R. v. Smith, (2005) 332 N.R. 35 (HL)

• Case Date: February 16, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 332 N.R. 35 (HL)

R. v. Smith (2005), 332 N.R. 35 (HL)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. FE.039

Regina v. Smith (appellant) (2004) (No. 2) (On appeal from the Court of Appeal (Criminal Division))

Regina v. Mercieca (appellant) (On appeal from the Court of Appeal (Criminal Division))

([2005] UKHL 12)

Indexed As: R. v. Smith

House of Lords

London, England

Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Carswell

February 16, 2005.

Summary:

The accused was on trial for kidnapping and murder and two lesser charges. The judge was given a letter written by a jury member, complaining that some jury mem­bers were intimidating other jurors and failing to follow the judge's instructions. From what was said in the letter, it seemed likely that the jury would convict the ac­cused of the lesser counts and acquit him of the kidnapping and murder charge. There­fore, as a tactical decision, rather than asking that the jury be discharged and a new trial ordered on all counts, counsel for the ac­cused asked that the trial proceed after fur­ther directions to the jury. The jury was then recalled and addressed by the judge as to their duties and responsibilities. Following deliberations, the accused was convicted on all four counts. The accused appealed.

The Court of Appeal dismissed the appeal. The accused appealed again.

The House of Lords allowed the appeal, quashed the convictions and remitted the case to the Court of Appeal to decide whether to order a new trial.

Criminal Law - Topic 4306

Procedure - Jury - General - Communica­tions with jury (incl. notes from jury) - The accused was on trial for kidnapping and murder and two lesser charges - The judge was given a letter written by a jury member, complaining that some jury mem­bers were intimidating other jurors and failing to follow the judge's instructions - From the letter, it seemed likely that the jury would convict the accused only of the two lesser counts - Therefore, as a tactical decision, rather than asking that the jury be discharged risking a retrial on all counts, the accused's counsel asked that the trial proceed after further directions to the jury - The judge agreed - The jury was then re­called and addressed by the judge as to their duties and responsibilities - Following deliberations, the accused was convicted on all four counts - The accused appealed, ar­guing that the judge had taken the wrong course - The House of Lords allowed the ap­peal - The court held that the judge was correct in not questioning the jurors about the letter as this would inevitably have led to questions about the subject of their de­liberations or would have just made mat­ters worse - However, the court allowed the appeal, stating that the judge's direc­tions were insufficiently comprehen­sive or emphatic - In the absence of proper in­structions it was hard for the court to tell if the discussion in the jury room was con­ducted in a proper manner and the verdicts were therefore unsafe.

Criminal Law - Topic 4306.1

Procedure - Jury - General - Disclosure of jury proceedings - The House of Lords sum­marized the principles of the common law relating to inquiry into the verdicts of juries and matters which might affect the propriety of the manner in which they reached their verdicts - See paragraph 16.

Cases Noticed:

R. v. Lucas, [1991] Crim. L.R. 844 (C.A.), refd to. [paras. 5, 23].

R. v. Mirza - see R. v. Connor et al.

R. v. Connor et al., [2004] 1 A.C. 1118; 317 N.R. 201; [2004] UKHL 2, refd to. [para. 7].

Ellis v. Deheer, [1922] 2 K.B. 113, refd to. [para. 7].

R. v. Young (S.), [1995] Q.B. 324 (C.A.), refd to. [para. 14].

R. v. Miah, [1997] 2 Cr. App. R. 12 (C.A.), refd to. [para. 16].

R. v. Thompson (1961), 46 Cr. App. R. 72, refd to. [para. 16].

R. v. Blackwell, [1995] 2 Cr. App. R. 625, refd to. [para. 16].

R. v. Oke, [1997] Crim. L.R. 898, refd to. [para. 16].

R. v. Orgles (K.); R. v. Orgles (J.), [1994] 1 W.L.R. 108 (C.A.), refd to. [para. 16].

R. v. Robinson, [2002] E.W.C.A. Crim. 2489, refd to. [para. 19].

R. v. Watson, [1988] Q.B. 690 (C.A.), refd to. [para. 22].

R. v. Wright, [2000] Crim. L.R. 510, refd to. [para. 25].

R. v. McKechnie (1992), 94 Cr. App. R. 51 (C.A.), refd to. [para. 25].

R. v. Aitken (T.A.); R. v. Bennett (S.C.); R. v. Barson (A.R.), [1992] 1 W.L.R. 1006 (Ct. Martial C.A.), refd to. [para. 25].

R. v. N., [1998] Crim. L.R. 886, refd to. [para. 25].

Counsel:

None disclosed.

Agents:

None disclosed.

This appeal was heard by Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earls­ferry, Lord Walker of Gestingthorpe and Lord Carswell, of the House of Lords. The decision of the House was delivered on February 16, 2005, when the following opinions were filed:

Lord Bingham of Cornhill - see paragraph 1;

Lord Steyn - see paragraph 2;

Lord Rodger of Earlsferry - see paragraphs 3 to 5;

Lord Walker of Gestingthorpe - see para­graph 6;

Lord Carswell - see paragraphs 7 to 27.