Polo v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Hosein, J.A. |
| Judgment Date | 08 March 1995 |
| Neutral Citation | TT 1995 CA 3 |
| Docket Number | Criminal Appeal No. N.100 of 1989 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 08 March 1995 |
Court of Appeal
Hosein, J.A., Ibrahim, J.A., Permanand, J.A.
Criminal Appeal No. N.100 of 1989
For appellant No. 1: Miss Soo Hon
For appellant No. 2: Mr. R.L. Maharaj
For appeltant No. 3: Mr. I. Klxan
For the respondent: Mr. Skinner
Practice and procedure - Trial by jury — Trial judge remanded applicants for retrial after jury failed to reach a verdict within the time provided for — Whether the trial judge could allow the jury to deliberate after this order was made.
The appellants were on tire 10th August 1989 convicted at the Port of Spain Assizes of the murder of Junior Quashie and were sentenced to death. Against that conviction they have sought leave to appeal.
The facts and circumstances of the case are not relevant for the purposes of this appeal and it is therefore not necessary to set them out. By agreement of attorneys for the appellants, a single ground of appeal common to all the appellants was fully argued by Mr. Maharaj whose submissions thereon were adopted by attorneys for the three appellants. At the conclusion of hearing of application for leave we treated the application as the hearing of the appeals itself and we allowed the appeals quashed the convictions and sentences and ordered a retrial of the three appellants. We said then that we would give our reasons in due course. We do so now. The ground of appeal concerned an irregularity committed by the learned trial judge namely, that having made an order remanding the applicants for retrial at the next sitting of the assizes, he proceeded thereafter to allow the jury to deliberate upon a verdict.
The transcript shows that the jury, having retired at 1.28p.m. to consider their verdict, returned at 4.30p.m. They had not arrived at a verdict. The transcript discloses the following:
“ACCUSED NO.1. - NO VERDICT.
ACCUSED NO.2. - NO VERDICT.
ACCUSED NO.3. - NO VERDICT.
ACCUSED NO.4. - NO VERDICT.”
HIS LORDSHIP: The four accused are remanded for retrial at the next sitting of the Assizes.
MR. FOREMAN: Your Honour, we would like same more time.
HIS LORDSHIP: You would like same more time, I am sorry.
MR. FOREMAN: Yes:
HIS LORDSHIP: You, Mr. Foreman, think, that with some more time, you could arrive at a verdict in these matters?
MR. FOREMAN: Yes, My Lord.
HIS LORDSHIP: How much time do you need?
MR. FOREMAN: Two hours.
HIS LORDSHIP: If you have had three hours already, this Court does not see that two hours is going to help you at all. The most this Court will be able to allow you in these circumstances will be half an hour. If you cannot arrive after three hours, then another two hours would hardly do you any good. If you think that another half hour will suffice, I will be prepare to allow you half an hour.
JURY RETIRES FOR ANOTHER HALF AN HOUR
JURY RETURNS
VERDICT
“ACCUSED NO. 1 - GUILTY AS CHARGED.
ACCUSED NO. 2 - GUILTY AS CHARGED.
ACCUSED NO. 3 - GUILTY AS CHARGED.
ACCUSED NO. 4 - JURY FAILS TO AGREE ON A VERDICT.”
Having already ordered a retrial of the appellants, the question therefore arises whether the trial judge had jurisdiction to permit further consideration of the matter by the jury. Mr. Maharaj submitted that the learned judge having accepted that the jury had not arrived at verdict and thereupon having ordered that the appellants be retried, there was an implied discharge of the jury from further consideration of the matter and the appellants had therefore ceased to be in their charge since the judge and jury were then functus officio.
By section 28(3) of the Jury Act Ch.6:53 it is provided that: “the judge may, on being satisfied that there is no reasonable probability that the jury will arrive at a verdict, discharge the jury at any time after the expiration of three hours from the moment of their first retirement.”
It would seem that the learned judge presumably had this provision in mind when he made the order for re-trial.
In Paynter v. Lewis (1965) 8 W.I.R. p.318, a magistrate convicted the respondent of larceny of certain goods, but then recalled the conviction and acquitted her, holding that the offence committed was one of obtaining credit by fraud. The question arose there as to whether the magistrate having convicted the respondent of larceny was functus officio. Wooding, C.J., dealt with that question at page 320 applying R. v. Sheridan [1936] 2 All E.R. 883 which established “that once a magistrate has accepted a plea of guilty, he is functus officio as regards the commission or non-commission of the offence and accordingly he had no power to alter the...
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