In a Privy Council judgment, given on April 11,2022. The appellant Devon Hewey and Jay Dill has successfully won their appeal against The Queen Respondent ( Bermuda ) in which a retrial has been awarded to the two men.
On behalf of the respondent, it is submitted that, notwithstanding the misdirections in the summing up, this is a case where the Board can safely apply the proviso. Section 21(1) of the Court of Appeal Act 1964 provides that on the hearing of an appeal the court may “notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred”.
51. In support of this the respondent relies upon the following matters, a number of which are disputed by the appellant:
(i) There was evidence that the appellant was a mid-ranking member of the 42nd gang and as such was expected to conduct revenge attacks on those who had insulted a fellow gang member. The deceased was related to two senior members of Parkside, a rival gang. The appellant and Mr Dill thus both had a general gang motive for the murder.
(ii) In November 2010 Mr Dill had been humiliated by Mr Robinson’s mother in front of other gang members, and thus had a particular motive for this murder.
(iii) Mr Dill had recorded a voice message indicating his dissatisfaction with the commitment to the gang of some of its members and volunteering his readiness to shoot someone.
(iv) The gun used to kill the deceased was used in a gang murder on 17 April 2011, some two weeks after the killing of Mr Robinson.
(v) The gunman appeared to be left-handed. So was Mr Dill.
(vi) There was telephone contact with Mr Parris by both the appellant and Mr
Dill, shortly before and shortly after the murder.
(vii) The appellant fitted the general description by Mr Busby as the driver of the bike. Mr Busby described the bike as a black Honda Scoopy. This matched the bike owned by the appellant which was linked to him by DNA and fingerprints.
(viii) The appellant called his mother shortly after the shooting and told her to put out the dog, something he routinely did when there had been a shooting. (For the appellant it is submitted that the prosecution evidence showed that by 8.55 pm when this call was made the news of the shooting had spread around Bermuda.)
(ix) The appellant arrived with Mr Dill in Palmetto Road, coming from the direction of the house next door where the bikes had been hidden from view, carrying black helmets matching Mr Busby’s description. (For the appellant it is said that it was the prosecution evidence that it was usual for the appellant to park his bike in his neighbour’s rear yard.)
(x) The appellant was in the company of Mr Dill shortly after the murder. Mr Dill’s clothes matched Mr Busby’s description and had GSR, ie three-component particles, on them. (For the appellant it is said that the clothing worn by Mr Dill when he was said to be with the appellant did not match the description of clothing given by Mr Busby. Furthermore, the appellant’s own jacket was even more unlike the clothing described and could not be described as “black” or “dark”.)
(xi) It was Mr Dill’s evidence that he and the appellant had been together at all material times on the evening in question, and the appellant adopted this evidence in cross examination of Mr Dill, thus advancing the same alibi. The jury convicted Mr Dill on evidence which included three-component particles. If Mr Dill committed the murder it was a legitimate conclusion that his driver was the appellant.
52. The Board considers that the case against the appellant, although based on circumstantial evidence, was nevertheless a strong one. However, the Board is unable to conclude with confidence that no substantial miscarriage of justice has actually occurred as a result of the misdirections and it therefore declines to apply the proviso.
Retrial
53. The gravity of the alleged offence and the strength of the prosecution case might appear to suggest that a retrial is appropriate, notwithstanding the passage of time since the events with which it would be concerned. However, in the Board’s view the question whether a retrial should be ordered is pre-eminently one to be decided by the Court of Appeal which has the benefit of first-hand knowledge of local procedures and conditions.
Conclusion
54. The Board will therefore humbly advise Her Majesty that the appellant’s conviction and sentence be set aside and the matter remitted to the Court of Appeal for it to consider whether to order that the case be remitted to the Supreme Court to be retried and for the Court of Appeal to make such order as it thinks fit for the detention of the appellant in custody pending the re-trial or for his release on bail or otherwise, in accordance with section 21(1) Court of Appeal Act 1964.
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