January 11, 2013
Giving verdicts in court
There have been mixed reactions to the handling of the verdicts on Wednesday in relation to two of three policemen who went on trial on October 29 last year in the Home Circuit Court for the murder of two men who were abducted from a plaza on December 23, 2004.
Assistant Superintendent Victor Barret was freed after the 12-member jury handed down a unanimous verdict that he was not guilty of murder or accessory after the fact to murder.
He was accused of covering up the incident after a report was made to him. He denied the allegation and said, in an unsworn statement, that the prosecution's main witness, a former corporal of police, had malice towards him because he felt that he had refused to get a promotion for him.
A retrial has been ordered for corporals Paul Edwards and Louie Lynch and they are to return to the Home Circuit Court on February 8.
They are charged with the murder of shopkeeper and blockmaker Oliver Duncan, 44, of Olympic Way, Kingston 11, and mechanic Kemar Walters, 20, of Kitson Town, St Catherine. It is alleged that they were taken away from a plaza on Washington Boulevard, St Andrew, after they were found in possession of a stolen Honda CR-V.
The question is now being asked in legal circles as to whether Justice Horace Marsh erred when he refused to accept the verdicts of the two men after the jury deliberated twice.
On the first occasion, the jury retired for five hours and, on their return, the foreman announced that the verdict for Edwards on the double murder was nine saying guilty and three saying not guilty.
He said for Lynch seven jurors were saying not guilty, four guilty and one had abstained from giving a verdict.
Justice Marsh then sent them back to deliberate further. When the jury returned an hour later, he said he was not going to accept the verdicts. He then extended the men's bail and ordered a retrial.
Some lawyers, including prosecutors, are claiming that the judge should have accepted the nine to three majority verdict given for Edwards because the amendment to the Jury Act makes provision for that to be done.
The law states that a majority verdict of nine to three, 10 to two or 11 to one can be accepted in murder cases.
The view is now being expressed by some lawyers that the judge should have accepted the majority verdict on the first count for Edwards before sending them back into the jury room for further deliberations.
It is now being argued that the judge should have enquired of the jury what was the verdict on their return, rather than just saying he was not accepting any verdict and then ordering a retrial.
"What if the jurors had returned with unanimous verdicts or majority verdicts on the second occasion, saying the men were guilty or not guilty?" a lawyer asked.
"Now, we will never know because the judge did not give the jurors that opportunity."
He said if the judge had taken the verdict on the second occasion, perhaps it could have saved a lot of judicial time and resources. The lawyer also pointed out that jurors should know that when they take an oath to try a case, the verdicts must be guilty or not guilty, and a juror should not abstain from giving a verdict.
The Crown does not have a right of appeal against verdicts in criminal cases and director of public prosecutions Paula Llewellyn has been agitating for such a legislation.