Shawn Campbell v The King

On 13 March 2014, after a trial lasting 64 days before Campbell J and a jury in the Home Circuit Court, the appellants, Shawn Campbell, Adidja Palmer, Kahira Jones and Andre St John were convicted by a majority of 10:1 of the murder of Clive “Lizard” Williams (“the deceased”). A fifth defendant, Shane Williams, was acquitted. On 3 April 2014 the judge sentenced the appellants to imprisonment for life with hard labour, specifying minimum terms before becoming eligible for parole of 25 years (Campbell and Jones), 30 years (St John) and 35 years (Palmer).

The prosecution case was that the deceased and Lamar Chow had been given two unlicensed firearms belonging to Palmer for safekeeping. It alleged that Palmer gave Chow and the deceased a deadline of 8.00 pm on 14 August 2011 to return them, with which they failed to comply. It alleged that, as a consequence, Chow and the deceased were summoned by Campbell to Palmer's house at Swallowfield Avenue, Havendale (“the Swallowfield premises”). They went there by taxi on 16 August 2011 accompanied by Campbell and, on arrival, were met by Palmer, Jones and St John. Palmer asked what plans Chow and the deceased had for replacing the firearms, to which the deceased replied that he would replace them. They were then both attacked after which Chow saw the deceased lying motionless on the ground, with Jones bending over him. Chow escaped but the deceased was never seen again and calls to his mobile phone went unanswered.

On 22 August 2011 a team of police officers went to Palmer's house to investigate an alleged homicide. They noticed that the house smelled of disinfectant. On 24 August 2011 Chow provided a witness statement to the police. A police team accompanied him to Havendale, where he pointed out Palmer's house. Chow was the sole eyewitness relied on by the prosecution. On 25 August 2011 the police cordoned off the perimeter wall of the Swallowfield premises, treating the premises as a crime scene. When they returned on 27 August 2011 they found that the entire interior of the house had been destroyed by fire. On 29 August 2011 a police forensics team conducted an investigation. They reported a foul odour emanating from the living room of the house. On a further police visit on 30 September 2011 it was discovered that the rear of the house had been demolished. The police dug at the premises but did not find a body.

The appellants were arrested on 30 September 2011.

The police seized mobile phones from Palmer, St John and Williams which were delivered to the Communications Forensics and Cybercrimes Unit (CFCU) of the Jamaica Constabulary Force. The evidence derived from the mobile phones included text messages, Blackberry messages, voice notes and a video. A Blackberry Torch phone taken from Palmer and its cards were put in evidence at trial as Exhibit 14C. Among the text messages from other phones were those between the deceased and his girlfriend, Ms Jackson, on 16 August 2011.

At trial, a CD Rom with telecommunications data (“JS2”) was put in evidence by the prosecution. This had been brought into existence in this way. By notice, issued purportedly under section 16(2) of the Interception of Communications Act (“ICA”), Corporal Shawn Brown of the Jamaica Constabulary Force asked Digicel, a communications provider, to provide the communication data of various persons. Mr Joseph Simmonds, a Digicel employee, then extracted the relevant data from Digicel's computer and downloaded it to onto two CDs marked JS1 (the master copy) and JS2 (the working copy) which he delivered to Corporal Brown. JS1 and JS2 were said to be identical. Only JS2 was available at trial, JS1 having been lost after it had been delivered to one of the prosecutors in the case who had died before the trial took place. Corporal Brown said that he used the data from JS2 to create a spreadsheet attributing names and aliases to the various persons sending and receiving communications.

The prosecution case was that the correspondence and communication media, taken as a whole with Chow's evidence, proved the fact of the killing, the reason for the killing, the method of disposal of the deceased's body and the identity of at least one of the killers, namely Palmer.

The appellants' counsel maintained that the request to Digicel and Digicel's provision to the police of the data in JS2 was in breach of the ICA because Corporal Brown was not authorised to request or receive the data and because the police failed to issue a notice to Digicel in the correct form. They submitted, inter alia, that the data on JS2 was inadmissible on the ground that it had been obtained in breach of the fundamental right to the protection of privacy of communications guaranteed by the Charter of Fundamental Rights and Freedoms (enacted by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 (No 12 of 2011) (“the Charter”) contained in the Jamaican Constitution.

Following a voir dire, the judge ruled that the data in JS2 was admissible in evidence even if it had been obtained in breach of the Charter or statute. He also ruled that the other telecommunications data relied on by the prosecution, including Exhibit 14C, was admissible.

The case for the defendants was that they denied murdering the deceased. None of the defendants gave evidence but each gave an unsworn statement from the dock.

(1) Palmer said he was not at the Swallowfield premises at the material time.

(2) Campbell accepted that he had driven ahead of Chow and the deceased in another car on 16 August, but said that the deceased had got out before getting to the Swallowfield premises. Chow had gone to the house but he had left him there. When Chow came to see him later that night, the only incident he mentioned was that Palmer had received a dog bite and had to be taken to hospital.

(3) Jones said that he had known Palmer for years as he was his next door neighbour. The police and Chow were telling lies.

(4) St John said that just as Chow entered the Swallowfield premises he left it to go to his barber shop. However, he saw Palmer being bitten by a dog as he tried to protect Chow, so he took the dog and tied it to the back of the house when Palmer and the others were not in the yard.

Following their convictions on 13 March 2014, the defendants appealed to the Court of Appeal with leave granted by the single judge on 15 March 2017. Of the grounds of appeal advanced before the Court of Appeal only the following are material on this further appeal to the Judicial Committee of the Privy Council.

(1) The trial judge erred in admitting the copy CD Rom JS2 into evidence because it had been obtained in breach of the ICA and the Constitution.

(2) The trial judge failed properly to enquire into allegations of juror misconduct.

(3) The trial judge departed from standard practice in inviting the jury to retire to consider their verdict so late in the day, putting undue pressure on them to reach a verdict.

The appeal was heard by Morrison P, Brooks JA and Williams JA on 9, 16–20, 23 and 24 July 2018. On 3 April 2020 the Court of Appeal dismissed the appeals against conviction. On 17 April 2020 the Court of Appeal allowed the appeals against sentence to the extent of taking account of time spent in custody awaiting trial. The period of imprisonment to be served by each appellant before becoming eligible for parole was reduced by two years and six months.

On 25 September 2020 the Court of Appeal (Brooks JA, McDonald Bishop JA and Straw JA) granted the appellants conditional leave to appeal to the Judicial Committee of the Privy Council. On 7 March 2022 the Court of Appeal (Edwards JA, David Fraser JA and Georgina Fraser JA (Ag)) granted final leave to appeal to the Judicial Committee of the Privy Council on three issues.

On 20 November 2020 all four appellants applied to the Judicial Committee of the Privy Council for permission to appeal on three further grounds. On 12 November 2021 Palmer filed a further application for permission to appeal on further grounds. On 15 February 2023 the Board dismissed these applications.

The appeal was heard by the Privy Council on 14 and 15 February 2024.

It is convenient to address first the issues relating to the jury. On behalf of the appellants it is alleged that the judge failed to investigate sufficiently allegations of juror misconduct which should have led to the discharge of the jury. It is further alleged that the jury should not have been invited to retire to consider its verdict so late in the day on 13 March 2014, with the result that the jury may have felt under pressure to arrive at a verdict. These issues will be considered in turn.

On 7 January 2014 the judge received a report of an encounter between a member of the jury and one of the counsel appearing for the defence. The judge carried out an inquiry, but it was not recorded in the transcript. After discussion with counsel the judge recalled...