R v Fuller Nathaniel (Phillip) Smith
| Jurisdiction | Turks and Caicos Islands |
| Judge | Ms. Justice Lobban Jackson |
| Judgment Date | 22 February 2021 |
| Court | Supreme Court (Turks and Caicos) |
| Docket Number | CR 27/2020 |
THE HON. Ms. Justice Lobban Jackson
CR 27/2020
IN THE SUPREME THE TURKS AND CAICOS ISLANDS
Criminal Law-Criminal Procedure Ordinance-Trial without Jury-Pre-Trial Publicity-Right to a fair hearing within a reasonable time — s6 of Constitution of the Turks and Caicos Islands-Delays in Jury trials due to COVID 19 pandemic.
Mr. Oliver Smith FOR THE APPLICANT
Ms. Angela Brooks AND Ms. Shetalia Hall FOR THE CROWN
This matter concerns an application for trial without a jury pursuant to section 58(d) of the Criminal Procedure Ordinance Cap 3.03. (The Ordinance). It is opposed by the Prosecution.
The Applicant is currently on remand at Her Majesty's Prison on a charge of murder. He has a warned trial date for September 20, 2021 and a fixed trial date of November 1, 2021. He seeks to move the court that it is in the interests of justice to make an order for trial by judge alone.
In summary, the Applicant submits that the extent of the adverse pre-trial publicity surrounding his arrest and charge for the offence of murder, in such a small jurisdiction, coupled with the popularity of the deceased creates a real risk that such pre-trial publicity will impact the jury in favour of the Crown and against the Defence.
The Applicant further submits that because of the negative pre-trial publicity he would not receive a fair trial if his case is tried by a jury.
With the temporary suspension of jury trials as a result of the COVID 19 pandemic, the Applicant says his right to a fair trial within a reasonable time is in jeopardy and this can be cured by a trial without a jury.
The Applicant has produced two Affidavits in support of the grounds of the Application. The First which was sworn on October 14, 2020, sets out the extent of the information received regarding negative social media posts and general news coverage following his arrest and charge.
The Applicant stated at paragraph 4 of his first Affidavit:
“That I was reliably informed and do verily believe that immediately after my arrest there were numerous posting on ‘WhatsApp’ and other forms of social media. Said postings were about the incident for which I am now before the Court and were primarily amongst and between residents of Grand Turk. These postings were predominantly negative towards me, effectively prejudged my case and presumed that I was guilty”
This Affidavit also sets out the Applicants knowledge or belief that the deceased was a “very popular person in Grand Turk in particular and the Turks and Caicos Island in general”.
The Applicant states that he is willing to waive his right to a trial by jury and elects to be tried pursuant to Practice Direction 3 of 2020 (PD3).
The second Affidavit of the Applicant dated February 9, 2021 exhibits various newspaper articles which covered the arrest and charge of the Applicant. These are listed below as follows:
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a. Press release dated June 21, 2020, on the Royal Turks and Caicos Islands Facebook page with comments below.
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b. Turks and Caicos SUN issue dated June 26 th 2020 — July 3 rd 2020 titled “Man arrested for Murder after fatal stabbing on Grand Turk”
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c. Weekly News headline: dated July 3, 2020 titled “Grand Turk man charged with murder”
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d. Weekly News issue dated November 6, 2020 mentions of the case in a general article entitled “Man shot dead in Grand Turk-Capital records sixth murder of 2020”
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e. Weekly News issue dated December 11, 2020, mentions the case in article titled “TCI nears end of 2020 with record high number of murders”
The Applicant relies on the case of Michelle Ann Taylor and Lisa Jane Taylor 1 in which the Court declined to order a retrial after overturning the conviction, on the basis that the press coverage of the trial had been “ unremitting, extensive, sensational, inaccurate and misleading”. However, it was conceded that the press coverage in the case at bar was in no way as extreme as in the case of Taylor.
The Crown opposes the Application on the basis that it would not be in the interests of justice to grant same. In support of their submission the Crown relies on the dictum of Lord Hughes in the case of Misick and Others v R 2 at paragraph 53:
“It should be emphasised that the possibility of trial by judge alone, provided for by TWAJO, is an exceptional departure from the normal mode of trial for serious offences before the Supreme Court of the Islands which is, by section 3(1) of the Criminal Procedure Ordinance, trial by judge and jury. Just as under the differently worded English and New Zealand legislation, departure must be justified. An order for trial by judge alone can be made only where the interests of justice require it, just as in England it can be made only where it is necessary. Under both statutory tests, the evaluative exercise mandated for departure from jury trial incorporates the considerable weight of the value of such trial. They incorporate the proposition that trial by jury for serious offences is a valuable right of both the defendant and the public and is, in common law countries, the norm on which criminal justice is based. Departure from it must be confined to whatever classes of case or circumstance for which the legislation provides, and must be plainly justified. Neither formulation permits an order to be made simply because it is more convenient, or marginally preferable.”
The Crown further submits that there is no supporting evidence in reference to the WhatsApp posts and also nothing to support the inference that a significant number of potential jurors would be influenced by the pre-trial publicity.
The Crown also relied on a recent decision of the Court regarding a similar application by for trial without a jury pursuant to section 58 of the Ordinance. In the Case of R v. Clarence Williams 3, the Application by the Crown who presented a newspaper article to ground their submission on adverse pre- trial publicity, was ultimately rejected by the Court. It was determined that considering all the circumstance of the case, that protection measures could be employed and it could therefore not be said to be in the interest of justice to grant the application for trial by judge alone.
Similarly, in this case the Crown submits that proper warnings to the jury can cure any risks of adverse pre-trial publicity such as may exist.
This Application is brought under section 58 of the Criminal Procedure Ordinance which states:
“ Application for trial to be conducted without...
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