Gardner v Director of Public Prosecutions and Anor

• Jurisdiction: Bermuda
• Judgment Date: 03 December 2021
• Docket Number: Civil Jurisdiction 2010 No 243
• Court: Supreme Court (Bermuda)

In the matter of the Right to Trial, pursuant to section 6(1) of the Constitution

And in the matter of the Crown's power to stand-by jurors pursuant to section 519(2) of the Criminal Code Act 1907

Between:

Wolda Salamma Gardner

Applicant

and

Director of Public Prosecutions

Attorney General

Respondents

[2021] Bda LR 103

Civil Jurisdiction 2010 No 243

In The Supreme Court of Bermuda

Application to set aside murder conviction — Stand-by jurors — Whether Court of Appeal appropriate

The following cases were referred to in the judgment:

Trott v Director of Public Prosecutions [2020] Bda LR 47

Roberts v R [2021] Bda LR 51

Tyson v R [2018] 5 LRC 279

Applicant in person

Ms S Dill-Francois for the Respondents

JUDGMENT of Hargun CJ

Introduction

1. On 28 July 2015, following conviction for premeditated murder, the Applicant was sentenced to life imprisonment with 25 years to be served before consideration for parole. He is currently an inmate at Her Majesty's Prison, Westgate Correctional Facility in Sandys Parish.

2. In an earlier case of Jahmico Trott v Director of Public Prosecutions[2020] Bda LR 47, the Applicant challenged the constitutional validity of the jury selection process set out in section 519(2) of the Criminal Code Act 1907 (“the Code”), which granted the Crown the right to stand-by any juror until such time as their name was called a second time, while the accused was only allowed three peremptory challenges. In that case the Applicant argued that section 519(2) infringed the accused's right to be tried by an independent and impartial jury as guaranteed by section 6(1) of the Bermuda Constitution Order 1968 (“the Constitution”).

3. At the conclusion of the hearing in the Trott case on 17 July 2020, the Court declared that section 519(2) of the Code is inoperative to the extent that it allowed for the disparity between the number of stand-by challenges to the Crown, and challenges without cause afforded to the accused. The reasons for that order are set out in the judgment of the Court dated 24 August 2020. In paragraph 59 of that judgment, the Court concluded that the disparity between the accused person's and the Crown's right to challenge jurors gives rise to a real possibility that the jury may be biased in favour of the Crown. Such a state of affairs offends the appearance of impartiality on the part of the jury which is an essential element of the fundamental right to a fair hearing by an independent and impartial tribunal guaranteed by section 6(1) of the Constitution. It followed that the provision of section 519(2) of the Code are inconsistent with the fundamental right to a fair trial established by section 6(1) of the Constitution.

4. The declaration made by the Court in the Trott case was suspended pending the passing of the legislation to give effect to it for a period of three months. On 24 July 2020 the Legislature passed Criminal Code Amendment (No 2) Act (“the Amending Act”) which amended section 529(1) of the Code so as to comply with the Constitution. Section 5 of the Amending Act provided:

“Saving

5 (1) The method of the challenge of jurors under section 519 of the principal Act before the coming into operation of this Act is not invalidated by reason only of the amendment to section 519 of the principal Act.

(2) Accordingly, no conviction shall be quashed solely on the ground that it resulted from a trial in which the Crown stood by more potential jurors than a defendant, or defendants together, were able to challenge without cause.”

5. Following the decision of this Court in Trott the Applicant commenced the present proceedings by Originating Summons dated 6 August 2020. In the Originating Summons the Applicant seeks several orders from the Court including:

• i. A declaration that the Applicant's trial by jury in this Court under Criminal Jurisdiction case numbered 11 of 2013 was unfair ab initio because the jury which tried the said case was duly empanelled under the provisions of section 519 of the Code whereby inter alia, the Crown exercised its purported right thereunder and stood by numerous jurors without showing cause therefor as compared to the Applicant who used mere three challenges available to him.

• ii. A declaration that the Applicant's right to a fair trial under section 6 (1) of the Constitution has been breached because of how the jury was empanelled at his trial.

• iii. An order quashing the guilty verdict handed down and adjudicated by the said Court in the said case 11 of 2013 and an order for a retrial by a jury in a manner according to law.

The Judgment of the Court of Appeal in Leveck Roberts

6. Following the delivery of the Supreme Court judgment in Trott the Court of Appeal heard three appeals in March 2021 in the matters of Roberts v R; Brangman v R; Smith-Williams v R[2021] Bda LR 51 In these three cases that the defendants were convicted and appealed to the Court of Appeal and their appeals were dismissed. Roberts was convicted of premeditated murder and using a firearm to commit an indictable offence; and was sentenced to life imprisonment with 25 years to be served before consideration for parole. He appealed to the Court of Appeal and his appeal against conviction was dismissed on 12 May 2017. Brangman was convicted of attempted murder and using a firearm during the commission of an indictable offence. He was sentenced to 15 years imprisonment for the offence of attempted murder and a consecutive sentence of 10 years imprisonment for the firearms offence. On 17 November 2011 his appeal against conviction was dismissed by the Court of Appeal. A subsequent appeal to the Privy Council was dismissed on 6 October 2015. On 16 October 2018 Smith-Williams was convicted of premeditated murder and using a firearm while committing that offence. His appeal against conviction was dismissed by the Court of Appeal on 25 July 2019.

7. In Roberts the appellants, relying upon the Supreme Court judgment in Trott, argued that in all three cases there had not been a fair trial because of an appearance of bias or a want of equality of arms, and as a result they have suffered fundamental injustice and an infringement of their constitutional rights. They all sought to have their convictions set aside.

8. In a judgment handed down on 11 June 2021 Clarke P stated at [21] that having regard to the submissions of the parties based upon the judgment in Trott that the appeals raised a number of issues, including the following:

• i. Does the principle of finality apply and does the Court have the power to re-open an appeal? If so, what is the test which the Court of Appeal should apply in deciding whether to re-open these appeals?

• ii. What, on its true construction, is the effect of section 5 of the Amending Act (“the saving provision”)? How does it apply, if at all, to a case concluded before it was enacted in which there was a disparity between the number of stand-bys exercised by the Crown and the number of preemptory challenges afforded to the accused (“the relevant disparity”)?

• iii. If, on its true construction...