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Jury ʽunduly pressured to reach a decision’ - lawyer

A defence lawyer called for legislative changes to allow juries not to sequestered at a hotel as half-siblings fought to have their murder convictions overturned.

Cleveland Rogers and Katrina Burgess, his half-sister, were both convicted last year of the 2006 murder of 32-year-old Marcus Gibbings.

But Charles Richardson, counsel for Burgess, told the Court of Appeal yesterday that the jury had been put under undue pressure to deliver a verdict to avoid a mandated hotel stay.

He argued that an amendment should be made to allow the jury to separate, as is in place in other jurisdictions.

Mr Richardson said: “It seems to rest between a rock and a hard place.

“On the one hand, the court does not have a legal power to allow the jury to separate, but on the other hand the remedy chosen, culturally speaking, would be considered akin to prison.”

He said the jury were sent out for deliberation at 10.16am after a complicated seven-week trial and delivered their verdict at 5.04pm that same day.

Mr Richardson said the jurors faces being locked into a hotel room with no access to their phones, television, newspapers or their families.

Mr Richardson said if legislation was not changed, potential jurors should be warned before they are empanelled about the possibility so they can raise concerns.

He said the trial judge, Acting Puisne Judge Craig Attridge, raised the possibility of a mandated hotel stay with the jury, but only after the trial had begun.

Mr Richardson added: “It wasn’t a short trial. There wasn’t just one or two witnesses and, on top of that, there were two entire cases to consider.

“The jury in this case was unduly pressured to reach a decision in this case having been warned by the trial judge to bring an overnight bag.”

Mr Richardson also said evidence that Rogers had admitted involvement in the murder to his then-girlfriend could not be used against Burgess because it would be hearsay.

He said the court had a duty to ensure fairness and could have redacted the confession evidence to remove “highly prejudicial” references to Burgess – but did not do so.

Mr Richardson said: “Yes, it would have made it more difficult to run a sensible case against Rogers, but it should have been done in order to bring justice to Burgess.”

He added that while Mr Justice Attridge had told the jury several times that they could not consider the confessions against Burgess, it was not enough to mitigate the damage.

Mr Richardson said: “The more he mentioned it, the more he livened it up.”

Susan Mulligan, counsel for Rogers, said the trial was plagued by missing evidence and late disclosure of evidence.

She added that Mr Justice Attridge should have found there was no case to answer because the witness evidence was too weak to be relied on and there was clear evidence of collusion between the witnesses.

Ms Mulligan said: “If they could not rely on these two witnesses, there was no other evidence capable of supporting a conviction.”

She said that while both witnesses claimed Rogers had confessed to murder, both stayed in relationships with him and neither went to the police immediately.

Ms Mulligan said when the witnesses did go to the police, they did so just five days apart from one another and they had “clearly” spoken with each other.

She said: “The witnesses we say clearly colluded and had a common enemy, a common interest in keeping him in custody.”

Ms Mulligan said the witness evidence also contradicted the physical evidence, including a suggestion that Mr Gibbings was attacked from behind.

Prosecutors alleged that Burgess, the former girlfriend of Mr Gibbings, had paid Rogers $5,000 to commit the murder after the victim cheated on her and ended their relationship.

An autopsy revealed he had suffered multiple stab wounds including one to his face and two to his chest, one of which struck his heart.

The hearing continues.