Devon Hewey v The Queen

JurisdictionUK Non-devolved
JudgeLord Hughes,Lord Lloyd-Jones
Judgment Date11 April 2022
Neutral Citation[2022] UKPC 12
Docket NumberPrivy Council Appeal No 0055 of 2019
CourtPrivy Council
Devon Hewey
(Appellant)
and
The Queen
(Respondent)

[2022] UKPC 12

before

Lord Briggs

Lord Hamblen

Lord Stephens

Lord Hughes

Lord Lloyd-Jones

Privy Council Appeal No 0055 of 2019

From the Court of Appeal of Bermuda

Hilary Term

Appellant

James Wood QC

Amanda Clift-Matthews

Simone Smith-Bean

(Instructed by Simons Muirhead & Burton LLP)

Respondent

Tom Poole QC

Nicole R Smith

Maria Sofianos

(Instructed by Charles Russell Speechlys LLP (London))

Lord Lloyd-Jones

Lord Hughes AND

1

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.

Factual background
2

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.

3

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.

4

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.

5

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 nextdoor 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.

6

The appellant and Mr Dill were arrested there by an armed police Emergency Response Team at about 2.50 am on the following morning, 1 April 2013. Several items of clothing, motorcycle helmets and other possessions said to belong to the appellant and Mr Dill were seized, as were the two motorcycles. Mr Dill's black and red jacket and the appellant's red and grey jacket were seized some days later. No gun was found during the search. Examination of the projectiles from Mr Robinson's body revealed that the same gun that was used to kill him was used in a gang murder some two weeks later.

7

Examination of telephone records later revealed that, among multiple phone calls and text messages, Mr Dill had twice spoken to a Christopher Parris at 8.32 pm and 8.43 pm. Evidence was called at the trial that Mr Parris was a “gang leader” of the 42nd gang. The appellant's phone records indicated that he called Mr Parris's number at 8.32 pm but did not get through. The appellant's phone records also showed that he made a four minute voice call between 8.22 pm and 8.26 pm. The record further showed that the appellant made a 32 second call to his home telephone at 8.55 pm.

8

The appellant and Mr Dill were interviewed under caution and both exercised their right to remain silent. In a later interview Mr Dill provided an alibi that on the evening of the shooting he was at the Mid-Atlantic Boat Club sometime after 8.00 pm and stated that the appellant was also there. Mr Dill said that he and the appellant had left the Boat Club about 9.00 pm. The appellant and Mr Dill were released on bail. In May 2012 they were both rearrested and charged with murder.

The expert evidence on GSR
9

At least 36 samples for gunshot reside (“GSR”) analysis were collected from the appellant's hands and the items seized by the police. This analysis was carried out by RJ Lee Group of Pennsylvania and a GSR expert, Alison Murtha, produced a series of reports. At the trial the defence objected to the admission of Ms Murtha's evidence on the basis that it added nothing to the prosecution case and that it would be unfair to the appellant to admit it. The judge rejected the submission subject to the prosecution serving further explanatory evidence which it did.

10

Ms Murtha explained that the primer for most ammunition is made up of barium, antimony and lead. When a firearm is discharged these elements in the primer cap are expelled through the firearm and escape forming a plume around the firearm, the shooter and anyone sufficiently close by. As the temperature drops the elements come together and condense to form a particle containing barium, antimony and lead. Those particles are referred to as three-component particles.

11

Ms Murtha also explained that one-component and two-component particles, ie particles with only one or two of the three elements of barium, antimony and lead, can also be formed when a firearm is discharged, but these are not unique to firearms and have a number of other possible sources. Sources of two-component particles include fireworks, brake pad linings and airbag exhausts. Sources of one-component lead and antimony particles could include dust, water, road dust, blown soil, imported food cans and pewter. Barium particles can be found in the environment, fertilizer, dirt and close to waste sites. Sometimes, particles deriving from other sources can be eliminated from consideration. They will be eliminated if they do not have the characteristic rounded shape (morphology) which is produced as a result of the very high temperature inside a gun. They will also be eliminated if they also contain, or are closely associated with, elements other than the three mentioned which suggest an origin other than gunfire (described as tags). Ms Murtha said that if she discovered a particle that might have an indication it came from something other than firearm discharge she would not include that particle in her report. All the one-component and two-component particles that she had reported in this case had a spherical shape and no tags. These reported particles could have come from a firearm, but they could also have come from other sources.

12

Ms Murtha said that when three-component particles (fused lead-antimony—barium particles with the right morphology and no tags) are found she could say with certainty that the particles came from a gun. This is the case whether there is one such particle or 100 particles. When such GSR is identified on a person, one of three conclusions can be drawn: the person fired a gun, or was in close proximity to a discharged gun, or came into contact with an environment or an area that contained GSR. The absence of GSR did not mean that one of these three possibilities had not occurred. Ms Murtha also stated that depending on the person's occupation and day to day activities, the average person would not have GSR on them “nor one or two—component particles as well”. In the language of forensic scientists, three-component particles are referred to as “characteristic” of GSR, two-component particles are referred to as “consistent with” GSR and one-component particles are referred to as “commonly associated with” GSR.

13

Ms Murtha accepted that the number of samples she had received for analysis in this case was high compared with other cases. The analysis of 36 samples taken from the appellant, his clothing, possessions and motorcycle (several samples from each item) had revealed thousands of particles of various chemical compositions. No three-component particles were found. However, she reported the presence of a total of 316 one-component particles of lead, antimony or barium that had spherical morphology and without tags. She also reported the presence of three lead-antimony two-component particles and one barium-antimony two-component particle, all with spherical morphology and without tags. She explained that the laboratory process examines only the first 20 particles of any particular kind found on a single sample.

14

In respect of Mr Dill, Ms Murtha found four three-component particles and a number of two-component and one-component particles present on the right and left sleeves and the front of a track suit top. She also found one three-component particle in the pocket of a pair of jeans. Mr Dill was alleged to have worn these items on the evening of the shooting and when he was arrested. Twelve...

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2 cases
  • Jahmico Trott v The Queen
    • Bermuda
    • Court of Appeal (Bermuda)
    • 15 August 2022
    ...which ground, he submitted, had been greatly assisted by the recent decision of the Judicial Committee of the Privy Council in Devon Hewey v The Queen [2022] UKPC 12. The other grounds of appeal are that the Judge erred by not excluding evidence of the finding of the bullet-proof vest at 3......
  • Trott v R
    • Bermuda
    • Court of Appeal (Bermuda)
    • 15 August 2022
    ...murder — Retrial — Gun shot residue evidence — Wummation to the jury The following cases were referred to in the judgment: Hewey v R [2022] UKPC 12 Funderburk [1990] 2 All ER 582 Mr R Horseman for the Mr C Mahoney and Ms K King-Deane for the Respondent JUDGMENT of Kay JA 1. On 30 March 2021......

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