Devon Hewey v The Queen (Bermuda)

Particle evidence showing only one-component or two-component particles, without three-component particles, does not establish that the particles originated from firearm discharge. It may nevertheless be relevant and probative when considered with the other evidence, and is not automatically inadmissible.

Jury directions must accurately explain the scientific limits, the significance of the absence of three-component particles, and the prosecution’s continuing burden of proof. They must not suggest that the accused must explain innocent sources, or that the number or variety of particles necessarily increases the likelihood of firearm discharge. Material misdirections may prevent application of the appellate proviso even where the circumstantial case is strong.

The appellant and a co-defendant were convicted of premeditated murder in Bermuda. The prosecution relied in part on expert evidence of one-component and two-component particles found on the appellant and items associated with him, although no three-component particles were found.

The trial judge admitted the evidence and directed the jury on its significance. The Court of Appeal of Bermuda dismissed the appeal against conviction on 13 May 2016. The Privy Council appeal concerned whether the particle evidence was admissible and whether the summing-up materially misstated its probative value, failed to present the defence case fairly, and reversed the burden of proof.

Disposition

The appeal was allowed. The conviction and sentence were set aside, and the matter was remitted to the Court of Appeal of Bermuda to consider whether a retrial should be ordered.

1. Admissibility. The Board declined to give definitive general guidance on gunshot-residue evidence. One-component and two-component particles, in the absence of three-component particles, did not demonstrate that their source was a firearm. They were nevertheless consistent with firearm discharge and could be relevant and probative when considered with the other evidence. The trial judge was therefore entitled to admit them. The reasoning in R v George (Dwaine) [2015] 1 Cr App R 15 supported that conclusion.
2. Burden of proof. The summing-up effectively required the appellant to explain why the particles were present. Given the prosecution expert’s evidence that, without three-component particles, it was speculative to say whether the particles came from firearm discharge, the burden remained on the prosecution to disprove innocent sources. The directions therefore effectively reversed the burden of proof.
3. Scientific evidence. The judge’s indication that the number of one-component particles could increase the likelihood of firearm discharge was unsupported by the evidence at trial and was likely to influence the jury. The judge also suggested, without evidential support, that the presence of separate barium, antimony and lead particles made a common firearm source more likely. The agreed guidance concerning one-component particles found with two-component or three-component particles did not establish that proposition.
4. Overall effect. The summing-up was muddled, tendentious and unbalanced. It failed to present adequately the significance of the absence of three-component particles and omitted a vital qualification to the prosecution expert’s evidence. The fresh evidence disclosed further unresolved scientific disputes, which the Board did not need to decide.
5. Proviso and retrial. Although the case against the appellant was strong and circumstantial, the Board could not conclude with confidence that no substantial miscarriage of justice had occurred. It therefore declined to apply the proviso in section 21(1) of the Court of Appeal Act 1964. Whether a retrial should be ordered was pre-eminently for the Court of Appeal, which had first-hand knowledge of local procedures and conditions.

• Privy Council: In [2022] UKPC 12, the appeal was allowed. The conviction and sentence were set aside and the matter was remitted to the Court of Appeal of Bermuda.
• Court of Appeal of Bermuda: On 13 May 2016, the court upheld admission of the particle evidence, refused the applications to adduce fresh evidence, and dismissed the appeal against conviction.
• Supreme Court of Bermuda: On 25 February 2013, Greaves J and a jury convicted the appellant of premeditated murder and related firearms offending and imposed life imprisonment with a minimum term.