Tom Poole QC (Instructed by Charles Russell Speechlys LLP (London)) for the Respondent
LORD HUGHES AND LORD LLOYD-JONES:
This appeal concerns the admissibility and probative value in criminal proceedings of expert evidence relating to particles which may have their origin in the discharge of a firearm.
On 25 February 2013 the appellant, Devon Hewey, and his co-defendant, Jay Dill, were convicted (Greaves J and a jury) of the premeditated murder of Randy Robinson who was killed on 31 March 2011. Both were sentenced to life imprisonment for murder with minimum terms of 25 years’ imprisonment and concurrent terms of 12 years’ imprisonment for the use of a firearm to commit an indictable offence.
The prosecution case at trial was that on the evening of 31 March 2011, between 8.20 pm and 8.30 pm, Randy Robinson was walking on Border Lane North, Pembroke, Bermuda when two persons on a black Honda Scoopy motorcycle drove towards him and stopped about 10-12 feet away. The sole eyewitness, Kevin Busby, described the two persons on the motorcycle as wearing all black or dark clothing, with full-face or tinted visors. The pillion passenger pulled out a firearm with his left hand and fired several shots at Mr Robinson. Between four and six shots were heard. The motorcycle then continued down Border Lane North. Mr Busby made efforts to call the police. By the time the police arrived Mr Robinson had died of two fatal bullet wounds.
It was the prosecution case that Mr Dill was the pillion passenger who shot Mr Robinson and that the appellant was the driver. The prosecution alleged that the defendants were members of a gang and that the motive for the murder was retaliation for an unspecified attack or attacks by another gang as part of a general cycle of attacks and retaliations between rival gangs. Evidence was called that the defendants were mid-level ranking members of the 42nd gang. Although Mr Robinson was not a gang member, evidence was called that two of his cousins were members of the Parkside gang. In addition, evidence was called that Mr Robinson’s mother had hit Mr Dill some months earlier at a football match after she suspected him of attacking her son, which Mr Dill denied.
The appellant’s mother, Ariel Cole, gave evidence that at 8.55 pm she received a call from the appellant telling her that he was coming home and asking her to put the guard dog out, something he normally did when there had been a shooting. At about 9.00 pm or shortly thereafter, the appellant and Mr Dill arrived at the appellant’s home in Palmetto Road. The appellant travelled on a black Honda Scoopy motorcycle, which belonged to the appellant’s girlfriend. Mr Dill travelled on a Yamaha Nouvo motorcycle which he owned. Both bikes were parked out of sight of the road, behind the next-door neighbour’s house. Mrs Cole said that when they arrived both the appellant and Mr Dill carried black helmets, that Mr Dill wore a black and red jacket and the appellant wore a white T-shirt. Mr Dill stayed the night sleeping in the bedroom the appellant shared with his brother.