Field JA, Morrison JA, Newman JA
IN THE CAYMAN ISLANDS COURT OF APPEAL
CRIMINAL APPEAL 17/15
(Ind. 90/11)
C#5801/11
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and
Dan Kelly
Appellant
BEFORE
The Hon Sir George Newman, Justice of Appeal
The Hon Sir Richard Field, Justice of Appeal
The Hon (Cecil) Dennis Morrison, Justice of Appeal
Appearances: Laurence Aiolfi of Samson & McGrath for the appellant and Nicole Petit- Tyson
for DPP.
JUDGMENT
Revised from transcript of oral judgment given on 16 August 2016 and Approved
Released 26 August 2016
The Honourable Sir Richard Field, JA
On 16th July 2015, following a trial by jury presided over by Justice Swift in the
Grand Court, the appellant, Dan Kelly, was convicted of causing grievous bodily
harm with intent and was sentenced to 7 years’ imprisonment. The appellant now
appeals against conviction and sentence.
It was the Crown’s case that the appellant stabbed Norman Clarke twice in the Club
7 night club in the early hours of 10 December 2011. There was never any doubt
that Mr Clarke was stabbed twice that night in Club 7. The questions for the jury was
whether they were sure that it was the appellant who attacked Mr Clarke and, if they
were, whether, when the appellant carried out the attack, he intended to inflict on Mr
Clarke really serious bodily injury.
The only eyewitness to the attack called by the Crown was Mr Clarke himself. The
Crown’s case rested therefore on the identification of the appellant as the assailant
by Mr Clarke.
Three grounds of appeal against conviction are advanced on behalf of the appellant.
First, it is contended that the appellant’s conviction is unsafe because of the
presence on the jury of a Mr Keevon Douglas who acted as the jury’s foreman and
who possibly was at Club7 performing as a DJ at the time of the attack on Mr Clarke.
The second ground of appeal is that the jury wrongly, albeit inadvertently, heard
evidence of the appellant’s bad character. The third ground of appeal is that the trial
judge misdirected the jury on the issue of identification.
In light of the questions raised by the appellant as to the inappropriateness of Mr
Douglas being a member of the jury, this court ordered on 17 November 2015 that
there be an enquiry conducted by a police officer who had had no involvement in the
investigation or prosecution of the appellant in these proceedings.
The outcome of the ensuing investigation is a signed statement made by Mr
Douglas. In this statement, Mr Douglas confirms that he is a DJ known as “DJ Von”
and that in 2011 he used to perform as a DJ at Club 7. Mr Douglas also states that
he cannot recall exactly if he played as a DJ at Club 7 on the night of the 9th and the
early morning of 10th December 2011 but he accepts that it is a possibility that he
was at Club 7 at this time because 9th December 2011 was a Friday and he used to
play at Club 7 on Fridays. Since the attack on Mr Clarke, Club 7 has closed down.
Mr Douglas further says in his statement that he did not know Dan Kelly and can
honestly say that he had no knowledge of the case, the appellant or the victim prior
to the trial. He was not influenced by any third party prior to the trial and his own
judgment and communications with other members of the jury were based solely on
the evidence presented during the trial.
The transcript of the first morning of the trial shows that a list of names, including
that of the appellant, was read out to the jury in waiting, who were asked to indicate
when they came to be sworn if they knew anyone so named. None of the members
of the jury in waiting told the court that they knew any of the people whose names
were read out. They were not asked to say if they were present at the club on the
night and in the early morning of the ninth and tenth December 2011 when the
stabbing of Mr. Clarke took place.
In his written submissions addressing the first ground of appeal, Mr. Aiolfi, on behalf
of the appellant, contended that this was a case of apparent bias. He argues in
those submissions that a fair minded and informed observer, having considered all
the relevant facts, would conclude that there was a real possibility that the jury was
biased. In our view, this is a case not so much of apparent bias, but one of
procedural irregularity.
At the hearing on 17 November 2015, Moses JA asked Counsel for the Crown, Ms
Petit-Tyson, if she would accept that if in fact the foreman of the jury had been
present at the club on the night in question, that would be a very serious matter, to
which Ms Petit-Tyson replied: “That is an objection that would have been taken if we
knew at the time,” and she went on to confirm that had she known the foreman had
performed as a DJ on the night in question she would never had the man on the jury,
let alone as foreman.
In the course of her submissions on the substantive appeal, Ms Petit-Tyson
contended that she would only have objected to Mr Douglas serving on the jury to
avoid the risk that some question might arise after the trial that undermined the jury’s
verdict. Given Mr Douglas’s statement that that he knew nothing about the attack on
Mr Clarke until the trial and that his own judgment and communications with other
members of the jury were based solely on the evidence presented during the trial,
there was no risk of any injustice and accordingly the appellant’s conviction was a
safe conviction.
In our judgment, notwithstanding Mr. Douglas’s statement that he knew nothing
about this attack before the trial and only took into account the evidence given at the
trial, there is a material risk that he was present at the scene and might therefore
have taken into account, whether consciously or subconsciously, matters known
only to him and not given in evidence, particularly when considering the issue of
identification which depended in part on the layout, lighting, degree of crowding and
overall ambience of the club at the relevant time.
Not only must justice be done in a criminal trial, it must be seen to be done. In our
judgment, Mr Douglas’s presence on the jury was a material procedural irregularity
that renders his conviction unsafe.
It follows that, for the reasons we have given, this appeal is allowed and the
appellant’s conviction must be set aside and a re-trial is ordered.
Newman JA
Field JA
Morrison JA