A man who said he was denied a fair hearing by the Commission of Inquiry about the loss of land in Sandys through alleged fraud is set to have his case heard again as he seeks a judicial review.

Robert Moulder told the Supreme Court earlier this summer that he objected to the committee’s decision to restrict access to the material, including his witness testimony.

While the Commission of Inquiry agreed to hear the case, it did so “in camera” rather than in public citing allegations of criminal activity.

When the commission published its report, it made no recommendations on the case and sealed its records on the matter for a period of 50 years.

In a decision released last week, Assistant Justice Hugh Southey said that he had identified two arguable claims in the case – however he said procedural arguments raised by the commission should also be considered.

The judge ordered a rolled-up hearing at a future date to determine the procedural arguments and – if those are rejected – the substantive judicial review.

“As I believe that some of the matters raised are legally arguable, I will not analyse the legal arguments in detail,” Mr Justice Southey said.

“I do not want to be seen to prejudge matters when I have not heard detailed argument. In particular I have heard little from the commission.

“I emphasise that I have merely found matters arguable.”

The Commission of Inquiry into Historic Land Losses was established by David Burt, the Premier, in 2019 to look into historical losses of property and make recommendations on compensation and justice for any victims of wrongful action.

Mr Moulder gave evidence before the Commission in February 2021. He described how he had a paper trail of evidence to prove that his Sandys property was taken from him illegally.

The land was eventually returned to Mr Moulder through an order of the Court of Appeal, but subsequent court applications for compensation were dismissed.

He was made to give some of his testimony behind closed doors by interim commission chairman Wayne Perinchief after commissioners were told that it could lead to criminal charges.

Mr Moulder then recused himself from the commission proceedings because he said he was not getting a fair hearing.

The commissioners said that Mr Moulder’s case was an “example of a land grab”.

But they concluded that they could not inquire into his matter because they were “not empowered in this or any case to review or to consider any material touching and concerning any matter(s) where the Supreme Court and/or the Court of Appeal of Bermuda had rendered a judgment, as these matters are not within the COI’s jurisdiction or mandate”.

Mr Moulder said that in June he discovered that the records involved in his case were among those that would be sealed for 50 years.

Mr Moulder called for a judicial review, arguing that the commission had made a mistake by not holding the case in public and then not disclosing the commission’s records.

He further argued that the commission’s decision to not give a recommendation because the land had been returned by the Court of Appeal was flawed and the commission should have considered criminality in the case.

Mr Justice Southey said that the common law could require materials to be made available to the public unless there was good reason to withhold it – and in the current case it was unclear if there was such a reason.

While he allowed the two grounds to proceed, he noted that the commission had raised procedural objections in the case, which he would also allow to move forward.

Mr Justice Southey wrote: “I am very conscious that I have not heard from the Commission of Inquiry regarding those procedural objections.

“For that reason I have made it clear that I want to preserve those procedural obligations for the substantive hearing.

“Having considered how to preserve the procedural obligations, with some hesitation, I have come to the conclusion that the best way of proceeding is to order a rolled up hearing – in other words, a hearing that will deal with both leave and, if leave is granted, the substantive merits – in relation to the grounds that are arguable.

“That is because I am conscious that the Commission of Inquiry may have some knockout blow that means that leave should not be granted.”

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