Convicted murderer loses bid to have appeal heard by Supreme Court
A man convicted of a Christmas Eve murder has lost an attempt to have an appeal for his case heard by the Supreme Court.
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.
While the courts had previously ruled that exceptional circumstances were required for such an appeal to be successful in the Court of Appeal, Gardner argued that the language of Section 15 of the Constitution would allow a retroactive application to the Supreme Court.
He added that even though he could apply for an appeal to the Court of Appeal under Section 17 of the Court of Appeal Act, it did not prohibit him from making an appeal to the Supreme Court.
While Gardner applied to the Supreme Court under Section 15, Chief Justice Narinder Hargun found that any appeal should go to the upper court – and that the same exceptional circumstances test would apply in both courts.
The Court of Appeal quoted Mr Justice Hargun, who said that allowing a second appeal without exceptional circumstances might “wreak havoc” on the administration of justice and cause injustice to victims and others.
“The Chief Justice held that in an ordinary case where an applicant sought to challenge and set aside a criminal conviction following a trial in the Supreme Court the appropriate procedural route to make that challenge was by way of an appeal under section 17(1) of the 1964 Act,” the judgment stated.
“Since the applicant would gain no juridical advantage by proceeding with his application under section 15(1) of the Constitution, the appropriate course for the applicant to take, if he wishes to pursue his constitutional challenge was to apply for leave to appeal to the Court of Appeal under section 17(1).”
The Court of Appeal agreed with Mr Justice Hargun’s reasoning and that the Supreme Court should not exercise its powers under section 15 unless the applicant had no other means of redress.
While Gardner argued that an application to the Court of Appeal was not an adequate means of redress, the Court of Appeal said the submission was “misplaced”.
“In order to have some means of redress there must be a route by which the appellant can obtain a remedy if he is entitled to it,” the judgment said.
“It is not necessary to show that, if he avails himself of the means of redress, he is bound to obtain it.”
The Court of Appeals upheld the Chief Justice’s ruling, stating that his refusal to accept the appeal in the Supreme Court was not surprising.
“It would be a very curious result if, by bringing an application under section 15 of the Constitution the applicant could circumvent the obstacles in his path if he were to seek to reopen the appeal,” the judgment stated.
“The Chief Justice said that nothing in his judgment should be construed as affecting any application that the applicant might elect to make to the Court of Appeal to reopen his appeal based upon the facts and circumstances relied on in these proceedings.
“Nor should anything in this judgment be construed as having that effect. But any such application would, in order to be successful, have to fall within the type of exceptional circumstance to which the Court referred.”
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 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 the Privy Council in London declined to hear the matter on the basis that there was “no risk” a serious miscarriage of justice had occurred.
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