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THE COMMISSIONERS Justice Stanley A. Moore -- Chairman of Commission Don Dovaston OBE, QPM Shirley D. Simmons *** REPORT: Dated: September 15, 2000 *** CONTENTS Acknowledgements Methodology Commission Report *** PART I Bermuda The Middleton Case and Circumstantial Evidence The Director of Public Prosecutions Continuing Legal Education Immunity from Prosecution Arrangements for the Disposition of Cases Bail Legal Aid Introducing Pace Introduction of Court Reporting PART II The Culture of the Police Service Police Relations Training Establishment of the Force The Criminal Investigations Department Complaints and Discipline Victim Support PART III Implementation of Reports Visits Conclusion Recommendations Glossary of Terms Bibliography *** ACKNOWLEDGEMENTS The Commission wishes to acknowledge with grateful thanks the very kind assistance which it received from so many persons in carrying out its work.

Space does not allow us to name all of them but we would like to single out His Excellency the Governor Mr. John Thorold Masefield CMG who very graciously welcomed us to Bermuda and to his official residence the stately Government House. We very much appreciate the very warm hospitality extended to us by His Excellency and his staff and his continuing willingness to offer such assistance as we may have needed.

Our thanks must also go to the Premier The Honourable Jennifer Smith who together with the Deputy Premier Mr. Eugene Cox, the Attorney General, The Honourable Dame Lois Browne Evans and the Minister of Labour, Home Affairs and Public Safety, Ms Paula Cox, received us at her office and wished us success in our work. We are also grateful to the Leader of the Opposition, The Honourable Ms Pamela Gordon who, together with The Hon. John Barritt, received us at her office and also wished us well.

We also wish to place on record our sincere thanks to the Deputy Governor Mr.

Tim Gurney, the Administrators of the Commission Mrs. Carlita O'brien and Mrs.

Sheila Tyrrell and other members of their staff.

We also wish to acknowledge the kind assistance of the Commissioner of Police, Mr. Jean-Jacques Lemay who provided us with internal transport and moreso with the services of Chief Inspector Steve Shaw and Sgt. Craig Morfitt who acted as Liaison Officers. We are grateful to these officers for their help.

Mr. Richard Hector Q.C. performed the duties described in the Opening Statement.

But we would reserve our special thanks to Mrs. Betty Dale who performed in the most pleasant way possible, the Herculean task of preparing the transcripts and providing us with secretarial services. Hers was a monumental task, the efficient performance of which enabled us to present our report by the deadline of September 15, 2000. We could not have done so without her considerable input. We again thank her warmly.

Finally, we wish to express our warm appreciation of the assistance which we have received from the members of the media. Even before the overseas members arrived in Bermuda, the media had initiated contacts and established the beginning of a most pleasant relationship. In Bermuda, both the print and electronic media helped us to encourage public participation and kept the public fully informed of the progress of the inquiry. Though all of the media practitioners played a significant part, I do not think they would mind if we made special mention of Mr. Bryan Darby, the unofficial Dean of the media corps, Miss Karen Smith and Mr. Patrick Burgess. We thank all of them sincerely and wish them well in their future endeavours.

*** METHODOLOGY By Instrument under the hand of his Excellency John Thorold Masefield, Governor of Bermuda, dated June 27, 2000, the Commission was appointed with The Terms of Reference set out in Appendix 1. By Government notice No. 597, the public was duly informed of the Commission's appointment.

Having been sworn in on the morning of Monday the August 7 2000, with the media in attendance at Government House, the Commissioners commenced their work in open public session at Court No. 4 on Court Street, Hamilton. The Chairman read the opening statement, at the conclusion of which the session ended for the day. The Commissioners whereupon retired to the offices provided for them at the James Building on Court Street, where they settled down to commence the considerable volume of `office work' which continued unabated right down to the time when they submitted their report to His Excellency the Acting Governor Mr. Tim Gurney.

Public sessions resumed the following day, Tuesday, August 8, and ended on Friday September 1 2000. Thereafter, we continued in office to consider the mass of written material that had been submitted to us and to compile our report. Meanwhile, we arranged to see and hear those persons who preferred to appear in private. The last such person appeared before us on Wednesday, September 13 2000. The last pieces of written material reached us on Thursday, September 14, 2000.

We have been much encouraged by the response to our invitation to interested members of the public to come forward and we heard all of those persons who wished to do so.

*** PART 1: BERMUDA 1. "Set in the jewelled-toned waters of the Atlantic is a rare island gem.

Born from the fiery heart of the earth, Bermuda is the embodiment of the Island gentility, exuding a charm that is quaintly European in flavour, yet delightfully unlike any other place in the world. It is a paradise at once picturesque and proper, where both sand and sea glow with a delightful warmth reflected in its candy-coloured houses, fragrant flower gardens, and most of all, in its friendly gracious people.'' So says one of the glossy publications which proclaim the beauties of Bermuda.

2. As long ago as 1884, the Marchioness of Lorne, Queen Victoria's daughter HRH Princess Louise, having savoured the delights of Bermuda for several months, declared to have discovered the "Shangri La'' of holiday destinations. Everywhere one goes in Bermuda, one is constantly reminded of its grace and charm, its quaint loveliness, its historic elegance and its unique combination of the finest creations of man and nature.

3. But even one of the most alluring tourist brochures injects, in an understandably plain presentation, a note of realism, and cautions about the imperfections of the world in which we live. Even in this "paradise'', even upon these "Shangri La'' Islands, it warns: "Although Bermuda has very low incidence of crime, it never hurts to use common sense and be alert, just as you would on any visit to an unfamiliar destination. First and foremost, be aware of your surroundings. Trust your instincts and take sensible precautions. When taking an after-dinner stroll or moped ride, stick to well traveled, well lit roads and avoid deserted areas.'' If anyone had suggested "Do not thumb or accept rides from strangers, particularly late at night,'' the authors may very well have added that very sensible precaution to their list.

4. The Book of Ecclesiastes Chapter I verses 9 to 10 tell us: "The thing that has been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. Is there any thing whereof it may be said, see, this is new? It has been already of old time which was before us.'' 5. The facts of previous cases here in Bermuda are gleaned from the publication "Historical Review of the Bermuda Police Service 1879-1999''.

6. In 1941, the murder of a British censorette who was working in Bermuda caused more interest and speculation amongst Bermudians than all the great wars being fought overseas in Europe, Africa and Asia.

7. One evening in July 1941, the same month as the Middleton Murder, Miss Stapleton was last seen pushing her pedal cycle along a moonlit railway track towards the train stop at Toby's Lane. Like Miss Middleton, she too was attempting to get home late at night. She too was seeking transportation home.

Her half naked body was found near Prospect Railway Halt. She had been raped and beaten to death. Her killer, a convicted rapist, was sentenced to death and executed in the selfsame month of July in 1943.

8. On April 16, 1992, the news broke of the brutal murder the previous day of a German tourist Miss Anjie Herkommer on a visit to the Maritime Museum Dockyard. She, like Miss Middleton, had tragically made contact with a man who, doubtless unknown to her, had, as Kirk Mundy did, a previous criminal record. Leroy Burgess who was charged with her murder was on prisoner release.

Kirk Mundy of the Middleton case was out on bail awaiting charges for robbery.

At the trial of Leroy Burgess, the prosecution agreed to drop the charge of murder in exchange for a guilty plea to manslaughter. Much controversy surrounds the `deal' allegedly made in the Middleton case. Kirk Mundy, a prime suspect of murder, was convicted upon his guilty plea to the crime of being an accessory after the fact to murder.

9. Are these cases mere coincidences? Or are they illustrative of the principle that every country and every community, however otherwise blessed, must bear its own share of the burdens of the world: The supreme irony of it all is that each of these three ladies who were murdered in Bermuda, Miss Stapleton of the UK, Miss Herkommer of Germany and Miss Middleton of Canada would, before setting out from their homes upon their fateful journeys, have thought it more likely to have perished as they did in their own countries, rather than in the peaceful jewel of the Atlantic. All three cases represented tragic exceptions to the rule that a visitor to Bermuda was less likely to be murdered than a visitor to most other parts of the world from which visitors come to these shores.

*** THE MIDDLETON CASE AND CIRCUMSTANTIAL EVIDENCE 1. According to The Royal Gazette of December 16, 1998, the question of a probe into certain aspects of the trial of Justis Smith was being publicly canvassed. According to the paper, the question then being aired was the `way the prosecution handled the case'. At that time, an appeal was still pending before the courts against the ruling in the Supreme Court of Meerabux J that there was no case for Justis Smith to answer. Even lawyers who represented Justis Smith successfully are reported to have called for some form of inquiry. Ever since then, calls for an inquiry continued unabated right up to the time of the appointment of this Commission.

2. Those persons, who participated in the making of the decision to appoint us, evidently were aware of the various calls for an inquiry. They would have been aware of calls, both inside and outside of Bermuda, for an inquiry into what has come to be known as the Middleton case. We are not of course privy to the considerations which influenced the drafting and setting of our terms of reference. Nevertheless, it would not be unreasonable to assume that there was at that time, an awareness of the various calls for an inquiry which had been made publicly, and of the several forms which it had been suggested that the inquiry should take.

3. The terms of the Commission's reference received the widest publicity.

Nevertheless, there was a persistent reference, throughout the life of the inquiry, to the `Middleton Murder Enquiry' or words to that effect. A dramatic example of this misdescription of our function was contained in the Peter Woolcock cartoon carried in the issue of Friday, September 1, 2000 of The Royal Gazette , and which has been reproduced in this report by kind permission of the publishers and of Mr. Woolcock himself.

4. In spite of the many efforts to deviate us from the course which had been chartered for us in our Terms of Reference, we have steadfastly refused to be shunted into the maelstroms and eddies of the Middleton case or the Middleton Murder Enquiry as the cartoon graphically portrays it. Nor, despite the evident finger pointing that occurred during segments of the evidence, do we see our function as that of apportioning blame or responsibilities, or coming to decisions as we would have done at the end of an adversarial procedure.

5. We have been asked to consider the four matters set out in our terms of reference and to make recommendations arising therefrom. Inevitably, we will make observations and recommendations which are clearly referable to some of the events immediately preceding and following the murder of Rebecca Middleton. But such references and recommendations as are made have fallen within the ambit of the terms of reference which have been provided for us.

6. Though the Terms of Reference do not mandate us to inquire into what has been described as the Middleton case, there were frequent references to the death of Rebecca Middleton and to the prosecution of Justis Smith and of Kirk Mundy in connection with her murder.

The Commissioners: (From left to right) Don Dovaston, Justice Stanley A.

Moore, Chairman of Commission and Shirley D. Simmons.

MURDER MUR CRIME CRM