A man found guilty of a 2012 murder called on the Privy Council in London last month to quash his conviction over how his jury was selected.

While Wolda Gardner argued that he suffered an unfair trial because of a legal process that was found to be unconstitutional, counsel for the Director of Public Prosecutions argued that he had failed to raise the issue either in the trial or during subsequent appeals.

Gardner was sentenced to spend at least 25 years behind bars for the murder of Malcolm Augustus, who was fatally shot near Wellington Back Road, St George’s, on Christmas Eve in 2012.

He was also convicted of using a firearm to commit an indictable act.

Gardner said he was in the area when the shooting took place, and that he had heard a scuffle and gunshots, but was not involved in the fatal attack. However, he was found guilty by a majority verdict after trial.

He appealed the case 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.

However, subsequent to his appeal, the Supreme Court found in the case of Jahmico Trott that the criminal jury selection process was unconstitutional because it allowed prosecutors to “stand by” an unlimited number of potential jurors.

Gardner subsequently made an application for redress, citing the Supreme Court decision, but that application was dismissed in 2021. The Court of Appeal upheld that decision, but granted Gardner leave to appeal to the Privy Council.

Edward Fitzgerald KC, for Gardner, said in a hearing on July 23 that the Court of Appeal was wrong to find that the ruling in Mr Trott’s case was not applicable in closed cases.

“There is a presumption of retrospectivity, and in any event, we say that there must be sufficient retrospectivity to allow for a remedy in a case of apparent bias such as this,” he said.

Mr Fitzgerald also argued that the test for when such matters could be retried was wrong because it was set too high and left Gardner with no adequate alternative means of address.

“Effectively, they required both actual bias and the demonstration that it probably influenced the result,” 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.

“If it is not, then reopening doesn’t provide an adequate remedy. There is an avenue, but there is not a remedy.”

Mr Fitzgerald said that the Privy Council board had the opportunity to set the matter right or remit it to the Court of Appeal to resolve factual matters.

Tom Poole KC, for the DPP, said there were adequate means of redress when the original trial was held and during Gardner’s subsequent appeal but they were simply not exercised.

He said Gardner, through his lawyer, played an active part in the jury selection process but did not raise any of the concerns he now says he had.

“The appellant tells us precisely what he considered was the issue at the time,” Mr Poole said.

“He didn’t like the racial profiling of the jury. He thought the jury was stacked against him by the prosecution and he felt a feeling of absolute despair.

“The appellant failed to take any of those steps, and now the board and the Court of Appeal is precluded from granting constitutional redress because adequate means of address have been available to the appellant.”

Mr Poole said that the bar for reopening closed cases was high for good reason — and Gardner’s case fell short of that mark.

“You can’t simply say there is an appearance of bias in a closed case,” he said.

“In a closed case, you have to go farther and you have to establish substantial injustice.”

He told the court that Cindy Clarke, the DPP, said the practice at the time was for the Crown to stand by jurors who have been excluded owing to their availability, and the jurors who had been stood-by in Gardner’s trial were subsequently excused by the court.

Judgment in the case before the Privy Council was reserved until a later date.

• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers