Bermuda Court of Appeal sets aside conviction and orders a retrial, in part due to Leading Counsel’s decision not to put a key part of the defendant’s case to the prosecution witnesses

By its judgment in Kiahna Trott-Edwards v The Queen [2016] CA Bda 19 Crim, the Court of Appeal for Bermuda has set aside the conviction of Kiahna Trott-Edwards, for the alleged murder of a 16 year old boy, Shijuan Mungal. The Court has ordered a re-trial.

The defendant, Ms Trott-Edwards, had been represented by a leading English QC at her trial, Courtney Griffiths QC.

During the course of his cross-examination of the prosecution witnesses, Mr Griffiths QC did not ‘put’ to each of those witnesses that the defendant’s version of events included the defendant’s assertion that the deceased had ducked before she had hit him with a baseball bat, resulting in her unintentionally making contact with his head, rather than his arm.

When the defendant first mentioned this version of events at the trial in her own evidence, her credibility was attacked by the prosecution on the basis that her evidence was inconsistent with the case which had been put by her counsel to the prosecution witnesses.

Her counsel tried, at this stage, to demonstrate to the Court that the defendant’s evidence was consistent with her pre-trial proof of evidence, but the trial judge refused to admit the proof of evidence, and declined to recall the prosecution witnesses for further cross-examination on the issue.

The trial judge eventually gave directions to the jury that they were entitled to draw an inference adverse to the defendant, arising from the fact that her version of events had not been ‘put’ to other witnesses by her counsel.

The Court of Appeal held as follows, at paragraph 32: “In our judgment what occurred was a regrettable series of errors. The first by Mr. Griffiths in failing to put to prosecution witnesses an integral part of his client’s defence, namely that the deceased had ducked before the second blow was struck. The second by prosecuting counsel in failing to engage with counsel for the defence who was trying to explain that the failure was not the appellant’s fault, and the third by the judge in adopting a dictatorial attitude and not being prepared to listen to Mr. Griffith’s submissions in the absence of the jury. Thereafter the trial proceeded on a false footing. Prosecuting counsel continued to cross-examine the appellant on the false basis that fabricated the contention that the deceased had ducked when she was in the witness box, when in truth she had not. The same point was made in the prosecution’s final speech and by the judge in summing up“.

As a result, the Court concluded that the conviction for murder was unsafe, and that the defendant should face a new trial.

The judgment is available here:

It has also been summarized by the Royal Gazette:

The Court of Appeal appears to have been unimpressed by Mr. Griffiths QC’s explanation for his apparently conscious decision not to put his client’s case in its entirety to the prosecution witnesses (see paragraphs 21 and 22 of the judgment).

However, it is not entirely clear from the judgment whether this case provides an illustration of an appeal succeeding on the basis of an allegation of the incompetence of defence counsel (since the Court also attributed errors to both the prosecution and the trial judge).

The Bermuda courts have however, seen their fair share of such appeals in recent years, including in the cases of Gibbons and Beach v R [2009] Bda LR 41 and Graham v R [2014] Bda LR 93.


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