Was the trial that was the subject of the appeal in Hewey v R (Bermuda) [2022] UKPC 12 unfair?
The judge’s summing up to the jury had not been a “model” of fairness and clarity (at [47]).
If that lack of fairness and clarity made the trial unfair, why did the Board not say that there was no question of applying the proviso? [1] Instead, the Board was merely “unable to conclude with confidence” that there had been no substantial miscarriage of justice (at [52]).
The lack of fairness involved exaggerating the probative value of prosecution evidence concerning particles that were alleged to have been gunshot residue, and reversal of the burden of proof by pointing out that the defendants had not provided any explanation for the presence of the particles (at [39]).
The issue was the identity of the driver of a motorcycle when its pillion passenger shot the victim. The particle evidence was allegedly physical evidence linking the appellant to the scene of the firing of the gun. Eyewitness evidence was challenged as unreliable, and the role of the particle evidence was to support the eyewitness. It was, in that context, of central importance.
Arguably, the two errors should have made the trial unfair, rather than simply being incidents of erroneous comments in the summing up. But alternatively, was this trial one where the departure from good practice was not so gross, persistent or prejudicial that the Board had no choice but to quash the appellant’s conviction?
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[1] Randall v R (Cayman Islands) [2002] UKPC 19, [2002] 2 Cr App R 17 per Lord Bingham at [28], saying that the question is whether “the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.”
