Sanderson J
COURT COMMENCED ON THURSDAY,
OCTOBER 12, 2000, AT 10:09 A.M.:
THE COURT: Good morning, ladies and gentlemen.
On Monday, October 9th, the array from which a jury for these proceedings would be selected appeared before this Court. Prior to the array appearing, the Deputy Clerk of the Court tells me that she explained to the array that if any of them had made travel arrangements or were required to be away during the course of the trial, that they should advise me if and when their name was called.
In addition, I advised the array before any names were selected that if a potential juror had any connection with this case either by direct or personal knowledge of the events, the defendants or the witnesses, that they should tell me when their name was called. Several people did so and were excused.
Seven jurors were selected over the course of the morning and were all individually sworn. That oath states:
"I swear, All Mighty God, that I
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will faithfully try the several issues joined between our Sovereign Lady the Queen and the prisoner at the bar and give a true verdict according to the evidence, so help me God."
After the jury was sworn, they, along with the rest of the array, were released to allow counsel the opportunity of raising certain legal questions for the Court's determination.
Subsequent to the jury being released, I received a note from Mr. Beckett, the Court Administrator, which indicated that one of the jurors, Mr. Kennedy McGowan, had tickets to accompany his wife to Florida for an appointment for surgery for her. The tickets were purchased for travel on October 26th with a return on October 29th. The note said, however, that the return date was about to be or had been changed to November 2nd. The note also said that Mr. McGowan is said to know a witness.
On Tuesday afternoon, the seven members selected for the jury returned and I explained to Mr. McGowan that it could be problematical
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for the Court to excuse him at this stage and I wanted to know if it was an urgent situation or was necessary that he travel to Florida with his wife. He said it could not be considered an emergency or urgent situation.
He then went on to tell me that he had another reason for being excused. He said that his ex-wife worked in the law offices of Mr. Murray, counsel for one of the accused, and it would make him feel "uncomfortable" if he had to go to those offices during the course of the trial to pick up his daughter. He told me that he did not recognise Mr. Murray before he was sworn in.
I asked him if it was necessary that he go to the offices of Mr. Murray during the three-week period and he said he could make other arrangements. I asked him if he felt that he would be unable to be impartial because of his ex-wife's association with Mr. Murray and at that time, senior counsel Mr. LaMontagne interjected and said that Mr. McGowan had said he would feel uncomfortable. I recall that Mr. McGowan again confirmed that he would feel uncomfortable, but did not say that it would
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affect his impartiality or why he would feel uncomfortable. Crown counsel indicated that they were concerned and it was obvious that Mr. LaMontagne was concerned.
Indeed, it was my own impression from Mr. McGowan that he was using this explanation in order to be relieved of his jury duty responsibilities so that he might go to Miami with his wife.
At that point, his wife rose from the body of the courtroom and advised me that Mr. McGowan and her had made these plans to go to Florida some time ago and urged me to allow him to join her.
It was apparent to me that Mr. McGowan at that point would do or say what he considered necessary in order to be excused. It seemed to me that if he remained a member of the jury, he would be angry and bitter and, therefore, there was a real risk that he would not fulfil the oath that he had taken to give a true verdict on the evidence.
I adjourned the matter and directed the jury to return the next day, Wednesday, October 11th. Before court was convened, I met
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with all counsel in my chambers to discuss this difficulty. All counsel shared my concern that there was a real danger that Mr. McGowan could do injustice to one of the parties -- either the Crown or the defendants -- because he was an unwilling and unhappy juror and, therefore, he should be excused.
No counsel indicated that there was any real problem arising as a result of his ex-wife -- whom I was told was divorced seven years ago -- working in Mr. Murray's law firm. The problem was plainly that he would be angry if forced to stay and that could affect the outcome of this case.
It was also agreed in chambers that it was not clear whether or not I could release or excuse Mr. McGowan and select a new juror from the array or whether the trial would have to be adjourned. Counsel requested time to research that question and the Court reconvened at 2:30 yesterday to hear submissions. It was agreed by counsel and accepted by the Court that I can excuse Mr. McGowan and select a juror from the previous array. That is what I propose to do.
Mr. McGowan, you are excused as a juror,
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however, the Court feels it has no alternative but to direct you to appear before the Court at 10:00 a.m. on November 15, 2000, to show cause why you should not be found in contempt of court. If so found, you may be fined or imprisoned or both. You should seek legal advice and I recommend that you retain a lawyer to represent you. A copy of these reasons will be available from the Court Registry in approximately 10 days.
You and your lawyer should consider that your request to be excused and its manner and timing have delayed these proceedings by one day. That involves the time and expense of at least seven lawyers and five court staff.
In addition, it has been necessary to recall and inconvenience the array, both yesterday and today, for the purpose of selecting another juror to replace you.
You are excused and ordered to appear at 10:00 a.m., Wednesday, November 15, 2000.
MR. McGOWAN: Thank you.
[EXTRACT CONCLUDED AT 10:20 A.M.]
10:20AM
DGSander
His Lordship Justice Sanderson
Judge of the Grand Court
REPORTER'S CERTIFICATE
I, DARCIA C. HEWAK, Official Court Reporter, do hereby certify that the foregoing pages are a true and accurate transcript of the proceedings had in the said Court and reported in machine shorthand by me on the date and place aforementioned.
DARCIA C. HEWAK
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