Wendy Hayward v Fiona Miller

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judge: Wolffe, J.
• Judgment Date: 05 May 2025
• Year: 2025
• Docket Number: 2024: No. 12

Wendy Hayward

and

Fiona Miller

Wolffe, J.

2024: No. 12

Supreme Court

Appearances:

Mr. Vaughn Caines for the Appellant.

Mr. Matthew Frick for the Respondent.

APPEAL AGAINST CONVICTION – ABUSE OF A SENIOR

Wolffe, J.

1 On the 18th March 2024, Magistrate Craig Attridge found the Appellant guilty of two offences of “Abuse of Senior” contrary to section 3(1) of the Senior Abuse Register Act, 2008 (the “Act”). These offences were the subject of two separate sets of Information: (i) Case No. 21CR00564 in respect of victim Mary Josephine Hunt; and (ii) Case No. 21CR00565 in respect of victim Herman Basden. The two matters were consolidated for the purpose of trial, and this was likely because at the material times of the offences, Ms. Hunt and Mr. Basden were both residents at the Sylvia Richardson Care Facility (“SRCF”) and the Appellant was employed as a care worker at the facility.

2 On the 26th March 2024, the Appellant filed a Notice of Appeal setting out the following grounds of appeal:

• “(1) The learned Magistrate failed to consider the weight of all the evidence (specifically the physical evidence) in reaching his conclusion as to the Appellant allegedly abusing Mr. Basden.

• (2) The learned Magistrate failed to take all the evidence (specifically the physical evidence) into account in reaching his conclusion regarding alleged abuse towards Ms. Hunt.

• (3) The Learned Magistrate incorrectly interpreted the behaviour of Ms. Hayward in consideration of the credibility on what constitutes abuse for the purposes of Section 3(1) regarding a. deliberate conduct; and b. a guilty mind, reasonable doubt.”

3 On the 14th April 2025, I dismissed each ground of the appeal, and the following paragraphs provide my reasons for doing so.

4 Although relating to a different set of facts, Grounds 1 and 2 essentially amount to the same complaint, and so it would be more efficient to deal with them together. However, I will address Ground 2 in respect of Ms. Hunt first, as it would appear that the trial unfolded with the hearing of the evidence which pertained to Ms. Hunt first and accordingly, in his Judgment, the Magistrate dealt with this evidence before turning his attention to the evidence relating to Mr. Basden.

5 Furthermore, there is significant overlap between all of the grounds of appeal, and it will therefore become evident that portions of what is said under one ground may equally be applicable to the other grounds.

THE EVIDENCE IN RESPECT OF MS HUNT (GROUND 2)

6 The Prosecution's case, which was advanced by way of the oral evidence from several witnesses and from CCTV footage, was that at the material time Ms. Hunt, who was well into her nineties (there was no dispute that she was a senior for the purposes of section 2 of the Act as she was over 65 years of age), was suffering from “advanced Alzheimer's Dementia” (which was confirmed by a Dr Fiona Ross whose statement was read in). It was a consensus of those at the SRCF that while she had a “sweet side”, Ms. Hunt could also be combative and stubborn. Apparently, the behaviour which Ms. Hunt exhibited was typical of other residents who resided at the SRCF.

7 The primary prosecution witness, Ms. Simone Trott, recalled that on the 25th March 2021, she saw and heard the Appellant jokingly call Ms. Hunt a thief and that this made Ms. Hunt very angry and agitated. The Appellant and Ms. Hunt went back and forth with the Appellant calling Ms. Hunt a thief and Ms. Hunt denying it. At the time, Ms. Hunt was in a wheelchair.

8 At some point during this verbal confrontation, Ms. Hunt picked up a vase and threw it at the Appellant, thereby causing water to get all over the Appellant (the vase did not hit the Appellant). Ms. Trott, who said that she was less than three feet away, then observed the Appellant slap Ms. Hunt once “upside her head”, and that she heard a “pow”. She then saw the Appellant, with one hand, grip Ms. Hunt's hair (which had been up in a bun) and then with the other hand start pulling Ms. Hunt's hair. The Appellant then: (i) went into the bathroom, obtained a cup of water, and poured the water all over Ms. Hunt; (ii) gripped Ms. Hunt's wheelchair and repeatedly swung it around from left to right; and then she (iii) emptied the contents of Ms. Hunt's purse onto her [Ms. Hunt's] head and put the purse in the trash. Ms. Trott said that she [Ms. Trott] then took Ms. Hunt to her room to change Ms. Hunt's clothes into a nightgown due to the water, crumbs and other items from Ms. Hunt's purse being poured and emptied onto her by the Appellant.

9 Ms. Trott said that when this was all occurring, she was in shock, that the incident was frightening, and that she would not have expected a co-worker to hit an elderly lady. Instead, she said, a co-worker should remove themselves from the situation and not assault a resident/patient/client (even if they themselves are assaulted). She accepted that after she saw the incident that she did not do anything to intervene between the Appellant and Ms. Hunt, but that she got up and went to check on two other residents. She explained that she did this because there were a lot of emotions going through her mind and that she did not want to confront the Appellant and make the situation worse.

10 Following the incident, Ms. Trott made a report to the nurse on duty, and together they made a verbal report to Ms. Angela Brangman, who was the Administrator of the SRCF (the “Administrator”). However, it was not until 13 days later, on the 7th April 2021, that Ms. Trott gave a witness statement to the police.

11 The Prosecution also called a Ms. Zoletta Pearman, a nursing assistant at the SRCF, and she said that on the 25th March 2021 (the day of the incident) whilst she and the Appellant were outside waiting for their transportation that the Appellant told her that Ms. Hunt “ducked” her i.e. doused her with water, and, that she [the Appellant] pulled Ms. Hunt's hair twice. She reported this conversation to the Administrator, and she further said that if she had been ducked with water, she would have simply walked away or removed herself.

12 Registered nurse Ms. Nisha Suraj gave evidence for the Prosecution, and she said that on the 25th March 2021, the Appellant came to her with wet clothing on and told her that Ms. Hunt did that to her. A little later, Ms. Hunt came to her in tears, appearing nervous, and told her that someone had poured dirty water on her. In examination-in-chief, she said that Ms. Hunt's hair appeared wet but in cross-examination, she accepted that her hair was not wet. After she made a report as to what Ms. Hunt told her, she did a head-to-toe assessment of Ms. Hunt, but she did not observe any bruises or redness to Ms. Hunt's body. In cross-examination, she said that if Ms. Hunt was not hit hard, then she would not have expected to see any redness or bruising.

13 The Administrator took the stand and she said that residents becoming combative is a common occurrence at the SRFC and that when this happens, staff have to take evasive action and remove themselves from the situation in order to prevent injury and harm to the residents and to themselves. In this regard, all staff are trained on how to manage such situations and that the major concerns are patient safety and the duty of care to residents. She accepted in cross-examination that it would be inconsistent with staff training to just sit back and watch a resident being assaulted, and it would also be inconsistent with policy to delay reporting any incident which may have occurred.

14 The Administrator specifically said that (a) it is impermissible to punch or strike a resident or do anything like pour water on them, pull their hair, or to jerk their wheelchair to and fro, and (b) that if staff observe an injured resident, then they should report it to the nurse.

15 As to the general behaviour of Ms. Hunt, she said that she was a physical threat but that she was ultimately a frail woman who could be managed easily by experienced staff.

THE EVIDENCE IN RESPECT OF MR BASDEN (COUNT 1)

16 Mr. Basden also suffered from advanced Alzheimer's Dementia (also confirmed by Dr Ross), and he was in his late 80s (there was no dispute that he was a senior for the purposes of the Act). The Prosecution's primary witness in respect of Mr. Basden was a Suzette Swan, who had been working at the SRFC for 12 years. She recalled an incident when she and the Appellant went to Mr. Basden's room to clean him up. She said that at some point she saw the Appellant lose her temper and with a closed fist punch Mr. Basden on his leg very hard at least three but no more than five times. This caused welts (raised bruises) to form on Mr. Basden. She told the Appellant to get out of the room and that she would finish cleaning up Mr. Basden. She said that at the time, Mr. Basden appeared totally frightened by what the Appellant had done to him.

17 Ms. Swan further stated that she herself was “kinda scared” and upset about what she saw and that she did not say anything to the Administrator until the 26th March 2021. She also accepted that she did not tell a nurse who came into Mr. Basden's room following the incident, and she explained that this was because she was too upset to say something. But, she said, she did tell a Zina Minks (her shop steward) and she presumed that she [Ms. Minks] would tell the Administrator (Ms. Minks stated that she told a nurse what Ms. Swan told her). She was unable to say exactly when the incident occurred, but she accepted that it could have been weeks before she reported it to the Administrator, i.e. four to six weeks earlier. When Mr. Vaughn Caines (Counsel for the Appellant at trial and on this appeal) put to her in cross-examination that she only reported the incident with Mr. Basden after she had heard about the allegations relating to Ms. Hunt, she first said that it was a...