Main issue is how judge dealt with pre-trial publicity
Arguments concluded on Wednesday in the appeal of Jeffrey Barnes against a rape conviction following a jury trial in which a unanimous guilty verdict was delivered in April 2013.
Michael Wood, lead counsel for Barnes, gave as his main ground for appeal the prejudicial publicity ahead of the trial and the judge’s failure to instruct the jury not to search the Internet for information about Barnes or the case.
In response, Director of Public Prosecutions Cheryll Richards provided a timeline regarding publicity after a report of a rape on Oct. 29, 2011, prompted police to issue a press release naming Barnes as a suspect and providing his photo, along with a description of Barnes as violent and dangerous. Barnes’s trial, which resulted in the April 2013 guilty verdict, was in relation to a different rape report.
Ms. Richards said the impact of the publicity was not so overwhelming or so fresh that it was not possible to have an impartial jury.
She noted that the website ieyenews.com published 12 articles about the matter, 10 in 2011 and the last one in November 2012 – four months before the trial started. The last article on the Cayman News Service website was Oct. 13, 2012. The last article on the Cayman Compass website was in February 2012. The last news article on Cayman 27’s website was three weeks before the trial, and it was removed by the television station after she requested it do so.
Ms. Richards detailed the steps taken by Justice Charles Quin to ensure a fair trial.
When potential jurors reported for duty and before they were selected, he told them he wanted them to consider whether they were able to have an open and independent mind in light of the publicity and discussion in the community about the case. One person was excused from selection on the basis that such publicity would have made it difficult to be impartial, Ms. Richards indicated.
Then, after jurors were sworn in and before the Crown began its case, Justice Quin told the panel of seven jurors to “just focus entirely on the evidence.” He explained that the evidence was what they heard from the witness box, any exhibits, any facts or statements agreed to by both Crown and defense. There could have been no misapprehension, Ms. Richards submitted: jurors knew they were to disregard anything outside the courtroom. She pointed out that the jurors swore or affirmed that they would give “a true verdict according to the evidence.”
After all the evidence for both sides, Justice Quin summed up the case and instructed the jury, she continued. She said there were repeated and strong warnings not to pay attention to anything seen or heard in the newspaper, on TV or radio. Jurors were instructed to cast aside any sympathy or prejudice toward the complainant or the defendant.
Despite the fact that there was no reference to the Internet, the cumulative effect of these warnings would have been such that a juror following directions would have been in no doubt that they could not consider anything but the evidence presented in court, she concluded.
The second ground of appeal argued by Mr. Wood was that the trial judge had failed to adequately explain to the jury the elements of aggravated burglary – entering as a trespasser with intent to rape and having an offensive weapon at the time of entry. Considerations include whether entry was permitted, when the knife came into his possession, what the intent was and when was it formed.
Ms. Richards agreed that the judge’s directions could have been more fulsome, but she argued that it was not significant in the context of this case because the defense was one of alibi – that Barnes was elsewhere the night of the incident.
The third ground of appeal had to do with a comment by the judge during his summing up. Justice Quin had told jurors, “You might think an innocent man would give his response as soon as possible,” – referring to Barnes’s reply of “no comment” when police interviewed him.
Ms. Richards said the judge was doing no more than putting in layman’s terms what a juror might think or actually conclude. But the remark alone was out of context, she argued. Justice Quin had gone on to give directions as to all of the factors the jury had to consider, including Barnes’s reason for remaining silent – he had given evidence that his lawyer had told him to remain silent.
She confirmed that the jurors had a copy of his interview, including when police asked him, “Where were you on the night in question?”
The president of the Court of Appeal, Justice Elliott Mottley, said he, Justices Sir Richard Field and Dennis Morrison hoped to give their decision on Friday morning, the last day of this session. However, they would not hand down their reasons at that time.
Barnes’s appeal against the sentence of life imprisonment has been adjourned.