Smith-Williams v R

• Jurisdiction: Bermuda
• Judge: Kay JA
• Judgment Date: 25 July 2019
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2019 No 12
• Date: 25 July 2019

[2019] Bda LR 107

In The Court of Appeal for Bermuda

Before:

Kay JA

Civil Appeal 2019 No 12

Between:

Khyri Carlos Smith-Williams

Appellant

and

The Queen

Respondent

Mr J Lynch QC and Ms S Tucker for the Appellant

Mr C Mahoney and Ms K Swan for the Respondent

The following cases were referred to in the judgment:

Turner (1975) 61 Cr App R 67

Blastland [1986] AC 41

Greenwood [2004] EWCA Crim 1388

Leshore & Simons v R [2016] Bda LR 115

Saltus v R [2018] Bda LR 45

Barnett [2015] Bda LR 103

Pitman [2008] UKPC 16

Murder — Conduct of trial judge — Hearsay evidence of alternative offender — Pressure on jury — Fresh evidence

JUDGMENT of Kay JA

Introduction

1. On 8 October 2018 in the Supreme Court before the Hon. Justice Greaves (“the Judge”) and a jury, Khyri Carlos Smith-Williams (“the Appellant”) was convicted of the premeditated murder of Colford Lloyd Ferguson, and using a firearm whilst committing an indictable offence, namely the murder. Although the trial did not take place until October 2018, the events with which it was concerned took place as long ago as 4 February 2011. There is no doubt that Colford Ferguson was murdered on that date. The question has always been: who was the murderer? The Appellant denies that he was involved in any way. At trial, the case for the Crown was that Ferguson was shot by Rasheed Muhammad, who had been taken to and away from the scene on a motorcycle ridden by the Appellant. Muhammad has never been charged with the murder.

2. The reason why the Crown was able to prosecute the Appellant so long after the event was that, years later, an associate of the Appellant, Troy Harris, provided evidence that on two occasions the Appellant had confessed to his participation in the murder. This evidence was admissible against the Appellant but not against Muhammad.

3. At trial, the case for the Crown was that the murder was gang-related. The Appellant and Muhammad were members of, or connected with, the MOB gang. Their territory is in and around Somerset. Ferguson, probably as a result of mistaken identity, was believed to be a member of the Parkside gang whose territory is in the City of Hamilton. At the time of the murder, he was working on a house situated in MOB territory. He was with Ryan Furbert. Furbert did not actually see the murder but he was close by at the time. On 7 February 2011, he was interviewed by the police and gave an account of the events of that day. He did not give evidence at the trial because he had left Bermuda. However, an agreed version of what he had told the police in February 2011 was put before the jury. Since the trial, he has sworn an affidavit in England on 1 February 2019, adding to the account he had given to the police in February 2011. Also, Rasheed Muhammad was interviewed under caution in April 2018 and denied involvement in the murder.

Grounds of appeal against conviction

4. The Appellant now appeals against conviction and advances the following grounds:

• i. The judge behaved inappropriately during the evidence of Troy Harris;

• ii. The judge wrongly excluded evidence about the possibility that other named suspects might have been the murderer;

• iii. The judge did not adequately sum up the evidence of the case for the Appellant;

• iv. The judge made inappropriate comments to the jury about what would happen if they did not reach verdicts on the day of their retirement;

• v. The Court ought to admit fresh evidence which was not before the jury and which if it had been, might have resulted in a different outcome.

5. I shall consider these grounds in that order, although in his appeal submissions, Mr Jerome Lynch QC began with, and placed greatest emphasis on ground (5).

Conduct of the Judge during the evidence of Troy Harris

6. There is no doubt that Troy Harris was the main witness called by the Crown. His evidence was that he was very close to the Appellant but not to Rasheed Muhammad, whom he despised. On two occasions, the Appellant had spoken to him about the Ferguson murder. The first occasion was when they were both imprisoned in the Westgate in 2014 through to 2015. On that occasion he said that the murder was the result of the misidentification of Ferguson as “a Parkside guy” and that it was Rasheed Muhammad who had misidentified him. The second occasion was later, when Harris and the Appellant were out of prison but electronically tagged. This time Harris said that the Appellant was intoxicated and more loquacious, describing how they had thought that the victim was Jakai Morris who was considered to be a Parksider. Muhammad had been the shooter and the Appellant had taken him to and from the same by motorcycle. Both men – and Harris – were MOB members. It was not until 2016, when Harris was in prison in England, that he first gave his account of the Appellant's confessions to the Bermuda police.

7. It is obvious from a review of the transcript that Harris was an unusual witness. His language was uncompromisingly crude and vernacular. He described his closeness to the Appellant by repeated references to their “fucking pussy” together (later abbreviated by the judge to “FP”). One passage reads as follows:

“THE WITNESS: Yes I have fucked pussy.

THE COURT: You've – this stuff with other fellas as well; right?

THE WITNESS: Yes.

THE COURT: Yes

THE WITNESS: That's what we do. That's what we do.

THE COURT: Right.

THE WITNESS: That's what we do, sir.

THE COURT: Yer, yer boys…

MR LYNCH: Wish you wouldn't say ‘we’.

THE WITNESS: That's what we boys do.

THE COURT: Good.

THE WITNESS: That's what we – from St George to Somerset, that's what brethrens do.

THE COURT: Okay. Move on, please. All this sex is beginning to get me horny.”

8. When talking about Rasheed Muhammad, the following exchanges occurred:

“THE COURT: You call him what? Dirty, stinkin’ rat? THE WITNESS: Yeah. Half these guys up in Somerset don't, don't like that guy, man. All of ‘em talk behind Rasheed's back, man, ‘cause he's a grimey little faggot, you know I wish he was around when I was out there man.

MR. MAHONEY: By the way, did they used to call him any particular way?

A: Yeah, I call him grimey, inna.

Q: You call him grimey?

A: Yeah, I'm, I'm vexed at the situation, inna, because…if that little faggot would never have came and done that and said what he said, he would have never went about his business to go and do that. You understand what I'm sayin' to you?

Q: Okay. All right..

A: So, yeah, to me he's a little faggot.”

9. Then of the Appellant, he said:

“MR MAHONEY: And you say ‘he’, you're referring to who?

A: Khyri He knows that I know, and I know that he knows. So regardless of what anyone else thinks, he could sit here with his fancy lawyer, I know the fuckin' truth, you understand me, and I put that on my life. If it wasn't the truth, I wouldn't be up here in front of all these beautiful fuckin' Bermudians doin' this shit. Trust me when I tell you, I would have stayed my ass in England.

MR LYNCH: This is not an opportunity for a speech, thank you very much.

THE COURT: All right.

THE WITNESS: I'm not giving a speech. It's the truth MR LYNCH: He has counsel, instructed by the Crown to do that.

MR MAHONEY: He's explaining…

THE COURT: Sometimes when a gentleman needs to express himself and address the floor…

THE WITNESS: You know what that is right? I'm, listen, I ain't gotta adhere to it, I ain't gotta sugar-coat nothin', this is the way I talk You could understand me, people understand English, they know exactly what I'm sayin'. I'm not gonna sit here and use some high vocabulary that this guy uses. I'm not from this guy's area, I'm from the fuckin' hood, this what I use, this what I'm sayin', straight up.”

10. There is a complaint on behalf of the Appellant that the Judge's approach to dealing with Harris was too indulgent and conversational. These examples are proffered:

“THE WITNESS: It's the truth, man. I'm sorry, Mr Greaves, I get all all up in my emotions. I'm sorry.

THE COURT: It's all right. Yeah, you've said it.”

And a little later:

“THE COURT: All right, sir. Just, wait on the questions. Please put some more water there for Mr Harris.

THE WITNESS: Yeah, my lips. Thank you.

THE COURT: It's water, right?

THE WITNESS: Nah, it's some vodka, there's some vodka right There, they give me some vodka. Nah, it's water. It's water. I appreciate it.

THE COURT: All right.”

11. Essentially, this ground of appeal amounts to a complaint that the judge did very little to restrain the witness's excesses but allowed him to persist in using vulgar and profane language. The witness was allowed to...