Wolda Salamma Gardner v The Director of Public Prosecutions
| Jurisdiction | Bermuda |
| Judge | Clarke P,Kay JA,Gloster JA |
| Judgment Date | 18 November 2022 |
| Neutral Citation | [2022] CA Bda 22 Civ |
| Docket Number | Case No: Civ/2022/02 |
| Court | Court of Appeal (Bermuda) |
| Year | 2022 |
BM 2022 CA 19
Neutral Citation Number: [2022] CA (Bda) 22 Civ
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Sir Maurice Kay
and
JUSTICE OF APPEAL Dame Elizabeth Gloster
Case No: Civ/2022/02
IN THE COURT OF APPEAL (CIVIL DIVISION)
ORIGINAL CIVIL JURISDICTION
THE HON. CHIEF JUSTICE
CASE NUMBER 2020: No. 243
Dame Lois Browne-Evans Building
Hamilton, Bermuda HM 12
Bruce Swan, Bruce Swan & Associates, for the Appellant
Shakira Dill-Francois, of the Attorney-General's Chambers for the Respondent
Hearing date(s): 2 June 2022
On 21 March 2013 the appellant was charged with the premediated murder on 25 December 2012 of Malcom Augustus (“murder 2”) and also with using a firearm to commit an indictable offence. After a trial in the Supreme Court which lasted from 30 March to 24 April 2015 he was convicted by a majority of 11 to 1 of premeditated murder and sentenced to life imprisonment with a 20-year tariff and also convicted, by the same majority, of the firearms offence and sentenced to 20 years' imprisonment to run concurrently with the 20-year tariff set for the life sentence.
When the appellant was sentenced for these offences he was already serving a life sentence with a 25 year tariff for an earlier murder (“murder 1”) of which he had been convicted. The 20 year tariff life sentence for murder 2 was set to run concurrently with the 25 year tariff life sentence already being served for murder 1 and the determinate 20 year sentence in relation to murder 2 was set to run concurrently with the 20 year tariff life sentence for murder 2, but consecutively to the 25 year tariff life sentence for murder 1.
In June 2016 the Appellant was granted leave to appeal against his conviction and sentence but his appeal against sentence was adjourned pending the outcome of the Crown's appeal to the Privy Council in relation to murder 1.
On 30 January 2017 the appellant's appeal against conviction was dismissed by the Court of Appeal.
Thereafter the appellant's appeal against his conviction for murder 1 was successful and a retrial was ordered. As a result, he was no longer subject to any sentence for murder 1. The result was that the appellant was left with life imprisonment for murder with a 20-year tariff with which the 20-year determinate sentence was to be concurrent. On the hearing of the appeal against sentence the prosecution submitted that the resulting sentence was manifestly inadequate. On 8 March 2017 the Court of Appeal agreed and ordered that the determinate 20-year sentence be served consecutively to a tariff period of 25 years. The appellant is currently an inmate at Her Majesty's Prison, Westgate Correctional Facility in Sandy's Parish.
On 12 June 2019 the appellant's application for permission to appeal to the Privy Council was refused.
At no stage did the appellant take the point, which could have been taken (see below), that his trial was unconstitutional because of the discrepancy between his entitlement and that of the Crown to challenge other than for cause/standby potential jurors.
As is apparent, the appellant has exhausted the appeal process, subject to any application to the Court of Appeal to re-open his appeal, which has not been made.
In an earlier case of Jahmico Trott v Director of Public Prosecutions (Civil Jurisdiction 2020 No. 123), 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) of the Code 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”).
At the conclusion of the hearing in the Trott case on 17 July 2020, the Court declared that section 519(2) of the Code was inoperative to the extent that it allowed for the disparity between the number of stand-by challenges afforded to the Crown, and the 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 right of peremptory challenge and the Crown's right to standby jurors gave rise to a real possibility that the jury might be biased in favour of the Crown. Such a state of affairs offended the appearance of impartiality on the part of the jury which was 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 provisions of section 519(2) of the Code were inconsistent with the fundamental right to a fair trial established by section 6(1) of the Constitution.
The declaration made by the Court in the Trott case was suspended for a period of three months pending the passing of legislation to remedy the situation. On 24 July 2020 the Legislature passed the Criminal Code Amendment (No 2) Act (“the Amending Act”) which amended section 519(1) of the Code so as to comply with the Constitution by providing for the accused and the Crown to have equal rights of standby (of not more than five persons if the offence was punishable with a mandatory life sentence and in any other case not more than three).
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.”
Following the decision of this Court in Brangman, Roberts and Smith-Williams the now appellant commenced the present proceedings by Originating Summons dated 6 August 2020. In the Originating Summons the appellant sought several orders from the Supreme 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 [the] 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.”
In March 2021, following the delivery of the judgment of the Chief Justice in Trott, we heard three appeals in the cases of Leveck Roberts (Case No: Crim 2020/4); Quincy Brangman (Case No: Crim 2020/8); and Khyri Smith-Williams (Case No: Crim 2020/9)
In his judgment the Chief Justice summarised the characteristics of those cases in terms which I gratefully adopt:
“ In these three cases 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.”
In each of the three cases the appellants contended that they had not had a fair trial because there was an appearance of bias arising from the fact that the Crown had had the right to standby jurors without limit, whereas the accused could only stand by three without cause; and the Crown had, in their cases, stood by more than three prospective jurors 1. They submitted that they had suffered
a fundamental injustice and an infringement of their constitutional rights and sought to have their convictions set asideIn a judgment handed down on 11 June 2021 we dismissed the appeals in Brangman and Roberts. We allowed the appeal in Smith-Williams but only on the grounds of new evidence. In my judgment I said at [21] that the submissions of the parties raised a number of issues including the following:
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(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 reopen these appeals?
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(ii) What, on its true construction, is the effect of section 5 of the Amending Act (“the saving provision”)? How does it apply, if...
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