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Murder retrial could set legal landmark for shooting cases

Devon Hewey (File photograph)

A legal landmark could be set by a fresh trial ordered for a man whose conviction was struck down this year after he was jailed nearly a decade ago for a gun murder.

The Court of Appeal found that a retrial for Devon Hewey, who was accused in the premeditated murder in 2011 of Randy Robinson, would have “substantial public interest” in potential challenges brought against gunshot residue evidence.

Sending Mr Hewey’s case back before a jury “would make an invaluable contribution to jurisprudence in Bermuda” in the cross-examination of GSR experts, according to the ruling by Justice of Appeal Charles-Etta Simmons.

Public outcry over gun offences was also highlighted in the argument for ordering a retrial.

Mrs Justice Simmons noted that Mr Hewey’s defence is expected to include evidence from “a GSR expert concerning a field test conducted in Bermuda” showing that “single component particles that make up GSR are liberally found throughout Bermuda”.

The Privy Council found in April that Mr Hewey’s conviction was undermined by Puisne Judge Carlisle Greaves’s directions to the jury on the GSR evidence presented in the original trial which “inflated the evidential value of the one-component and two-component particles”.

A GSR particle, launched when a gun is fired, is composed of three elements: lead, antimony and barium.

An expert witness said that no “three-component” particles – particles with all three elements – were found on Mr Hewey or his belongings, but several one-component or two-component particles were found.

The directions also failed to include “a clear and unequivocal statement” that no three-component GSR particles were found on Mr Hewey, his clothing, or on any of his belongings tested by police.

GSR and testimony from forensic scientists has featured in Bermuda’s courts for decades, including some high-profile convictions. But the source of GSR particles has often been challenged.

Randy Robinson, 22, was killed on March 31, 2011 on Border Lane North in Devonshire while he was walking to his father’s house.

Mr Hewey and his co-defendant, Jay Dill, both denied any involvement. They were given life sentences in 2013.

Both men appealed their conviction in 2016 but were turned down by the Court of Appeal.

Mr Hewey’s case then went before the Judicial Committee of the Privy Council, the final appeals court in Britain, which set aside his conviction and sentence and returned his case to Bermuda’s Court of Appeal to consider a retrial.

Cindy Clarke, the Director of Public Prosecutions, argued for a retrial, noting that the JCPC had not ruled the GSR particle evidence inadmissible.

But Simone Smith-Bean, Mr Hewey’s lawyer, countered that while the charge of premeditated murder was a serious one, that should not be the top reason for a retrial.

She also argued that Mr Hewey would face an ordeal if a retrial was ordered – telling the court that in the present backlog, it would take another two years to go back before a jury.

Mrs Justice Simmons noted: “In her view, it is oppressive to keep the appellant in this state of uncertainty and anxiety about his future for 13 years (through no fault of his own), and then to put him through the ordeal of another trial.”

But the appeal judge said the seriousness of the offence was “one that attracts considerable weight”. She added that the Court of Appeal had the power to direct the Supreme Court to give Mr Hewey’s case priority.

Mrs Justice Simmons said the court also needed to consider “the current state of public opinion in Bermuda”, noting the public’s “dismay at firearms offences in Bermuda and, in particular, murders committed by firearms”.

“Comments passed on sentencing firearms offenders appearing before the courts often express the extent to which family members of victims of firearms offences live in fear of retaliatory shootings.

“Outside of the court process, the concerns of the public about the impact of such offences tearing at the very fabric of the family structure and the community generally, express support for high sentences and the need to remove offenders from the community for life are expressed in newspaper articles, radio talk shows and discussions among interest groups.”

Mrs Justice Simmons noted there had been calls for a Royal Commission to look into the frequency of gun crimes and “the seeming lack of curtailment of such offences”.

She added that, given the “public interest factor”, “high importance should be given to the public’s desire for appellants to be retried where the quashing of their conviction arises out of technical blunders by the trial judge, as clearly was the case here”.

Mrs Justice Simmons said the JCPC had found it “impossible” to untangle issues raised over GSR in the case “without the benefit of hearing cross-examination of the experts on their written reports”.

She added that the Court of Appeal was equally in the dark over conflicts in the evidence.

Mrs Justice Simmons said Mr Hewey’s retrial could have ramifications on how shooting murders were dealt with in Bermuda.

She said having a cross-examination would “not only guide the trial judge who may be charged with a retrial, but also judges in cases of a similar nature involving the use of firearms and the incidences of GSR particulate evidence”.

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