Cox v R

• Jurisdiction: Bermuda
• Judge: Zacca P,Evans JA,Auld JA
• Judgment Date: 22 November 2012
• Court: Court of Appeal (Bermuda)
• Docket Number: Criminal Appeal 2011 No 15 & 15A
• Date: 22 November 2012

[2012] Bda LR 72

In The Court of Appeal for Bermuda

Before:

Zacca P; Evans JA; Auld JA

Criminal Appeal 2011 No 15 & 15A

Between:

David Jahwell Cox

Appellant

and

The Queen

Respondent

Mr L Mussenden for The Appellant

Ms C Clarke, Ms L Burgess and Ms T Burgess for the Respondent

The following cases were referred to in the judgment:

Brangman v RBDLR [2011] Bda LR 64

Myers v RBDLR [2012] Bda LR 74

R v Stevens (unreported)

Warner v RBDLR [2012] Bda LR 73

Makins v AG for New South WalesELR [1894] AC 57

R v ChristieELR [1914] AC 545

R v OUNK [2010] EWCA Crim 2985

R v OakleyUNK (1980) 70 Cr App R 7

R v Hodges and WalkerUNK [2003] 2 Cr App R 15

R v AbadomUNK [1983] 1 All ER 364, [1983] 1 WLR 126

R v Pettman (unreported, 2 May 1985, EWCA)

R v Dolan and UnderwoodUNK [1999] Crim LR 227

R v WilliamsUNK (1986) 84 Cr App R 299

R v RandallWLR [2004] 1 WLR 56

R v MullingsUNK [2010] EWCA Crim 2820

R v Hiscock [2002] BCSC 1833

Seaboyer v RUNK [1991] 2 SCR 577

Mohammed v RELR [1914] AC 182

R v SangELR [1980] AC 402

Premeditated Murder — Appeal — Gang Involvement — Evidence — Expert — WitnessIdentification Evidence

JUDGMENT of Zacca P and Evans JAZacca P; Evans JA; Auld JA

1. The deceased, Raymond Troy Rawlins, known as “Yankee”, was shot and killed at the Spinning Wheel Night Club, Court Street, Hamilton shortly after midnight on 8/9 August 2010.

2. The defendant was arrested next day and was charged with the murder of the deceased, and he appeared at trial in the Supreme Court before Justice Carlisle Greaves and a jury on 23 May 2011. On 10 June 2011 he was convicted of the offences of pre-meditated murder and of using a firearm, and he was sentenced to life imprisonment with a concurrent sentence of ten years' imprisonment for the firearm offence. He must serve 38 years of his sentence before he is eligible for parole.

3. There was eye-witness evidence that the victim was shot at short range by two men who followed him into the club and who made their escape immediately afterwards in a car which was later found and identified.

4. An eye-witness who had known the appellant for many years identified him as one of the attackers, and there was forensic evidence which connected him with the crime.

5. The prosecution also relied on what was described as “gang evidence”. That evidence was given by police officers who were members of special police units concerned with criminal gangs who operated, they said, in different parts of Bermuda and who habitually used criminal violence against each other. They said that the deceased was a member of one gang, known as Parkside, and the defendant of another, known as 42^nd Street, and that shortly before this shooting, and at another venue, a member of the 42^nd Street gang, named Julian Washington, had been attacked by a member of the Parkside Gang (or of the Mid-town gang with which it was associated). That was sufficient to explain, he said, why the defendant, a leading member of the 42^nd Street gang, together with another person, had shot and killed the deceased, who was a member of the Parkside gang, in an apparently unprovoked attack on the night in question.

6. The senior and more experienced of the two witnesses, Police Sgt Rollins, said that ‘in the last three years [an] on-going feud between Parkside and the 42^nd Gang has escalated to new heights. This escalation has led to numerous acts of violence and murder between both factions’, and that this had come to encompass a series of retaliatory attacks, meaning that if a gang member was insulted or assaulted, ‘that act would be perceived as an act against not just that person, but the entire gang membership’, adding that a higher-ranking gang member ‘may order a lower-ranking gang member to carry out a revenge attack on the opposite gang’ which ‘could be an attack on any of the rival gang membership’, not limited to the person who carried the original attack.

7. The second police witness was Detective Constable Shawnta' Edmonson who gave evidence about the earlier shooting of Julian Washington at the Mid-Atlantic Boat Club at about 12:45 pm on the 7^th August 2010.

8. Mr John Perry QC, counsel for the Defendant, now the Appellant, submitted at the outset of the trial that the “gang evidence” was inadmissible and should be excluded. He supported his submission with a document entitled ‘Objections to gang evidence’ which we have seen. The burden of the Submission was that the evidence proposed to be relied upon by the Prosecution to the effect that that there was an on-going feud between the two gangs, and that the Defendant was a member of the 42^nd Gang, could not prove that the defendant was personally involved in the feud, or had any dealings with the deceased, nor was it admissible as evidence that the defendant had a propensity to violence. In his oral submission, Mr Perry contended also that the evidence was inadmissible as hearsay evidence. Miss Clarke, for the Prosecution, submitted that it was admissible as explanatory background evidence and as evidence of motive, and that it was relevant to the issue whether the killing was pre-meditated, as the prosecution alleged.

9. The Judge rejected the defence submission. There was some confusion as to whether he was ruling on the admissibility of the evidence, or as to extent to which it might be referred to in the prosecution's Opening Statement to the jury. The Judge ruled-

‘The prosecution shall be allowed to make reference to the gang evidence in their opening statement in a limited fashion, that is, to the extent that they may or may not hear evidence about 42^nd and Parkside gang, et cetera, in this case.’

He then considered the contents of D/C Edmonson's Witness Statement and excluded part which he held was hearsay. Mr Perry submitted that what was left, which was tendered as “gang evidence”, was not relevant, to which the Judge replied ‘I overrule you’. A subsequent exchange is transcribed as follows —

‘MR.PERRY: And my Lord's ruling it's admissible —

THE COURT: The entire evidence ——

MR.PERRY: —-and does not flout the hearsay rule. Is that my Lord's -

THE COURT: In my view, no.

MR.PERRY: So be it.’

10. Subsequently, in the course of the trial, both D/C Edmonson and P/Sgt Rollins were called as prosecution witnesses, and in the light of the Judge's earlier Ruling no further objection was taken to the evidence they gave.

11. Mr Larry Mussenden, counsel for the Appellant (who did not appear at the trial), submits that the evidence was inadmissible as a matter of law and was wrongly admitted, or that the Judge had a discretion to exclude it which he ought to have exercised in favour of the Appellant having regard to its prejudicial effect on the fairness of the trial.

Other cases

12. We were told that a similar issue has arisen in other cases heard by the Supreme Court in recent years, and we have heard the arguments in an appeal by Antonio Myers from his conviction in one of them. Essentially the same legal issue arises in both cases, but the facts and circumstances of the two cases are different and separate judgments are called for.

13. This Court held that “gang evidence” was admissible in Quincy Brangman v The QueenBDLR[2011] Bda LR 64 but we are satisfied that that decision was limited to the circumstances of the particular case and that we should rule on the issue as a matter of principle, both in the present case and in Antonio Myers v. The Queen in which judgment is being handed down at the same time as this. The issue was also considered by the Supreme Court in The Queen v Royunde Stevens (2011 No 39) and by the Court of Appeal in Warner v The QueenBDLR[2012] Bda LR 73

P/Sgt Rollins as ‘expert’

14. When Sgt Rollins was called as a witness, before giving his evidence in chief he was asked a number of questions by counsel for the prosecution as to his experience and knowledge of criminal gangs and of gang culture, after which there was the following exchange between counsel and the Judge -

‘MISS CLARKE: My Lord, at this time I would ask that the witness be tendered and accepted as an expert in relation to gang rivalry, gang association, and gang geographical location.

THE COURT: Declared a gang expert.’

Counsel for the Defendant, John Perry QC, did not intervene or comment, no doubt because of the Judge's earlier ruling that the evidence could be given. When he cross-examined Sgt Rollins, he asked various questions as to the membership of different gangs and related matters.

Grounds of Appeal

15. The first ground of appeal was that the Judge was wrong to permit Sgt Rollins to give evidence as an expert witness. The second ground involved the wider issue whether the “gang evidence” was properly admitted. Mr Mussenden submitted that evidence of gang membership is irrelevant to the issue whether the individual defendant committed the alleged offence, whether murder or other forms of violence, against the particular victim. The fact of membership cannot prove that the defendant committed the particular offence. Further, the prosecution is debarred from leading evidence that the defendant has a bad character and is of a violent disposition or has a propensity to violence; in effect, it was seeking to prove “guilt by association” which it is not permitted to do. Alternatively, even if the evidence was of some probative value, it was so prejudicial to the Appellant that the Judge ought to have excluded it in the interests of a fair trial.

16. The Appellant's submissions may be summarised as follows -

• i. first, the evidence of gang membership etc. was irrelevant to the issue whether the individual defendant shot the particular victim, and it was inadmissible for that reason;

• ii. second, the evidence was inadmissible as tending to show bad character and a propensity to violence, as well as being highly prejudicial to the defendant; alternatively, the Judge should have...