Myers v The Queen

The Board has heard together three appeals against conviction, challenging decisions of the Court of Appeal of Bermuda. They raise similar, although not identical, questions concerning the admissibility and proper ambit of evidence as to the existence and practices of gangs and the defendant’s connections with them.

Each of the three cases concerned a deliberate shooting by someone who had clearly sought out the victim in order to shoot to kill. Two of the victims were shot dead; the third (in the case of Brangman) was hit but survived. The issue in each case was identity. In two of the trials (Myers and Cox) the Crown case was that the shooting was part of a long-standing feud between two rival gangs, and was triggered by an incident shortly beforehand in which there had been either insult to, or attack on, someone associated with one of the gangs. The shooting was in those two cases said to be a rapid and fatal retaliatory attack, not on the perpetrator of the earlier incident, but simply on some random member of the opposing gang. In these cases the gang evidence was part of the prosecution case from the outset. In the third trial (Brangman) the gang evidence was not originally part of the Crown case. It was admitted in consequence of cross examination of the victim, not to prove the existence of a feud between identifiable gangs, but to prove intra-gang loyalty between the defendant and an associate of his who had suffered an insult or attack. Thus in each of the cases the gang evidence was admitted primarily to demonstrate that the defendant had a motive to kill the victim.

In all three cases the principal gang evidence was given by a police officer, Sergeant Rollin. His evidence was admitted at each trial against objection taken on behalf of the defendants and, as will be seen, there was also objection to related evidence from other prosecution witnesses. Before the Court of Appeal several grounds of appeal against conviction were advanced, including that this evidence ought not to have been admitted. The Court of Appeal rejected that ground of appeal in each case, although by a majority in the cases of Myers and Cox. In those two appeals, Auld JA disagreed on that point, although he concurred in upholding the convictions on the grounds that the proviso to section 21(1) of the Court of Appeal Act 1964 (no substantial miscarriage of justice) applied. Before the Board, the only surviving ground of appeal which the defendants have permission to pursue relates to the admission of the gang evidence.

The appeals raise the following broad issues:

whether the gang evidence was inadmissible as irrelevant and/or as impermissible proof of no more than bad character, or was admissible to prove motive;

whether the gang evidence was admissible under the principle enunciated in R v Pettman (unreported 2 May 1985) (“explanatory evidence”);

if gang evidence is admissible, what is its proper extent and content;

if admissible, whether gang evidence can be given by a police officer who has made a special study of the gangs concerned, as well as of gang culture generally;

if gang evidence is admissible, to what extent (if any) may the witness rely on information gathered from, or researched by, others;

if such evidence is prima facie admissible, what ought to be the approach to the application to it of section 93 of the Police and Criminal Evidence Act 2006 (prosecution evidence which ought not to be admitted because its effect on the trial would be unfair); and

if such evidence is admissible, what ought to be the practice relating to the advance notice, form and presentation of it.

On the night of Friday 4/Saturday 5 December 2009 there was a party at the Devonshire Recreation Club. At about 03.30 there was an argument between Neika Daily and David Cox. Daily threw a beer bottle at Cox, who threw a drink over her. Daily was pushed out of the club. Kumi Harford was also at the club with several friends. Sometime after 04.30 his group left and returned in various combinations to St Monica’s Road, where one of the girls in the group lived. By just after 05.00, Harford had left her home and was driving his car away when he was shot dead at the wheel. Two firearms had been used. None of those facts was in dispute.

The Crown sought to prove, chiefly through Sergeant Rollin, that there was a violent feud between, on the one hand, the Parkside and Middletown gangs (associated with each other) and, on the other, the 42nd gang and its associate, the MOB gang. Myers was said to be a member of Middletown. Neika Daily was said to be closely associated with Middletown. Her home was one of its principal haunts. Her son (Juju Williams) was said to be a member, whilst her niece Rogernae, who lived partly with her, was a girlfriend of Myers. On the other side, David Cox and the deceased Harford were said to be members of the 42nd. The Crown’s case was that the shooting of Harford was a further episode in this violent feud, and an instant retaliation by Middletown against the 42nd for the insult done to Neika Daily about an hour and a half beforehand in the Devonshire Club.

Sergeant Rollin gave evidence that he was a member of a small police unit charged with targeting gangs in Bermuda. He regularly patrolled the streets where gangs congregated. He saw and frequently spoke to their members, most of whom he knew by name. He had studied their territories, and the markings which they put on walls within them, and their structures. He had undergone specialist training in gang monitoring and study from the FBI, both locally and in the USA and he was in communication with that institution’s head and field offices in Washington DC. There were three other officers in his unit, also patrolling regularly in the areas concerned. They pooled their information, sightings and like material upon a shared database. The Crown put him forward as an expert in gang culture in general and the Bermuda gangs in particular. The judge treated him as such.

The form of Sergeant Rollin’s evidence was fourfold. Firstly, he described the two relevant gang groupings, namely Middletown/Parkside on the one hand and 42nd/MOB on the other and explained their territories. Secondly, he gave evidence of the violent feud between them, referring to acts of violence and murder in general and to the murder by shooting of one of the 42nd named Kenwandee Robinson in particular. Thirdly, of a number of named people, including the defendant, he gave evidence that he considered them members of one or other of these gang groupings, stating inter alia the allegiances set out in para 6 above. He described the defendant as a high-level member of Middletown. And fourthly, he produced three photographs which showed assembled groups of Middletown/Parkside members, including the defendant, identified them by name in most cases, and described as the gang sign the “M” symbol which the defendant could be seen making with his hand in two of the photographs, and which another member was also making. When challenged on the basis that his information derived from others, he said that there was a unit database to which all members of his team contributed, but that only a very small part of what he had given in evidence was other than his first-hand information. His evidence was that he had known the defendant very well for some eight years, having seen him almost daily.

However, when identifying named persons as members of one or other gang, Mr Rollin’s witness statement simply said that he “considered” X to be a member of the relevant gang. He did not set out the basis for his belief, beyond saying that he was very familiar with the streets. He did not, in his witness statement, give information of particular, or even unparticularised, sightings of the individual concerned in significant places or in significant company, although in oral evidence he did say, in relation to the defendant, that he was habitually to be found with other members in or near the house of Neika Daily, which was the common meeting point of the Middletown gang, whilst the photographs were further evidence of this association.

Both in his witness statement and in his oral evidence, Sergeant Rollin added the information that the Middletown gang (and the other gangs also) were known to him to be involved in the sale of controlled drugs, in robberies and in acts of violence, including with firearms. Moreover, when describing the feud between the gangs, he asserted that the cause was unknown, but that it appeared to revolve around drug dealing. Of the defendant, he added his evidence that he had never known him to be in employment.

The evidence of a firearms expert Mr McGuire established that two weapons had been used to gun down Harford. One was of .40 calibre and the other 9 mm. His evidence, together with that of Detective Constable Burgess, whose job it was to record the findings of ballistics experts in shootings, demonstrated that the .40 gun had been implicated in six other attacks, some before and some after the present one, and the 9 mm gun in two, both after it. All but one of those offences had occurred in the St Monica’s Road area, the territory of the 42nd gang. In anticipation of the several victims of these shootings being named by DC Burgess, Sergeant Rollin had identified all but two of them seriatim as associated with 42nd/MOB. One of them was Kenwandee Robinson. DC Burgess gave it as her evidence that gangs appeared to keep guns for ready use by their members. The inference invited was that these guns were available to Parkside/Middletown. The witness confirmed in cross examination that that was her understanding; no suggestion was put to her that she was wrong.

Objection was taken to the admissibility of the gang and gun use evidence given by Sergeant Rollin, Mr McGuire and Detective Constable Burgess. The objection was principally on the basis that it amounted to impermissible evidence of bad behaviour by the defendant other than the offence charged. The Crown contended that it was admissible as “background evidence”, in particular as showing motive, and relied upon R v Pettman. The judge held that it was admissible as relevant to motive. Having thus ruled, the judge separately also declined to exclude the evidence that the Middletown gang generally, and the defendant in particular, were concerned in the supply of illegal drugs, along with the evidence that the defendant had no record of employment.

Gang evidence apart, Edwin Darrell gave evidence that shortly after hearing the gunshots he had encountered Myers, whom he knew well. Darrell said that the defendant had told him that he had just shot Harford, and that he had asked Darrell to help dispose of his clothing. Darrell said that he had refused, and that Myers had then asked the whereabouts of a mutual friend, Andrew (Sykie) Laws. Later that night, according to Darrell, he had seen Myers and some friends burning some clothes near to Neika Daily’s house until interrupted by the arrival of the police, at which they fled. Darrell further said that in the ensuing weeks Myers had threatened him with a gun and warned him to stay quiet about what he knew. Andrew Laws also gave evidence, to the effect that he had heard a friend of the defendant remonstrating with him for not having got Laws to dispose of the clothes. (Laws was the father of one of the Middletown members identified by Sergeant Rollin, Jahkiel Samuels.) There was evidence from the police officers who had come upon the fire that they had saved from it some jeans, two shoes and a sock which were shown to have on them DNA which matched that of the defendant and which were admitted at the trial to belong to him. The jeans and sock also bore traces of gunshot residue.

The evidence of Darrell and Laws was hotly contested at the trial. The suggestion was made that both had concocted their evidence in pursuit of a reward. Darrell’s bad character as a self-confessed drug addict who had served ten years for drug importation was adduced and the additional suggestion made that his evidence might be the product of drug-induced paranoia. Laws’ regular drug misuse was adduced. The defendant called a gunshot residue expert to suggest the possibility of contamination in police hands of the jeans and sock, and his mother to assert that around half an hour before the murder he was seen on a couch at her home watching television, although the timings and distances involved were such that the latter would not, if true, necessarily have prevented his being responsible. He did not give evidence himself.

On the night of 8 August 2010 at about 23.45 Julian Washington was shot in the Mid Atlantic Boat Club. The Crown case was that the Club was a regular haunt of the 42nd gang and that Washington was shot in the course of an indiscriminate attack on those present by one or more people who arrived and sprayed gunshot about. Washington was hit in the stomach, but was taken to hospital and survived. Within about three quarters of an hour, at around 00.25, Troy (“Yankee”) Rawlings was shot dead in the doorway of the Spinning Wheel Club in Court Street by two armed men, one of whom was said to be the defendant Cox. Cox was said by the Crown to be a member of 42nd whilst Rawlins was said to be an associate of the rival gang Parkside, via an earlier-formed but connected gang called Frontline. The killing of Rawlings was said to be an immediate reprisal for what had happened to Washington.

The only witness called by the Crown to prove the antecedent shooting of Washington was Detective Constable Edmonson. She had arrived at the Boat Club some two and a half hours after the event and although she was the co-ordinator of the police file relating to the incident she had no first-hand knowledge of anything at all. The Crown was induced by objection to her evidence to accept that she could not relate what people at the club had told her, as had plainly originally been intended. She was nevertheless invited by the Crown to tell the jury about the shooting of Washington, and moreover what theory the police had about it. She gave evidence that it was thought to have been a targeting of the 42nd’s known place of recreation. In that form, this was plainly not admissible, and should not have been permitted unless by agreement, which might well have been appropriate on the facts of this case but which it is clear never occurred. However, it made no difference, because the defendant’s interviews with the police certainly were admissible and he both told them that he had been there and made it sufficiently clear what had happened. Washington was a close friend of his. The defendant had borrowed his motorcycle to get to the club. Washington had only come to the club to retrieve it, but had stayed to have a drink. Cox himself had run when the shooting started, and had taken refuge in the Ladies’ lavatory. He asserted that he had not seen what had happened. He knew, however, that Washington had been taken to hospital. He might, he said, easily have been shot himself. He had left immediately, in a jeep driven by a friend. He asserted that he had spent the rest of the night in the home of a girl he had met, but whom he declined to name. He told the police that he came from the 42nd district and that “they” were targeting the 42nd all the time. Somebody had, he said, “just shot up the Boat Club”. He said that all the shooting that there had been on the Islands was “crazy” and that he had himself lost four friends, Minors, Kumi Harford (the victim in Myers’ case) Kenwandee Robinson and Perry Puckerin (both referred to in Myers’ case). Asked whether he would go to the area of Parkside (Court Street) he said carefully that he would not “just to hang out”. Asked if there was a war, he said that he was no he-man. In due course he gave evidence himself at his trial to broadly similar effect. He said that although he came from 42nd area he was not himself a member of the gang.

Sergeant Rollin gave evidence of his posting to the Gang Targeting Unit, and his training, more or less as he had in the case of Myers (see para 7 above). He did not in this case give evidence of the pooling of information between himself and other officers. His evidence about the persons involved was given as deriving from his personal observations and the interpretation of photographs which he produced. He was challenged in cross examination that anything he said about the shooting of Washington at the Mid Atlantic Boat Club was second-hand hearsay, but it was not suggested that his evidence about the individuals of whom he spoke suffered from the same defect, and it did not on its face do so.

Of Washington, Sergeant Rollin said that he had known him for about five years, and that he saw him almost daily in the St Monica’s area, in particular at the house known as the ‘Dublin residence’ which was a haunt of the 42nd gang. He produced a number of photographs in which Washington appeared, and in which he could be seen wearing a necklace with a pendant with the numbers “42” on it, and in which he was in the company of another man with a similarly numbered necklace. He gave evidence that such necklaces were common to members of the 42nd gang. In two other photographs which he produced he identified Washington “throwing up” (making a sign) of four and two fingers, which sign he identified as a mark of the gang. Next, he gave evidence that in patrolling the area he had seen members of the 42nd congregating at the Mid Atlantic Boat Club at all hours, but had never seen a member of the rival Parkside gang there.

Of Rawlings, Sergeant Rollin said that he had known him for some nine years, and saw him more or less daily in the area of Court Street, which was the haunt of the Parkside and Middletown associated gangs. (It was also where the Spinning Wheel Club lay.) He had seen him regularly in the company of other members of those gangs. Rawlings had been a member of the Frontline gang which had formed in the late 1990s or early 2000s and which was associated with Parkside; many of its members had now grown out of the association, but others had not. Rawlings was referred to on the street by others as an “OG” (original gangster) and was accorded respect in consequence.

As to Cox, Sergeant Rollins said that he had known him for some nine years having seen him habitually in the St Monica’s Road area, which was the home of the 42nd gang. He knew Cox to wear the necklace with a “42” pendant, and to have a tattoo on his arm reading “Coxy 42nd holla”. He produced a photograph of the tattoo.

Sergeant Rollin gave evidence of an ongoing feud between the 42nd gang on the one hand and Parkside/Middletown and their associates on the other. His evidence was that the culture of the gangs was such that an insult to a member of one would provoke retaliation against some member of the other side, not necessarily against the perpetrator of the insult. High-ranking members (“shot-callers”) would direct lower rankers to carry out such retaliatory attacks.

Ballistics examination by Mr McGuire of bullets and spent cartridge cases from the scene demonstrated that two firearms had been used in the murder. One was a .38 revolver and the other a 9mm auto-loading pistol. The police had recovered the former from the St Monica’s area. It had been used in three other shootings on the Islands. The unrecovered 9mm weapon had been used in five other such shootings. DC Burgess produced the records relating to the other shootings. They had all taken place in the Pembroke area frequented by the Parkside gang. There was in this case no evidence adduced by the Crown about any of the victims. Counsel for the Crown led DC Burgess to agree with the propositions that these findings appeared to show that “gang members share the same weapon” and do not have access to multiple weapons.

Sergeant Rollin’s evidence also included the propositions that the gangs he mentioned were active in the sale of controlled drugs, in firearms offences and in violence. He added that the origins of the feud which he described were unknown but that it appeared to revolve around the sale of drugs.

Objection was taken to the evidence of Sergeant Rollin, and to that of Burgess and McGuire so far as it related to previous use of the guns on the grounds that it constituted inadmissible evidence of bad character and/or mere propensity to offend, contrary to Makin v Attorney General for New South Wales [1894] AC 57. Secondly it was contended that Pettman did not render it admissible since the case could perfectly well be understood as an attack with guns without the evidence of the suggested gang background. The judge admitted the evidence, treating Sergeant Rollin as an expert in gangs.

Gang evidence apart, the Crown case against the defendant consisted of the following.

Michael Parsons, who had known the defendant for many years as a friend, gave eye-witness evidence that he recognised him as one of the two gunmen; he was standing near him when the attack occurred and in the well-lit doorway of the Spinning Wheel Club; the gunman in question was wearing a zipped up and hooded rain jacket but he said that he recognised him by his eyes; the defendant accepted that there was no bad blood between Parsons and himself.

CCTV showed that the gunman in question was wearing a peaked baseball-type cap (or similar) under his hood; outside the Club after the shooting the police found such a cap bearing DNA which matched the defendant and also gunshot residue; this was moreover in an area which the defendant did not ordinarily frequent.

An eye witness said, and the CCTV also showed, that the gunmen appeared to be wearing latex gloves; they escaped in a stolen car which was found at about 07.00 next morning close to a yard which the defendant admittedly frequented; in the yard were four latex gloves, on one of which was found DNA matching the defendant and gunshot residue, whilst two of the others also bore gunshot residue. In interview the defendant first denied any use of latex gloves and then asserted that he had used some in Pembroke whilst mending his motorcycle to keep oil off his hands; there was, however, no oil on the recovered gloves.

Close to the yard the police recovered one of the guns used (by the other gunman) in the murder.

At about 02.15 on the night of Friday/Saturday 13 February 2010 Nathan Darrell was sitting in a car near his flat, rolling a reefer and speaking on the telephone, when a man on a motorcycle came up to the car and peered in at him, before moving away. To see what was going on, Darrell moved the car closer to his flat. He saw the motorcycle and its rider standing beside it. He parked in the yard of his flat. The person he had seen came up to the car, now with the helmet visor up, paused as if to make sure that Darrell had seen him, and then shot him through the closed window. It later transpired that at least three shots were fired from a 9mm Glock semi-automatic pistol. Darrell escaped through the passenger door, but had been shot in the chest, neck and buttocks. He eventually reached help and was taken to hospital. They were able to save him. His evidence was that he had recognised the defendant, whom he had known well for years, as the gunman. The defendant was charged with attempted murder.

The Crown case thus depended essentially on the recognition evidence of Darrell. As support, it relied also on the following:

Two police officers said that at about 02.40 on the Saturday afternoon, about twelve hours after the shooting, they saw the defendant in Somerset Village, not far away. He was wanted, having by then been named by Darrell. When he saw the officers, he ran away, scaling a fence and evading their pursuit.

The defendant went voluntarily to the police station about three hours later that afternoon. According to PC De Silva, when being placed in a cell, he was asked whether he was still seeing Nakisha Robinson and replied that that had been over some time ago. However, later that evening the police searched the Cambridge Hotel (also near Somerset Village) and found that Miss Robinson had taken a room for the Friday and Saturday nights, in which they recovered a phone camera containing photographs of herself and the defendant enjoying themselves and sharing the bed.

In the same room the police found a face mask, a pair of gloves and a Nolan motorcycle helmet. One glove had on it DNA matching the defendant with a very low possibility of random match. There were gunshot residue particles on one glove and the face mask, of a composition not unique to the ammunition used in the shooting. Two gunshot residue experts differed in their assessments of the likelihood of particles of this particular composition deriving from the ammunition used. The helmet was of a reasonably common make, but the same as Darrell said the gunman had worn. There was no evidence whether or not the gunman had worn a face mask at any time, and at the time of shooting his face had been uncovered.

The defendant did not give evidence and had not answered any questions about the shooting when interviewed by the police. The case put on his behalf was that Darrell’s identification was wrong, either through error or malice. It was suggested on his behalf that the police officers had not chased him, but another person. It was put to PC De Silva that the conversation about Nakisha Robinson was invented. The other supporting evidence was said to be inconclusive.

The Crown did not initially propose to call evidence of gang associations or relationships. Darrell’s evidence was that the gunman had acted as if he wished to make sure that his victim saw who it was who was shooting him. He had made a witness statement setting out his connection with the defendant and suggesting that the motive for the shooting was revenge arising from personal animosity. His statement recounted a number of hostile encounters between the two men, when they had, in effect, faced each other down or treated each other with disrespect. Two of them had been in the week or so before the attempted murder. He had also related that there was rumour “on the street” that he had shot a gun at the house of a man called Wellman, who was a cousin of the defendant, and with whom he (Darrell) had had past dispute; this, he suggested, might have contributed to the animosity and be part of the motive for the shooting. In his evidence in chief, he told of the animosity, added that there was “war” between himself and the defendant and others, and made no bones about the fact that he had given as good as he had received. He said, however, that the war was not a matter of gang feuding. In asserting the animosity, he related the hostile encounters between the defendant and himself but did not refer to (and was not asked about) the rumoured shooting at Wellman’s house.

Counsel for the defendant introduced the Wellman connection in cross examination. He had already established from Darrell that he sometimes carried a gun (ostensibly to demonstrate that his original description of the weapon as a revolver rather than a semi-automatic pistol would have been informed by knowledge, with a view to undermining the reliability of his observations). He then elicited the street rumour and suggested in terms that immediately after he had been shot, Darrell had asked himself who might have done it, and answered himself that it must be to do with the rumour. He went on to suggest to Darrell that the latter knew that Wellman had been arrested shortly before the shooting, and that in consequence he believed that it could not have been Wellman who had shot him. The next stage of the suggestion put was that, excluding Wellman for this reason, Darrell had fastened on the defendant as the culprit. The last stage was to suggest that actually Wellman had been released on bail and so could have done it.

A second line of cross examination of Darrell was to suggest that he had no shortage of enemies. Counsel elicited the fact that Darrell had told a police officer that he believed that a local garage owner had paid someone else to kill him; Darrell added that the someone was, as he believed, the defendant. Moreover, a particular incident was put to Darrell when, after a football match, he had responded to perceived insult by standing in the middle of the pitch “pumping your chest to people like Yankee Troy Rawlings and Parkside, saying ‘Come bring your guns; come and get me’”. He accepted that this had indeed occurred.

The Crown called ballistics evidence from Mr McGuire. It adduced evidence of the type of gun used, that it appeared to have been a single gun, and as to what could be inferred about the proximity of the gunman from the fact that an ejected casing was found inside Darrell’s car. Counsel for the defence then adduced in cross examination that the same gun which fired the bullets at Darrell had been used in two other shooting incidents.

In consequence of these aspects of cross examination, the Crown applied to adduce additional evidence from Sergeant Rollin and from Mr Belton, a consultant to the local police in gang-related matters. Sergeant Rollin’s evidence was contained in a statement made during the trial. It was tendered to show a close gang association (MOB) between Wellman and Brangman. The object was to support the argument that even if Wellman would himself have been angered by any shooting at his house, the defendant’s gang loyalty would have led him to see it as a reason for reprisal also by him. The judge ruled that the import of the cross examination had plainly been to suggest a motive for Wellman rather than the defendant to shoot Darrell, and that it had in this way opened the door for the additional Rollin evidence. The judge also admitted, against objection, the evidence of Belton, to the effect that the other shootings involving the same gun, to which McGuire had referred in cross examination, were consistent with that gun being used on different occasions by associated members of a gang. Before the Board, the complaint on behalf of the defendant is confined to the admission of the Rollin evidence.

Sergeant Rollin gave evidence of his posting and experience to the same effect as he had in the cases of Myers and Cox. Of both Brangman and Wellman he said that he considered them members of the MOB gang. As to Brangman, he said that he had known him for about three years. He based his conclusion on Brangman’s association with known members of the gang and on locations at which he had been seen. As to Wellman, he said that he had known him for about six years mainly from his patrols of the western end of the Island. He frequented gang locations and associated with other members of the gang. He produced a photograph which showed both Brangman and Wellman at a party. Brangman was making a W sign with his fingers, which was a sign associated with the MOB gang, deriving from the western end of the Island, which he said was its territory. Wellman was making a gun sign with his hand. Sergeant Rollin said that Wellman was higher up in the gang than Brangman. He also gave evidence about the places which this gang frequented. Further he explained that gang loyalty was such that anything untoward done to one member was treated as done to the entire gang. More senior members were referred to as “shot callers” and junior ones as “soldiers”.

Sergeant Rollin said that his unit collected intelligence about gangs on the Island. He had, he said, a number of sources which were “entrenched within” the gangs, by which he must have meant informers. However, he refuted the suggestion put to him in cross examination that his conclusions were based simply on what other people had told him. He had seen a lot of what happened for himself, and he himself spoke to the gang members on a daily basis. He said that his evidence was based largely on his own conversations and observations, and his personal interaction with gang members and their families, although he acknowledged that some information came to him from others.

Describing the gang, Sergeant Rollin referred to it as “known to be involved in criminal acts, which will encompass acts of violence as well as weapons offences”, by which he said he meant bladed instruments and firearms. Shortly afterwards he appeared to relate this to inter-gang violence and the defence of territory. The judge stopped further questioning about weapons known or believed to be in the possession of the gang. Although Mr Rollin’s witness statement had referred to the gang being active in drug sales, this evidence was not adduced.

The starting point is that evidence is not admissible unless it is relevant. It is relevant if, but only if, it contributes something to the resolution of one or more of the issues in the case. It may do so either directly or indirectly.

The second important proposition is that not all relevant evidence is admissible. At common law, relevant Crown evidence falls to be excluded if, in the judgment of the trial judge, its admission will be unfair to the defendant, in the sense, as it is conventionally put, that its prejudicial effect exceeds its probative value: see Noor Mohammed v The King [1949] AC 182, 192. This rule is now given statutory effect in most common law jurisdictions and is to be found in Bermuda in section 93(1) of the Police and Criminal Evidence Act 2006:

Whilst the situations in which Noor Mohammed/section 93 may fall for decision are infinitely variable, the common law confronted one frequently recurring circumstance as long ago as Makin v Attorney General for New South Wales [1894] AC 57, namely evidence which shows that the defendant has been responsible for some criminal offence, or for some reprehensible behaviour, other than that charged. Such evidence cannot be said to be irrelevant. Evidence which shows that the defendant has a propensity to offend or behave badly may well be very relevant. But it is normally to be excluded on grounds of fairness, unless there is some reason to admit it beyond mere propensity. Lord Herschell’s famous formulation of the principle is, as Lord Hailsham of St Marylebone subsequently explained in R v Boardman [1975] AC 421 at 451, an application of the unfairness rule in due course to be adumbrated in Noor Mohammed. Lord Herschell said this, at p 65:

In jurisdictions, of which Bermuda is one, where there is no statutory modification of the common law to allow the admission of propensity alone in defined circumstances (such as sections 98-113 of the Criminal Justice Act 2003 do in England and Wales), the general rule in Makin stands. Mere propensity to behave badly is to be excluded as unfair. Admission requires justification beyond such mere propensity. An example of such justification is so-called similar fact evidence (which was in question in Boardman, and see now DPP v P [1991] 2 AC 447); in such a case the justification arises because the evidence is sufficiently compelling to have real value in controverting innocent coincidence. Another example is the kind of case where there has been a course of violent dispute between the defendant and the victim; there the evidence may be admissible (inter alia) to show either who was responsible for the last (charged) occasion, or the intention with which the defendant acted on that occasion, or to explain the reactions of the two parties. Likewise, in a case of alleged sexual abuse, the history and nature of a relationship said to have been abusive will often be relevant to proving a particular incident charged, even though it also shows prior misbehaviour by the defendant. It is impossible to catalogue every situation in which such justification may be present. But unless it is, evidence of misbehaviour unconnected with the offence charged is not admissible. As Lord Hailsham explained in Boardman at 453F, relying on mere propensity as evidence of guilt is an inadmissible chain of reasoning. If the inadmissible chain of reasoning is the only purpose for which the evidence is to be adduced, the evidence is inadmissible. If there is some other justification for the admission of the evidence, the jury usually needs to be warned not to pursue the inadmissible chain of reasoning.

Moreover, to respect the general rule, where such justification does exist the evidence which is admitted ought normally to be restricted to that which is within the justification. The justification is the measure of the admissibility. The existence of such justification does not generally create “open season” to adduce any evidence of the defendant’s bad character or misbehaviour.

Gang evidence, such as was tendered in the present three cases, will almost always involve implications of bad behaviour other than that charged on the part of those labelled gang members, and often the defendant. It is of high importance that in such cases the decision as to admissibility starts with Makin and the limitation just set out in para 41.

In a case of murder or attempted murder, as in most criminal cases, evidence of motive is relevant but not necessary. Often the Crown may be able to prove what happened, and who did it, without knowing why. But where there is evidence that the defendant had a motive to kill the victim, that goes to support the case that it was him, rather than someone else, and/or that he did it with murderous intent, rather than accidentally or without intent to do at least grievous bodily harm. It may equally be relevant to rebut asserted self-defence or provocation. Admissible evidence of motive may sometimes necessarily involve showing bad behaviour by the defendant on occasions other than that charged. If that is the case, this is an example of the second sentence of Lord Herschell’s principle in Makin; that the evidence relevantly proves motive may be a justification for its admission notwithstanding that it also shows bad behaviour.

In the cases of Myers and of Cox, the murderous intention of the gunmen could not be, and was not, in dispute, so the evidence of motive did not go to that issue. But the evidence that there existed a feud between gangs was relevant to identity, which was the core issue in dispute. It went to show that those two defendants had a motive to kill the victims. It showed that they were members of a group which was likely to have felt aggrieved and, moreover, to have reacted by targeting the deceased on grounds of his membership of the opposing association. In each case, the evidence contributed to the proposition that it was the defendant who had done it, by supporting the other evidence that it was he who was responsible.

As will become clear, the Board shares some of the concerns voiced by Auld JA in the appeals of Myers and Cox as to the dangers of gang evidence. But it does not agree with his proposition, on which those two appellants rely, that in order to be admissible motive must be harboured uniquely by the defendant. Evidence of a shared motive can be just as relevant. In the case, for example, of a feud between neighbouring families, the motive may well be shared by several members of a family, of whom the defendant is one, but it is still relevant to show that he had a reason to do what is alleged. It does not become irrelevant simply because others had the same motive.

The fallacy in this submission made on behalf of Myers and Cox is the implication that the motive evidence must prove the case against the defendant all by itself before it can be admitted. Even if motive may occasionally do this, much more often it is but one strand in a case, together with either circumstantial or eye-witness evidence. In these two cases there was both, and the shared motive supported the other evidence. It thus makes it more probable that the defendant was responsible. So to say is not, with great respect to Auld JA’s judgment in Myers’ case, in any way to water down the rule that the guilt of a defendant in a criminal trial must be proved to the criminal standard and not simply as a matter of probability. The rule that the jury must be satisfied so that it is sure on all the evidence does not mean that no single piece of evidence is admissible unless it is capable by itself of discharging that burden. Nor does R v Tirnaveanu [2007] EWCA Crim 1239, [2007] 1 WLR 3049, to which Auld JA referred, say anything different. It was certainly a case in which the issue was whether it had been the defendant or some other person who had committed the offences (of smuggling illegal immigrants) and the disputed evidence, of a similar fact/specific propensity kind, went to this issue, and fell to be considered under the new bad character rules in the English Criminal Justice Act 2003. But the observation by Thomas LJ, as he then was, that the evidence went to whether the culprit was the defendant or someone else, cannot be read as carrying the implication that in all cases it is irrelevant to show that the defendant is one of a relatively small group of people with either the motive or the opportunity to commit it.

Put another way, the evidence in these two cases rebutted the argument “Why on earth should this defendant, who has no proven connection with, or dispute with, the deceased, have taken it into his head to shoot him?”.

For the same reasons, the ballistic evidence of the connection between the gun(s) used in these offences and in other shootings which could be inferred to have been committed in pursuit of gang feuds was admissible evidence in support of the motive attributed by the Crown to the defendants. Further it contributed to the conclusion that the weapons were accessible to gangs of which the defendants were members, and thus to them.