16 February 2014, entitled
“Laughter as prosecutor, witness square off at Kartel trial”; and (vi) an Observer article
dated 7 March 2014, entitled “Jurors urged to ground judgment on evidence in [V]ybz
Kartel Trial”.
[448] Among those in the latter category, were, for instance, (i) a Gleaner article dated
24 February 2014, entitled “Pastor Rips Kartel’s Music to shreds – describes Artiste’s lyrics
as ‘Disruptive and violent’” (together with the various comments made on the article by
readers); and (ii) a Gleaner article dated 27 March 2014, entitled “Lessons from the trial
of Di Teacha Kartel”.
[449] The appellants also complained of items of adverse publicity released by the police
themselves, about which Mr Tavares-Finson had been obliged to protest during the trial.
The first matter had to do with a JCF Constabulary Communications Network (‘CCN’)
release dated 10 January 2014, the same day on which the Group Risk Director of Digicel,
Mr Joseph Simmonds, was called to give evidence for the prosecution. As read into the
record by Mr Tavares-Finson on 14 January 2014, the release stated that the police “have
launched an investigation into reports into a series of activities which have been linked to
a particular case that is currently before the court” (Vol V, page 2604 of the transcript).
Included among these activities, was the malicious destruction of “a number of the fiber
optic cables of one of the cell sites of a telecommunication company” (Vol V, page 2605
of the transcript). The release went on to state that “preliminary investigations indicate
that the acts appear to have been deliberately orchestrated by associates of suspects in
custody, criminals who seek to intimidate witnesses and pervert the course of justice” (Vol
V, page 2606 of the transcript).
[450] In response to Mr Tavares-Finson’s submission that the release was part of an
effort to interfere with the proceedings, the judge asked him to state what remedy he
proposed. Mr Tavares-Finson replied as follows:
“… I would like to see the person who takes responsibility for the
Constabulary Communication Network broadcast asked to attend
court, and he or she be warned that before material like this goes out
that it is dealt with and analyzed with a view to recognising or
determining whether or not it would interfere with the course of the
case. And this is not in days gone by where jurors don’t read – we
assume that they listen to television, that they are reading the
newspaper, because they are not sequestered in anyway – and the
Constabulary Communication Network should be warned.” (Vol V,
pages 2607-2608 of the transcript)
[451] Mr Tavares-Finson went on to make a further complaint about remarks attributed
to the Commissioner of Police as to the quality of the news reporting of the trial by the
Press, ending on the note that “your Lordship may very well look at it within the context
and say this is clear contempt of court, or you may view that a simple warning might be
sufficient, but something has to be done” (Vol V, page 2609 of the transcript).
[452] Expressing his concern that the matter not be “treated in such a way that it, in
fact, affects the trial”, the judge asked that the ranking police officer present be called
into court. In the absence of the Commandant, Inspector Meikle answered the judge’s call
and the following exchange ensued (Vol V, pages 2614-2615 of the transcript):
“HIS LORDSHIP: Inspector Meikle, I understand your Commandant is
off the building.
INSPECTOR MEIKLE: He was just called to an emergency meeting at
headquarters.

HIS LORDSHIP: I have before me a statement, I don’t know if it is –

Mr. T. TAVARES-FINSON: News release.
HIS LORDSHIP: By the Jamaica Constabulary Force Communication
Network. It is dated the first — the 10th of January this year, and the
attorneys in the matter in which I am presiding, which is presently
before the Court, have expressed some concern about the release.
The purpose why I have brought you here is to ask you – – in fact what
the lawyers had asked in this matter is that somebody be summoned
from this Organization so that the Court could express its concerns
directly to them. I don’t think we need go so far. I think there are
persons here who will be capable to really communicate with the
Agency the concerns of learned counsel for the Defence. I myself, on
an examination of the Release, see where it could be construed in that
way by some persons in the society and, perhaps, greater care ought
to be taken, because the Court itself is very jealous of its authority
and it is jealous to see that justice prevails here, and that the rights
of everybody is [sic] preserved and not prejudiced. So with that in
mind, Inspector Meikle, I am going to ask you to communicate with
this organization and communicate with them the concerns that the
Court has expressed, and we hope that their Releases would be such
as not to lend itself to the construction that has caused concern by
counsel.
INSPECTOR MEIKLE: Justice, could I get a copy of the document?
And I definitely will have dialogue with Mr. Steve Brown.”
[453] But, despite Inspector Meikle’s assurance, the issue arose again on 10 February
2014, while the trial was still in progress. On that morning, a Monday, Mr Tavares-Finson
(again, in the absence of the jury) drew the court’s attention to two newspaper
publications over the weekend, in the first of which reference was made to an article
issued by the Corporate Communications Unit (‘CCU’) in the JCF on the “‘attempted’ firebombing of a policeman’s house”. This article went on to describe the person involved as
“a witness in a high profile case now before the courts” (Vol VII, page 4084 of the
transcript). The second article spoke to the police having implemented a new protocol for
the use of telephones in police custody, requiring the presence of specially trained
personnel at each police station to prevent their use by unauthorised persons.
[454] As a result of all of this, Deputy Superintendent Steve Brown, the head of the CCU,
was called into court later that same morning, shortly after the close of the prosecution’s
case. When questioned by the judge, Deputy Superintendent Brown confirmed that the
information about the attempted fire-bombing of the house of a witness in a high-profile
case was in fact sent out by the CCU, prompting the judge to say this:
“… the complaint that is raised, as I understand it, is that it is likely to
cause prejudice in respect of the trial of the persons before this court.
Reason being, this is the second time the description that you’ve used
in this publication, in fact, has been used by your Unit, in that, it was
a high profile case here presently before the court. It doesn’t take a
lot of detective work to find out that the focus is on this particular
case, as you are no doubt aware …” (Volume VII, page 4124-4125)
[455] The judge then went on to urge Deputy Superintendent Brown, in terms of which
no complaint is made, to –
“… maintain the line that there must be no prejudice. Nobody who is
reading your article must come away with the view that persons
before this court are involved in any untoward situation.” (Vol VII,
page 4128 of the transcript)
[456] In their written submissions, the appellants referred us to a number of other
examples of what they described as prejudicial and or inaccurate reporting – in the print
and electronic media – on various aspects of the case. In her submissions before us, Mrs
Neita-Robertson specifically reminded us of Mr Palmer’s complaint in his unsworn
statement about statements attributed to the then Minister of National Security, Mr Peter
Bunting.
[457] One of Mr Palmer’s complaints related to an Observer article dated 13 January
2013, at a time when Mr Palmer was in custody awaiting trial, in which the Minister was
reported as having specifically instanced a dance hall song by him “as evidence of the
social dysfunctionality behind criminality in Jamaica”. In the same article, the Minister was
also quoted as having described the song as “an amazing piece of propaganda for [lottery]
scammers”.
[458] In his unsworn statement, Mr Palmer also referred to a further statement
attributed to the Minister, to the effect that he (Mr Palmer) was one of four essential
factors “mashing up” Jamaica. Mr Palmer’s comment on this, it will be recalled, was “if
that is not prejudicial against my case, my Lord, I don’t know what is …” (Vol VIII, page
4327 of the transcript).
[459] As his exchanges with Inspector Meikle and Deputy Superintendent Brown
demonstrate, the judge was alive to the potential for prejudice inherent in the level of
publicity which attended the trial. Indeed, in his exhortation to Deputy Superintendent
Brown, although acknowledging the importance of freedom of expression, the judge went
so far as to declare that “the rights of the persons sitting in court is [sic] going to trump
– you understand my use of the expression, ‘trump’ the right of the press” (Vol VII, page
4126 of the transcript). These remarks were, of course, made in the absence of the jury.
We will therefore have to return to what the judge actually told the jury in his summingup in due course.
[460] Mrs Neita-Robertson’s first submission on this issue was that, with regard to the
“firebombing” report originating from the CCN, the judge ought to have given due
consideration to discharging the jury at that point by reason of the adverse publicity which
came at a crucial stage of the trial (that is, shortly after the completion of the crossexamination of Mr Chow). She submitted that in these circumstances, having regard to
the type and source of the information, the jury must inevitably have been influenced by
it, irrespective of any subsequent direction from the judge to disregard it.
[461] In response to this submission, Mr Taylor referred us, firstly, to section 16(3) of
the Constitution, which provides that “[a]ll proceedings of every court … shall be held in
public”. He submitted that this was therefore an open trial, in which the defendants’ right
to a fair trial had to be balanced against the public’s right to know, bearing in mind that
two of the defendants were well-known entertainment personalities. The defendants did
not, as they might have done (i) apply to the court for an order excluding the media from
the trial (under section 16(4)(c)(i) of the Constitution); (ii) apply to the judge to stop the
trial and discharge the jury; or (iii) ask the DPP to institute proceedings for contempt of
court against any offending persons.
[462] The appellants cited a number of authorities and we intend no disrespect by
mentioning a few only of them. But, before doing so, we fully accept that, as the
appellants submitted, the governing principle is the fair trial guarantee enshrined in
section 16(1) of the Constitution:
“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.”
[463] In the context of a jury trial, the principle in action may clearly be seen in, for
instance, Rex v Fisher & Others (1811) 2 Camp 563, 570. In that case, on the trial of
the printer, publisher, and editor of a newspaper for publication of a libel, Lord
Ellenborough stated that “[i]f anything is more important than another in the
administration of justice, it is that jurymen should come to the trial of those persons on
whose guilt or innocence they are to decide, with minds pure and unprejudiced”.
[464] In Desmond Grant and Others v Director of Public Prosecutions and
Another [1982] AC 190 (a decision of the Privy Council on appeal from this court to which
Mr Taylor referred us), the question arose in the context of widespread pre-trial publicity,
involving unveiled suggestions in newspapers with island-wide circulation that the
applicants were guilty of murder and needed to be brought to justice. The applicants
applied under the then equivalent of section 16(1) of the Constitution (section 20(1)) for
a permanent stay of the trial of the charges against them on the ground that, because of
the massive prejudicial publicity, they would be deprived of their constitutional rights if
the trial were allowed to proceed. The application failed in the Full Court of the Supreme
Court and in this court on the basis that, despite the prejudicial pre-trial publicity that had
taken place, it had not been shown that it would be impossible to empanel an impartial
jury. In dismissing the appeal from the decision of this court, the Privy Council endorsed
the following statement in the judgment of Carberry JA (quoted at page 199 of the
judgment of the Board):
“For the purpose of these proceedings a remedy under the Constitution
is only available if the applicants can establish that there is likely to be
a contravention of section 20 (1) of the Constitution. This they can only
do by showing that there is likely to be a failure to afford them a fair
hearing by an independent and impartial tribunal. It is not sufficient
for them to establish – as they have done – that there has been adverse
publicity which is likely to have a prejudicial effect on the minds of
potential jurors. They must go further and establish that the prejudice
is so widespread and so indelibly impressed on the minds of potential
jurors that it is unlikely that a jury unaffected by it can be obtained.
We are not satisfied that they have established this, having regard to
the common law remedial measures which we indicated are available
to a trial court.”
[465] As the Board explained, the common law remedial measures to which Carberry JA
referred were a change of venue (which had already been sought and granted in that
case), postponement of the trial to allow the adverse publicity to fade in potential jurors’
minds; and the exercise by the judge of his discretion to allow each juror before entering
the jury box to be challenged for cause under section 33(4) of the Jury Act.
[466] Although not mentioned by name, the principle of Rex v Fisher & Others was
obviously in play in the unusual case of R v McCann and others (1991) 92 Cr App R

1. We take the facts from the judgment of Beldam LJ, who delivered the judgment of
   the Court of Appeal.
   [467] The appellants were apprehended in the vicinity of the home of the Secretary of
   State for Northern Ireland (Mr Tom King). They were arrested under the provisions of the
   Prevention of Terrorism (Temporary Provisions) Act 1984 and charged with two counts of
   conspiracy to murder Mr King and conspiracy to murder persons unknown respectively.
   However, they were subsequently committed to stand trial on the first count only. The
   case attracted a great deal of publicity. So much so that, on the day after the prosecution
   opening, following what Beldam LJ described (at page 244) as “some rather flamboyant
   reporting”, an application was made to discharge the jury. The application was refused
   and the trial proceeded.
   [468] After the close of the case for the prosecution, counsel for the appellants’ made
   an unsuccessful no case submission, whereupon each of them elected not to give
   evidence. Counsel for the Crown made his closing speech to the jury on the following day,
   to be followed the day after by counsel for the appellants. While counsel for one of the
   appellants was in the process of addressing the jury, the Home Secretary announced in
   the House of Commons the government’s intention to change the law on the right to
   silence. This controversial statement attracted great interest in the media, was widely
   reported and dominated that evening’s television news broadcasts. In the course of those
   broadcasts, Mr King made a number of observations which, it was submitted, tended to
   suggest that those who stood on the right to silence, particularly terrorists, did so to
   conceal their guilt. Upon being interviewed, the venerable Lord Denning, the former
   Master of the Rolls, made similar observations. In the light of these developments, counsel
   for the appellants made a further application to the trial judge to discharge the jury. The
   trial judge again refused the application, but warned the jury to disregard anything they
   may have heard on television in relation to the right to silence and undertook to warn
   them again in the summing-up. And, in due course, he did so in unexceptionable terms.
   The appellants were convicted after a total of 15 hours of deliberation by the jury.
   [469] On appeal, it was submitted on the appellants’ behalf that the intervention of the
   radio and television broadcasts and press comments at a critical stage of the trial made it
   impossible to say that they had not been influenced by what they must have seen or
   heard. Accordingly, the appellants contended, the trial judge fell into error in not
   discharging the jury and ordering a new trial.
   [470] The Court of Appeal explicitly approached the matter bearing in mind that (i) “…
   as Lord Atkin once said, ‘the path of justice is a public way’” (page 250); and (ii) the court
   was being asked to interfere with the trial judge’s exercise of his undoubted discretion
   whether or not to discharge the jury in the circumstances which had arisen.
   [471] But, these constraints notwithstanding, the court ultimately agreed with the
   appellants. Beldam LJ explained the court’s decision in this way (at page 253):
   “In the final analysis we are left with the definite impression that the
   impact which the statements in the television interviews may well have
   had on the fairness of the trial could not be overcome by any direction
   to the jury, and that the only way in which justice could be done and
   be obviously seen to be done was by discharging the jury and ordering
   a retrial. In our judgment, that is what the learned judge should have
   done.”
   [472] In R v Michelle Taylor and Lisa Taylor (1994) 98 Cr App R 361, the appellant
   sisters were convicted of murder. The prosecution case was that they had stabbed the
   victim to death because of jealousy arising from a sexual relationship between one of
   them and the victim’s husband. On appeal, it was contended that the convictions were
   unsafe because, firstly, there had been a failure to disclose a previous inconsistent
   statement by an important witness for the prosecution; and, secondly, the nature and
   extent of the press coverage of the trial were such as to make it impossible to say that,
   despite the several warnings which the trial judge gave the jury, they were not influenced
   in their decision by what they had read.
   [473] The appeal succeeded on both grounds. In relation to the second, the court
   considered the press coverage of the case to have been so unremitting, extensive,
   sensational, inaccurate and misleading, as to create a real risk of prejudice against the
   defendants, thus rendering the convictions unsafe and unsatisfactory. In coming to this
   decision, the court placed express reliance on R v McCann and others.
   [474] Two further points about R v Taylor and Taylor are worth noting. The first has
   to do with what McGowan LJ described (at page 368) as a “notable characteristic” of the
   media coverage in that case (368-369):
   “A video had been made of [the victim’s husband’s] wedding to the
   deceased. It had no relevance to the trial and was not played at it.
   Somehow or other a copy fell into the hands of the media, and we
   are told that it was shown on television. Among other things, it
   showed Michelle [Taylor] coming along the receiving line and kissing
   first the bride, and then the bridegroom. Her kiss of the latter was
   described to us as a ‘peck on the cheek’, such as any friend might
   give in those circumstances. What certain elements of the press did,
   however, was to show in their newspaper stills taken from the video,
   but in addition they froze a frame so that the peck on the cheek was
   made to appear a mouth-to-mouth kiss. This was accompanied in one
   newspaper by the headline, ‘Cheats Kiss’, and another by the headline
   ‘Judas Kiss’, and in another by the headline, ‘Tender Embrace – the
   Lovers share a kiss just a few feet from [the victim].’ Nothing like any of that, of course, had been said in Court. Indeed,
   the newspaper concerned did not limit themselves in any way to
   reporting what had been said in Court. These are some of the
   headlines we have seen: ‘Till Death Us Do Part’, ‘Butchered Bride,’
   and ‘Love Crazy Mistress Butchered Rival Wife Court Told.’ The Court
   had been told no such thing.”
   [475] The second point arises from McGowan LJ’s comment (at page 369) on the court’s
   initial concern at the fact that defence counsel made no application to the trial judge to
   discharge the jury on account of the press coverage. Despite this, however, the court was
   persuaded by the consideration that asking for a retrial may well have placed defence
   counsel on the horns of a dilemma, given that their clients had already spent a
   considerable time in custody, with the prospect of yet a further longer period of delay to
   come.
   [476] In R v Hamza [2006] EWCA Crim 2918, the appellant contended that the trial of
   the case against him should be stayed by reason of, among other things, the adverse
   publicity to which he had been subjected. In the course of his judgment in that case, Lord
   Phillips CJ described the circumstances of R v McCann (at paragraph [88]) as “quite
   extraordinary”, a view which he obviously took of R v Taylor and Taylor as well.
   Speaking more generally, however, Lord Phillips CJ went on to state the following (at
   paragraph [89]):
   “[89] In general, however, the courts have not been prepared to
   accede to submissions that publicity before a trial has made a fair trial
   impossible. Rather they have held that directions from the judge
   coupled with the effect of the trial process itself will result in the jury
   disregarding such publicity. The position was summarised by Lord
   Taylor CJ in R v West [1996] 2 Cr App R 374 at pp 385-6 as follows:-
   ‘But, however lurid the reporting, there can scarcely ever
   have been a case more calculated to shock the public who
   were entitled to know the facts. The question raised on
   behalf of the defence is whether a fair trial could be held
   after such intensive publicity adverse to the accused. In
   our view, it could. To hold otherwise would mean that if
   allegations of murder are sufficiently horrendous so as
   inevitably to shock the nation, the accused cannot be
   tried. That would be absurd. Moreover, providing the
   judge effectively warns the jury to act only on the
   evidence given in court, there is no reason to suppose
   that they would do otherwise. In Kray (1969) 53 Cr App
   R 412 at pp. 414, 415, Lawton J said:
   ‘The drama … of a trial almost always has the effect of
   excluding from recollection that which went before.’
   That was reiterated in Young and Coughlan (1976) 63
   Cr App R 33 at p. 37. In ex p. The Telegraph
   Plc (1994) 98 Cr App R 91, 98 [1993] 1 WLR 980, 987, I
   said:
   ‘a court should credit the jury with the will and ability to
   abide by a judge’s direction to decide the case only on
   the evidence before them. The court should also bear in
   mind that the staying power and detail of publicity, even
   in cases of notoriety, are limited and the nature of a trial
   is to focus the jury’s minds on the evidence put before
   them rather than on matters outside the courtroom.’”
   [477] Lord Phillips CJ then went on to refer to – and to endorse – the following statement
   by the President of the Queen’s Bench Division (Sir Igor Judge) in In the matter of B
   [2006] EWCA Crim 2962, paragraph 32:
   “32. There is a feature of our trial system which is sometimes
   overlooked or taken for granted. The collective experience of this
   constitution as well as the previous constitution of the court, both when
   we were in practice at the Bar and judicially, has demonstrated to us
   time and time again, that juries up and down the country have a
   passionate and profound belief in, and a commitment to, the right of a
   Defendant to be given a fair trial. They know that it is integral to their
   responsibility. It is, when all is said and done, their birthright; it is
   shared by each one of them with the Defendant. They guard it
   faithfully. The integrity of the jury is an essential feature of our trial
   process. Juries follow the directions which the judge will give them to
   focus exclusively on the evidence and to ignore anything they may
   have heard or read out of court. No doubt in this case Butterfield J will
   give appropriate directions, tailor-made to the individual facts in the
   light of any trial post the sentencing hearing, after hearing submissions
   from counsel for the Defendants. We cannot too strongly emphasise
   that the jury will follow them, not only because they will loyally abide
   by the directions of law which they will be given by the judge, but also
   because the directions themselves will appeal directly to their own
   instinctive and fundamental belief in the need for the trial process to
   be fair.”
   [478] It may also be worth noting that, earlier in that same judgment, the court
   recognised the need to strike a balance between the right to a fair trial (the “birthright”)
   and the freedom of the press:
   “[19] An equally precious principle, hallowed by custom and the
   tradition of the common law, is the freedom of the media to act as the
   eyes and ears of the public at large and, among their other
   responsibilities, to observe and contemporaneously to report the
   criminal proceedings involving the same Defendant whose birthright to
   a fair trial must be protected. The administration of criminal justice
   must be open and transparent. The freedom of the press to report the
   proceedings provides one of the essential safeguards against closed
   justice.”
   [479] In R v Hamza, Lord Phillips CJ stated the court’s conclusion on the adverse
   publicity point as follows (at paragraph [92]):
   “… The risk that members of a jury may be affected by prejudice is
   one that cannot wholly be eliminated. Any member may bring personal
   prejudices to the jury room and equally there will be a risk that a jury
   may disregard the directions of the judge when they consider that they
   are contrary to what justice requires. Our legal principles are designed
   to reduce such risks to the minimum, but they cannot obviate them
   altogether if those reasonably suspected of criminal conduct are to be
   brought to trial. The requirement that a viable alternative verdict be
   left to the jury is beneficial in reducing the risk that the jury may not
   decide the case in accordance with the directions of the judge.
   Prejudicial publicity renders more difficult the task of the court, that is
   of the judge and jury together, in trying the case fairly. Our laws of
   contempt of court are designed to prevent the media from interfering
   with the due process of justice by making it more difficult to conduct a
   fair trial. The fact, however, that adverse publicity may have risked
   prejudicing a fair trial is no reason for not proceeding with the trial if
   the judge concludes that, with his assistance, it will be possible to have
   a fair trial. In considering this question it is right for the judge to have
   regard to his own experience and that of his fellow judges as to the
   manner in which juries normally perform their duties.”
   [480] Lastly, we must refer to R v Gough [1993] 97 Cr App R 188, on which the
   appellants rely heavily for the well-known observation by Lord Goff of Chieveley (at page
   191) that “bias is such an insidious thing that, even though a person may in good faith
   believe that he was acting impartially, his mind may unconsciously be affected by bias”.
   [481] Against the backdrop of section 16(1) of the Constitution, these authorities
   therefore make it clear that, although the business of the court is generally conducted in
   public (“the path of justice is a public way”), preservation of a defendant’s right to a fair
   trial is the paramount consideration for a trial judge. The fact that adverse publicity may
   have risked prejudicing a fair trial does not necessarily mean that the trial should not take
   place at all (in a case of adverse pre-trial publicity), or be proceeded with (in a case in
   which complaint is made of adverse publicity arising during the course of the trial itself).
   Where the trial commences, it will be for the trial judge to determine whether, with his
   assistance, it will be possible for the defendant’s right to a fair trial to be adequately
   protected. The decision whether or not to discharge the jury on the ground of unduly
   prejudicial publicity in a particular case is a matter for the trial judge acting in his
   discretion. Where, as in R v McCann and R v Taylor and Taylor, the trial judge is
   satisfied that the impact of any prejudicial material cannot be overcome by directions to
   the jury, it may well be that the only way of preserving the defendant’s right to a fair trial
   is to discharge the jury and, where appropriate, order a new trial. Where the trial judge
   decides that the trial should proceed, his or her function will be to seek to concentrate
   the jury’s mind on the imperative of affording the defendant a fair trial, by way of
   directions carefully crafted to meet the circumstances of the particular case. In this regard,
   courts may generally credit the jury with the will and ability to abide by the judge’s
   directions and to decide cases only on the basis of evidence before the court. In keeping
   with the general principle which governs appeals from the exercise of a judicial discretion,
   this court will generally defer to the decision of the trial judge, unless it is clearly satisfied
   that the decision was plainly wrong, on the law or on the facts, or that it may have resulted
   in injustice to the defendant. And finally, while the question of whether an application to
   discharge the jury was made by counsel for the defendant at trial will always be a relevant
   factor to consider upon review by this court, it will not necessarily be determinative and
   it will always be a matter for this court to decide what the requirements of fairness dictate
   in all the circumstances of the case.
   [482] Mrs Neita-Robertson’s submission was, it will be recalled, that the judge ought to
   have given due consideration to discharging the jury immediately after the complaint
   about the report of the firebombing of the house of a witness for the prosecution in a
   “high profile case” was made. However, it will also be recalled that when the judge invited
   Mr Tavares-Finson, who had brought the matter to the court’s attention, to indicate what
   remedy he proposed, his response was that the person responsible for the CCN broadcast
   should be asked to attend court and warned about the danger of interfering with the
   course of the case. It was in response to this suggestion, that Inspector Meikle was called
   into court (in the absence of the Commandant) and given a stern warning by the judge
   (see paragraph [452] above). And, upon Mr Tavares-Finson’s further complaint about the
   report of an alleged investigation into a series of activities “which have been linked to a
   particular case that is now before the court”, Deputy Superintendent Brown was
   summoned and given an even more pointed warning by the judge (see paragraphs [454]-
   [455] above).
   [483] In his exchanges with the court about the CCN publications about which he
   complained, Mr Tavares-Finson, in clear recognition of the fact that whatever was to be
   done about them was a matter for the judge’s discretion, told the judge that “your
   Lordship may very well look at it within the context and say this is clear contempt of court,
   or you may view that a simple warning might be sufficient, but something has to be done”
   (paragraph [451] above). As it turned out, the judge chose the very option suggested by
   counsel, which was to call in the responsible police officers and give them a warning.
   There is no evidence of any further infraction after Deputy Superintendent Brown was
   spoken to, therefore suggesting that the judge’s exhortations had the desired effect. In
   these circumstances (including the absence of any application at the trial to discharge the
   jury), we find it impossible to say that the manner in which the judge exercised his
   discretion was aberrant in any way and that he ought instead to have considered
   discharging the jury.
   [484] 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, the view that “directions from the judge coupled with the
   effect of the trial process itself will result in the jury disregarding such publicity” (see
   paragraph [476] above).
   [485] As examples of cases falling on the other side of the line, so to speak, the
   appellants naturally rely heavily on R v McCann and R v Taylor and Taylor, in both of
   which it was held on appeal that the respective trial judges should have discharged the
   jury on the ground of adverse publicity. But these were both, in our view, highly
   exceptional cases. In R v McCann, the prejudicial material consisted of a combination of
   (i) a statement in Parliament of the government’s intention to change the law on the right
   to silence, while counsel representing accused persons who had already elected to remain
   silent in the exercise of that right, were actually in the process of addressing the jury; (ii)
   accompanying commentary by the virtual complainant, who was himself a member of the
   cabinet, tending to suggest that persons who stood on the right to silence did so to
   conceal their guilt; and (iii) the supportive commentary of a widely revered twentieth
   century judicial legend to much the same effect. It seems to us hardly surprising that the
   Court of Appeal would have regarded this toxic combination as an insuperable obstacle to
   the fairness of the trial: it would have required an uncommonly focussed and singleminded jury indeed to put those matters out of their heads completely, no matter how
   strongly the trial judge might have directed them to do so. It is no doubt with all of this
   in mind that Lord Philips CJ described the circumstances in R v McCann as “quite
   extraordinary”.
   [486] It seems to us that the matters complained of in R v Taylor and Taylor, while
   perhaps different in kind, were equally egregious, given the extent of the prejudice that
   the kind of downright fabrication set out at paragraph [474] above (described by
   McGowan LJ as a “notable characteristic” of the media coverage) would inevitably have
   generated.
   [487] So, in our view, those two cases stand in a category of their own. To some extent
   (though not on its facts), R v Hamza may bear closer analogy to this case. The appellant
   in that case was the imam of a London Mosque. On 7 February 2006, he was convicted
   on several counts of soliciting to murder, using threatening, abusive or insulting words or
   behaviour with intent to stir up racial hatred, possessing threatening, abusive or insulting
   recordings of sound with intent to stir up racial hatred and possessing a document or
   record containing information of a kind likely to be useful to a person committing or
   preparing an act of terrorism. In the main, the offences involved were allegedly committed
   between 1997 and 1999, but there was also one which was said to have been committed
   in 2004. One of the appellant’s grounds of appeal was that, as a result of the adverse
   publicity to which he was subjected during the period of delay in bringing the case to trial,
   he could not receive a fair trial, or there had been a real risk that he would not receive a
   fair trial.
   [488] To support this ground, the appellant relied on, among other things, over 600
   pages of newspaper reports, articles and comments spanning the period from the
   beginning of 2003 to March 2005. As Lord Phillips CJ described it (at paragraph [96]), this
   material was –
   “… almost entirely hostile to [the appellant] and some of it couched in
   particularly crude terms. There was indeed a prolonged barrage of
   adverse publicity, some of which treated the Appellant as an ogre. The
   judge remarked at p 46 of his first ruling that he had no doubt that
   the publicity would have created a risk that the fairness of the
   Defendant’s trial might be adversely affected.”
   [489] The trial judge refused three separate applications for a stay of the proceedings
   on the ground of abuse of process (which was said to include both the period of delay
   and the extent of the adverse publicity). In his view, it was possible to avoid the risk by
   way of a proper direction to the jury, thus enabling them to “bring impartial judgment to
   the case” (per Lord Phillips CJ, at paragraph [99]). The Court of Appeal declined to disturb
   the trial judge’s conclusion on this point and Lord Phillips CJ explained the basis of the
   decision in this way (at paragraph [103]):
   “The judge was correct to conclude that the adverse media publicity
   attendant upon the events that had occurred between 2000 and the
   bringing of charges against the Appellant in October 2004 had put at
   risk the fairness of his trial. The challenge posed to the judge of taking
   appropriate steps to neutralise the effect of these matters by
   appropriate directions and guidance in the course of his summing up
   was considerable. The task was an exacting one. The judge was
   confident that he would be able to discharge it. We have concluded
   that his assessment of the position was correct. The circumstances did
   not require the judge to stay the prosecution on the ground that there
   could not be a fair trial.”
   [490] In the result, having considered the trial judge’s summing-up, the court found no
   fault with it.
   [491] In our view, the decision in R v Hamza, in not dissimilar circumstances, clearly
   supports the conclusion that it was entirely appropriate for the judge in this case to seek
   to mitigate the effects of such adverse publicity against the appellants as there may have
   been by way of suitable directions to the jury. This conclusion derives additional support,
   it seems to us, from the fact that, unlike in R v Hamza, the appellants made no
   application to the judge to discharge the jury on the ground that the adverse publicity
   had put their right to a fair trial in jeopardy.
   [492] This therefore brings us to the judge’s summing-up and Mrs Neita-Robertson’s
   second submission, which was that, in any event, the judge’s directions on how to deal
   with the adverse publicity issue were wholly inadequate, given the extent of that publicity.
   She submitted that, in fact, the directions did not even come close to curing the mischief
   created by the direct involvement of the police in propagating such publicity against the
   appellants, Mr Palmer in particular. Indeed, in these circumstances, given the widespread
   nature of the adverse publicity and the police involvement, no warning that the judge
   might have been able to give could have sufficed to ensure a fair trial for the appellants.
   [493] Mr Taylor responded by submitting that the judge’s directions to the jury
   demonstrated that he was fully alive to the danger of prejudice and the need to safeguard
   the defendants’ right to a fair trial. The directions were therefore wholly appropriate and
   adequate in all the circumstances.
   [494] In summing-up to the jury, the judge tackled the issue almost at the very outset.
   He told them that the implication of the oath or affirmation which each of them had taken
   was that, in deciding the case, they should have regard to the evidence which they had
   heard only, and not to any extraneous considerations:
   “Madam Foreman and your members, you will recall when we started
   this case, each of you took an oath or an affirmation. You will recall
   that. That is of great significance and I want you to hold that. The
   oath, the affirmation you took is of great significance. That exercise
   is not to be treated lightly. It has important implications. The essence
   of what you swore to do or affirmed, is that you would decide the
   case, Madam Foreman and your members, based on the evidence.
   Based on the evidence.
   It follows, therefore, members of the jury, that when you
   come to consider the case, your deliberation must not be
   conditioned by any extraneous sentiment or consideration.
   You must not take into your deliberations matters which you
   may have heard outside of this court. You will, no doubt, recall
   that at each adjournment that was taken, I endeavoured to remind
   you not to discuss the case with anyone outside of your numbers.
   Perhaps Madam Foreman and your members, I did that to the extent
   that you were bored and a bit turned off by it. You probably wondered
   if the judge thought we didn’t have any sense, why does he keep
   repeating it like that. I tell you again, because it was of tremendous
   importance and it remains that way.
   Nonetheless, despite what I have been telling you, the case
   was widely reported by the media, both electronic and print.
   I quite understand it was generally topical. I can’t presume,
   Madam Foreman and your members, that you have been
   insulated, kept apart from all the reporting on this case. I,
   therefore, implore you and I implore you because of the oath
   you took, because of the oath you took. I implore you and
   remind you that in this serious and responsible function that
   you have, you cannot bring external matters into
   the consideration. The great Roman jurist Justinian in defining
   what justice is says, ‘Justice is a set and constant purpose which gives
   to every man his due.’ Madam Foreman and your members, I implore
   you, in keeping with your solemn oath and affirmation which each and
   every one of you took, prior to be empanelled in this case, that must
   be your resolve to do justice according to law, nothing else.” (Volume
   IX, pages 4705-4707) (Emphasis supplied)
   [495] Not too much further into the exercise, and still as part of his general directions,
   the judge returned to the question by way of a caution to the jury on the limits of their
   supremacy on the facts of the case:
   “Your supremacy in terms of the facts will not entitle you to some
   theory that is not grounded in the facts. And I need for you to
   remember that, Madam Foreman and your members. You are bound
   by the evidence alone. You must not allow yourselves to be
   taken off into a path of speculation. Look at the evidence, look
   to the evidence, and that is what, Madam Foreman and your
   members, you are to look to, the evidence alone, not some
   speculation and conjecture. Do not be distracted into making
   conjectures. The evidence must be your yardstick by which you
   judge this case, and the evidence comes from the witnesses. And
   when I say witnesses, I include the persons called on behalf of the
   Defence, as well as the witnesses for the Prosecution. (Vol IX, page
   4721 of the transcript) (Emphasis supplied)
   [496] And again, in the course of his general directions to the jury that they should not
   allow their minds to be prejudiced by anything they had heard or any view they had
   formed as to the nature of the activities in which the appellants were involved, the judge
   added this specific caution in relation to the case against Mr Palmer:
   “Neither are you to say that the accused Palmer is responsible
   for promoting crime in Jamaica through the lyrical contents of
   his music. That cannot be the basis upon which you are to
   conclude that the count on this indictment which charges the
   accused men for Murder has been proved. As I said, people’s
   morals are not on trial; so have no prejudice for [sic] the
   accused if you find that it is a ‘gun locking’ that had gone sour
   or that his lyrics are less than you would have them to be.
   Have no prejudice against them on that basis. You have to look
   at the totality of the evidence because, bear in mind, the indictment
   charges for the offence of Murder.” (Vol IX, page 4724 of the
   transcript) (Emphasis supplied)
   [497] This last passage was plainly a reference to Mr Palmer’s complaint about what Mr
   Bunting was reported to have said about the relationship between dance hall music and
   the dysfunctionality in Jamaican society. At several other points during the summing-up,
   the judge reminded the jury that “you must keep before you the oath or the affirmation
   that you took that you are going to hear the case, try the case, based on the evidence
   that you hear within this Court” (Vol IX, page 5131 of the transcript); and that “you have
   … taken an oath and affirmed, to listen to the evidence in this case and to return a true
   verdict based on the evidence. Based on the evidence” (Vol IX, page 5137 of the
   transcript).
   [498] As we have more than once observed, this was an unusually long trial. In the light
   of this, in deciding what to tell the jury about the impact of adverse publicity, the judge
   was, as it seems to us, placed in something of a dilemma. It would clearly have been
   unhelpful and counter-productive for him to have rehearsed for the jury specific items of
   adverse publicity, some of them harking back to a time long past during the trial, with a
   view to telling the jury to put them out of their contemplation altogether. But, on the
   other hand, it was obviously of critical importance that the jury be disabused in
   unequivocal terms of the notion that anything stated in the media had any bearing on the
   appellants’ guilt or innocence of the offence for which they were charged.
   [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.
   [500] Ground 13 therefore fails.
   Issue F – Sentencing
   [501] As we have noted, the judge sentenced the appellants to imprisonment for life at
   hard labour. He ordered that Messrs Campbell and Jones should each serve a minimum
   of 25 years in prison before becoming eligible for parole, while Messrs Palmer and St John
   should serve a minimum of 35 years and 30 years respectively. All four appellants now
   complain that these sentences were manifestly excessive in all the circumstances of the
   case (grounds 11/SC and 12/AC, KJ, AStJ).
   [502] The jury’s verdict was taken on 13 March 2014. At the suggestion of Mr TavaresFinson, and with the concurrence of all concerned, sentencing was set for 27 March 2014.
   On that date, the appellants’ antecedents were read out in court and Mr Tavares-Finson
   made a plea in mitigation on behalf of Mr Palmer.
   [503] The judge then raised the question of what assistance counsel might be able to
   give the court in relation to the principles of sentencing generally, for instance, with regard
   to any special aggravating or mitigating factors in the case; the appropriate ranges to be
   considered in fixing the respective periods to be served before becoming eligible for
   parole; whether the sentences should reflect differentials in the levels of involvement of
   each defendant in the commission of the offence; whether it was open to the court to
   make any recommendation as to the disposition of the proceeds of any artistic endeavour
   conducted by any of the defendants while on remand pending trial; and whether it was
   appropriate to hear from the deceased’s relatives on matters affecting sentence.
   [504] On that note, the sentencing hearing was adjourned to 3 April 2014. It appears
   from the transcript of the proceedings that, by that date, the prosecution had provided
   the judge with a document setting out the aggravating factors and a schedule of previous
   cases (Vol IX, page 5174 of the transcript). However, it does not appear that anything
   similar was submitted on behalf of the defendants. The judge enquired of Mr Christian
   Tavares-Finson, who appeared for Mr Palmer on that date, whether he wished to make
   further submissions, but the invitation was declined and reliance was placed on the plea
   in mitigation which Mr Tom Tavares-Finson had made on the previous date. Pleas in
   mitigation were then made by Mr Rogers on behalf of Messrs Jones and St John, and Mr
   Michael Lorne on behalf of Mr Campbell.
   [505] These were immediately followed by the judge’s brief sentencing remarks (Vol IX,
   pages 5206-5208 of the transcript):
   “Thank you, Counsel. This has never been an easy part of the trial for
   me; and among my brethren, I think it is fair to say, also, that quite a
   few judges experience a great deal of difficulty at this stage in the
   criminal trial. The accused are before the Court for the offence of
   Murder. The court, naturally, at this time notes the seriousness of the
   matter, of the offence. There are certain factors that the Court looked
   at in respect of this matter. I think it has been called the aggravating
   factors, that there was a great deal of planning, and premeditation.
   That, in fact, that the deceased had been subjected to an elevated
   amount of mental stress and threats. That he was subjected to as, I
   have said, threats, and there was the concealment of the body of the
   deceased which is [sic] still not been found. And that attempts were
   made to destroy the evidence in relation to the matter.
   What counsel Rogers has said on behalf of his client [Mr Jones] and
   Mr. Andre St. John is that certain of these factors would not attach to
   those offenders. In relation to the premeditation for example, he says
   there is no evidence, in fact, that there was any such factor. The Court
   recognizes that among the offenders before the Court, that there were
   differing roles, and, as such, it is fitting and proper to deal with them
   individually and have distinctive sentencing in respect of each.
   In respect of the accused – – please stand, all of you.
   In respect of the accused,
   Mr. Adijah Palmer, the sentence of this court is that he be imprisoned
   at hard labour for life, and will not be eligible for parole until a period
   of thirty-five years have passed.
   In respect of the accused, Mr. Campbell, the sentence of the court is
   that he be imprisoned for life and not be eligible for parole until a
   period of twenty-five years have passed.
   In respect of Mr. Kahira Jones, to be imprisoned for life, he will be
   eligible for parole after a period of twenty-five years have passed.
   In respect of Mr. Andre St. John, to be imprisoned for life and to be
   eligible for parole after a period of thirty years have passed.”
   [506] It is not in dispute that, given the provisions of the OAPA relating to sentencing
   for the offence of murder, the leeway allowed the judge in passing sentence in a case
   such as this case was relatively narrow. As the appellants accept, this was a murder
   covered by section 3(1)(b) of the OAPA. A person convicted of murder falling under this
   section is liable to be sentenced “to imprisonment for life or such other term as the court
   considers appropriate, not being less than fifteen years”. Section 3(1C)(b) goes on to
   provide that where, pursuant to section 3(1)(b), the court imposes “(i) a sentence of
   imprisonment for life, the court shall specify a period, being not less than fifteen years; or
   (ii) any other sentence of imprisonment, the court shall specify a period, being not less
   than ten years, which that person should serve before becoming eligible for parole”.
   [507] In this case, there is no challenge to the judge’s decision that the appellants should
   be sentenced to imprisonment for life. The judge was therefore limited to fixing a minimum
   period before parole of no less than 15 years. But the appellants submit, through Mr
   Robert Fletcher who carried this aspect of the argument, that in fixing the minimum period
   to be served by each of them, the judge erred in a number of respects. Thus, it was
   submitted that the judge failed (i) to apply the accepted principles of sentencing; (ii) to
   order and so avail himself of the benefit of a social enquiry report on each of the
   appellants; (iii) to give any or any sufficient weight to the various mitigating factors in
   respect of each of the appellants; (iv) to give them the benefit of the time spent by them
   in custody awaiting trial; and (v) to have any or any proper regard to the antecedents of
   the appellants and the pleas in mitigation made by their counsel on their behalf.
   [508] For all of these reasons, Mr Fletcher submitted that even if the sentences actually
   imposed by the judge may have fallen within the appropriate sentencing range, the judge’s
   failure to apply the relevant principles rendered them liable to review.
   [509] In making these submissions, the appellants rely on a number of authorities, many
   of them decisions of this court. Intending no disrespect, we will refer to a few only of
   them, given the fact that they all traverse well-covered ground in the modern sentencing
   jurisprudence of the court.
   [510] Thus, as regards the accepted principles of sentencing, the objectives of
   retribution, deterrence, prevention and rehabilitation have long underpinned sentencing
   practice in this jurisdiction and elsewhere (see, for example, R v Sergeant (1975) 60 Cr
   App R 74, 77, in which Lawton LJ characterised them as the four “classical principles of
   sentencing”; Regina v Sydney Beckford and David Lewis (1980) 17 JLR 202, per
   Rowe JA, as he then was, at pages 203-204; and Veen v R (No 2) (1988) 164 CLR 465,
   476, in which Mason CJ, Brennan, Dawson and Toohey JJ identified “protection of society,
   deterrence of the offender and of others who might be tempted to offend, retribution and
   reform” as the purposes of criminal punishment, while at the same time acknowledging
   that “[t]he purposes overlap and none of them can be considered in isolation from the
   others when determining what is an appropriate sentence in a particular case”.
   [511] It is by this means that the court seeks to “impose a sentence to fit the offender
   and at the same time to fit the crime” (Regina v Sydney Beckford and David Lewis,
   per Rowe JA at page 203).
   [512] In relation to social enquiry reports, this court has expressly recognised, as
   McDonald-Bishop JA put it in Michael Evans v R [2015] JMCA Crim 33, at paragraph [9],
   “the utility of social enquiry reports in sentencing”. The learned judge of appeal went on
   to point out that “obtaining a social enquiry report before sentencing an offender is
   accepted as being a good sentencing practice”.
   [513] However, it should be noted that in that case, in which the sentencing judge did
   not have the benefit of a social enquiry report, the court nevertheless dismissed the appeal
   against sentence, on the ground that, on the facts of the case, no prejudice to the
   defendant was caused thereby. Given the defendant’s antecedents, the court considered
   it to be “virtually unlikely that a social enquiry report could have been of any real benefit
   to him in all the circumstances of the case”, (per McDonald-Bishop JA at paragraph [11]).
   [514] In relation to aggravating and mitigating factors, in Meisha Clement v R [2016]
   JMCA 26, this court explicitly included, in addition to the identification of an appropriate
   starting point and other factors, the consideration of any relevant aggravating and
   mitigating features in the sequence of important decisions required to be taken by a
   sentencing judge in each case (see per Morrison P at paragraph [41]; see also Daniel
   Roulston v R [2018] JMCA Crim 20, per McDonald-Bishop JA at paragraph [26]).
   [515] As regards giving credit for time spent in custody awaiting trial, sentencing courts
   in this jurisdiction are now fully committed to the principle that full credit should generally
   be given to a defendant for time spent in custody pending trial (Romeo DaCosta Hall v
   The Queen [2011] CCJ 6 (AJ); Meisha Clement v R, at paragraphs [34]-[35]).
   [516] And finally, as regards this court’s power to review a sentence imposed at trial, in
   Kurt Taylor v R [2016] JMCA Crim 23, paragraph [23], F Williams JA referred to the wellknown case of R v Ball (1951) 35 Cr App R 164, 165, in which Hilbery J explained the
   appellate court’s traditional policy of showing deference to the sentencing judge, save
   where he or she is shown to have erred in principle:
   “In the first place, this Court does not alter a sentence which is the
   subject of an appeal merely because the members of the Court might
   have passed a different sentence. The Learned Trial Judge has seen
   the prisoner and heard his history and any witnesses to character he
   may have chosen to call. It is only when a sentence appears to err in
   principle that this Court will alter it. If a sentence is excessive or
   inadequate to such an extent as to satisfy this Court that when it was
   passed there was a failure to apply the right principles, then this Court
   will intervene.”
   (See also Alpha Green v R (1969) 11 JLR 283 and Meisha Clement v R, at paragraph
   [42]).
   [517] Against this background, the appellants’ first complaint is that, by not ordering a
   social enquiry report, the judge deprived himself of all the relevant information needed to
   inform an appropriate sentencing decision. They also complain that, in any event, the
   judge failed to have regard to their favourable antecedent reports, the pleas in mitigation
   made on their behalf and, in the case of Messrs Campbell and Palmer, the good character
   evidence given on their behalf during the trial. And finally, they contend that the judge
   ought to have given them credit for the time spent by them on remand pending trial.
   [518] Mr Taylor accepted that, in his brief sentencing remarks, the judge did not identify
   a sentencing range, nor did he fix an appropriate point within the range in respect of each
   of the appellants. However, he submitted that the advances in sentencing jurisprudence,
   which cases like Meisha Clement v R and Daniel Roulston v R reflect, were not
   available to the judge at the time of sentencing in 2014. Accordingly, acting in accordance
   with then settled sentencing practice, the judge considered various aggravating factors,
   such as the planning and premeditation of the murder, the elevated amounts of mental
   stress and the threats suffered and received by the deceased before he died, the fact that
   the body of the deceased was never found and the evidence of attempts to destroy the
   evidence in the period immediately following 16 August 2011.
   [519] Turning to the absence of social enquiry reports, Mr Taylor referred us to Sylburn
   Lewis v R [2016] JMCA Crim 30, another decision of this court in which the value of such
   reports was stressed. However, having ordered that a social enquiry report should be
   obtained for the purposes of the appeal against sentence, the court was careful to point
   out that the question whether to order such a report is generally a matter falling within
   the discretion of the trial judge.
   [520] But, although conceding that the judge’s sentencing reasons in this case could
   have been more comprehensive, Mr Taylor submitted that the sentences which were
   imposed were well within the range of sentences previously sanctioned by the courts for
   like offences committed in similar circumstances. We will mention a few of them.
   [521] In Wayne Ricketts v R (unreported), Court of Appeal, Jamaica, Supreme Court
   Criminal Appeal No 61/2006, judgment delivered 3 October 2008, a case of murder in
   which the body of the deceased was recovered, this court upheld a sentence of
   imprisonment for life, with a minimum period before eligibility for parole of 25 years.
   [522] In Melody Baugh-Pellinen v R [2011] JMCA Crim 26, a case of murder in which
   the deceased’s body was also recovered, this court upheld the conviction, which was
   largely based on circumstantial evidence. There was no challenge on appeal to the trial
   judge’s sentence of imprisonment for life, with a minimum period before eligibility for
   parole of 21 years.
   [523] In Calvin Powell & Lennox Swaby v R [2013] JMCA Crim 28, a double murder
   in which the bodies of the deceased husband and wife were recovered, this court quashed
   the sentence of death imposed by the trial judge and substituted in its place a sentence
   of imprisonment for life, with a minimum period before eligibility for parole of 35 years.
   [524] In Loretta Brissett v R (unreported), Court of Appeal, Jamaica, Supreme Court
   Criminal Appeal No 69/2002, judgment delivered 20 December 2004, another
   circumstantial evidence case in which the deceased’s body was never found, this court
   upheld a sentence of imprisonment for life with a minimum period before eligibility for
   parole of 25 years.
   [525] And finally, in R v Rushon Hamilton (Supreme Court Criminal Appeal No
   21/2013), another circumstantial evidence case in which the body of the deceased (a 15-
   year-old schoolgirl) was never recovered, the trial judge sentenced the defendant (a police
   constable) to imprisonment for life with a minimum period before eligibility for parole of
   35 years. The evidence led by the prosecution in this case was that the deceased was
   abducted from her gate in Harbour View, Saint Andrew, taken out to sea on a boat, shot
   and dumped at sea. The prosecution’s case was that the deceased was killed because she
   was a witness in a pending criminal case. (We should note that an appeal in this case is
   yet to be heard.)
   [526] As Mr Taylor quite properly concedes, the sentencing exercise in this case left
   much to be desired. For instance, despite the fact that the appellants did not request the
   judge to order social enquiry reports, we consider that a case of this magnitude involving
   multiple defendants was clearly one in which the judge might have done so of his own
   motion, given their now well-established value.
   [527] But, that having been said, as this court pointed out in Sylburn Lewis v R (at
   paragraph [15]), there is no mandatory requirement in the law for the ordering of a social
   enquiry report in every case. Accordingly, the question whether or not to order a social
   enquiry report in a particular case is “very much a matter for the discretion of the
   sentencing judge”. The court went on to observe that, “[g]iven the fact that, usually, the
   sentencing judge would have heard the evidence and be fully seised of all the facts of a
   particular case, this is not a matter upon which we would wish to be too prescriptive”.
   And, in any event, as was pointed out in Michael Evans v R, the court would also need
   to consider whether a social enquiry report could have been of any real benefit to the
   appellants in all the circumstances of the case.
   [528] It is also clear that the judge’s sentencing remarks fell short of the now accepted
   standards in other respects. Most notably, there is no indication on the record that he
   adopted the method of choosing an appropriate starting point and applying thereto the
   aggravating factors and the mitigating factors, with a view to arriving at a suitable
   sentence for each of the appellants in all the circumstances of the case (as to which see,
   among other cases, Everald Dunkley v R (unreported), Court of Appeal, Jamaica,
   Resident Magistrate Criminal Appeal No 55/2001, judgment delivered 5 July 2002).
   Perhaps most egregiously, as Mr Fletcher submitted strongly, was the fact that, on the
   face of them anyway, the judge’s sentencing remarks made no mention of any of the
   mitigating factors upon which the appellants were entitled to rely.
   [529] In order to consider the weight that might have been given to these factors, we
   will summarise briefly the salient points which emerged from the antecedent reports of
   each of the appellants in turn.
   [530] Mr Campbell was born on 17 November 1978. He was therefore 35 years of age
   as at the date of sentencing. He attended high school for five years and obtained four
   subjects in his Caribbean Examinations Council examinations. He had been gainfully
   employed for most of his adult life, most recently as an entertainer known as Shawn
   Storm. He was single with one dependant and had no previous convictions.
   [531] Mr Jones was born on 13 January 1987. He was therefore 27 years of age as at
   the date of sentencing. He attended high school and is literate. After leaving school, he
   worked as a disc jockey and was so engaged up to the time of his arrest. He was single
   with no dependents and had no previous convictions.
   [532] Mr St John was born on 7 April 1989. He was therefore 26 years of age as at the
   date of sentencing. He attended high school for a total of six years and is literate. He was
   engaged as a barber at the time of his arrest and was single, with two dependents. One
   of them was a six-year-old girl in respect of whom he was a single parent. He had two
   previous convictions, the nature of which does not appear from the record.
   [533] Mr Palmer was born on 7 January 1976. He was therefore 37 years of age as at
   the date of sentencing. He attended high school for a total of six years and is literate.
   After leaving school he started to write lyrics for other entertainers and was now himself
   an artiste with his own record label. He was in a common law relationship, and had seven
   dependents aged between three and seven. He had two previous convictions, both ganja
   related.
   [534] On the basis of all these considerations, the appellants contend that the sentences
   imposed by the judge were manifestly excessive and should be reduced.
   [535] We accept that it does not appear from the judge’s sentencing remarks that he
   considered specifically the mitigating factors which emerged from the antecedent reports.
   Nothing at all was said about the fact that Messrs Campbell and Jones had no previous
   convictions; or that, although both Messrs Palmer and St John had previous convictions,
   they appeared to have been for relatively minor offences. Nor was anything said about
   their relative youth, their exposure to secondary education and their potential for
   rehabilitation. Nor, in the case of Mr Campbell, was anything said about the kindness
   shown by him to the deceased in the past. Nor, in the case of Mr Palmer, was anything
   said about the uncontroverted evidence of his good character given on his behalf during
   the trial.
   [536] So, the question for this court is whether, in the light of the accepted shortcomings
   in the sentencing exercise which the judge conducted, we should reduce the sentences
   which he imposed, as the appellants ask us to do. In this regard, it is relevant to keep in
   mind, we think, that the ground of appeal is that the sentences were “manifestly
   excessive”. Although, in accordance with established sentencing doctrine, it is open to this
   court to interfere with sentences imposed by a trial judge if it can be demonstrated that
   he or she erred in principle in arriving at them, the ultimate issue for this court’s
   determination is whether, taking all factors into account, the sentences were unduly harsh,
   given the gravity of the crime and all other relevant factors.
   [537] As the sentencing cases cited by Mr Taylor demonstrate (see paragraphs [521]-
   [5245] above), the minimum periods of imprisonment before eligibility for parole in cases
   of murder falling within section 3(1)(b) of the OAPA, all but one of them approved by this
   court, have ranged between 21 and 35 years. In both of the cases at the top of this range,
   there appear to have been special factors distinguishing them from the norm. Calvin
   Powell & Lennox Swaby v R was a case of a double murder, in which this court
   considered that “the heinous nature of the killings” justified the stipulation of a period of
   35 years’ imprisonment before becoming eligible for parole; and R v Rushon Hamilton
   was a case in which the very experienced trial judge (Hibbert J) considered that the motive
   behind the killing justified condign punishment.
   [538] In Christopher Thomas v R [2018] JMCA Crim 31, paragraph [93], after
   reviewing a limited sample of sentences imposed after trial for murder, this court
   concluded that the authorities suggested “a usual range of 20 to 40 years’ imprisonment,
   or life imprisonment with a minimum period to be served before becoming eligible for
   parole within a similar range”. At the very top of this range was David Russell v R [2013]
   JMCA Crim 42, in which the appellant was convicted for the murder of two men who had
   been shot and killed as a result of what the prosecution characterised as “a drug deal
   gone sour”. The bodies of the two men were subsequently found bound and gagged in
   the back of a car in a cane field. The trial judge sentenced the appellant to 30 years’
   imprisonment on count one; and life imprisonment, with the stipulation that he should
   serve 40 years before becoming eligible for parole, on count two. His appeal against
   conviction was dismissed, and the court affirmed the sentences imposed by the trial judge.
   [539] Having considered these authorities, as well as the arguments put forward on
   behalf of the appellants, our conclusion is that, save in one respect, the sentences imposed
   by the judge in this case cannot be said to have been excessive to such an extent as to
   call for this court’s intervention. It is true that the judge did not, as he ought to have
   done, demonstrate in his sentencing remarks that he took all relevant matters into
   account. But we are quite satisfied that, on the facts found by the jury to have been
   proven in this case, the sentences fell comfortably within the range of sentences for
   murder established by the previous cases. In our view, the aggravating factors identified
   by the judge in his sentencing remarks – the planning, the premeditation, the elevated
   amount of mental stress caused and threats made to the deceased, the concealment of
   the body and the attempts to destroy the evidence – far outweigh the mitigating factors
   upon which the appellants rely.
   [540] In relation to Messrs St John and Jones, it was submitted that the judge erred in
   not taking into account the limited role attributed to them on the evidence in the killing of
   the deceased. In our view, this criticism is quite unjustified. The judge not only mentioned
   the point specifically in his sentencing remarks (see paragraph [505] above), but it seems
   clear from the sentences which he did impose that he intended to distinguish between the
   appellants and their differing levels of involvement in the events of 16 August 2011.
   [541] But it appears to us that the judge may have erred in not giving any consideration
   to the question of any time spent by the appellants in custody pending trial. It is quite
   likely that this situation arose because of the failure of defence counsel at trial to bring
   this aspect of the matter to the judge’s attention. Having reviewed what we were told on
   this issue during the hearing of the appeals, it now seems to us that the best course to
   take at this stage is to (i) defer our decision on the appeals against sentence; (ii) request
   a brief note from counsel for the appellants as to the precise period of time spent in
   custody by each of them pending trial; and (iii) render our decision on sentencing in
   writing within 14 days of receipt of that note.
   Disposition of the appeals
   [542] This appeal has covered a wide range of issues, some of which are unusual, even
   novel, to this court. Others involve well-traversed paths. In arriving at the decision that
   the appeals against both the convictions and the sentences must be dismissed, this court
   has decided that:
   a. the technology exhibits, in particular:
   i. the cellular telephone taken from Mr Palmer,
   containing the various text messages, BB messages,
   photographs and the video;
   ii. the CD prepared by Digicel showing the telephone
   contact between the various relevant persons; and
   iii. the analysis of the technology experts in respect of the
   contents of the available data,
   were properly admitted into evidence for the consideration of
   the jury;
   b. the judge properly handled the challenging issues involving
   the jury;
   c. the judge’s directions to the jury in respect of all matters,
   although containing some minor missteps, were fair and in
   accordance with the guidance of the previously decided
   authorities;
   d. the publicity, which was associated with the case, mainly
   because of the prominence of some of the appellants, did not
   prevent them from having a fair trial, as the judge properly
   and adequately reminded the jury of its duty to make its
   decision solely on the evidence before it; and
   e. despite the failure of the judge to follow the now well
   established procedure involving sentencing, the sentences
   that he imposed are consistent with sentences handed down
   in previous cases, but the appellants are each entitled to the
   benefit of a deduction of the time that they spent in custo