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Friday, 14 December 2012 12:00

No issue of alleged jury’s misconduct affecting the fairness of the trial, ruled the Assises Court

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“There is no issue of alleged misconduct by the jury which affects the fairness of the trial.” It is the ruling the Presiding Judge of the Assises Court, Prithiviraj Fekna, gave two weeks ago in the criminal case, where the accused, Jean Desiré Humberto Charles, has been found guilty of assassination of his concubine, Marie Greta Menes, and convicted to 42 years’ penal servitude.
The accused was sued under Sections 215, 216, 217 and 222 (1) of the Criminal Code for having criminally, willfully and with premeditation killed the victim following a dying statement she made to the police accusing her concubin to have set fire on her. On Friday 23 November 2012 following the summing up, the jury retired to deliberate and returned with a majority verdict of 8 to 1 finding the accused guilty as charged. Thereafter the jury was thanked and discharged.

A hearing was supposed to be held before sentencing. However in view of the late hour and upon being informed by the defence that they would require some time to adduce evidence on the issue of sentencing, the matter was postponed to Tuesday 27 November 2012 for hearing and sentence.

On that day counsel for the defence, Mr Rama Valayden, assisted by Mr Sanjiv Teeluckdharry, presented the following motion before the Court could hear evidence and sentence the accused: “In the interest of Justice and more particularly in the interest of fairness as per section 10 of the Constitution, (the defense) prays for a deferment and adjournment of hearing the mitigation hearing pending the enquiry.” In formulating his motion, counsel for the defence elaborated seven grounds of alleged misconduct of the jury, which, according to him, ought to be investigated.

The prosecution objected to the motion. The matter was then postponed to Thursday 29 November 2012 for counsel to offer arguments on the issue.

Before setting aside the defence’s motion, the Presiding Judge referred to the submission of the defense and underlined the following: “The defence has argued that that the jurors should have been searched and that their mobile phones should have been seized. However the ushers did not carry out such an exercise with the result that a few members of the jury had their mobile phones with them at the hotel and even had access to internet. The question is whether this amounts to misconduct by the members of the jury if ever it did happen. We must realise that, after the empanelling of the jury, the judge has the discretion whether to order the sequestration of the jury or not.

Generally the jury is sequestrated, but it is not uncommon for the judge to exercise his discretion and to allow the jury to go home after each day’s work. In such cases the jurors have access to other people, to the press and to the internet, among other things. The direction given to the jurors as to how they should approach the evidence is of prime importance. Otherwise every jury trial where the jurors are not sequestrated would amount to a mistrial.

In the absence of any concrete and serious contention of gross misconduct relating to the possession of mobile phones, the vague allegations, which have been made are neither here and there.”  In his ruling the Presiding Judge found that all the grounds that have been raised could not amount to misconduct on the part of the jury warranting the opening of an enquiry to look into the alleged misconduct. The motion is accordingly set aside. Unless the accused intends to appeal against his conviction, he will start serving his 42-years penal servitude.
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