Myers, Brangman and Cox v The Queen
| Jurisdiction | Bermuda |
| Judge | Lord Hughes |
| Judgment Date | 06 October 2015 |
| Neutral Citation | BM 2015 CA 29 |
| Docket Number | Privy Council Appeals Nos. 0088, 0089, 0094 of 2013 |
| Court | Court of Appeal (Bermuda) |
| Date | 06 October 2015 |
Privy Council
Lord Kerr; Lord Wilson; Lord Hughes; Lord Toulson; Lord Hodge
Privy Council Appeals Nos. 0088, 0089, 0094 of 2013
Appellant (Myers) John Perry QC, Elizabeth Christopher (Instructed by Simons Muirhead and Burton)
Appellant (Brangman) Joel Bennathan QC (Instructed by Saunders Law LLP)
Appellant (Cox) John Perry QC Larry Mussenden (Instructed by Simons Muirhead and Burton)
Respondent Howard Stevens QC Rory Field, Director of Public Prosecutions Carrington Mahoney, Deputy DPP Cindy Clarke, Deputy DPP (Instructed by Charles Russell Speechlys LLP)
Evidence - Whether the gang evidence was inadmissible as irrelevant and/or as impermissible proof of no more than bad character or was inadmissible to prove motive — Whether the gang evidence was admissible under the principle enunciated in R v. Pettman that admission of evidence of a defendant's bad behaviour or propensity may be afforded where the evidence is relevant to proof of the charge — Extent to which gang evidence was admissible — Whether gang evidence could be given by a police officer who had made special study of the gangs concerned as well as of gang culture generally — Extent to which the witness may rely on information gathered from or researched by others — Approach to the application of section 93 of the Police and Criminal Evidence Act, 2006 to admissible gang evidence.
The Board has heard together three appeals against conviction, challenging decisions of the Court of Appeal of Bermuda. They raise similar, although not identical, questions concerning the admissibility and proper ambit of evidence as to the existence and practices of gangs and the defendant's connections with them.
Each of the three cases concerned a deliberate shooting by someone who had clearly sought out the victim in order to shoot to kill. Two of the victims were shot dead; the third (in the case of Brangman) was hit but survived. The issue in each case was identity. In two of the trials (Myers and Cox) the Crown case was that the shooting was part of a long-standing feud between two rival gangs, and was triggered by an incident shortly beforehand in which there had been either insult to, or attack on, someone associated with one of the gangs. The shooting was in those two cases said to be a rapid and fatal retaliatory attack, not on the perpetrator of the earlier incident, but simply on some random member of the opposing gang. In these cases the gang evidence was part of the prosecution case from the outset. In the third trial (Brangman) the gang evidence was not originally part of the Crown case. It was admitted in consequence of cross examination of the victim, not to prove the existence of a feud between identifiable gangs, but to prove intra-gang loyalty between the defendant and an associate of his who had suffered an insult or attack. Thus in each of the cases the gang evidence was admitted primarily to demonstrate that the defendant had a motive to kill the victim.
In all three cases the principal gang evidence was given by a police officer, Sergeant Rollin. His evidence was admitted at each trial against objection taken on behalf of the defendants and, as will be seen, there was also objection to related evidence from other prosecution witnesses. Before the Court of Appeal several grounds of appeal against conviction were advanced, including that this evidence ought not to have been admitted. The Court of Appeal rejected that ground of appeal in each case, although by a majority in the cases of Myers and Cox. In those two appeals, Auld, J.A. disagreed on that point, although he concurred in upholding the convictions on the grounds that the proviso to section 21(1) of the Court of Appeal Act 1964 (no substantial miscarriage of justice) applied. Before the Board, the only surviving ground of appeal which the defendants have permission to pursue relates to the admission of the gang evidence.
The appeals raise the following broad issues:
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(a) whether the gang evidence was inadmissible as irrelevant and/or as impermissible proof of no more than bad character, or was admissible to prove motive;
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(b) whether the gang evidence was admissible under the principle enunciated in R. v. Pettman (unreported 2 May 1985) (“explanatory evidence”);
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(c) if gang evidence is admissible, what is its proper extent and content;
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(d) if admissible, whether gang evidence can be given by a police officer who has made a special study of the gangs concerned, as well as of gang culture generally;
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(e) if gang evidence is admissible, to what extent (if any) may the witness rely on information gathered from, or researched by, others;
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(f) if such evidence is prima facie admissible, what ought to be the approach to the application to it of section 93 of the Police and Criminal Evidence Act 2006 (prosecution evidence which ought not to be admitted because its effect on the trial would be unfair); and
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(g) if such evidence is admissible, what ought to be the practice relating to the advance notice, form and presentation of it.
On the night of Friday 4th/Saturday 5th December, 2009 there was a party at the Devonshire Recreation Club. At about 03:30 there was an argument between Neika Daily and David Cox. Daily threw a beer bottle at Cox, who threw a drink over her. Daily was pushed out of the club. Kumi Harford was also at the club with several friends. Sometime after 04:30 his group left and returned in various combinations to St. Monica's Road, where one of the girls in the group lived. By just after 05:00, Harford had left her home and was driving his car away when he was shot dead at the wheel. Two firearms had been used. None of those facts was in dispute.
The Crown sought to prove, chiefly through Sergeant Rollin, that there was a violent feud between, on the one hand, the Parkside and Middletown gangs (associated with each other) and, on the other, the 42nd gang and its associate, the MOB gang. Myers was said to be a member of Middletown. Neika Daily was said to be closely associated with Middletown. Her home was one of its principal haunts. Her son (Juju Williams) was said to be a member, whilst her niece Rogernae, who lived partly with her, was a girlfriend of Myers. On the other side, David Cox and the deceased Harford were said to be members of the 42nd. The Crown's case was that the shooting of Harford was a further episode in this violent feud, and an instant retaliation by Middletown against the 42nd for the insult done to Neika Daily about an hour and a half beforehand in the Devonshire Club.
Sergeant Rollin gave evidence that he was a member of a small police unit charged with targeting gangs in Bermuda. He regularly patrolled the streets where gangs congregated. He saw and frequently spoke to their members, most of whom he knew by name. He had studied their territories, and the markings which they put on walls within them, and their structures. He had undergone specialist training in gang monitoring and study from the FBI, both locally and in the USA and he was in communication with that institution's head and field offices in Washington DC. There were three other officers in his unit, also patrolling regularly in the areas concerned. They pooled their information, sightings and like material upon a shared database. The Crown put him forward as an expert in gang culture in general and the Bermuda gangs in particular. The judge treated him as such.
The form of Sergeant Rollin's evidence was fourfold. Firstly, he described the two relevant gang groupings, namely Middletown/Parkside on the one hand and 42nd/MOB on the other and explained their territories. Secondly, he gave evidence of the violent feud between them, referring to acts of violence and murder in general and to the murder by shooting of one of the 42nd named Kenwandee Robinson in particular. Thirdly, of a number of named people, including the defendant, he gave evidence that he considered them members of one or other of these gang groupings, stating inter alia the allegiances set out in para 6 above. He described the defendant as a high-level member of Middletown. And fourthly, he produced three photographs which showed assembled groups of Middletown/Parkside members, including the defendant, identified them by name in most cases, and described as the gang sign the “M” symbol which the defendant could be seen making with his hand in two of the photographs, and which another member was also making. When challenged on the basis that his information derived from others, he said that there was a unit database to which all members of his team contributed, but that only a very small part of what he had given in evidence was other than his first-hand information. His evidence was that he had known the defendant very well for some eight years, having seen him almost daily.
However, when identifying named persons as members of one or other gang, Mr. Rollin's witness statement simply said that he “considered” X to be a member of the relevant gang. He did not set out the basis for his belief, beyond saying that he was very familiar with the streets. He did not, in his witness statement, give information of particular, or even unparticularised, sightings of the individual concerned in significant places or in significant company, although in oral evidence he did say, in relation to the defendant, that he was habitually to be found with other members in or near the house of Neika Daily, which was the common meeting point of the Middletown gang, whilst the photographs were further evidence of this association.
Both in his witness statement and in his oral evidence, Sergeant Rollin added the information that the Middletown gang (and the other gangs also) were known to him to be involved in the sale of controlled drugs, in robberies and in acts of...
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