Dr. Carolyn Cooper recently wrote an interesting article in the Sunday Gleaner in which she quoted from a letter written to her by dance hall deejay Vybz Kartel complaining that he would be unable to get a fair trial because of all the publicity being given to his case. He was quoted in part as saying that:
“i’m being painted as this evil ‘D.J. by day, don by night’ murderer who is society’s number one cause of crime and violence. The police is using the media to slaughter me and as such i don’t think i will get a fair trial. They are using the media to form public opinion of me that is so contradictory to the person that I really am. They (police) have tried my case in the public & found me guilty.”
I therefore thought it would be interesting to revisit the Privy Council case which dealt with this issue and which attorney-at-law Clyde Williams highlighted recently in a discussion with me on Beyond the Headlines.
In that case, Grant and Others v Director of Public Prosecutions (1980) 30 WIR 246, the courts decided that the pre-trial publicity did not rise to the level that demonstrated that the accused would be unable to get a fair trial despite what the Privy Council called “the campaign in the Gleaner newspapers against the appellants.” The Court of Appeal said that it was not enough to show, as the Courts agreed had been done, that there had been “adverse publicity… likely to have a prejudicial effect on the minds of potential jurors.”
Instead, what has to be shown is that “the prejudice is so widespread and so indelibly impressed on the minds of potential jurors that it is unlikely that a jury unaffected by it can be obtained.”
This is such a high bar, that we are unlikely to see any accused persons reach it any time soon.
How bad was the publicity and what did the courts say?
The case was brought by persons accused of murder and conspiracy in the notorious case which came to be known as the Green Bay killings. NB – The case also dealt with a procedural point which I am not examining here.
In the early hours of Thursday 5th January 1978, there was an operation by the Army at Green Bay (the army firing range) in the parish of St Catherine and five persons were killed.
The allegations were that these five persons and others had been lured to their death at Green Bay by members of the Military Intelligence Unit of the Jamaica Defence Force, but that some of them escaped and made the matter public.
The jury at a coroner’s inquest concluded that the deceased died of gun-shot wounds, and had been murdered; but said they could determine by whom.
The DPP charged five persons with conspiracy to murder, two of them and another five persons were also charged with the murders.
These people stated that after the inquest, they became the target of “massive pre-trial publicity and prejudice” in the public media in general and, in particular, in the Daily Gleaner and Star newspapers.
They sought to establish, among other things, that they would therefore be unable to get a “fair hearing” as was their right under section 20 (1) of the Constitution which states that anyone charged with a criminal offence must:
“be afforded a fair hearing within a reasonable time by an independent and impartial court established by law…’
The applicants had first applied to the Full Court which dismissed their application.
This was despite a statement by Chief Justice Smith that the:
“evidence presented overwhelmingly establishes that there has been pre-trial publicity, of the widest dissemination, which is calculated to create widespread prejudice of the gravest kind against the [appellants] in respect of their trial, which is pending..”
Court of Appeal
The Court of Appeal also dismissed their appeal.
The Court of Appeal had referred to the English case of Attorney-General v Times Newspapers Ltd ( 3 All ER 54.  AC 273) where Lord Reid, while noting the need to balance conflicting interests, stated that
‘There has long been and there still is in this country a strong and generally-held feeling that trial by newspaper is wrong and should be prevented…”
The Court of Appeal referred to the material presented to it including the following:
A headline in the Daily Gleaner on Tuesday 23rd May 1978 read ‘It was murder at Green Bay, says jury’ and which the appellants said would “lead the ignorant, the unsophisticated and even ordinary members of the public unaware of legal niceties, to form the view that the appellants had been tried and found guilty of murder by a jury of their peers in criminal proceedings.”
Even though the Court of Appeal acknowledged that in the body of the report, it was correctly stated that the jury did not name the murderers, the Court said that
“it set the stage so to speak.”
The Court stated, however, that the particular report could not, in itself, be regarded as prejudicing the appellants’ case since the jury, in effect, had reached that verdict.
Carl Stone Poll
The Court, in its judgment delivered by Justice Carberry, then referred to a poll carried out by Dr. Carl Stone and which it called:
“an item that was surely one of the most astonishing ever in the fields of journalism and the reporting and covering of criminal proceedings…”
Dr. Stone had sworn an affidavit in which he stated that a minimum of 75 per cent of all persons interviewed were aware of the Green Bay affair, and 57 per cent had formed advance opinions in relation to the army personnel involved.
The Court said that the poll would confirm the view of the majority, unsettle the minority and persuade the uncommitted.
Sunday Gleaner article
The Sunday Gleaner of May 28th, 1978 published an article headed ‘Green Bay: what made them do it?’ which, according to the Court, proceeded on:
“the assumption of guilt of cold-blooded murder on the part of the appellants, who had already been indicted by the evidence, to dismiss any possible defence as a ‘farrago of lies and fairy tales’ which ‘would fail to fool an imbecile child’ and to address itself to a discussion of the evidence and speculation as to what inspired the Jamaica Defence Force to involve itself in cold-blooded murder? In the comment that followed, readers were invited to conclude that this was a plot to kill gunmen allegedly belonging to the opposition so as to further the military career of those involved, to discredit the Opposition and to lay the foundation for further atrocities of a like nature.”
Number of Articles
Counsel for one of the appellants reported that there were some seventeen similar articles in the space of a little over one month. After the appellants had been arrested, an additional 80-odd articles were published.
Why dismiss the appeal?
So why did the Court of Appeal rule against the appellants?
Justice Carberry said the Court had weighed the following factors:
- the seriousness of the prejudice, and its likely effect on the jury;
- the interest of society in the enforcement of the law and
- the availability of methods which could minimise the prejudice, but which had not yet been tried, namely:
- a challenge to the jury
- change of venue and
The Justices of Appeal maintained that they were …
“not, however, satisfied that the likelihood is that the minds of such potential jurors would be so indelibly prejudiced that the means available to a trial court (in particular, the challenge of jurors and the warning by the trial judge to jurors to put aside prejudice) would be ineffective to ensure a fair hearing by an impartial tribunal.’
I’ve quoted extensively from the Court of Appeal judgment because the judges at the Privy Council clearly found it highly persuasive.
In delivering the ruling of the Privy Council, Lord Diplock quoted Justice White who said in the Supreme Court (1979) 29 WIR at pp 275, 276) that :
“…it is previous and premature to suggest that the pre-trial publicity will have had such an effect that a judge and a jury of twelve persons cannot be found in Jamaica to give careful and objective audition to the evidence, and earnestly and conscientiously to deliberate the issues that will be raised thereby, and so give a true verdict according to the evidence. I reject any such notion as untenable, and as displaying a most regrettable lack of confidence in, and respect for, the institutions established to this end.’
Lord Diplock also quoted Justice Carberry in the Court of Appeal who said that the appellants had to show:
“that there is likely to be a failure to afford them a fair hearing by an independent and impartial tribunal. It is not sufficient for them to establish (as they have done) that there has been adverse publicity which is likely to have a prejudicial effect on the minds of potential jurors. They must go further, and establish that the prejudice is so widespread and so indelibly impressed on the minds of potential jurors that it is unlikely that a jury unaffected by it can be obtained. We are not satisfied that they have established this, having regard to the common law remedial measures which we indicated arc available to a trial court.’
The common law remedial measures being referred to were:
- change of venue to a different parish from that in which the deceased lived;
- postponing the trial to allow potential jurors to forget the adverse publicity and
- the exercise of the judge’s discretion to allow each juror to be questioned as to his freedom from bias despite the pre-trial publicity.
Having referred to these statements in the Courts below, Lord Diplock stated that:
“The judiciary in Jamaica have wide and up-to-date experience of juries in criminal cases. In face of their opinion that, despite the prejudicial pretrial publicity that had taken place, it had not been shown that it would be impossible to impanel an impartial jury, their Lordships, lacking that experience, would hesitate long and anxiously before being persuaded to the contrary.”
The Privy Council stated that, along with the ruling of the Court of Appeal they considered the fact that counsel for the appellents had declined to argue that it would be impossible to find an impartial Jamaican jury, both of which led the Privy Council to rule that it was “quite unarguable” that the appellants’ constitutional rights “have been, were being or are likely to be, contravened.”
Post Script: A jury was selected for the conspiracy trial after potential jurors had been questioned by the judge and counsel. All five persons charged were discharged, and the DPP then entered a nolle prosequi in the murder cases since the evidence presented in the first trial would essentially be the same as that which would be presented in the murder cases.
Comment: This judgment and the outcome of the case suggest that we may never see a Jamaican court finding that adverse pre-trial publicity would render a trial unfair. To say that the Kartel case thus far doesn’t even come close is an understatement of massive proportions.