4/18/2007 10:03:00 AM 'Mundy's immunity deal still stands'
Charles Richardson, representing Kirk Mundy, seen here arriving for the judicial review. Photo by Leah Furbert
At a glance: what could happen next
Options available to the court in a judicial review are
discretionary, ie; a successful claimant has no absolute right to a remedy. If the court rules against the DPP, i.e. in favour of the Middleton family, it can:
Send the case back to the DPP to re-consider her decision;
Issue a mandatory order (i.e. require the DPP to do
something - eg. lay new charges);
Issue a prohibiting order (prevents DPP from doing something);
Issue a quashing order (i.e. quashes the DPP's decision);
Kirk Mundy can't be charged with any further crimes in the Rebecca Middleton case because of a plea deal he struck 11 years ago with the Attorney General, his lawyer told a court yesterday.
Charles Richardson argued before Chief Justice Richard Ground that the agreement still stands.
Mundy agreed to testify against Justis Smith, on a murder charge, in exchange for a lesser charge of accessory after the fact to murder - a deal widely criticised in the years since because of strong forensic evidence suggesting two killers.
"The only criminal acts for which Kirk Mundy is responsible," Mr. Richardson said, "are those to which he pled and was sentenced for."
There was no evidence, he contended, that Mundy reneged on his agreement.
"The agreement exists to this day, notwithstanding new evidence, not to prosecute Kirk Mundy for anything other than accessory," he said, arguing that the sexual assault, kidnap and torture charges sought by the Middleton family can't be laid against his client.
"Kirk Mundy made no admission of sexual assault and did not say that there was consent. The concepts can't co-exist," he stressed.
He was speaking in Supreme Court on the second and final day of a Judicial Review looming into whether new charges can be brought in the case. Lawyer Liz Christopher was there on behalf of Justis Smith, but did not address the court.
Miss Middleton, a 17-year-old Canadian tourist, was brutally raped, sodomised and stabbed to death at Ferry Reach in 1996.
Since then, Mundy has eluded a murder charge by his plea agreement with then Attorney General Elliott Mottley and successful appeals against an attempt to recharge him.
He argued double jeopardy.
Smith avoided conviction when the trial judge, Vincent Meerabux, ordered the jury to acquit him in a decision that astounded the public and astonished the Privy Council.
And the DPP last year decided not to go ahead with charges other than murder against the two men.
"The court should quash the decision of the DPP," repeated Cheri Booth, QC for the Middleton family, "and ensure this injustice does not occur in the future in the courts of Bermuda."
James Guthrie QC, representing the DPP, on Monday submitted that she made the right decision and couldn't go ahead because it would be an abuse of process to do so and would inevitably end up with the court stopping the prosecution.
He expressed "grave regret" at the injustices done to the Middleton family in the years since their daughter's murder but said that the only way to achieve justice would be to wind the clock back to that time.
"There's not the chance of redemption for Rebecca that there is for Kirk Mundy - taking his exams in jail," Ms Booth said. "In the 21st Century, faith in the judicial system puts an emphasis on the rights of the victim."
Alleging political motives behind the judicial review of the case, Mr. Richardson suggested there was undue pressure on the court.
"There are quasi political considerations in the guise of protecting the wider public interest," he said.
Naming Middleton family friend Dr. Carol Shuman, he claimed that in her affidavit she alleged that the court would be complicit in sexual offences in Bermuda if it didn't grant the family's application.
The DPP's decision, he concluded, was justified and to recharge would be oppressive.
"One can't escape the feeling that the real debate is whether the legislature should abolish the double jeopardy rule," he said, "which is a debate to be conducted [in Parliament]."
In the end, Mr. Ground reserved his decision for three weeks.
Asked afterwards how he felt the two-day hearing went, attorney Kelvin Hastings-Smith, who is part of the Middleton team, said: "As well as can be expected and we await the decision in three weeks' time."
Posted: Friday, April 20, 2007
Comment by:
Carol Shuman, Ph.D.
Of course, my affidavit did not refer to the court as Mr. Richardson suggested. Reference was to my observation of a pattern of sexual offenses minimization in Bermuda, supported by Women's Resource Center (WRC) statistics. Mr. Gibbons was unable to evaluate Mr. Richardson's statement because, unfortunately, without Bermuda's having freedom of information legislation, unlike the U.S., Canada, the UK and other democracies, media normally has no access to documents such as this. I have, however, personally provided the affidavit to the Sun, minus the WRC data, which is this agency's to release as it chooses.
