Gardner v R

• Jurisdiction: Bermuda
• Judge: Baker P,Bell JA,Kawaley JA (Acting)
• Judgment Date: 03 June 2016
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2014 No 12
• Date: 03 June 2016

[2016] Bda LR 63

In The Court of Appeal for Bermuda

Before:

Baker P; Bell JA; Kawaley JA (Acting)

Civil Appeal 2014 No 12

Between:

Wolda Gardner

Appellant

and

The Queen

Respondent

Mr R Horseman for the Appellant

Mr C Mahoney and Ms N Cmith for the Respondent

The following cases were referred to in the judgment:

Blakeney and Grant v R [2014] Bda LR 32

Myers, Brangman and Cox v R [2015] UKPC 40

Makin v Attorney General for New South Wales [1894] AC 57

Premeditated murder and use of firearm — Appeal against conviction — Competency of counsel — Gun shot residue

JUDGMENT of Bell JA

Introduction

1. Wolda Gardner (“the Appellant”), was convicted on 2 July 2014 of (1) premeditated murder, contrary to section 286A of the Criminal Code, and (2) using a firearm to commit an indictable offence, contrary to section 30(1) of the Firearms Act 1973 (pre-amendment). The trial commenced on 19 May 2014 before the Hon. Carlisle Greaves J, and a jury, and continued, with breaks, until 2 July 2014. On 28 May 2014, the trial was adjourned until 9 June 2014. The circumstances giving rise to that adjournment were themselves the subject of complaint on the Appellant's behalf. The trial in fact resumed on 11 June 2014, when it was again adjourned, this time until 23 June 2014, at which point the trial resumed and continued until completion. The judge gave his summing up on 1 and 2 July, and a majority verdict (10 to 2) convicting the Appellant on both charges was given on that date. The Appellant was sentenced to life imprisonment on the first count and 10 years' imprisonment on the second count, to run concurrently. He is not eligible for parole until he has served 25 years.

2. The Appellant was represented at trial by Charles Richardson of counsel, and on this appeal by Richard Horseman. Included in the grounds of appeal are various complaints as to the manner in which Mr Richardson conducted the trial on the Appellant's behalf.

Grounds of Appeal

3. Before dealing with the question of Mr Richardson's representation of the Appellant, it is no doubt helpful to consider the grounds of appeal. The first of these was that the Appellant had not received a fair trial, since the Crown had failed to disclose to the Appellant's counsel in advance of the trial the fact that the primary witness against him, Michael Flood, had a history of mental illnesses and disorders. There was a complaint regarding the lack of disclosure of material in relation to Flood's medical treatment. There was also a complaint regarding the fact the trial was adjourned in the middle of Flood's evidence, when the Crown had made an application unrelated to him, in the absence of the jury. Flood had started to give his evidence on 21 May. In the event, when Flood was scheduled to resume his evidence the following day, the Crown advised the judge that following the previous day's proceedings, the witness had been taken to hospital, and was not available to continue. The case proceeded with other witnesses, and on Friday, 23 May, the Crown informed the judge that Flood had still not recovered, and again further witnesses were interposed. Then on Tuesday, 27 May, the Crown advised the judge that Flood remained unfit to continue his evidence for another week or two, and the case again continued with other witnesses giving their evidence, until the position was addressed the following day. At that time, the judge advised the jury that Flood had been taken ill, such that he was not able to continue his evidence, and further advised that Flood had been granted permission to be removed to another jurisdiction. The judge then advised the jury that there would be a delay of about two weeks, and it was at that point that the trial was adjourned until 9 June 2014. On that date, Flood was still not available, and in fact his evidence resumed on Thursday, 26 June, and was completed that day.

4. The second ground of appeal related to Mr Richardson's conduct as the Appellant's defence counsel, and the complaint was that the Appellant had been denied due process and a fair trial arising out of the following different matters:

• i. Failure to give consideration to or advise the Appellant of his right to instruct a gunshot residue (“GSR”) expert to rebut the evidence of the Crown's GSR expert.

• ii. Failure to advise the Appellant of his right to secure evidence from a psychiatric expert with a view to casting doubt on the evidence given by Flood.

• iii. Failure to provide the Appellant with a complete record of disclosure of material received from the Crown, and in particular the statement of one Meredith Gilbert, which it was said the Appellant had seen only after the trial.

• iv. Failure to consider or apply to read in that statement.

• v. Failure properly to prepare for trial and to give adequate time for the preparation of the Appellant's defence. In connection with this ground, the complaint was that Mr Richardson had attended on the Appellant at Westgate only twice, for no longer than a total of an hour and a half.

• vi. Failure properly to advise the Appellant in relation to whether he should testify on his own behalf, and advising him that the case against him was sufficiently weak that he should not testify, and

• vii. Failure to attend trial and to allow the trial to continue in his absence, without consultation with the Appellant.

5. The third ground of appeal is related to the first ground of complaint against Mr Richardson, insofar as it related to GSR evidence. But the particular complaint was that the trial judge erred in admitting the evidence of the Crown's GSR expert, because the evidence admitted was in respect of findings of one-component particles and one two-component particle, as opposed to GSR properly so-called. The complaint was that the evidence which was allowed in was inconclusive, and just as likely to have come from some other source. In consequence the complaint was that this evidence was highly prejudicial, and was not probative, given the manner in which the Crown put its case against the Appellant at trial. This was not that the Appellant had himself committed the murder of the victim, but that he had ordered others to do so.

6. The fourth ground was that the judge had erred in allowing the prosecution to call evidence in relation to the Appellant having had possession of and having carried a firearm in October 2011, some eighteen months after the murder of Mr Lynch on 5 May 2010. The complaint was that this evidence was not relevant to the commission of the offence charged, given the manner in which the Crown's case related to the shooting, and that this was particularly the case when the gun that had shot the victim had been seized by the police in June 2011.

7. The fifth ground alleged a misdirection in relation to a relatively minor assault said to have been committed by the Appellant against the witness Flood. In particular, complaint was made as to the direction given by the judge in regard to the inference that could properly be drawn from this relatively minor assault, in relation to the commission of violent crimes.

8. The sixth and last ground of appeal was that the judge erred in law by allowing the Crown to elicit evidence from Flood that the Appellant was a crack cocaine dealer, such evidence not being relevant to the commission of the offense charged, and being highly prejudicial.

The Nature of the Crown's Case against the Appellant

9. The case against the Appellant rested on a combination of Flood's evidence, and the GSR evidence, which itself was entirely unrelated to Flood's evidence. The evidence from Flood was given on 21 May, and started with Flood's description of having gone into Hamilton with the Appellant for lunch. On leaving the restaurant, there was an incident when the Appellant became exercised (Flood could not remember what had started it, but he was talking to some friends, and this appears to have been the catalyst). The situation was calmed down and the Appellant proceeded to drive back to the job site. During the course of the journey, Flood said something which offended the Appellant, whereupon the latter punched Flood in the mouth, while driving. It was at this point that the Appellant told Flood the he could “make (him) disappear right now”. When Flood replied by saying that everyone knew they were together, the Appellant proceeded to tell Flood that he had had people shot before. When asked for specifics regarding that statement, Flood's evidence was that the Appellant then said that he had been responsible for the Hamilton Parish shooting (a reference to the murder in this case), and that he had ordered that to happen, that he didn't necessarily have to be the one to do it. This evidence as to what the Appellant had said regarding this murder was repeated more than once in the balance of Flood's evidence in chief.

10. In cross-examination, Mr Richardson had put to Flood that he had become drunk during the lunch, which Flood denied. When Mr Richardson put to Flood that the Appellant had never said the words in question, Flood stood by his evidence, saying that he had given his statement, that was what he knew to be true, and that was all he could do. The balance of the cross-examination was extensive, but only at the end of it did Mr Richardson go back to the admission said to have been made by the Appellant to Flood, with the same answers given by Flood.

Mr Richardson's Evidence

11. In the usual way when complaints are made of counsel's conduct in a criminal trial, Mr Richardson was invited to and did file an affidavit. This was relatively short, and in sharp contrast to the affidavit filed by the Appellant, comprising more than twenty pages. Counsel for the Appellant had prepared a list of five questions, and set out below are the questions, coupled with the answers provided in Mr Richardson's affidavit:

• i. The first question asked how many times Mr Richardson had met with...