Wolda Salamma Gardner v Director of Public Prosecutions and another (Bermuda)

Constitutional redress is a fail-safe, not an alternative route for reopening a concluded criminal case. Under the proviso to section 15(2) of the Constitution of Bermuda, the Supreme Court must refuse relief where adequate redress remains available under ordinary law. A procedure to reopen the criminal appeal is adequate even where success is difficult, a reasonable-arguability filter applies, or further appeal is subject to ordinary safeguards. A constitutional motion cannot create parallel remedies or provide a collateral attack on the conviction. The underlying fair-trial and retrospectivity issues should be left to the criminal proceedings.

The appellant was convicted of murder and a firearm offence in 2015 after the prosecution stood by substantially more jurors than the defence could challenge without cause under section 519(2) of the Bermuda Criminal Code. His appeal against conviction was dismissed in 2017, and permission to appeal to the Board was refused in 2019. Following Trott v Director of Public Prosecutions [2020] SC (Bda) 35 Civ, the appellant brought proceedings under section 15 of the Constitution seeking constitutional relief, including the quashing of his conviction. The Supreme Court dismissed the claim: [2021] SC (Bda) 96 Civ. The Court of Appeal dismissed his appeal: [2022] CA (Bda) 22 Civ. The central issue was whether a closed criminal case could be challenged by constitutional motion rather than by seeking to reopen the criminal appeal.

Appeal dismissed. The Board advised His Majesty accordingly.

1. The proviso to section 15(2) of the Constitution of Bermuda is mandatory. Constitutional proceedings will not be entertained where adequate means of redress are or have been available under ordinary law. Section 15 provides a fail-safe for inadequacies in ordinary substantive or procedural law. It is not a means of destabilising ordinary procedures or judicial determinations.
2. This approach is consistent with Farrington v The King [2025] UKPC 21, which addressed an identical constitutional proviso, and with the reasoning in Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 and Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 WLR 106. The principle was also applied in Hinds v Attorney General of Barbados [2001] UKPC 56: ordinary appellate processes can provide an adequate opportunity to vindicate constitutional rights.
3. For a closed criminal case, the proper route for a constitutional challenge to the conviction is an application to reopen the criminal appeal under section 17(1) of the Court of Appeal Act 1964. The substantive test is not different merely because the challenge is framed as a constitutional motion. The test indicated in Roberts v R [2021] CA (Bda) 8 Crim may be addressed in those criminal proceedings.
4. The difficulty of succeeding under the applicable substantive law, or the existence of a reasonable-arguability filter and ordinary appeal safeguards, does not make the available remedy inadequate. Since the proviso was dispositive, it was unnecessary and inappropriate to decide whether Trott applied retrospectively or whether the Roberts test should be modified.

• Privy Council — dismissed the appeal from the Court of Appeal of Bermuda: [2026] UKPC 17.
• Court of Appeal of Bermuda — dismissed the appeal from the Supreme Court: [2022] CA (Bda) 22 Civ.
• Supreme Court of Bermuda — dismissed the constitutional claim: [2021] SC (Bda) 96 Civ.