Penn v The Queen

• Jurisdiction: British Virgin Islands
• Judge: Edwards, J.A.,Rawlins, J.A.
• Judgment Date: 03 December 2007
• Neutral Citation: VG 2007 CA 13
• Date: 03 December 2007
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: Criminal Appeal 1 of 2006

Court of Appeal

Alleyne, C.J. (Ag); Rawlins, J.A.; Edwards, J.A. (Ag)

Criminal Appeal 1 of 2006

Penn

and

The Queen

Appearances:

Dr. Joseph Archibald, Q.C. with Ms. Anthea Smith for the appellant

Mr. Terrence Williams; D.P.P. with Ms. Grace Henry McKinley for the respondent

Criminal Law - Criminal Appeal — Burglary — Appeal against conviction — Jury summoned to be jurors from the voters' list — Whether the Registrar of the Supreme Court had jurisdiction to impanel the array of common voters from voters' list — Section 10 and Section 11 of the Jury Act, Cap. 36 — Applicability of section 24 of the Jury Act, Cap. 36 — Whether trial a nullity — Court of Appeal held that the Registrar had no jurisdiction to settle the array of common jurors' based on the voters' list and that the array of common jurors from the voters' list was invalid — Verdict and judgment set aside and annulled.

The appellant was convicted on three counts of burglary and sentenced to 8 years imprisonment on each count with sentences to run concurrently. He appealed against his conviction on the ground that the jury was summoned from the voters' list. The appellant argued that the trial was a nullity because the process by which the jurors were selected was not done in accordance with the Jury Act (CAP 36). And secondly the selection deprived him of the opportunity being tried by his peers.

Held, upholding the appeal and setting aside the verdict and judgment and making an order for a venire de novo.

(1) The Registrar had no jurisdiction to settle the array of common jurors based on the voters' list. If she had, but was in breach of a procedural provision or some formal defect, it is only then that section 24 would apply. The array of common jurors from the voters' list was invalid.

1 Edwards, J.A. [AG]: On the 20th March 2006, the appellant, Mr. William Penn, was convicted on 3 counts of burglary. He was tried before a judge and nine persons who were impanelled as a jury. He was sentenced to eight years imprisonment on each count on the 21st March 2006, with the sentences to run concurrently. The verdicts of the jury for the 3 counts were unanimous.

2 On the 31st March 2006 the appellant appealed against his conviction and sentence. Grounds 1 and 2 of his 7 grounds of appeal concern the nine members of the jury who were summoned to be jurors from the Voters List. These 2 grounds urge that:

• “1. The trial was a nullity because the names of the jurors who were selected as the trial jury did not emanate from the statutory process of the Jury Act (Cap.36) which requires in Section 10 a jury list revised and certified by the Magistrate for the ensuing calendar year 2006, and which further requires in section 11 a jurors' book and jury register; and there has been no such Magistrate's certificate or jurors' book or jury register for the year 2006 according to a letter dated 24th March 2006 from the Registrar of the High Court to the solicitors for the appellant stating partly as follows:

• ‘When I took up office here I met the practice, (which I enquired about and was advised had been in place for innumerable years) of using the voters list for choosing the names of persons to sit as jurors in the assizes. Consequently, there is no Jurors’ Register or Magistrates’ Revision Certificate to be perused or inspected.’

• 2. The trial was a nullity because the selection of jurors according to the voters list is contrary to the provisions of the Jury Act, and deprived the accused of the opportunity of trial by his peers selected according to the Jury Act (Cap. 36) where by his plea of not guilty on arraignment he put himself on the country for trial in accordance with section 20 of the Criminal Procedure Act (Cap. 18).”

3 This trial of the appellant was conducted in accordance with section 26 of Cap. 36 which provides that: “Every jury impanelled for the trial of any proceeding shall consist of nine persons and no more.”

4 The qualifications for jury service are provided by sections 4 and 5 of Cap. 36 section 4 provides as follows:–

• 5 “4. Every person, between the ages of 21 and 60 years, who-

  • (a) has in his or her own name, or in trust for him or her, any lands or tenements, in the territory, of the value of two hundred and forty dollars or upwards; or

  • (b) rents any lands or tenements, in the territory, of the annual value of forty eight dollars, or upwards; or

  • (c) holds any office or situation, in the territory, at a salary amounting, with allowances, to the sum of two hundred and forty dollars per annum, or upwards; or

  • (d) is in receipt of an income, from whatever source derived, of one hundred and forty-four dollars per annum, or upwards, shall unless exempted or disqualified under the provisions of sections 6 and 7, be liable to serve as a common juror.”

  Section 5 provides as follows:

  • “5. Every person, between the ages of 21 and 60 years, who-

    • (a) has, in his or her own name, or in trust for him or her, any lands or tenements, in the territory of the value of four thousand, eight hundred dollars, or upwards; or

    • (b) has, in his own name, or in trust for him, any lands, within the territory, of not less than one hundred acres in extent; or

    • (c) holds any office or situation, in the territory, at a salary amount, with allowances, to the sum of nine hundred and sixty dollars per annum, or upwards; or

    • (d) is in receipt of any income, from whatever source derived, of seven hundred and twenty dollars per annum, or upwards; or

    • (e) is the attorney of any tenant or trustee, absent form the territory of lands, within the territory, of not less than one hundred acres in extent, shall, unless exempted or disqualified under the provisions of sections 6 and 7 be liable to serve as a special juror: Provided that every person, liable, for the time being, to serve as a special juror, shall also be liable to serve as a common juror.”

  [6] Sections 6 and 7 of Cap. 36 specify the persons who are exempted or disqualified from serving as common or special jurors under the Act. Section 3(1) of Cap. 36 enacts-

  “The registrar shall, if and when necessary, at the expense of the territory, provide himself with a jurors' book, a special jurors' book, a preliminary panel book, a ballot box and a sufficient number of counters for carrying out the provisions of this Act.”

  [7] The mode of impanelling an array of common jurors is set out in section 16 which states-

  • “16 (1) When the Registrar is impanelling an array of common jurors, he shall, subject to the provisions of subsection (4), make in the preliminary panel book a preliminary panel, in the form in the Fourth Schedule, in which he shall, after any names, which under the provisions of section 17, are to be inserted therein, insert as many more names as my be required, taken alternately from the first and the last parts of the jurors' register, as follows, namely-

  • (a) he shall ascertain which of the persons, whose names are included in the first part of the jurors' register, was empanelled last, at the last impanelling of an array of common jurors, whether in the same or the preceding year, and shall insert in the preliminary panel, as the next name, the name which in the register, immediately succeeds the name of such person;

  • (b) he shall next ascertain which of the persons whose names are included in the last part of the register, was impanelled last at the last impanelling aforesaid, and shall insert in the preliminary panel, as the next name, the name which, in the register, immediately precedes the name of such person;

  • (c) he shall insert in the preliminary panel, as the next name, the name, which in the register, is the second name below the name of the person first ascertained, as above provided, and as the next name, the name which in the register, is the second name above the name of the person last ascertained, as above provided, and so on, until as many names as may be required are inserted in the preliminary panel: Provided that, if and whenever, this is no longer possible, he shall insert in the preliminary panel the first name in the register; and next the last name in the register, and next the second name in the register and next the last name but one in the register, and so on, until as many names as may be required, are inserted in the preliminary panel.

• (2) As each name is included in the preliminary panel, whether taken from the last preceding preliminary panel, as prescribed in section 17, or from the register, as prescribed in subsection (1) the Registrar shall-

  • (a) if there is no objection, under section 15 to the person named being impanelled, write the word “Impanelled” opposite the name in the preliminary panel; or

  • (b) …

• (3) When thirty names inserted in the preliminary panel have been marked “Impanelled,” as aforesaid, the preliminary panel shall be complete.

• (4) Notwithstanding anything hereinbefore contained, if when the Registrar is impanelling an array of common jurors to serve at the High Court, the number of jurors, whose names are included in the jurors' register, does not exceed thirty, the registrar shall impanel, as the array to serve at the said Court, all the jurors whose names are included in the register, and such array shall be good and valid, although the number impanelled is less than thirty.”

8 Section 15 and section 16(2)(b) relate to jurors who are temporarily absent from the territory and jurors employed in the same business. The Registrar is required not to empanel in the same array of common jurors more than one juror employed in the same business under certain circumstances, and to identify such jurors as temporarily absent and the jurors employed in the preliminary panel.

9 Section 17 requires the Registrar to make the preliminary panel in the preliminary panel book, which shall be signed and dated by the Registrar. Section 18 requires that...