Murderer loses appeal against conviction over jury selection
A murderer who claimed that his conviction should be quashed because of how the jury was selected at his trial has lost his appeal to the Privy Council.
Lawyers for Wolda Gardner, 46, who is serving a life sentence for the 2012 murder of Malcolm Augustus, argued at a July hearing that he suffered an unfair trial because of a legal process that was later found to be unconstitutional.
Yesterday, the Judicial Committee of the Privy Council in London, Bermuda’s highest court of appeal, ruled that constitutional proceedings were not the right forum for his legal challenge because there were other “adequate means of redress” available to him.
The board of five law lords concluded that the “appropriate procedural route” for Gardner to challenge his conviction was for him to apply to reopen his appeal in the criminal proceedings that resulted in the conviction.
Gardner was convicted on April 24, 2015, of the murder of Mr Augustus, who was fatally shot near Wellington Back Road, St George’s, on Christmas Eve in 2012, and of using a firearm to commit an indictable act.
He was sentenced to life with a minimum 20-year term, later increased to 25 years after a successful appeal from the prosecution.
He appealed his conviction unsuccessfully in 2017 and, in 2019, the Privy Council declined to hear the matter, saying there was “no risk” that a serious miscarriage of justice had taken place.
After his appeal, the Supreme Court found in the case of Jahmico Trott that Bermuda’s criminal jury selection process was unconstitutional because it allowed prosecutors to “stand by” an unlimited number of potential jurors, putting the defence at a disadvantage.
The law was amended in 2020, aligning the rights of prosecution and defence by allowing the former to require up to three jurors to stand by for each defendant and for each defendant to be able to challenge up to three jurors without cause.
Gardner made an application for redress to the Supreme Court, citing its decision in the Trott case.
He sought declarations that his 2015 trial was unfair because the jury was empanelled under the unamended jury selection rules, arguing that the process was unfairly biased in favour of the Crown, so his guilty verdict should be overturned and a retrial ordered.
According to the Privy Council ruling, the Crown “required significantly more jurors to stand by [about 15 in number] than the three the appellant was entitled to challenge without cause” at the murder trial.
Gardner’s application was dismissed in 2021 on the basis that his was a “closed case” because his ordinary right of appeal had expired.
The Court of Appeal upheld that dismissal but granted Gardner leave to appeal to the Privy Council.
Edward Fitzgerald KC, for Gardner, argued at the hearing in July that the Court of Appeal was wrong to find that the Trott ruling was not applicable in closed cases.
He said: “We say there is apparent bias in this case, in the manner in which the jury were selected. That is sufficient to constitute an injustice for the purposes of reopening.”
Tom Poole KC, for the Director of Public Prosecutions, said there were adequate means of redress when the original trial was held and during Gardner’s subsequent appeal but they were not exercised.
The Privy Council’s ruling said the key question was whether Gardner was entitled to challenge the validity of his conviction on constitutional grounds, rather than by applying to the Court of Appeal in the criminal proceedings against him to “reopen the appeal he previously brought against his conviction”.
The lords found that a constitutional complaint direct to the Supreme Court should not be entertained if “adequate means of redress are or have been available to the appellant under any other law”.
The ruling stated: “This reflects the relationship in Bermuda between the rights set out in the Constitution and ordinary law.
“In large measure, ordinary law will be effective to protect the constitutional rights of citizens.
“Where that is the case, it is not necessary or appropriate to have recourse to the Supreme Court’s original jurisdiction under Section 15(2) [of the Constitution].
“To do so would be disruptive of ordinary and adequate legal processes and would create legal uncertainty without good reason.”
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• To read the Privy Council judgment, see Related Media
