Court of Appeal frees two men of murder because of trial judge's errors

The Court of Appeal has freed two men convicted of murder, ruling that errors by the trial judge rendered their 2017 retrial a “miscarriage of justice” and breached their constitutional right to a fair hearing.

In a judgment delivered on Friday, the court quashed the convictions of Lennox Alvaranga and Francis Davis and barred a retrial, bringing an end to a case that began in Westmoreland in 2012.

“We are of the view that the course followed by the learned trial judge in dealing with the jurors’ complaints of fear was a material irregularity in the course of the trial which infringed the applicant’s constitutional right to a fair hearing by an independent and impartial tribunal established by law,” said acting appellate Justice Carolyn Tie-Powell who wrote the decision on behalf of the three-member panel.

Tie-Powell said the “failure” of the trial judge, Marcia Dunbar-Green, was “compounded by her failure to give directions to the jury on the prosecution’s main witness’ bad character as a material consideration in assessing his credibility.” Dunbar-Green is now a Court of Appeal judge.

“These errors have given rise to a miscarriage of justice... Accordingly, the convictions are rendered unsafe and liable to be quashed,” she added.

Court of Appeal President Justice Marva McDonald-Bishop, along with Justices Kissock Laing and Tie-Powell, heard the appeal in January.

Francis was represented by attorney John Clarke, while King's Counsel Terrence Williams and attorney Celine Deidrick represented Davis. The Crown's team included King's Counsel Jeremy Taylor and Rasheed Lee.

The prosecution’s case centred on events of July 12, 2012, when Paul Jones, described as a deported drug trafficker, was allegedly arranging an illegal boat trip to the United States for the men and others.

Jones testified that after delays caused by weather, tensions escalated and he was lured to a house in Sheffield to recover money, where he was shot but survived by feigning death. His brother-in-law, Wendell Williamson, was killed.

During the 2017 retrial, proceedings were disrupted when three jurors reported feeling “uncomfortable” and “fearful” after seeing men they associated with the accused behaving suspiciously.

The trial judge questioned the jurors collectively about their concerns but did not discharge the panel.

Attorney John Clarke, who represented Alvaranga, argued that the enquiry into the jurors’ fears was “fundamentally inadequate and prevented a proper exercise of the judge’s discretion,” the judgment noted.

King’s Counsel Jeremy Taylor argued that the judge acted appropriately, although the judgment noted he “candidly conceded that the correct legal test was not employed”.

The Court of Appeal found that while the judge was entitled to conduct the enquiry in the absence of the accused, her approach was “flawed” as she “did not conduct the inquiry required”.

“Established practice recognises that when issues arise that may affect impartiality, a trial judge should, wherever practicable, question jurors individually rather than collectively,” Tie-Powell said, warning that group questioning “risks contaminating individual jurors’ views”.

The court ruled that “the risk of contamination within the jury was a real and present one” and rejected the Crown’s submission that there was no such evidence. “The nature and structure of the inquiry conducted made such contamination not only possible but likely.”

Tie-Powell argued further that Dunbar-Green “did not proceed to consider the matter objectively” and “was guided solely by the jurors' impression of their ability to be fair and independent”.

“We find that there was a real danger or possibility that the jurors who themselves expressed fear… may have been consciously or unconsciously affected by this, and as a consequence, the position of the applicants might have been prejudiced,” Tie-Powell said, adding that the situation “presents a compelling case for the discharge of the jury.”

But by refusing to discharge the jury, Dunbar-Green breached the men’s constitutional right to a fair hearing before an impartial tribunal, the appeal court ruled.

The appellate court also found that the judge failed to properly warn the jury about Jones’ criminal background and potential motive, a “material consideration” in assessing his credibility.

In declining to order a retrial, the court cited the 14-year delay, the burden of a third trial, and uncertainty over the availability of the sole eyewitness.

“The court is satisfied that the interests of justice are best served by declining to order a retrial,” Tie-Powell said.

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