Wolda Salamma Gardner (Appellant) v Director of Public Prosecutions and another (Respondents) (Bermuda)

Hearing listed

Case summary
Appeal

Case summary

Case ID

JCPC/2024/0040

Jurisdiction

Bermuda

Parties

Appellant(s)

Wolda Salamma Gardner

Respondent(s)

(1) Director of Public Prosecutions,

(2) The Attorney General

Issue

In what circumstances can a person make an application for redress under section 15 of the Bermuda Constitution in respect of an alleged breach of fundamental rights, where the breach complained of arises retrospectively following the decision of a court.

Facts

The appellant, Mr Gardner, is a prisoner in HMP Westgate Correctional Facility. He was charged with and convicted of premeditated murder and firearms offences in April 2015 (“the 2015 conviction”), while already serving a term of life imprisonment for a previous conviction of murder. The appellant successfully appealed his previous conviction. He was unsuccessful in appealing against sentence in respect of his 2015 conviction. As a result, he is now serving a sentence of life imprisonment with a minimum term of 25 years for murder and a consecutive term of 10 years’ imprisonment for firearms offences. The appellant’s criminal proceedings then concluded, having exhausted his right to an appeal. Thereafter, following a decision of the Supreme Court of Bermuda in Trott v DPP [2020] SC (Bda) 35 Civ, a separate case, the Supreme Court of Bermuda ruled that the criminal jury selection process as a whole was unconstitutional. The statutory regime for jury selection allowed the prosecution to select more potential jurors to be put on ‘stand-by’ than the defence were permitted to similarly challenge. The court ruled that where the prosecution ‘stood by’ more than the three jurors that the defence were allowed to challenge, there was an issue of apparent bias in the proceedings. The court considered this to breach the right to a fair trial by an independent and impartial court, which is a right guaranteed by section 6(1) of the Bermuda Constitution. In the appellant’s case at trial for the 2015 conviction, the prosecution stood-by 11 potential jurors which resulted in 9 potential jurors being excused. The appellant made an application under section 15 of the Bermuda Constitution for redress, as a result of the decision in Trott. That application was dismissed by the Supreme Court of Bermuda on 4 December 2021. The court considered that the appellant ought to have made an application for the criminal case to be reopened on appeal, as opposed to an application made directly seeking redress under the Constitution. The Court of Appeal affirmed that dismissal on 18 November 2022. Mr Gardner now appeals to the Judicial Committee of the Privy Council.