A public authority investigating allegations of property theft made a mistake when it suppressed the release of evidence given by a man who insisted he had been defrauded of his land.

A Supreme Court ruling over the case, which was heard before a Commission of Inquiry into land losses, did not explicitly order the release of the information.

But a judge said the commission “can be expected to take appropriate action” over the case of Robert Moulder, who alleged before the inquiry in 2021 that lawyers, real estate agents and banks had colluded to swindle him out of the property in Sandys.

Mr Moulder went to the courts after the Commission of Inquiry into Historical Land Losses first only heard his evidence behind closed doors and then opted to seal records of his case for 50 years.

He accused the CoI of failing to give him a fair hearing and turned to the Supreme Court to seek a judicial review into the matter.

In a May 31 ruling, Assistant Justice David Hugh Southey, KC, highlighted that the Cabinet had set up the commission to give “a voice to as many of these people as possible” who felt they had lost land through dispossession, theft, adverse possession and other “unlawful and irregular means”.

He wrote that it had been set up to bring “a measure of justice to the victims of very substantial historic injustice” and added that it was “important” that the commission’s work should not be perceived as shielding powerful interests.

Mr Moulder wrote to the body about his longstanding fraud complaint. He was told that while he had already taken the matter before the Supreme Court, the commission was nonetheless prepared to hear his side of the matter.

However, the commission also told Mr Moulder it had no wish to “traverse over grounds that are well-tilled”.

Mr Justice Southey also noted that the commission was not a body that could offer legal redress.

Mr Moulder had been able to recover his property through the Court of Appeal, but the complainant still wanted his evidence heard on how the land had been taken from him in the first place.

His case was heard in camera, with the commission subsequently stating it had concerns about the impact of his evidence might have on future investigations.

In an affidavit, former commissioners said they had concerns that “allegations of criminal conduct, such as theft, dishonesty, fraud, deception and deliberate land grab, were being made against individuals who had no notice of the allegations”.

Mr Justice Southey confirmed that, having reviewed transcripts of the three hearings, they contained Mr Moulder “making allegations against individuals”.

Mr Moulder criticised the CoI, stating that he had a right to have his evidence broadcast and moved to launch judicial review proceedings.

The commission then reopened consideration of his case.

However, its final report stated that the evidence had been deemed confidential and the CoI directed queries to the Bermuda Archives.

Mr Moulder’s former wife, Judith Chambers, contacted the archives and was informed in June 2022 that “the records would remain closed for 50 years” as instructed by the CoI.

While Mr Justice Southey found no validity in other grounds for a judicial review, he found the commission had “erred” in failing to hear the evidence in public and in refusing to disclose the records.

He wrote that the commission’s reasons for making no recommendations in Mr Moulder’s case were “flawed” and that it had erred in “refusing to consider criminality”.

The case for a judicial review grew complicated earlier this year after the judge barred Mr Moulder from appearing in court for his case — even though he had been granted permission to apply for the review.

Mr Justice Southey said that Mr Moulder had failed to comply with court orders and that prohibiting him from taking part in the substantive determination of the proceedings was “the only way forward”.

On the issue of Mr Moulder’s evidence before the CoI, the judge wrote that Mr Moulder’s challenge to its January 2021 decision to hold the hearings privately had been “far out of time”.

But Mr Justice Southey added it was “quite clear” Mr Moulder had made the case that “there were later decisions to decline to permit public access to his evidence and the transcripts of his hearing”.

He further noted that the commission’s rules gave it discretion to authorise the disclosure of material — and that it appeared the CoI had not considered whether to do so.

Mr Justice Southey said the CoI had been tasked with bringing a sense of relief to people aggrieved by a “very substantial historic injustice”.

He added that while the principles of open justice did not preclude the commission holding hearings in private, “there needs to be a justification for holding a hearing in private”.

“There also needs to be a justification for withholding the records of a hearing.”

If there were no justification, Mr Justice Southey ruled that there should be consideration towards disclosing the records.

“I am concerned that the Commission of Inquiry may have been over influenced by the desire to avoid embarrassment of people who were the subject of the applicant’s allegations.”

He noted that court proceedings often caused embarrassment — but that this was not generally a reason to hold them in private.

Mr Justice Southey accordingly found the CoI “erred it its approach to the continuing confidentiality of the records” and that the commission “can be expected to take appropriate action”.