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Court of appeal rulings prompt AG to consider new legislation

The cheers saluting Mr. Everette Wellman's Court of Appeal triumph over a drug conviction sounded a warning shot across the bows of Bermuda's bruised legal system.

And it could herald controversial legislation to cement a yawning legal crack.

To the Island's legal eagles last month's court ruling had a disturbing echo.

Just two months earlier the Court of Appeal freed singer Mr. Ted Ming, sentenced to 20 years on drug smuggling charges.

And last year a murder conviction of Milton Shane Watson was thrown out on appeal, sparking a retrial.

Other cases too have landed in the Court of Appeal lap -- and defendants walked free.

In several, Supreme Court judges have been left nursing sore knuckles for apparent legal slip-ups.

Variations of the headline "jury misdirected'' have cropped up with unerring regularity.

It is the dramatic collapse, however, of the big two -- the heavyweight Wellman and Ming cases -- which have rung the alarm bell.

A common thread runs between them.

Both foundered on the jagged rocks of corroboration which have claimed victims worldwide.

What evidence should be treated as corroborative? How should the judge direct a jury? The key questions have struck at the core of our legal system.

In their dramatic Ming ruling, the appeal panel zeroed in on evidence used to show his involvement with others in a drug ring.

It included telephone calls, traces of cocaine, and statements to Police.

The Supreme Court judge was rapped for wrongly branding some evidence corroborative -- and failing to pick out which was not.

It was also declared guilt could NOT flow from evidence suggesting links between the men.

"Association and guilt are not the same,'' the 24-page appeal judgment laid down.

The Wellman trial fell apart spectacularly in similar fashion.

A boutique owner, the 30-year-old had been jailed 12 years for importing $500,000 worth of cannabis and cocaine from New York.

The Crown hung its case on testimony from a suspect male witness, labelled an accomplice by the judge.

In his summing up, the judge picked out items of evidence -- each of which, he claimed, was enough to corroborate the witness's story.

It included evidence of Wellman in New York, having the opportunity to commit the offence.

But the appeal panel ruled: "This does not, by itself, show that the appellant committed the offence.'' It added: "We consider that the items of evidence listed by the judge, if taken together, would have amounted to corroboration.

"The judge was thus in error in his direction on corroboration ...'' Another less-publicised case came to grief the same way recently.

Cromwell Miles Manders had been jailed for five years for importing 622.1 grams of cannabis, worth more than $31,000.

He was later freed, however, after the appeal panel ruled "bits and pieces'' of evidence had been wrongly dubbed corroborative.

The parallels are striking.

And yesterday the Attorney General Mr. Walter Maddocks told The Royal Gazette changes could be in the pipeline.

Legislation could be brought in to surgically remove the rocks of corroboration -- or at least sandpaper them down.

It would be aimed at simplifying matters for judges and juries.

Mr. Maddocks said the Ming and Wellman trials had highlighted the incredible complexity surrounding corroboration.

Judges sometimes faced a mammoth task in helping juries disentangle various strands of corroborative evidence, particularly when a suspect witness was involved.

Said Mr. Maddocks: "It leaves juries totally confused. It can become so complex juries will just ignore that kind of summing up.'' Mr. Maddocks said the Court of Appeal had accepted the problem.

Part of their Ming ruling had stated: "... we suspect that the average juror does not attempt to weigh up the pieces of evidence on the basis of the judge's summing up, but will decide whether or not to believe the suspect witness.'' The appeal panel had floated legislation as a possible cure, said Mr.

Maddocks.

However, he declined to elaborate on what type of legislation could be brought in.

"I think I had better leave that open,'' he said.

Mr. Maddocks, Attorney General for around 18 months, also stamped on any suggestion the wrong charges had been pressed in the Ming case.

The appeal panel had hinted there may have been a suspicion of Ming and others trafficking in drugs -- as opposed to importing.

"I am totally satisfied the charges were the right ones,'' said Mr. Maddocks.

He went on to mount a staunch defence of Bermuda's legal system.

"We have a very good judicial system. I am very lucky to have such good Crown counsels who do an excellent job at prosecuting.'' Lawyer Mr. Delroy Duncan, involved in the Ming case, also scotched any suggestion the Island's legal system was in crisis.

Agreeing corroboration was a "thorny'' issue, he voiced unease about legislation to simplify it.

If it meant reducing the requirement for judges to warn juries about potential dangers of evidence, Bermuda should pull back.

"I'm not sure how legislation can help,'' he said.

Mr. Duncan said it maybe necessary to toughen up rules on corroboration -- as suggested by the Privy Council.

"It is dangerous to convict on uncorroborated evidence of an accomplice because experience shows that people can often lie for various motives to ensure somebody is convicted.'' Mr. Duncan backed the tape-recording of statements to Police to shore up corroborative evidence.

"It would save an awful lot of court time,'' he said.

Lawyer Mr. Timothy Marshall saw "merit'' in looking at legislation to guide courts on corroboration.

"You can get completely bogged down over corroboration,'' he said.

He also stoutly defended the legal system, holding up the Court of Appeal rulings as evidence of it working well.

"We should be comforted that the rights of people are being protected by the court system.'' Mr. Marshall also believed lessons would be learned from the appeal judgments.

"It's human nature that mistakes will be made from time to time.'' It seems the key is to stem the tide ...

MR. WALTER MADDOCKS -- juries are being `totally confused'.