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Privy Council told gunshot residue evidence should not have been allowed in murder trial

Devon Hewey (File photograph)

A man jailed for killing a star footballer has argued in the island’s highest court of appeal in London that he was convicted on evidence that should not have been allowed.

Devon Hewey was sentenced to life behind bars in 2013 with co-accused Jay Dill after they were found guilty by a unanimous verdict of the gun murder of Randy Robinson, who was 22, in May 2011.

But James Wood, QC, who appeared for Hewey at the Privy Council, argued that the gunshot residue evidence in the case was more prejudicial than proof of guilt.

Mr Wood said that the particle testimony was the only evidence submitted in court capable of securing a conviction against Hewey and that the conviction should be thrown out.

He added: “Nothing else could begin to identify this appellant in the role attributed to him as the driver of the motorcycle from which Dill was said to have shot the victim in this case.”

The court heard during the trial that investigators looking for gunshot residue seek out particles that contain lead, barium and antimony — all elements found in the primer used to fire bullets.

Particles with all three components are considered consistent with the discharge of a firearm, but particles containing one or two of the components could come from other sources.

The court heard that five particles with the three components were found on clothing linked to Dill, but only one-component and two-component particles were linked to Hewey.

Mr Wood told the hearing that, years after the conviction of Mr Hewey, the firm hired by the Crown to analyse GSR evidence in the case decided to cease to report single-component particles because they were “not very probative”.

He said: "One-component particles and two-component particles are present in large numbers in the community in Bermuda and indeed everywhere else.

“The tests have been done in Bermuda, but I cast no aspersions towards Bermuda — this is a worldwide position.”

Mr Wood said that although five three-component particles were found on clothes linked to Dill, that was not proof that Hewey was involved in the shooting.

But Tom Poole, QC, for the Crown, insisted that the three-component particles found on Dill were relevant to Hewey’s alibi and provided context for the one and two-component particles found on Hewey.

Mr Poole said: “Dill’s case at trial was advanced on the basis that at the time of Mr Robinson’s murder they were together at the Mid-Atlantic Boat Club and they remained together for the rest of the night.

“Dill gave a police statement to that effect and gave evidence at trial to that effect, albeit he didn’t call any alibi witnesses.

“The appellant chose not to give evidence and call any witnesses, but he did not challenge Dill’s account.”

Mr Poole added: “In the circumstances, evidence supporting the inference that Dill had discharged a firearm on the night in question was highly relevant circumstantial evidence in the case against the appellant.”

He said that while no inferences could be drawn from single-component particles alone, inferences could be made when they were found in a “population” with two and three-component particles.

Mr Poole added that the particles found on Hewey, Dill and a motorcycle allegedly used to commit the killing could be treated as a single “population”.

He highlighted that the jury had heard expert evidence that the one and two-component particles could have come from innocent sources.

Mr Robinson was shot by two men on a dark motorcycle on the night of March 31, 2011, as he walked from his home to his father’s house on Border Lane North, Devonshire.

The murder was believed to be gang-related, although Mr Robinson was not involved in gang activity.

Prosecutors in the Supreme Court argued that Dill was the gunman and Hewey had ridden the motorcycle.

No witnesses identified Dill or Hewey, but prosecutors highlighted the circumstantial evidence of the defendants' DNA and gunshot residue particles and component particles on clothes linked to the two men.

The two were sentenced to serve at least 40 years in jail — although the minimum term was later reduced to 25 years.

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