Leveck Roberts v The King

• Jurisdiction: Bermuda
• Court: Court of Appeal (Bermuda)
• Judge: Hickinbottom, J.A.,Hargun, J.A.,Kawaley, J.A.
• Judgment Date: 21 March 2025
• Neutral Citation: BM 2025 CA 7
• Year: 2025
• Docket Number: 2015:No. 3

Leveck Roberts

and

The King

Kawaley, J.A.; Hargun, J.A.; Hickinbottom, J.A.

2015:No. 3

Court of Appeal

INDEX

Fresh evidence – Principle of finality – Reopening an appeal

Appearances:

Mr. Charles Richardson, Compass Law, for the Applicant.

Mr. Carrington Mahoney, Department of Public Prosecutions, for the Respondent.

BACKGROUND

Hickinbottom, J.A.

1 On 6 April 2015, the Applicant was convicted of the premeditated murder of Rico Furbert and Haile Outerbridge contrary to section 286A(1) of the Criminal Code Act, 1907 (“the Criminal Code”), two counts of using a firearm whilst committing an indictable offence contrary to section 26A of the Firearms Act, 1973, and one count of taking a motorcycle without lawful authority. The two murders occurred on the same occasion on 23 January 2013 at Belvin's Variety Store in Happy Valley Road (“the Belvin's murders”); the firearms offences were in relation to the use of a firearm in committing those murders; and the motorcycle was the vehicle used by the perpetrators to get to and from the store. The Applicant was acquitted of a further charge of attempted murder of Zico Majors on a different occasion. He was sentenced to life imprisonment with a 25-year minimum term for each of the premeditated murders, and 10 years for each of the firearms offences, all concurrent.

2 The Applicant appealed on eleven grounds, which appeal was dismissed by this court (Baker, P., Bell, J.A. and Clarke, J.A.) on 12 May 2017 (“LeVeck Roberts No. 1”).

3 Following Jahmico Trott v. Director of Public Prosecutions and the Attorney General of Bermuda [2020] Bda L.R. 47 (in which it was held, by giving the Crown greater rights to stand by jurors than an accused had rights of peremptory challenge, section 519(2) of the Criminal Code as it then stood was inconsistent with the fundamental right to a fair trial guaranteed by the Constitution), the Applicant successfully applied to re-open his appeal, submitting that his trial was unfair because of the “uneven playing field” created by section 519(2). On 11 June 2021, this Court (Clarke, P., Bell, J.A. and Smellie, J.A.) dismissed that appeal (“LeVeck Roberts No. 2”).

4 The Applicant now applies to admit fresh evidence in the form of voice notes and WhatsApp messages from the mobile phone of his co-accused, Gariko Benjamin, that was not available to the Applicant at the time of his trial or his first appeal or his second appeal but is available to him now; and to re-open the appeal on the basis that the fresh evidence undermines the safety of his convictions because it shows that Mr. Benjamin and not the Applicant went into the Belvin's Variety Store and fired the fatal shots.

5 The issues for this Court are, consequently, does this Court have jurisdiction to admit the fresh evidence and re-open the appeal; and, if so, should we do so.

THE FACTS

6 It was the prosecution case that the Applicant and Benjamin were affiliates of the MOB gang. From November 2012, the Applicant had issues with the Parkside gang. He believed that members of that gang had discharged a firearm at his house on 8 or 9 November 2012.

7 The Applicant made arrangements to obtain a US passport, which was ready by 22 January 2013.

8 On 16 January 2013, the Applicant and Benjamin went to the house of Mr. Majors in Curving Street, in the Parkside area, where they shot and injured him and his dog. It was the prosecution case that the shooter on that occasion was the Applicant. However, in his evidence at trial, Mr. Majors denied that the Applicant was the shooter; and the case against the Applicant on that charge was not pursued. That was the attempted murder charge to which I have already referred, upon which the Applicant was acquitted.

9 On 23 January 2013, the Applicant, Benjamin and a third person called Romano Mills went to the same area, where they stole a motorbike BP950. A few moments later, three motorbikes arrived outside Belvin's Variety Store, from the direction of Curving Road. They slowed and circled outside the store. Rico Furbert was coming out of the store. He shouted: “They are outside. It's more than one person. They've got guns.” He and Haile Outerbridge then ran towards the back of the store. It was the prosecution case that the Applicant went into the store, apparently to follow Mr. Furbert. Four shots were fired at the back of the store. Both Mr. Furbert and Mr. Outerbridge died from gunshot wounds. It was the prosecution case that the Applicant was the shooter. He denied (and, as I understand it, continues to deny) that he was present when this incident occurred.

10 Ahisha Francis, who was working in the store, pressed the panic button and the police were called. Francis described the shooter as taller than her – she is under 5 feet tall – and he wore a dark jacket and a helmet with a full-face visor which was down.

11 The motorbike BP950 was found 300–400m from the Applicant's house, with apparent gunshot residue on it. The Applicant then got a lift on another motorbike to his father's house, where he was seen by Patti Robinson who lives over the road. She heard a motorbike ride through the gate of her property. She was unable to identify the rider, whose face was hidden by a helmet visor. However, the Applicant, whom she had known for many years, was the pillion passenger. He waved to her and shouted: “Hi Auntie!”. She was surprised to see him as a pillion passenger, as he was normally the rider. She then noticed that her outside light was off, so that the yard she shared with the Applicant's father was in darkness. The Applicant had taken out the bulb. She screamed at him to replace it, which he did.

12 Early the following morning, the Applicant took a photo of the report of the murders on the front page of the Royal Gazette, which was later found on his cell phone.

13 On the evening of 25 January 2013, police officers went to the Applicant's home and arrested him. He was wearing a bullet-proof vest. Particles characteristic of gunshot residue were found on both of the Applicant's hands, and on items seized including a jacket similar to the one worn by the Belvin's murders' shooter and two helmets. Several motorbikes were found in the yard, one of which matched the description of the bike used in the shooting of Mr. Majors on 16 January.

14 In respect of the Belvin's murders, there was no direct identification of anyone as the shooter. The case against the Applicant depended on circumstantial evidence. That included:

• (i) evidence from an imaging expert who had examined pictures of the gunman at the scene which showed dark tones that possibly – I emphasise it was no more than “possibly” – matched tattoos which the Applicant has on his right hand and upper wrist: Benjamin has no such tattoos;

• (ii) evidence from Akelah Hendrickson, who had a relationship with the Applicant, who said that she recalled one occasion on which she called the Applicant and he promised to call her back, and he did not do so promptly: but, when he eventually did so, he said that he could not call before because he had jumped overboard to remove gunpowder from his clothes: she was unable to recall the date of that conversation;

• (iii) evidence from Ms. Hendrickson that, on another occasion, when she visited his residence, he showed her a dark gun which had been wrapped in a towel;

• (iv) evidence that the motorbike BP950 was found 300–400m from the Applicant's residence with apparent gunshot residue on it;

• (v) although the prosecution case was that he had changed motorbikes, the evidence of Ms. Robinson that the Applicant was not the rider but a pillion passenger of the motorbike that arrived at his father's house after the shootings;

• (vi) the photograph of the report of the shootings found on the Applicant's cell phone;

• (vii) photographs on his cell phone glorifying the MOB gang and vilifying the Parkside gang;

• (viii) the fact that, on arrest (two days after the shootings), the Applicant had apparent gunshot reside on both hands and on items of clothing, and he was wearing a bulletproof vest; and

• (ix) the fact that, after arrest, he had fled the jurisdiction and contested extradition proceedings for his return.

15 Benjamin was arrested on 24 January 2013, and questioned in respect of social media postings regarding the shootings. Particles characteristic of gunshot residue were found on both his hands. He was released on bail, and left Bermuda for Atlanta on 15 March 2013, with a due date of return on 20 March 2013. However, he did not return. He departed New York for Accra, Ghana, on 18 July 2013. Following the Applicant's conviction in April 2015, Benjamin flew back to the US with a view to returning to Bermuda. Upon landing in the US, he was arrested on an Interpol warrant, and he was required to give up his cell phone and its password. The US authorities immediately downloaded all data from that phone. Benjamin was returned to Bermuda on 27 August 2015, when the US authorities also delivered a download of the contents of his phone to the Bermuda police and, subsequently, to the Bermuda prosecuting authorities.

16 At the time of the offences, the Applicant was on probation and therefore unable to travel overseas without permission from the Department of Court Services. However, following his arrest, on 16 August 2013, he travelled to Atlanta on the US Passport he obtained on 22 January 2013. He was eventually extradited, following extradition proceedings which he contested.

17 The Applicant was tried with a Christophe Duerr who, it was alleged, was an accessory. On 6 April 2015, the Applicant was found guilty of the five charges referred to above. It is implicit by those verdicts that, on the evidence before them, the jury were satisfied to the criminal standard that the Applicant was not only present when Mr. Furbert and Mr. Outerbridge were killed but was the shooter.

18 His first appeal was heard in...