Romano Mills v The Queen

• Jurisdiction: Bermuda
• Judge: Baker P,Bell JA,Smellie JA
• Judgment Date: 27 July 2018
• Date: 27 July 2018
• Court: Court of Appeal (Bermuda)
• Docket Number: Criminal Appeal 2017 No 11

[2018] Bda LR 78

In The Court of Appeal for Bermuda

Before:

Baker P; Bell JA; Smellie JA

Criminal Appeal 2017 No 11

Between:

Romano Mills

Appellant

and

The Queen

Respondent

Ms E Christopher for the Appellant

Mr C Mahoney and Ms M Sofianos for the Respondent

The following cases were referred to in the judgment:

R v Horncastle [2010] 2 AC 373

R v Riat [2013] 1 WLR 2592

R v Z [2009] 1 Cr App R 34

R v Fagan [2012] EWCA Crim 2248

R v Shabir [2012] EWCA Crim 2564

R v H [2001] Crim LR 815

R v Fairfax [1995] Crim LR 949

R v Davies [2007] 2 All ER 1070

R v R [2017] EWCA Crim 1487

R v Oliva (1965) 49 Cr App R 298

R v Russell-Jones [1995] 1 Cr App R 538

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 272

Adel Muhammed El Dabbah v Attorney General for Palestine [1944] AC 156

R v Cairns [2002] EWCA Crim 283

R v Daniels and Ors [2010] EWCA Crim 2740

R v Hambery [1977] 1 QB 924

R v McCarthy [1998] 2 Archbold News 1

R v Beck 74 Cr App R 221

Mears v R (1993) 97 Cr App R 239

Warner v R [2012] Bda LR 73

R v Hillier and Farrar (1992) 97 Cr App R 349

R v Athwal [2009] 2 Cr App R 204

Myers, Cox and Brangman v R [2015] UKPC 40

Pre-meditated murder — Appeal against conviction — Witness in fear — Admission of hearsay evidence — Judge's power to discharge juror — Consequence of co-defendant's guilty plea during trial — Whether previous consistent statement admissible

JUDGMENT of Baker P

Introduction

1. On 23 January 2013 Rico Furbert and Haile Outerbridge were brutally shot and killed at Belvin's Supermarket in Happy Valley Road, Hamilton. The Crown's case was that Le-Veck Roberts was the shooter and that Gariko Benjamin and the Appellant, Romano Mills, were present at the scene as aiders and abettors. A fourth man, Christoph Duerr, was the armourer who provided the gun. Roberts and Duerr were tried in 2015 and both convicted of their pre-meditated murder. Duerr's conviction for murder was subsequently set aside on appeal and a conviction for being an accessory after the fact substituted.

2. Mills and Benjamin were tried in May 2017 before Greaves J and a jury. Near to the close of the prosecution's case Benjamin pleaded guilty to murder, rather than pre-meditated murder and this plea was accepted by the Crown. The trial continued against the Appellant alone, and on 9 June 2017 he was convicted unanimously of two counts of pre-meditated murder, one count of taking a motorcycle without authority and two counts of using a firearm to commit an indictable offence. The Appellant was sentenced to life imprisonment with a minimum period to serve of 25 years before eligibility for consideration for parole, but with 10 years' imprisonment for each of the firearms offences to be concurrent with each other but consecutive to the 25 year period.

3. The killings were gang related. On 9 November 2012 Roberts complained to the police that shots had been fired at his house, just under his bedroom window. He was a member of M.O.B and told the police he believed that members of Parkside were trying to kill him. The Crown's case was that it was decided to retaliate and kill someone from the Parkside area. That was the motive for the killing of Furbert and Outerbridge. The case against the Appellant was that he was an associate of MOB and the manager of the guns. He obtained them from Duerr, who was their keeper, and provided them to Roberts. He was present when the shootings took place and was one of the riders of the three bikes seen on CCTV footage at the scene. Although not physically identified, cell site evidence showed his phone to be in the area at close to the material time and members of MOB would not ordinarily be expected to be in Parkside territory around 9.00pm, absent an ulterior motive.

4. The primary evidence against the Appellant was that of Duerr, who was, of course, an accomplice. Following his successful appeal with the substitution of a conviction for a lesser offence, he elected to give evidence for the Crown. The substance of his evidence was that he lived at Boaz Island Village and the Appellant, whom he knew as ‘Mano’ lived close by. They were close friends and had known each other for years. He also knew Benjamin, who lived in the neighbourhood. He knew that the Appellant and Benjamin were members of MOB On either the evening of 23 January 2013 or the following evening the Appellant arrived at his house with a paper bag containing three guns, which he asked him to look after. This was not the first time he had held guns for the Appellant. Later the Appellant phoned saying he wanted the black 9mm gun back. Duerr believed this gun belonged to the Appellant as the Appellant had given it to him before. Some days later the Appellant returned and collected it leaving the other two guns, a black revolver and a silver 9mm which Duerr put back under the bed. On 28 January, following information from Duerr's girlfriend, Ritica Belboda, the police executed a search warrant. When they arrived Duerr grabbed the guns and went to the attic and called the Appellant to come and get his guns. Duerr then ran away and hid the guns in an abandoned building before making his way to the Appellant's house where he met the Appellant and another MOB member, Cordova Marshall. Later they moved next door to Marshall's house in case the police searched the Appellant's house. The following day Duerr surrendered to the police.

5. Duerr's evidence was corroborated by Ms Belboda. Her evidence was in the form of an interview that was read to the jury, although she had given oral evidence at the trial of Roberts and Duerr. The decision to admit her evidence forms one of the main grounds of appeal. About two or three weeks before the murders she was in Duerr's bedroom when he showed her two guns from under his mattress. One was black and one was silver. He showed her how to open the barrel and where the bullets go. She saw the bullets in the gun that day. After showing her the guns he put them back under the mattress. On 28 January she was again in the bedroom with Duerr, and because of her concerns she telephoned a friend in the police whilst Duerr was in the bathroom, and then took a picture of two guns that were hidden under the mattress. She then sent the picture to the friend in the police.

6. Ms Belboda also gave evidence that a man referred to as Mono (sometimes referred to as Mano) had come to the house the previous week and that Duerr had gone outside to meet him and returned with a plastic bag and went upstairs to his room but would not show Ms Belboda what was in the bag. She knew ‘Mono’ as someone who lived in the general area and had heard his name before.

Admission of Ms Belboda's Evidence

7. Ms Christopher, who appeared for the Appellant both before us and at the trial, submits that the judge erred in allowing Ms Belboda's evidence to be read to the jury. Ms Belboda had given oral evidence at the trial of Roberts and Duerr in March 2015. The Crown's application for her evidence to be read was supported by a witness statement from Ms Belboda dated 22 May 2017 and an affidavit from DC Beach sworn on 23 May 2017. The application was made under section 75(3) of the Police and Criminal Evidence Act 2006 (“PACE”). The material parts of section 75 provide:

• “75 (1) Subject to subsection (4), a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible if –

  • (a) the requirements of one of the paragraphs of subsection (2) are satisfied; or

  • (b) the requirements of subsection (3) are satisfied.

• …

• (3) The requirements mentioned in subsection (1)(b) are –

  • (a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and that the person who made it does not give oral evidence through fear or because he is being kept out of the way. …”

8. The Crown's case was that Ms Belboda was in fear. After giving evidence in the earlier trial she was too afraid to leave her house for several months and eventually left Somerset and moved away from her family with her son, because people were saying threatening and nasty things to her. On one occasion her car tyres were slashed. Indeed she enrolled in school overseas for a fresh start with her son. When informed by the police that she was required to give evidence again she said: “There is no way that I can put myself through this again. It is just very hard for me to relive this situation again. It's not good for my son or me to have to go through this a second time.” She had previously been counselled by the Womens' Resource Centre.

9. The affidavit from DC Beach recorded that around February 2017 she had a chance meeting with Ms Belboda who told the officer that she had a new job. When told that she would be required to give evidence at the forthcoming trial she “did not seem pleased.” When visited by DC Beach and D.S. Martin in April 2017 she queried whether she had to give evidence, saying she had been through a lot and saying she was planning to go away to school and did not want her name mixed up with the trial. On 28 April, when served with a subpoena she was reluctant to sign it and “appeared sad.” Thereafter she did not respond to messages and phone calls or appear for a meeting. On 15 May DC Beach visited Ms Belboda at her place of work and she then described what she had been through since giving evidence, describing her family's concern about her safety and the rift that this had caused. She said that her tyres had been slashed and that she had been approached and threatened because of her involvement in the case. She was being counselled for stress and was scared to give evidence. She appeared anxious and near to tears. The officer believed she was in fear of giving evidence.

10. The judge ruled on the application on 23...