IN THE COURT OF APPEAL
TURKS AND CAICOS ISLANDS
DERON WILSON APPELLANT
The Honourable Mr. Justice Mottley, President
The Honourable Mr. Justice Stollmeyer, Justice of Appeal
The Honourable Mr. Justice Hamel-Smith, Justice of Appeal (acting)
Ms. Lara Maroof for the Appellant
Ms. Jillian Williams, Director of Public Prosecutions
Heard: November 1, 2018
Delivered: March 22, 2018
1. At the conclusion of the hearing of the appeal, we allowed the appeal and ordered a retrial. At that time, we promised to put into writing our reasons for so doing. These reasons are now handed down.
2. In view of the fact that we have ordered a retrial, we refrain from commenting on the facts except where it is absolutely necessary.
3. The appellant has been charge with the offence of keeping ammunition contrary to section 3(1) of the Firearm Ordinance. It was alleged that on Wednesday 18 May 2016, he unlawfully kept eight rounds of ammunition, .223 calibre at his house at Millennium Highway, Blue Hill, Providenciales without being the holder of a firearm licence.
4. After deliberating for 3 hours and 6 minutes, the appellant was convicted by the jury by a majority verdict of 6 guilty and 1 not guilty. He was sentenced to a term of imprisonment of 5 years which as the judge pointed out is the minimum.
5. The appellant has filed two grounds of appeal. In Ground 1, he alleged that the judge dialed to direct the jury that in order to convict the appellant they would have to be sure that he was knowingly in possession of the ammunition. In ground 2, it was alleged that the majority verdict was taken before the time required under the Jury Ordinance before the taking of a majority verdict had elapsed and that there was a material irregularity in the way in which the verdict was taken from the jury.
6. In the opinion of the Court, if the submissions relating to the time at which the verdict was taken is correct, it would mean that the trial would be a nullity as the majority verdict of the jury was taken before the time permitted under the Ordinance and was not properly taken. Having come to that conclusion and in view of the order for retrial, the Court did not consider it necessary to deal with ground 1.
7. As indicated, the issue in this case relates to the length of time during which the jury retired to deliberate before returning a majority verdict of guilty.
8. On page 239 of the Record the following is stated:
“Her Ladyship: I have the jury retiring at 1:25pm
Mr. Wilson, you are not to leave the compound. You stay here within the precincts of the yard to await the jury's verdict.
Jurors return: 4:31
Her Ladyship: Miss Harvey, please, call the matter and take the verdict.
The Clerk: Case 33/16: Regina versus Deron Wilson
The Clerk: Madam Foreman, please, stand. Please, answer the next question yes, or no.
Have you reached a verdict upon which you are all agreed?
Her Ladyship: Okay. How are you divided. I don't want the verdict divide, I just want the numbers divide.
Foreman: Six, one
Her Ladyship: Six, one
Foreman: Yes, ma'am
Her Ladyship: Okay, we can take a divided verdict, since it's been more than three hours. You left at 1:25 and it's now 4:31.
Okay. “In every criminal case, if after the jury have been in deliberation for at least three hours, and they have not unanimously agreed on a verdict, it shall be competent for five persons of such jury to find a verdict, and such verdict, when so delivered, shall have the same force and effect as if the whole jury had concurred therein. Provided always that in delivering such verdict, the Foreman shall declare to the Court, in the presence of the jury, that at least five of their number have agreed thereto.”
And that's section 36 of the Jury Ordinance.
Take the verdict, please, Miss Harvey/
The Clerk: How do you find on the sole count on the indictment, which charges the defendant with Keeping Ammunition, contrary to section 3 subsection 1 of the Firearm Ordinance, Chapter 8.09, guilty or not guilty? Foreman: Guilty.
Her Ladyship: You are saying that six said guilty, and one said not guilty?
Foreman: Yes, ma'am
Her Ladyship: Thank you, madam. Please, sit. Yes, jury, have heard for what I read that you can divided after three hours.
Thanks for your verdict, thanks for your time and your patience in this case. You are needed again until October 31st, unless you hear differently.
Thank you. You are executed. You may go.”
9. In the second ground of appeal the appellant alleged that the majority verdict was taken before the necessary time had elapsed and that there was material irregularity in the way the verdict was taken. In essence, two separate issues arise under the ground-
(i) insufficient time having elapsed between the retirement of the jury and the return of the verdict; and
(ii) irregularity in the taking of the verdict of the jury.
10. As stated in the Record of Appeal, the jury retired at 1:25pm. The court resumed sitting at 4:31pm. The issue in this aspect of the ground is whether the jury deliberated for the statutory period “for at least three hours” as set out in section 36 of the Jury Ordinance Cap 2.09 (“the Ordinance”). Section 36 provides:
“In all other cases, after three hours deliberation, verdict may be given by five
36. In every criminal case, other than treason, murder or piracy, and in every civil case, if after the jury, whether special or common, have been in deliberation for at least three hours, they have not unanimously agreed on a verdict, it shall be competent for five persons of such jury to find a verdict, and such verdict when so delivered shall have the same force and effect as if the whole jury had concurred therein:
Provided always that in delivering such verdict the foreman shall declare to the Court, in the presence of the jury, that five of their number have agreed thereto. (Amended by Ord. 7 of 2002)”
11. This section requires that in cases, such as this, not being treason or murder trial, the jury were required to deliberate for “at least three hours” before the court is entitled to accept a majority verdict.
12. What is made clear by section 36 is that the actual deliberation by the jury must be at least 3 hours. It does not state that after the jury is out or retired for 3 hours, the court is entitled to accept a majority verdict. The jury must have in fact deliberated for at least 3 hours.
13. The time during which the jury would have to walk to the jury room is not to be counted and must be excluded. In addition, the time after the deliberation when the jury would have informed the officers of the court that, as in this case, they have not reached a unanimous agreement and the time during which this information had to be communicated to the court must also be excluded. Also the time it takes the court to reconvene and for the jury to return to the court cannot be taken into consideration.
14. These factors, when taken into consideration, raised doubt whether the jury did in fact deliberate “for at least 3 hours”. The actual deliberation by the jury must be “at least three hours”. This does not include the time it would have taken the jury to walk to and from the court. In the circumstances provided for the jury going to and from the jury room, it is recommended that the judge should ensure that at least 3 hours and 10 minutes have elapsed between a time when the jury retires to consider its verdict and the time when it returns to the court to announce its verdict.
15. Complaint is also made of the manner in which the verdict of the jury was taken by the court. On returning to the court, the clerk of the court told the foreman:
“Please answer the next question yes or no. Have you reached a verdict upon which you are all agreed?”
The foreman responded “No”. Instead of following the accepted procedure contained in the Practice Direction set out below, the judge unfortunately intervened. The judge asked the foreman how the jury was divided. The judge told the foreman he did not want to know the verdict just the numbers divide. The foreman told the judge “six, one”. The judge told the foreman:
“Okay we can take a divided verdict since it's been more than three hours.
You left at 1:25 and it's now 4:30”
16. It was unfortunate that the judge took matters into her own hands and totally ignored the provisions of the Practice Direction dealing with majority verdicts issued by the Court of Appeal, Criminal Division  3 ALL ER 137. Lord Parker CJ stated that the Practice
Directions were being made after consultations between the judges of the Queen's Bench
Division and the concurrence of the Court of Appeal, Criminal Division. Lord Parker said.
“It is important that all those trying indictable offences should so far as possible adopt a uniform practice both in directing a jury in summing-up and also in receiving the verdict or giving further directions after retirement. So far as the summing-up is concerned, it is inadvisable for the judge and indeed for counsel to attempt an explanation of the section for fear that the jury will be confused. Before the jury retire, however, the judge should direct the jury in some such words as the following:
"As you may know, the law permits me in certain circumstances to accept a verdict which is not the verdict of you all. Those circumstances have not as yet arisen so that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should, however, the time come when it is possible for me to accept a majority verdict, I will give you a further direction."
17. His Lordship then set out the practice that should be followed:
“1. Should the jury return before the two hours (or such longer time as the judge thinks reasonable) has elapsed (see sub-s (3)), they should be asked (i) Have you reached a verdict upon which you are all agreed? Please answer "Yes" or "No". (ii) (a) If unanimous--what is your verdict? (b) If not unanimous--the jury should be sent out again for further deliberation with a further direction to arrive if possible at a unanimous verdict.
2. Should the jury return (whether for the first or second time) or be sent for after the two hours (or the longer period) has elapsed, questions (i) and (ii) (a) in the preceding paragraph should be put to them and if it appears that they are not unanimous they should be asked to retire once more and told that they should continue to endeavour to reach a unanimous verdict but that if they cannot the judge will accept a majority verdict as in sub-s (1).
3. When the jury finally return they should be asked (i) Have at least ten (or nine as the case may be) of you agreed on your verdict? If "Yes", (ii) What is your verdict? Please only answer "Guilty" or "Not Guilty". (iii) (a) If "Not Guilty"--accept the verdict without more ado. (b) If "Guilty"--is it the verdict of you all or by a majority? (iv) If "Guilty" by a majority, how many of you agreed to the verdict and how many dissented?”
18. The Court recommends that the practice as set out in the Practice Direction ought to be guided by trial judges who preside over criminal trials.
Hamel-Smith, JA (Ag.)