The family of Rebecca Middleton, a Canadian teenager murdered on holiday here 11 years ago, looks like it will have to take its fight for justice to Europe after the court here today dismissed an application to have the case re-looked at with a view to pressing different charges against the chief suspects.
Ms Middleton's family were devastated with the outcome of the case against Kirk Mundy and Justis Smith in 1998. Mundy struck a deal and was charged with being an accessory after the fact and got five years. Smith was acquitted due to lack of evidence.
But the family has never given up hope of getting justice for their daughter.
Last year, Rebecca's dad David made an application to see if the Director of Public Prosecutions would consider pressing sex assault charges against Smith and Mundy. She said no.
Mr. Middleton attempted to challenge that decision last month bringing in Cherie Booth QC.
In today's ruling though, Chief Justice Richard Ground, made it very clear that while he sympathizes with the family, he cannot interfere with the DPP's decision because she made the right decision in law.
He said: "There is a general principle against double jeopardy [trying people more than once for the same crime], and one aspect of that is a rule of law that all charges arising out of the same circumstances must be joined in the same indictment, unless there is good reason for not doing so. A judge is obliged to stay a second or subsequent indictment where this rule is not observed."
Mr. Ground continued: "A good reason for not joining all the charges in one indictment would be where the law or established practice forbade it. Prosecutorial error or oversight is not a good reason.
"Nor does an unjustifiable failure to comply with the rule as to joinder open the door to a balancing of the potential defendant's rights against those of the victim or others affected by the crime."
Mr. Ground said this rule is "well-established and straightforward" and that it is not "permissible for me to ignore or modify it."
He continued: "It would require legislation, or possibly the intervention of a higher court, to change it...
"The DPP was, therefore, right in her assessment, although she expressed herself incorrectly.
"That means there are no grounds on which I can interfere with the exercise of her discretion, and accordingly I dismiss the application.
"I appreciate that this will be a disappointment to the applicant and other members of Rebecca's family, for whom I feel a great personal sympathy, but I have to declare the law as it is."
Posted: Friday, May 11, 2007
Comment by:
Carol Shuman, Ph.D.
Dear New Yorker,
Richard Hector, before his death, assured me that this case would never see another courtroom. I take your comment with the same concern that I took his. There are heroes, and there are others...Only time will tell, of course, but I wouldn't suggest that Justis Smith return home quite yet!
Posted: Friday, May 11, 2007
Comment by:
Loyal visitor
I am dismayed at the lack of justice in this travesty. Bermuda and all her friends weep!
Posted: Tuesday, May 08, 2007
Comment by:
Newyorker
Carol, it's over. Yes, there can be more legal challenges, but they will only achieve publicity. It's not a question of support. Sometimes the system doesn't always work, and that's why people like O.J. Simpson and Robert Blake are free men. Mundy and Smith could literally stand on the steps of City Hall and shout their guilt, there's nothing that can be done about it now.
Posted: Saturday, May 05, 2007
Comment by:
US Law Enforcer
Here in the US, two police officers were tried and acquitted for "Excessive Use Of Force" in the infamous "Rodney King" incident in Los Angeles. Even though they were acquitted in State court, they were later tried in Federal Court for "Violation of Ones Civil Rights, were convicted and sent to prison for multiple years. This for a beating. I would hope that there is some rational outcome for this murder victim and her family, and the only rational outcome is different charges with a different outcome!
Posted: Friday, May 04, 2007
Comment by:
Carol Shuman, Ph.D.
Please note, this case is not over. The Middletons' lawyer has announced that an appeal is being filed, and Justice Ground has made clear that the issue would better be handled in a higher court. (He already has had a higher court overturn a ruling relevant to this murder)... Now is the time to support the effort and the Middleton family, as well as all others who have seen their children or other family members murdered without arrests. Leaving these cases open is an invitation to murder. It's not okay, and the courts are the best place to handle these decisions. (Assuming that the matter won't be handled by legislation, despite both the Privy Council and SCC recommending that the law that failed Becky and others should be revisited. I hope that Mr. Perinchief realizes the proof is in the pudding (so to speak!). He says he supports legislation which provides for safety and legitimacy. Hopefully, unlike all other AGs since the famous "no case to answer ruling," Mr. Perinchief will bring the matter up for legislative discussion.
Posted: Friday, May 04, 2007
Comment by:
Newyorker
As much as I hate to see Smith and Mundy go free, this ruling, to me, was right, and expected. It's the law. We just have to accept that the prosecutor bungled this case and no amount of legal argument now can change that.
Posted: Friday, May 04, 2007
Comment by:
Andrew Woodworth
Anyone have anything relevant to say, other than fighting over expat bias?
Posted: Friday, May 04, 2007
Comment by:
American Bermudian
The comment of Canadian bermudian(sic), above, is itself unbelievable. It's just another example of how much certain narrow interests will adopt a perpetual victim status in order to extort benefits from others. Interestingly, the Chief Justice who rendered this decision is not only a foreign national but was, himself, the subject of an unseemly political dispute with the Foreign Office because he isn't Bermudian - hardly the person to "hate expats and foreigners in general".
Posted: Friday, May 04, 2007
Comment by:
Michael
To say that this ruling is an example of "how much Bermudians hate expats and foreigners in general" is disgusting in itself. Let's remember that the DPP is not Bermudian, the prosecutors who made the outrageous decisions in the first place were not Bermudian, the Police Commissioner at the time was not Bermudian, the judge who threw out the trial against Smith was not Bermudian and the Chief Justice is not Bermudian. In addition neither of the QC's during the Judicial Review were Bermudian neither is the Middleton's local counsel Mr Hastings-Smith. The Privy Counsel that also heard parts of the case is not Bermudian and neither was the majority of the Bermuda Court of Appeal. In short Canadian bermudian - check your facts before spouting off such nonsense.
Posted: Friday, May 04, 2007
Comment by:
Canadian bermudian
Unbelievable. Just another example of how much Bermudians hate expats and foreigners in general.
