Roberts v R

• Jurisdiction: Bermuda
• Court: Court of Appeal (Bermuda)
• Judge: Kawaley JA,Hargun JA,Hickinbottom JA
• Judgment Date: 21 March 2025
• Docket Number: Criminal Appeal 2023 No 11

Between:

Laveck Roberts

Applicant

and

The King

Respondent

[2025] Bda LR 34

Before:

Kawaley JA; Hargun JA; Hickinbottom JA

Criminal Appeal 2023 No 11

In The Court of Appeal for Bermuda

Fresh evidence — Principle of finality — Reopening an appeal — Premeditated murder

The following cases were referred to in the judgment:

Trott v Director of Public Prosecutions [2020] Bda LR 47

Intervest v Black and Dobie [2010] Bda LR 41

Thomson v Thomson and Colonial Insurance Co Ltd [2015] Bda LR 107

Barnett v R [2015] Bda LR 103

Roberts v R [2021] Bda LR 51

R v Gohil [2018] EWCA Crim 140

R v Hawkins [1997] 1 Cr App R 234

R (Nunn) v Chief Constable of Suffolk Constabulary [2014] UKSC 37

Mr C Richardson for the Applicant

Mr C Mahoney for the Crown

JUDGMENT of Hickinbottom JA

Background

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 JA and Clarke JA) 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 LR 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 JA and Smellie JA) dismissed that appeal (“LeVeck Roberts No 2”) [2021] Bda LR 51.

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)...