The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Court of Appeal has overturned the conviction of a third man who was found guilty of kidnapping and murdering a senior immigration officer and his girlfriend in 2013. The judgment comes one week after two other men had their sentences quashed for the same crime.

On December 21, 2013, the decomposed remains of senior immigration officer Shane Gardiner and his girlfriend Tishka Braynen were found on the grounds of Newbold Farms in Fresh Creek, Andros. Both victims had been killed execution style; each received a gunshot wound to the head.

On March 29, 2016 James Johnson, Zintworn Duncombe and Cordero Saunders were convicted of murder and later sentenced to imprisonment. Like his co-accused, Johnson also appealed his conviction on the grounds that the judge failed to thoroughly investigate an altercation that occurred between the forewoman and an alternate juror during the trial. He also argued that the judge failed to make a full inquiry on whether the jury pool would still be able to “render a true verdict” after witnessing the altercation.

Yesterday, Justices Sir Michael Barnett, Jon Isaacs and Milton Evans quashed Johnson’s convictions, after concluding the judge’s failure to investigate the altercation between the jurors created a “material irregularity” over the course of the proceedings. A retrial has been ordered.

According to a judgment posted on the court’s website, on November 24, 2013, Braynen was at Gardiner’s home in Love Hill, Andros when they were both kidnapped and taken to Newbold Farm where they were shot to death. While Gardiner was buried in a shallow grave, Braynen’s body was dumped into a six-foot deep hole. Their remains were discovered about a month later by two men who were out in the bush hunting hogs. The judgment noted the bodies of both victims were so decomposed that they had to be identified by DNA testing of samples taken from the remains and samples of blood provided by their relatives.

“After the close of addresses by counsel and before the judge was to sum up the case to the jury, the jury requested that they be allowed to visit the locus in quo,” the court documents read. “The judge acceded to the request and the arrangements were made. While members of the jury were on a bus which was apparently transporting them to various locations in Andros, an altercation occurred between the forewoman and an alternate juror.

“The altercation was variously described as a verbal altercation and as a fight. The latter description was given by the forewoman when she was questioned by the judge in her chambers during a meeting the judge held with the forewoman and the alternate juror in the absence of counsel and the appellants. The judge later advised counsel that she would excuse the forewoman; but did not do so; and the trial continued without protest from the appellants’ counsel.”

In their judgment, the panel said since the altercation was a matter internal to the jury, they should have been “questioned in open court through their foreman to ascertain” whether they would be able to render a “true verdict according to the evidence”.

“Mr Sweeting, counsel for the respondent, submitted that the judge exercised her discretion properly when she carried out an investigation by speaking to the two jurors involved and ultimately concluding that the trial could proceed with their continued participation,” Justice Isaacs noted.

“It seems Mr Sweeting conflated the propriety of the investigative process employed by the judge with the exercise of her discretion to leave the jurors on the jury panel. There is a two-step process involved. First, there must be an investigation, properly conducted; and second, the judge will arrive at a decision based on the results of the investigation.”

Justice Isaacs also said he was “constrained to conclude” the judge’s investigation into the altercation between the forewoman and the alternate juror constituted an irregularity in the course of the trial.

“The appellant’s convictions are quashed and his sentences are set aside,” he said. “During the hearing, we enquired of counsel that if we were to decide that the appeal succeeded on ground one what order should follow. Both responded that a re-trial would be the appropriate order. I agree. The error identified in ground one was made by the judge. The evidence led at the trial could suffice to cause a properly constituted jury properly directed to find the prosecution’s evidence compelling. Thus, the appellant is to be re-tried as soon as practicable.”