Andre Penn

Photo Credit: BVI Platinum News

Andre Penn

Photo Credit: BVI Platinum News

A ruling by Acting High Court Judge, Justice Albert Redhead has paved the way for former legislator Andre Penn to face a jury for a second time in relation to allegations of committing indecent assault, buggery and unlawful sexual intercourse with a girl under the age of 13 between January 1, 2006 and December 31, 2008.

Penn, through his lawyers, sought a permanent stay of execution for the re-trial ordered by the Appeal Court, contending that his previous trial and appeal received extensive coverage in the Territory's media and as such, a fair retrial would be impossible. However, the Judge disagreed and ruled that Penn will face trial at the next sitting of the Criminal Assizes which begins in October.

"In my opinion, extensive publicity by itself cannot be a basis for a stay. The applicant [Penn] must show on a balance of probabilities that potential jurors are aware of these publications and would adversely impact their minds so as to make a fair trial impossible," Justice Redhead ruled.

Penn was convicted by a jury on 12 counts of a 13-count indictment on March 2, 2011 and sentenced to 12 years imprisonment by then High Court Judge, Justice Indra Hariprashad-Charles, but an Appellant upheld an appeal against his conviction and ordered a re-trial.

Edward Fitzgerald, Q.C. and Patrick Thompson appeared for Penn, while the then Director of Public Prosecutions, Elizabeth Hinds was the respondent in that case.

Legal representation for Penn argued that it is common ground that the issue to be determined by the court is whether the applicant can obtain a fair re-trial.

Hinds contended that the court ought only to consider the media coverage between the appeal stage and the approach to the re-trial. She argued that the earlier publicity ought generally to be considered as faded with the passing of time.

However, Penn's team argued that there is no fade factor given statements made by the DPP and the trial Judge during the case.

According to the court's ruling, Penn's story broke in February 2009. The trial was completed in March 2011 and the re-trial was ordered on 17th January 2012.

As it relates to online comments about the case following the first verdict, the Judge said he was of "the considered view that these bloggers, though in some instances are inflammatory and prejudicial, could never influence jurors who are sworn to well and truly try and give a true verdict according to the evidence".

"The opinions expressed by these bloggers, who are faceless creatures, could never in my considered opinion, having regard to my experience in these matters supplant, overcome or cause a jury to disregard the strong directions the trial Judge will give," Justice Redhead stated.

He added, "The trial Judge must instruct the jury along these lines, that they must ignore any opinions expressed by anyone outside of this court and who have not testified before you. Ignore any gossip which they may have heard outside of this court house. The bloggers fall into the categories of persons advancing opinions and gossip outside of the court house. In my judgment, I cannot see any sensible jury ignoring these instructions and opt for the views expressed by faceless individuals. In my opinion, jurors are sensible people."

It was pointed out that the Judge in the first High Court trial directed the jury to ignore what had been reported by the media.

No Irresponsible Media Report

Penn's team presented a number of media articles to support their case, but the Judge said that he did not recall or was shown anything in the newspaper reports or articles which could be regarded as irresponsible publication by way of an attack on the personal character of the applicant.

Justice Redhead pointed out that for any prejudice generated from whatever source, which has a likelihood of impacting negatively on the fairness of the trial, it is the duty of the trial Judge to take appropriate measures in order to ensure that any potential unfairness occasioned by adverse publicity is eliminated or minimize the effect of any adverse publicity on the minds of the jurors, if indeed there is adverse publicity.

Additionally, the Judge made the observation that "we live in a real society, not a Utopian society".

"Adverse publicity has always been with us when someone is accused of a serious offence, particularly in a small society. It becomes known to every member of society who would obviously express his views; some in condemnation of the alleged offender, even if they do not know the details of the alleged offence, so these views expressed reach other members of society, some of whom may eventually become jurors. I do not think that if they eventually become jurors, it means that we would never have a fair trial in our small societies," Justice Redhead stated.

He stated that in "our technologically advanced age, there is an added medium of communication that is the internet".

According to the Judge, people post comments and opinions on the internet where others can access them. He said that it means therefore, that one's personal opinions and views are given a wider dissemination.

"Do their views become more damaging, more credible than what obtained in the past and therefore must be regarded as adverse publicity to one who is facing trial? I think not...the faceless people who blog on the internet cannot be taken seriously by any sensible and intelligent people in our society," the Judge stated.

However, the Judge suggested that if a re-trial is ordered, in order to protect the fairness of the trial, more jurors above the ordinary number of jurors could be summoned for the trial.

He added that designed questionnaires can also be considered and they seek answers to such questions like - did any of you go online and read anything posted concerning the defendant, or did any of you post on any of the articles concerning the trial of the defendant?

"In that way any potential jurors who were involved in any of the above would be eliminated as jurors. A similar method was successfully employed in a criminal trial in Montserrat this year. Montserrat has a population of 5000," Justice Redhead stated.