The Commission of Inquiry into
serious crimes has opened and been adjourned before any witnesses gave evidence.
The inquiry was sparked by the
botched investigation and prosecution of the case against two men accused of the
July 1996 murder of 17-year-old Canadian schoolgirl Rebecca Middleton. The
Department of Public Prosecutions allowed Jamaican Kirk Orlando Mundy to plead
guilty to being an accessory after the murder and he was jailed for five years.
Bermudian Justis Smith was acquitted by Puisne Judge Vincent Meerabux, but the
Court of Appeal overturned this and ordered a retrial. The Privy Council
in London later ruled that Mr. Smith, 21, could not be retried, because an
acquittal, even if it was erroneous, could not be overturned.
Squabbling children at the highest level and
you wonder why Bermuda does not have a grown-up police service. Come on
Saul, at least I had the decency to name names. This enquiry relates to,
or touches on, a murder - in whose interest is it for you to withhold the names
of 'top ranking officers' who warned detectives to stay away. What example
does making an allegation and declining to substantiate it set?
In 1990, we handled the Miranda enquiry - with
your office's assistance. It was an approachable office, I will give you
that. I was never warned away from seeking advice from your office but
from reading newspapers and the e-mails I receive, it is evident things have
gotten worse there. Be a part of the solution, not the problem. As
for Vic Richmond - he has a point; it was not for us to do deals. However,
it was for us to present the evidence on which your office could make a (well
slams Police over handling of case
at centre of Middleton fiasco
Karen Smith The Royal Gazette Ltd
August 9, 2000
Karen Smith The Royal Gazette Ltd
August 12, 2000
Alternative headlines …
AG blames the police
Former Attorney General Saul Froomkin yesterday attacked Police's
sloppy handling of the plea bargaining in the Middleton murder case.
Froomkin said a written record should have been kept of
the deal which
allowed Kirk Mundy to plead guilty to being an accessory after the fact.
He said they were then wrong to renege on that agreement.
the Mundy matter there was a lack, to my knowledge, of a written
immunity document, so everyone knew the arrangement," said Mr.
Froomkin. "The fact that the prosecution subsequently sought to
breach that agreement was a very bad thing."
Froomkin also revealed that
with legal queries were warned to stay away from staff in the AG's
Chambers by top ranking officers.
But he said officers "surreptitiously" continued to go to him
said: "I always made myself available to talk to Police officers,
but what came down from above was that people should not come to see me
until a file had been finished.
ran into some opposition from senior officers.
asked by Bermuda Bar Association president Richard Hector, who has been
appointed to help marshal the inquiry and present the evidence, to
identify where the warning came from, he answered: "I would rather
only say, if I may, that it came from high up."
Acting Assistant Police Commissioner Victor Richmond who headed the
investigation into the murder of the 17-year-old Canadian said both
former Attorney General (AG) Elliott
Mottley and Mr. Tokunbo were central to the decisions taken.
of Public Prosecutions Khamisi Tokunbo was yesterday publicly named as
being at the centre of a plea bargaining fiasco that saw a suspect in
the Rebecca Middleton case evade a murder charge.
both Mundy and Justis Smith were arrested in connection with the slaying
of Rebecca, detectives held a meeting with top prosecutors.
he said, members of the AG's chambers, including Mr. Tokunbo, who was
Senior Crown counsel at the time, wanted to offer Mundy a deal whereby
he be offered a lesser sentence in return for information.
Richmond, who was detective superintendent at the time of Rebecca's
death, also revealed how both Mundy and Smith were charged before any
DNA test results had been returned.
Richmond said Police
officers did not have the power to strike deals with suspects,
but instead it was down to prosecutors or the Attorney General to
discuss them with defendants and their lawyers.
said, as a result of the meeting, agreements were reached on the charges.
senior officer said although nobody had ever been convicted of Rebecca's
murder, in his mind, the two people responsible had been found.
Attorney General Elliott Mottley said:
never was an immunity deal offered to Mundy.
He was charged based on the evidence that the Police provided us with at
the time. "They
had nothing else but his statement.
years people have said there was a deal, but there was no deal. There
was no written immunity document because there was no immunity offered.
have never spoken out before, but now I think it is time."
asked if Mundy had been given immunity, Mr. Tokunbo replied: "Of
course not. No document was
written by Mundy's lawyer or
was nothing of the sort and no need for it, the issue never arose."
Mark Pettingill contradicted Bermuda's top prosecutor when he claimed to
struck a deal to get a suspect in the Middleton murder case a
numerous denials of any deal by prosecutors, Mr. Pettingill, who is also
a United Bermuda Party Senator, said he approached senior Police
officers investigating the death of the 17-year-old Canadian with an
offer that would get his client off a murder indictment.
said Superintendent Victor Richmond and Detective Inspector Stuart
Crockwell took his proposal to former Attorney General Elliott Mottley
and senior prosecutors, including the now Director of Public
Prosecutions Khamisi Tokunbo.
Senator said: "I made the proposal on my instructions to Vic
Richmond and to Det. Insp. Crockwell on Friday, July 12 at the
conclusion of two days of statements. "It was on the basis of
a lesser charge. There was a special hearing in Magistrates' Court
the following morning. When
I appeared in court I was given the charge
sheet by Inspector Crockwell, he said `there you go, you got what you
think to put the offer of a
deal in writing, because it
was his understanding that the official position of the AG's chambers
was that they did not plea bargain on a formal basis.
he said the Supreme Court, Court of Appeal and Privy Council had upheld
the claim that there was a deal over Mundy's charge.
prosecutor Khamisi Tokunbo publicly claimed some Police officers in
Bermuda were "a law unto themselves" and that he had major
concerns about the discipline and loyalty in the Police force.
I don't wish to embarrass anybody, but I know that senior
officers are unable to utilise their rank.
Favouritism played a large
part in the service, with junior officers who were close friends with
the right people refusing to answer to their immediate superiors.
lawyer Shirley Simmons, who is also a commissioner along with former
British deputy chief constable Don Dovaston, asked Mr. Tokunbo whether
race or nationality ever played a part in the prosecution of cases. The
witness said: "You can have suspicions that this is happening, but
it's very difficult to prove.
the Dean Young murder trial (April 2000), it became clear that senior
officers in the major crime unit were unaware that they were responsible
and in overall control of all exhibits used in cases naming Detective
Chief Inspector Carlton Adams and
Detective Inspector Howard Cutts (head
Tokunbo also heavily criticised SOCO (Scenes Of Crime Office). He said
there seemed to be little understanding of
what roles the Police and Government analyst played.
`have you ever tried to tell the chief medical officer what you
thought that was a defeatist approach. They did not understand their
said SOCO unit had made a glaring error during
the Young murder investigation by failing to take blood samples
from three different areas at the scene of the crime. Fortunately, for
the prosecution, that was not commented on by the defence counsel.
Tokunbo said the SOCO unit had failed to work alongside the pathologist
and only offered certain pieces of information when they were pressed by
Tokunbo also revealed that during the same investigation, a
uniformed Police officer in charge of securing the property and ensuring
the scene was not contaminated, allowed a neighbour to go inside to
Mr. Dovaston asked
Mr. Tokunbo if anybody had made formal complaints, for example to Police
Commissioner Jean-Jacques Lemay, about the errors, to which he said he
had "no idea". The
commissioner asked: "Do you not think it's part of your
responsibility to do that?" The
witness replied: "Yes, I accept that. I make no excuses except that
I'm trying to do a number of things, including organise my own
said in the past there may have been a number of confessions that were
obtained by improper means, but he said the problem was no longer so
detective in overall charge of the botched investigation into the murder
of Rebecca Middleton denied
one of two suspects was offered a deal
of a lesser charge - describing it instead as a "strategy".
He admitted talking to
defence lawyer Mark Pettingill, who was representing murder suspect Kirk
Mundy, about a proposal to charge his client with the lesser charge of
accessory after the fact.
Richmond said: "I do not have the power or any authority to make
deals or plea bargain.
Commissioner Don Dovaston asked Mr.
Richmond if a deal had been struck at the meeting, or suggested to him
that the notion of a deal could be "folly".
Mr. Richmond replied: "No",
there was no deal.
"He continued: "The only
person who could have misconstrued it would be Mr. Pettingill himself,
based on the comment made by Inspector Crockwell when he handed him a
copy of the charge sheet at court the next morning."
Stuart Crockwell is alleged by Mr. Pettingill to have said: "There
you go, you got what you wanted."
Former Bermuda Attorney General Elliott
Mottley said officers let the Middleton investigation taper off once
they had gained a statement from Kirk Mundy, only to later realise that
they needed more information because two people had been involved in the
Mr. Mottley said he also raised
concerns about the level of activity in the murder case with the acting
Commissioner of Police at the time.
He recalled telling officers that they
would have to find other forensic evidence if they wanted to prosecute
Kirk Mundy for murder. It was not until December 1997 that a forensic
expert signed a statement that two people must have committed the murder
"In September 1996 Police
accepted what Kirk Mundy, a Jamaican, said - the investigation wound
down to a low level." The evidence that Mundy was implicated
in the murder came 18 months after the crime, he said, adding that a
first forensic expert would not commit herself in writing that two
people were involved.
During his evidence to the Commission
of Inquiry into Serious Crimes, Mr. Mottley told of a meeting at
Government House in which comments were made about the
proceedings. "I was told by someone there that "there is
no way a Bermudian jury was going to convict a Bermudian for murder
after a Jamaican had been convicted for accessory after the fact."
AG blames the Chief Prosecutor
Former Attorney General Elliott Mottley has slammed the chief prosecutor
in the failed trial of the man accused of the murder of Canadian
teenager Rebecca Middleton - Solicitor General William Pearce.
according to Mr. Motley - the
Solicitor General said he `could always blame Mr. Mottley' if he lost
The day before Mr. Pearce was due to
give his closing speech in the trial, Mr. Mottley recalled a
conversation between the two.
"I said `do you have enough
evidence?', he said `yes, I do', adding `in any case, if I lose the case
I could always blame you'."
Mr. Mottley dismissed previous
witnesses who suggested a deal was struck to allow Kirk Mundy to plead
guilty to being an accessory after the fact in return for testifying
against co-defendant Justis Smith. He said there
was no deal.
"I had junior officers in the
Attorney General's Chambers expressing concerns over the manner in which
the case was being prosecuted," he said.
Later, he claimed, Mr. Pearce wanted
the current Director of Public Prosecutions and at the time acting
senior Crown Counsel, Khamisi Tukunbo, to help with the trial.
Mr. Mottley angrily denied that any
deal had been made with Kirk Mundy and said that, during his tenure in
Bermuda, he was aware of two cases where immunity was granted from
prosecution - adding that it could only be given by the former Attorney
General or now Director of Public Prosecutions.
"People have said there was an
immunity agreement, what I have yet to hear is "who stated the
time, place, with whom was the agreement made? It is fallacy to say
there was an agreement."
Mundy received just a five-year sentence for his involvement in
Rebecca's death, despite DNA tests which proved he had had sex with her
prior to the attack. Justis
Smith, who was charged with her murder, walked free.
Rebecca was raped, tortured and butchered to death in Ferry Reach
in July 1996 while staying on holiday with Mr. Meens and his daughter.
Bar Association President Richard Hector has been appointed to assist the
commissioners with legal issues and help marshal and present the evidence