After nearly three years of delays in starting former legislator Andre Penn’s second trial for a bevy of sex crimes, it came as little surprise when Mr. Penn asked for another adjournment three days before his trial was scheduled to commence last November.
Yet again, the court stood down the matter while technical legal issues were argued in closed hearings on Nov. 3, 4, 11 and 24.
But while previous delays often came because Mr. Penn showed up to court unprepared for trial, the November hearings led to a judgment that may have permanently changed the territory’s criminal proceedings moving forward.
One of the issues raised last November by Mr. Penn’s attorney, Queen’s Counsel Jerome Lynch, was an argument that the territory’s Jury Act 1914 violates the constitutional right of criminal defendants to receive a fair trial. The law allows the prosecution to strike down all the jury candidates in a given panel without cause, while the defence can only strike down three — giving the prosecution an unfair advantage, Mr. Lynch argued.
‘Equality of arms’
In a written judgment issued last month, High Court Justice Darshan Ramdhani sided with Mr. Lynch, ruling that there should be “equality of arms” between the defence and prosecution, and that both sides can strike down only three jurors without cause.
The ruling, which overturned a century-old Jury Act provision, was referred to as “precedent making” by Mr. Rabdhani’s fellow justice, Vicki-Ann Ellis, in a separate judgment involving Mr. Penn (see sidebar).
Many defence attorneys who practise in the territory view the ruling as a positive move.
Mr. Lynch told the Beacon that he doesn’t think the Crown should have any power to strike down jurors without cause, but that limiting its ability to do so is nevertheless a step in the right direction.
“I believe it is about time that prosecuting authorities throughout much of the Caribbean stopped abusing their right to ‘stand by’ for the Crown, which is being used as an endless supply of peremptory challenges whilst the defence is left with just three,” Mr. Lynch stated.
Virgin Islands-based defence attorney Patrick Thompson agreed with the Queen’s counsel.
“This is a very significant ruling since it levels the playing field and restricts the Crown’s ability to handpick juries,” Mr. Thompson stated. “[Prosecutors] were notorious for handpicking juries since their right of unlimited stand-by left them able to manipulate the composition of the jury as it suited them.”
Sexual offences
Mr. Ramdhani stated that the authority to strike down an unlimited number of candidates could play an especially crucial role in trials involving sexual offences.
“Peremptory challenges which are gender based — such as, for example, removing all men from the jury in the trial of a sexual offence allegedly committed against a woman — may have the effect of increasing prejudices which go unchecked during the deliberation process,” he wrote in his judgment.
The justice made it clear that he didn’t suspect any foul play by the Crown counsels involved in the trial, but he said that the current law is nevertheless open to abuse.
“As a rule, the conduct and competence of Crown attorneys is exemplary,” Mr. Ramdhani stated, quoting a ruling by the Canadian Supreme Court: “Yet they, like all of us, are subject to human frailties and occasional lapses.”
He also noted that the Crown stood down jurors “some 26 times” in the first Andre Penn trial, but didn’t stand down a single candidate during the second trial.
Mr. Lynch said that the jury was composed of all women in Mr. Penn’s first trial, and only had one man in a second trial that was aborted in June 2013.
Possible appeal
Mr. Thompson cautioned that Mr. Ramdhani’s ruling could be overturned if the Crown appeals.
“I am surprised that the Crown has not appealed the ruling since they were at liberty to do so, and should have done so if they felt strongly enough about it,” he stated this week.
The matter isn’t closed yet, however, as the Crown has until the end of the month to appeal the justice’s February ruling.
Calls to the Office of the Director of Public Prosecutions and the Attorney General’s Chambers to ascertain whether Mr. Ramdhani’s ruling will be challenged were not returned.
Mr. Lynch said he doubts the Crown will appeal since it secured a conviction against his client.
“The right of appeal has to do with outcomes from the trial,” he said.
A surprise
Mr. Ramdhani’s ruling came as a surprise to some, as issues of constitutionality are usually handled through judicial review in civil court.
Mr. Lynch, in fact, urged the justice to leave the issue to a civil court, which he said is the proper forum designated by the Constitution to handle such matters. The Queen’s counsel argued in November that the criminal trial should be delayed until the matter is decided in the proper forum.
Director of Public Prosecutions Wayne Rajbansie argued against standing down the criminal trial, stating that Mr. Ramdhani has the right to settle constitutional issues during criminal hearings. However, the DPP still criticised the justice, saying he “embarked on judicial activism and was writing the law” by essentially changing the provision of the Jury Act that allows the Crown to strike down an entire array of jury candidates, according to the judgment.
Mr. Ramdhani asserted that criminal and other High Court tribunals have authority to reinterpret the Jury Act under section 115 of the Constitution, which states that unconstitutional laws “should be construed with such adaptations and modifications as may be necessary to bring them into conformity with this Constitution.”
The justice made clear in his judgment how he interpreted the territory’s Jury Act. Whereas the letter of the law states that the prosecution can strike down without cause all jurors “until the panel has been ‘gone through,’” Mr. Ramdhani argued that a law in line with the Constitution would place the defence and prosecution on equal ground by allowing them to strike down three jurors each.
100-year-old law
Mr. Ramdhani also wrote in his judgment that he understood the significance of his decision to reinterpret a 100-year-old VI law, but he maintained that the change was necessary in order to secure the rights of Mr. Penn and other defendants.
“It may be that this court will be accused of law making,” he conceded, but added that he was only changing one specific provision of the Jury Act: the number of jurors that the Crown can strike down without cause.
“One must be careful not to simply assume that if the court were to take out words or add words to the section, this would amount to law making,” he wrote.
The justice ended his judgment with a statement urging the House of Assembly to amend the Jury Act so that it aligns with the Constitution: “I would also urge that parliament visit this matter as soon as possible. The arguments taken had merit, and these issues will affect any trial in this jurisdiction, as they really do go to the heart of a fair trial.”
Governor John Duncan said during his 2014 Speech from the Throne that the government plans to amend the Jury Act this year. The promise, however, is not new: Former Governor Boyd McCleary made the same pronouncement in his 2011 and 2012 speeches.
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