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Convicted murderer seeks retrial over jury selection

Wolda Gardner (File photograph)

A man found guilty of a Christmas Eve murder has called on the Court of Appeal to quash his conviction over how the jury was selected for his trial.

Wolda Gardner was jailed for the premeditated murder of Malcolm Augustus in 2012 and using a firearm to commit an indictable act.

However, he argued in the Court of Appeal that his conviction was unconstitutional because the jury selection process had breached his right to a fair trial.

At the time of Gardner’s trial, the Crown was able to call on the jurors to “stand down” without any reason, under provisions in the Criminal Code.

Potential jurors who are stood down can only be called again if the pool is exhausted without a 12-strong jury being formed.

The Crown can still challenge the selection of a previously stood-down juror, but they must explain to the court why the potential juror was not qualified or would be biased.

However, Chief Justice Narinder Hargun found in 2020 that the practice was unconstitutional as defence counsel were only able to challenge three potential jurors without reason.

The court heard that during the course of jury selection for Gardner’s 2015 trial, the Crown stood by a total of 11 potential jurors.

Bruce Swan, council for Gardner, argued that because of Mr Justice Hargun’s 2020 ruling, the section of the law that allowed the Crown unlimited standbys was void because it contradicted the Constitution.

As such, he said Gardner’s conviction should be quashed and a retrial ordered.

But Shakira Dill-Francois, counsel for the Attorney-General’s Chambers, said the court should consider the specifics of the case.

She said that when the jury pool was exhausted, 9 of the 11 jurors that had been stood by were dismissed by the judge for stated reasons.

As a result, Ms Dill-Francois argued that the Crown only stood by two jurors without stated reasons, which would be permissible under the current law.

She said: “There is nothing to suggest that this particular jury was not independent or impartial. There is nothing to suggest that.”

Gardner was sentenced in July 2015 to 20 years behind bars for the murder of Mr Augustus, who was shot dead near Wellington Back Road in St George's on Christmas Eve 2012.

Police found a mobile phone with Gardner's DNA in the area of the shooting, along with a hat belonging to a second man, who was cleared of charges in connection with the shooting.

They also discovered a series of short phone calls and messages between the two men on the evening of the murder, although Gardner said the calls were in relation to Christmas hampers.

Gardner said he was in the area when the shooting took place, and that he had heard a scuffle and gunshots, but that he was not involved in the fatal attack.

However, he was found guilty by a majority verdict of 11 to 1.

He unsuccessfully appealed the case in 2017, and in 2019 London’s Privy Council declined to hear the matter on the basis that there was “no risk” a serious miscarriage of justice had occurred.

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