Burgess and Rogers v R
| Jurisdiction | Bermuda |
| Judge | Clarke P,Kay JA,Bell JA |
| Judgment Date | 05 November 2021 |
| Court | Court of Appeal (Bermuda) |
| Docket Number | Criminal Appeal 2020 Nos 2 & 5 |
[2021] Bda LR 118
Clarke P; Kay JA; Bell JA
Criminal Appeal 2020 Nos 2 & 5
In The Court of Appeal for Bermuda
Premeditated murder — Appeal against conviction — Severance — Hearsay evidence — Pressure on jury — Juror's conduct — Repudiation of the oath to try the case on the evidence
The following cases were referred to in the judgment:
R v Hayter [2005] 1 WLR 605
Lobban [1995] 2 All ER 602
DPP v Fell [2013] EWHC 562
von Starck v R [2000] UKPC 5
Coutts [2006] UKHL 39
Workman [2014] EWCA Crim 575
LeShore and Simons v R [2016] Bda LR 115
Saltus v R [2018] Bda LR 45
Smith-Williams [2019] Bda LR 107
R v Mirza [2004] UKHL 2
R v Davey [2017] EWCA Crim 1062
R v Smith; R v Mercieca[2005] UKHL 12
Mr C Richardson for the 1st Appellant
Ms S Mulligan for the 2nd Appellant
Mr C Mahony and MS K King Deane for the Respondent
JUDGMENT of Kay JA
1. Following a trial in the Supreme Court before Acting Justice Attridge (“the Judge”) and a jury, Katrina Burgess and Cleveland Rogers, were convicted of the premeditated murder of Marcus Gibbings (“the Deceased”). They were later sentenced to life imprisonment, with a recommendation that they each serve 25 years before being eligible to be considered for parole. They now appeal against their convictions.
2. The appellants are half siblings. The events with which this case is concerned took place in October 2006; Burgess had been in a volatile relationship with the Deceased. They had cohabited in an apartment at 10 Derwent Lane, Pembroke Parish, but that relationship had come to an end by October, and both had moved out of the Derwent Lane apartment to separate addresses.
3. On 26 October 2006, the body of the Deceased was found lying in a pool of blood in the apartment. He had been stabbed to death. The case for the prosecution was that he was killed by Rogers, at the behest of Burgess, who, although not present in the apartment at the time of the murder, had lured the Deceased there on a pretext.
4. Many years passed before there was sufficient evidence for anyone to be charged with the murder. Eventually, two women, both former girlfriends of Rogers, provided evidence that Rogers had confessed to the murder. Catrina Card, with whom he had been living at the time, said that he had admitted to being the killer in the immediate aftermath of the murder. Danielle Foley, with whom Rogers was living with between 2013 and 2015, said that he had admitted in 2014 to being the murderer.
5. At the trial, these two witnesses were pivotal. The Judge directed the jury that unless they accepted the confession evidence, they must find Rogers not guilty. That evidence was not admissible against Burgess. The evidence against her was circumstantial. It included evidence of a phone call between her and the Deceased on the evening of 25 October, in which she arranged to meet him a bit later at “the house”. She called him again, at 19:51, but he did not answer and the call went to voicemail. During the course of the evening, she did not go to Derwent Lane. The case for the prosecution was that she spent the time ostentatiously setting up an alibi. Neither Burgess nor Rogers gave evidence at the trial. The Judge told the jury that if they were to find Rogers not guilty they must also acquit Burgess.
6. Numerous grounds of appeal are advanced on behalf of the appellants. Some are specific to one or other of them, others overlap. I shall endeavour to deal with them under headings, rather than enumerating them all.
7. As I have related the principal evidence against Rogers was in the form of confessions, said to have been made to Card and Foley. It is axiomatic that anything he had said to either of the two women was not evidence against Burgess, however much it implicated her.
8. The evidence of Card, in particular, was that Rogers had admitted to having killed the Deceased at the request of, and in return for payment of $5,000 from Burgess. The trial with which we are mainly concerned, was the second occasion on which a trial of the appellants on this indictment had commenced.
9. In 2019, a trial had begun before Simmons J but, unfortunately, it had become necessary for the jury to be discharged at an early stage. At the outset of the earlier trial, an application had been made on behalf of Burgess for severance of the indictment, so that Rogers alone would be tried first with a later trial of Burgess alone if Rogers were to be convicted. On 1 July 2019 Simmons J refused the application for severance. The question of severance was not raised before the Judge at the trial with which we are concerned. Mr Richardson maintains that he was inhibited from revisiting it by reason of a local practice to the effect that once a judge has ruled on a particular issue, another Supreme Court Justice will not reconsider the issue in the same case. I shall return to this contention later. For the moment, the question is whether the ruling of Simmons J refusing severance was erroneous.
10. It is not uncommon for one of jointly charged defendants to apply for severance on the ground that, if tried together, the applicant will suffer irremediable prejudice as a result of the jury hearing evidence, which, while admissible against the other defendant, is inadmissible against the applicant. Very often, the evidence in question is in the form of a confession by the co-defendant, which also (inadmissibly) implicates the applicant. The basic principle was explained by Lord Widgery CJ in Lake(1976) 64 Cr. App. R 172 at 175.
“It has been accepted for a very long time in English practice, that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability, that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise. Accordingly, it is accepted practice, from which we certainly should not depart in this court today, that a joint offence can properly be tried jointly even though this will involve inadmissible evidence being given before the jury, and the possible prejudice which may result from that. Of course the practice requires that the trial judge in such a case should warn the jury that the evidence is not admissible, and this trial judge was certainly not lacking in his duty in that regard, because on no less than eleven occasions, he pointed out to the jury that the evidence in question was not admissible”
See also Lord Steyn in R v Hayter[2005] 1 WLR 605 at paragraph 6.
11. In the present case. Mr Richardson submits that the judge was wrong not to find, “dangerous prejudice”, incurable by direction. He refers to unmanageable mental gymnastics required of the jury, who would not have been able to disentangle the admissible from the inadmissible evidence against Burgess, specifically Rogers' confessions to Card and Foley.
12. The starting point is described in Blackstone's Criminal Practice (2019) at paragraph D11.87, where it is stated:
“When the prosecution case against one accused (A1) includes evidence that is admissible against him but not against his co accused (A2), there is no obligation to order severance, simply because the evidence in question might prejudice the jury against A2. However, the judge should balance the advantages of a single trial against the possible prejudice to A2, and should consider especially how far an appropriate direction to the jury is really likely to ensure that they take into account the evidence only for its proper purpose of proving the case against A1.”
13. The question for us is whether this is one of those rare cases where the starting point must yield to the need to avoid injustice. Mr Richardson has referred to a number of authorities. Some seem to me not to be helpful, because they are concerned not with severance as between jointly charged defendants, but with severance of counts relating to the same defendant. See Sims[1946] KB 531 and Newman[1915] 1 KB 341. The authorities concerned with severance as between jointly charged defendants demonstrate the exceptionality of severance and the reluctance of an appellate court to interfere with the decision of a refusal of severance by the trial judge.
14. In Lake, both of the appellant's co-accused had made statements to the effect that the appellant had set up the burglary. The Court of Appeal held that the trial judge had rightly refused an application for severance on behalf of the appellant.
15. In Moghul(1977) 65 Cr App R 56, the trial judge had ordered severance and the appellant's case was that he ought not to have done so. The Court of Appeal said that the three members of the court would not have ordered severance and that only in very exceptional cases should separate trials be ordered where two or more persons are charged with the same offence.
16. In Smith(1966) 51 Cr App R 22, the appellant's two co-accused had made statements incriminating both themselves and the appellant. The trial judge had refused the appellant's application for severance. Both co-accused were acquitted. Although the appellant's appeal against conviction was allowed the Court of Appeal endorsed the trial judge's decision to refuse severance. The reason that the appeal was allowed was that the appellant's conviction was unsafe and unsatisfactory in view of the acquittal of the two co-accused.
17. Finally, in Miah[2011] EWCA (Crim) 945, a case of “cutthroat” defences; the fact that one defendant had implicated another in a police interview attracted the observation that that would rarely sustain an appeal on the ground that severance...
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