Denis Alma Robinson v The Queen (Bermuda)

Under the Criminal Code Act 1907, secondary liability for aiding requires a positive act intended to assist or encourage the principal. Mere presence, approval or concurrence is insufficient. Presence may qualify where it communicates readiness to provide active assistance. Conduct before a weapon is produced may evidence continuing assistance, and liability can continue after an unexpected change if the secondary party knowingly continues to assist. Assistance after the offence is not itself enough, but may support an inference of assistance during it. Whether the accused acted positively and with the necessary knowledge is ordinarily for the jury where the evidence reasonably permits that conclusion. Photographic comparison evidence may be left to the jury where its quality permits proper assessment and its limitations are explained. A constitutional sentencing issue should await a properly constituted appeal with full argument and materials.

Robinson and Burgess were convicted in Bermuda of murdering twin brothers. The Crown alleged that Robinson was a secondary party who aided Burgess by helping arrange the attack, guarding the room, removing witnesses and assisting afterwards. The Court of Appeal for Bermuda dismissed Robinson’s conviction appeal. It allowed his sentence appeal, holding that the statutory minimum-term proviso was unconstitutional and substituting a 12-year minimum term.

Robinson appealed to the Privy Council against conviction and sought only a remittal on sentence. The central issues were whether the directions adequately explained the positive assistance required for aiding, whether conduct before and after the use of a baseball bat was relevant, whether the case should have been withdrawn from the jury, and whether CCTV evidence was admissible. The Board was also invited, without a cross-appeal, to decide the constitutionality of sentencing provisions.

1. Disposition. The appeal against conviction was dismissed. The appeal against sentence was allowed to the extent that the sentence issue was remitted to the Bermuda Court of Appeal, with a direction that it be further remitted to the trial judge for submissions on the appropriate minimum term.
2. Statutory basis of aiding. In a code jurisdiction the starting point is the language of the code. Section 27(1) of the Criminal Code Act 1907 covers secondary offenders, and aid means assist. The provision materially mirrors the common law. The omission of the word abet was immaterial.
3. Positive assistance. Aiding requires a positive act intended to help or encourage the principal. Mere presence, approval, concurrence, enjoyment or a secret intention to help if necessary is insufficient. Presence may amount to aiding where it communicates that the defendant is ready and willing to provide active assistance. The Board noted that the formulation originating in R v Lowery and King [1974] AC 85 was dangerous unless carefully qualified. The Chief Justice’s directions removed the danger by expressly requiring something positive.
4. Timing and departure. Conduct before the production of the baseball bat could be considered. Acts such as removing Cann and guarding the door could evidence continuing assistance before and after the bat was produced. If the principal makes a fundamental departure from what the secondary party contemplated, liability does not extend to the departure if assistance ceases. It may extend if the secondary party knowingly continues to assist after the change.
5. Jury issues. The evidence permitted the jury to find that Robinson assisted the attack with knowledge of the requisite intent. Assistance after the event did not itself establish guilt, but could support an inference of assistance during the killings. The issues were therefore properly left to the jury, including the murder count relating to Jahmil.
6. CCTV evidence. The judge was entitled to admit the photographs and allow the jury to compare them with Robinson’s van because the quality permitted a proper comparison and the similarities and limitations had been fully explored. A clearer direction would have been preferable, but the direction given required the jury to ignore the evidence unless sure that the van was Robinson’s and caused no unfairness.
7. Constitutional question. The Board declined to express a view on the constitutionality of sections 288 and 286A. The issue was not raised by a cross-appeal, had not been fully argued, and concerned matters affecting other cases. It had to await a properly constituted appeal supported by detailed submissions and the relevant materials.

• Privy Council: Conviction appeal dismissed. Sentence appeal allowed to the extent of remitting the minimum-term issue to the Bermuda Court of Appeal, for further remittal to the trial judge.
• Court of Appeal for Bermuda: Conviction appeal dismissed. Sentence appeal allowed; the proviso to section 288 was held unconstitutional and a 12-year minimum term was substituted.
• Chief Justice of Bermuda: Robinson was convicted by a jury of the murders and sentenced to life imprisonment, with a statutory minimum term of 15 years before parole could be considered.