Myers v The Queen

Gang evidence may be admissible where it materially supports issues such as motive and identity. A shared motive need not be unique to the defendant, and motive need not prove guilt by itself. The starting point remains Makin v Attorney General for New South Wales [1894] AC 57: evidence of other bad behaviour requires justification beyond mere propensity and must be confined to that justification. The evidence must also satisfy the fairness control in section 93 of the Police and Criminal Evidence Act 2006. Police officers may give expert evidence about gang practices if they possess balanced specialised knowledge and comply with expert duties. Experts may rely on accumulated general knowledge, but particular facts and trigger events require ordinary proof. All three appeals were dismissed.

Three conjoined appeals against conviction arose from the Court of Appeal of Bermuda. The central issue in each case was the identity of the gunman. In Myers and Cox, the Crown relied on evidence of rival gangs, their feud, gang membership and shared weapons to establish motive and support identification. In Brangman, gang evidence was admitted after cross-examination suggested that another person had the stronger motive to attack the victim.

The Court of Appeal rejected the challenges to admissibility, by a majority in Myers and Cox. Before the Board, the issues included relevance, bad character and propensity, explanatory evidence, the proper scope of gang evidence, police expertise, hearsay, fairness under section 93 of the Police and Criminal Evidence Act 2006, and advance notice and presentation.

The Board unanimously dismissed all three appeals.

1. Evidence must be relevant, meaning that it must contribute directly or indirectly to resolving an issue. Relevant prosecution evidence may nevertheless be excluded where admission would make the proceedings unfair. Section 93 of the Police and Criminal Evidence Act 2006 requires a judgment on the balance between probative value and unfairness.
2. The starting point was Makin v Attorney General for New South Wales [1894] AC 57. In a jurisdiction without a statutory exception permitting propensity evidence, mere propensity to offend or behave badly is normally inadmissible. Any departure from that rule requires a separate justification, and the evidence must be limited to what that justification requires.
3. Evidence of motive may provide that justification where it supports identity, intent, or another issue. A shared motive can be relevant; it need not be unique to the defendant or capable by itself of proving guilt. Where a trigger event is part of the Crown’s case, it must be proved by admissible evidence. The hearsay evidence about the alleged trigger event in Cox should not have been admitted.
4. R v Pettman (unreported, 2 May 1985) was an example of explanatory evidence, but it required cautious application. Evidence is not admissible merely because it supplies interesting background or context. In these appeals the gang evidence was justified by its role in proving motive, not by the Pettman principle.
5. Police officers may give expert evidence about gang practices, associations and culture where they have sufficient study, training or experience to provide balanced specialised knowledge unavailable to the tribunal of fact. They remain subject to the ordinary duties of an independent expert.
6. An expert may rely on accumulated general knowledge assembled by others. The witness may not use expertise to assert a particular fact in issue on hearsay. Specific sightings, incidents and trigger events ordinarily require proof under the usual rules of evidence.
7. Police expert evidence must disclose the witness’s qualifications, the basis of conclusions, and the sources used, distinguishing personal observations from information supplied by others. Failure to provide adequate detail may affect both expertise and fairness under section 93.
8. In Myers and Cox, some evidence exceeded the proper ambit of gang evidence, including assertions about drug trafficking and unrelated criminality. Nevertheless, the remaining evidence and the absence of a substantial miscarriage of justice justified dismissal. In Brangman, the judge was entitled to admit the evidence after the defence had advanced the alternative-motive case.

1. Privy Council: In [2015] UKPC 40, the Board dismissed the appeals against conviction in Myers, Brangman and Cox.
2. Court of Appeal of Bermuda: The court rejected the challenges to the admission of gang evidence. The decision was by a majority in Myers and Cox; Auld JA disagreed on admissibility but considered that the statutory proviso prevented a substantial miscarriage of justice.