Washington v R

• Jurisdiction: Bermuda
• Judge: Baker P,Kay JA,Bell JA
• Judgment Date: 17 May 2016
• Court: Court of Appeal (Bermuda)
• Docket Number: Criminal Appeal 2014 No 8
• Date: 17 May 2016

[2016] Bda LR 57

In The Court of Appeal for Bermuda

Before:

Baker P; Kay JA; Bell JA

Criminal Appeal 2014 No 8

Between:

Julian Washington

Appellant

and

The Queen

Respondent

Mr M Daniels and Mr C Richardson for the Appellant

Mr C Mahoney and Ms V Greening for the Respondent

The following cases were referred to in the judgment:

Porter v Magill [2001] UKHL 69

Pintori [2007] EWCA Crim 170

Smith [2007] Bda LR 80

Myers, Cox and Brangman [2015] UKPC 40

R v Galbraith [1981] 1 WLR 1039

Blakeney and Grant [2014] Bda LR 32

George [2007] EWCA Crim 2722

Premeditated murder, attempted murder and use of firearm — Appeal against conviction — Bias of juror — Gang evidence — DNA — Gun shot residue

JUDGMENT of Kay JA

1. On 6 May 2014, Julian Marcus Washington (the Appellant) was convicted of (1) the premeditated murder of Stefan Burgess; (2) the attempted murder of Davano Jahkai Brimmer; (3) using a firearm to commit an indictable offence; and (4) handling ammunition. In relation to (1), (2) and (3), the jury returned verdicts by a majority of 9 – 2. The verdict in relation to (4) the verdict was unanimous. The trial judge was before the Honourable Justice Carlisle Greaves. The Appellant now appeals against his convictions.

2 The Appellant was friendly with Anthony Smith. On 5 January 2012 there was an incident outside 60 Glebe Road, Pembroke, in the course of which Stefan Burgess assaulted Anthony Smith, knocking him off his bike and causing him minor injuries, including the loss of a tooth. It seems that the assault was prompted by an earlier altercation. Later the same day, at Dublin's yard, Smith told the Appellant about the assault.

3 The following night, Stefan Burgess, Davano Brimmer and others were at 60 Glebe Road. At about 21.00, Burgess went to leave the premises, saying that he was going home to change but that he would be back. When he opened the door, he was shot twice. He died as a result of a bullet penetrating his heart. One of those who had been with him in the house was Andre Blackstock. He gave evidence of seeing a male dressed all in black, including black gloves and a black full visor helmet. The man was at the door, holding a gun. He began to enter the premises and fired another shot. That hit and seriously injured Brimmer.

4 The Appellant was arrested on 9 January 2012. His cell phone was seized and various samples were taken from him and from clothing found at his home. Forensic evidence obtained from these samples and from shells and casings recovered from the scene of the shootings formed a large part of the case against the Appellant at his trial.

5 On behalf of the Appellant, Mr Daniels and Mr Richardson (neither of whom appeared at the trial) advanced four grounds of appeal against the convictions. Three of them relate to the evidence relied upon by the Crown, one of which asserts that the judge ought to have upheld a submission of no case to answer. However, the first ground of appeal asserts that there was an irregularity in the constitution of the jury. We shall deal with that first.

The Jury issue

6 There were considerable difficulties in empanelling the jury in this case. It must often happen in a small jurisdiction that a jury panel includes people who ought not to serve because of a connection with, or prior knowledge of, someone involved in the trial. In the present case it is clear that problems of this kind were unusually numerous. Indeed, at one point the experienced judge commented that this was his first experience of “running out of the list completely”. A point arose at which he said that he would instruct the court staff to draw up a list “from the future list” so as to complete the process. It may be that someone misunderstood the judge's instruction because among the last jurors to be empanelled were two who were not taken from “the future list” but had been called for jury service some three months earlier. We shall refer to them as Juror A and Juror B.

7 In the course of preparation for this appeal, Mr Daniels has investigated the empanelling of the jury in the present case and in an earlier trial of this Appellant and two others which took place in January 2014. At the earlier trial, which involved a similar allegation, the Appellant was acquitted. Mr Daniels' investigations were carried out with great diligence and the results are substantially accepted as accurate by Mr Mahoney on behalf of the Crown. The history is set out in minute detail in Mr Daniels' skeleton argument. The material facts are as follows.

8 At the January trial, both Juror A and Juror B were in the jury pool. The indictment comprised counts of attempted murder and firearms offences. In the normal way, the jury pool, having been called into court, heard the names of the defendants and the charges read out. The trial judge (Simmons J) invited Crown counsel to read out the names of witnesses. They included Aneka Donawa, a police officer. The judge then invited the potential jurors to raise any concerns they had as a result of hearing the names of the witnesses and whether they would be unable to render a fair trial. She said that she would assume that, if a juror had any connection with any of the witnesses, or the defendants, or even the lawyers in the case, there might be a potential bias. Juror A volunteered “I know Aneka, Aneka Donawa”. The judge excused her from service. Juror B was called. She raised no personal difficulty but she was stood down by the Crown in any event. None of the jurors empanelled in the January trial served on the jury in the later, April, trial of the Appellant with which we are concerned. However, Juror A and Juror B had heard the defendants (including the Appellant) identified and the nature of the alleged offences specified and Juror A had been excused by reason of her connection with Aneka Donawa.

9 When Juror A and Juror B came to be added, late in the process, to the jury pool at the April trial, the same procedure (although not verbatim) was followed. The late recruits to the pool, including Juror A and Juror B, were told the names of the witnesses and the victims. Again, one of the named witnesses was Aneka Donawa. The judge invited those in the pool to consider whether they would have any bias that could hamper their ability to render a fair verdict. He referred to knowledge of the Appellant, the victims, their families or any witnesses. Several raised connections and were excused or stood down. However, neither Juror A nor Juror B raised any concerns. Indeed, the audio recording discloses that Juror A expressly said “No concerns” when she was called. Both were duly sworn and served on the jury until the conclusion of the trial.

10 Those are the circumstances which underlie the first ground of appeal which refers to “a significant miscarriage of justice arising from a potential juror”, although the submission is concerned with actual rather than potential jurors. Factually, its high watermark is that Juror A, having seen fit to raise her connection with Aneka Donawa at the January trial in the context of a process designed to ensure a fair trial, did not also do so in relation to the same connection at the April trial. However, before we consider the detailed circumstances, we must first address a more technical...