The main point in issue before the appellate court was whether the trial court was justified in holding that the irregularities would not “give rise to any concern that the accuseds’ right to a fair trial might be prejudiced.”2 Relevant provisions of the law3 are as follows
Prior to the enactment of the Jury Act, analogous provisions were s. 621 and s. 622 of the Criminal Code4. Section 621 provided that the jury “must not separate” and that no person was “allowed to speak to or communicate with any of them without the leave of the court until they are discharged”. In the matter of Webb & Hay5, “it was unanimously held” by the High Court “that the test to be applied for determining whether an irregular incident involving a juror warranted the discharge of the juror or the jury was whether the incident was such that, notwithstanding any proposed or actual warning of the judge, it gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury had not discharged or would not discharge their task impartially.”6
In the present case, the appellate court took exception to the opinion of the trial judge “Subsection (4) of Section 53 … requires the Court to focus not so much upon perceptions as upon the reality of prejudice, or likely prejudice, to a fair trial.” The appellate court cited the joint judgment in Jackson and Le Gros.7
The appellate Court gave five irregularities and quashed the convictions and ordered retrials. It was held that the jury should have been discharged even though there was no real danger of bias or of inability of the jury to arrive at a verdict uninfluenced by the irregularities. It was also held that the judge should have considered not only the likely prejudice on the part of the jury to be influenced, but by the perception amongst fair-minded and informed members of ...
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