Hewey v R

• Jurisdiction: Bermuda
• Judge: Clarke P,Kay JA,Simmons JA
• Judgment Date: 12 August 2022
• Docket Number: Criminal Appeal 2013 No 9
• Court: Court of Appeal (Bermuda)

Between:

Devon Hewey

Appellant

and

The Queen

Respondent

[2022] Bda LR 79

Before:

Clarke P; Kay JA; Simmons JA

Criminal Appeal 2013 No 9

In The Court of Appeal for Bermuda

Premeditated murder — Whether to order retrial following appeal — Factors to consider

The following cases were referred to in the judgment:

Reid v R [1980] AC 343

Charles v State [2000] 1 WLR 384

Shivnarine v State (2012) 80 WIR 357

Au Pui-kuen v Attorney General of Hong Kong [1979] 2 WLR 274

Saltus v R [2018] Bda LR 45

Mrs S Smith-Bean for the Appellant

Ms C Clarke, Ms N Smith and Ms M Sofianos for the Respondent

JUDGMENT of Simmons JA

Introduction

1. This appeal concerns the question whether the Court should order a retrial of Devon Hewey (“the Appellant”) for the premeditated murder of Randy Robinson which occurred on 31 March 2011.

2. The Appellant was charged on indictment No. 30/2012 with his co-defendant, Jay Dill, both of whom were convicted by a jury at trial on 25 February 2013. The facts of the case are compendiously set out in the judgment of the Judicial Committee of the Privy Council (“JCPC”) which are gratefully adopted and need not be rehearsed in this judgment.

3. Each defendant appealed to this Court (differently constituted) against their conviction and sentence. Both appeals were dismissed on 18 March 2016 with reasons delivered on 13 May 2016.

4. The Appellant applied to the JCPC to have his conviction and sentence quashed. His application was made pursuant to Section 10 of the Judicial Committee (Appellant Jurisdiction) Rules 2009, as there is no provision in the Bermuda Appeals Act 1911 for this Court to consider the grant of leave in respect of criminal appeals to the JCPC.

5. The JCPC granted the Appellant leave to appeal on two grounds which were:

“(a) The trial judge wrongly admitted the evidence of the one-component and two-component particles of lead, barium and antimony found on the appellant's person and his possessions. That evidence was highly prejudicial and had no probative value. That evidence should have been excluded at trial.

(b) Having admitted that particle evidence, the trial judge's directions to the jury on that evidence were inaccurate, imbalanced and unfair in that:

(i) The directions did not reflect the evidence of the GSR expert called by the prosecution, nor the evidence of the GSR expert called by Mr Dill, but instead inflated the evidential value of the one-component and two-component particles.

(ii) His directions did not include key aspects of the particle evidence that pointed away from the appellant, including a clear and unequivocal statement that no three—component GSR particles were found on him or his clothing or on any of his multiple belongings that were tested.”

6. In its judgment of 11 April 2022, the Board allowed the Appellant's appeal, set aside his conviction and sentence and remitted the matter to this Court for it to consider the question of a retrial pursuant to section 21(1)(b) of the Court of Appeal Act 1964 (“the Act”). In summary, their Lordships found that the learned trial judge:

• i. wrongly reversed the burden of proof requiring the Appellant to show that the one and two component particles which make up gunshot residue (“GSR”) were not acquired from innocent sources;

• ii. made a substantial error in explaining the effect of the scientific evidence relating to GSR which likely influenced the jury;

• iii. wholly failed to mention a vital qualification that the GSR expert attached to her evidence; and

• iv. summed up the case in a way that at times was muddled, and whose tone was tendentious and unbalanced.

Counsel's Submissions

7. We have heard argument from the Director of Public Prosecutions who seeks a retrial. Ms Smith—Bean for the Appellant resists an order for retrial on the basis that, inter alia, it would be unfair, prejudicial and against the interests of justice for her client to be retried.

8. I have considered the oral and written submissions of the Appellant and the Respondent, whether they are set out fully here or not, and I record the pertinent points as follows.

The Crown's Submissions

9. Ms Clarke submits that the Court's approach when considering the question of a retrial must assess the interests of justice principle. The correct approach, she submits, is to realise that it is not a hard-edged concept but it requires an exercise of judgment in which several relevant factors, including the gravity of the alleged offences, have to be weighed in the balance.1 As to those factors, she places reliance on the authority of Reid v R[1980] AC 343, which provides that the Court must consider:

• (a) the seriousness and prevalence of the offence;

• (b) the probable duration and expense of a new trial;

• (c) the ordeal to be undergone for a second time by the Appellant;

• (d) the lapse of time since the commission of the offence and its effect on the quality of the evidence; and

• (e) The strength of the prosecution case at the original trial.

10. Ms Clarke submits that this is not a case where the verdict of the jury had been set aside on the ground that the evidence adduced by the prosecution was insufficient to justify a conviction by a reasonable jury properly directed. This is a case, she says, where the Board was unable to conclude with confidence that no substantial miscarriage of justice had actually occurred as a result, in particular, of the misdirection in respect of component particles of GSR. The particle evidence was not considered by the Board to be inadmissible.

11. As to the seriousness and prevalence of the offence, the indictment charges the Appellant with Premeditated Murder and Using a Firearm whilst Committing an Indictable

offence. The sentence upon conviction is life imprisonment with a substantial tariff to be served. Ms Clarke says as to this factor, by way of example, that since the Appellant's conviction, there have been 20 indictments for murder by firearm; and 15 indictments involving other firearms offences. I interject here to highlight that these statistics only relate to matters before the Court, although it is common knowledge, of which I can take judicial notice, that there have been several unprosecuted incidents concerning similar offences.

12. As to the factor – probable duration and expense of a new trial – Ms Clarke submits that the evidence portion of the original trial of both defendants took place from 4 February 2013 to the 25 February 2013. A total of 31 witnesses were called to give viva voce evidence. She estimates that the probable duration of a retrial is 10 working days (2 weeks); since there will only be one defendant, in which case the evidence of all 31 of the witnesses will not be relevant. With the advancement of Court technology, there is no extraordinary expense to be considered. Additionally, she relies on the fact that the Appellant is legally aided and will be in a position to fund his defence without personal cost.

13. As to any ordeal to be suffered by the Appellant, Ms Clarke says that it would be minimal. The Appellant did not file his application for permission to appeal to the JCPC until 3 years after his appeal to this court had been finalised. She noted as well that the Appellant was also convicted of Perjury, Corruption of a Witness and Fabricating Evidence under an unrelated indictment and was sentenced to, and served, a sentence of six years' imprisonment which was ordered on or about 4 December 2015. Ms Clarke therefore contends that for a portion of the time that he has spent in custody, the Appellant has been serving a sentence for an unrelated offence.

14. In considering the lapse of time, Ms Clarke accepts that it has been 11 years and 3 months since the commission of the offence. However, she does not accept that the quality of the evidence has been affected in such a way that would cause prejudice if a retrial were ordered. The case against the Appellant, she says, was not reliant on individual identification accounts of witnesses, but on various strands of circumstantial and forensic evidence; including DNA, GSR, gang and telephonic evidence.

15. As to the fresh evidence that the Appellant sought to rely upon at his first appeal before this Court, she submits that that does not diminish the prosecution case because (a) the proposed evidence from Kevin Busby does not contradict his evidence at trial where he described the rider and the shooter as wearing dark or black coloured clothing; and (b) the proposed evidence from Hewvonne Brown and Pelealkhai Williams, who are intended to be called by the Appellant, is not credible.

16. Finally, in addressing the strength of the prosecution case, Ms Clarke relies heavily on the JCPCs obiter dictum at paragraph 51, where it expressed its view that the case against the Appellant, although based on circumstantial evidence, was nevertheless a strong one. She further submits that a retrial in this matter would not offend the Court's sense of justice and propriety, nor will a retrial undermine public confidence in the criminal justice system, nor bring the system into disrepute. To the suggestion by Mrs Smith-Bean that the admission of gang evidence would be highly prejudicial to the Appellant, Ms Clarke submits that the JCPC's decision in Meyers v The Queen[2015] UKPC 40 does not prohibit the admission of gang evidence, but rather highlights that the issue of admissibility and the extent to which a witnesses' evidence could go, is a matter left to the control of the trial judge.

Appellant's Submission

17. Unsurprisingly, Mrs Smith-Bean for the Appellant accepts that the seriousness of the offence is a relevant factor when determining whether to order a retrial. However, she asserts that it is not the determining factor nor the primary factor for consideration. She submits that the Board in Reid was clear that no one factor is necessarily more important than another, and the weight to...