Bermudan Gangs and Expert Evidence challenged at the Privy Council by Saunders Law
Judicial Committee of the Privy Council - Judgment 6 October 2015
Saunders Law, Privy Council agents and counsel, Joel Bennathan QC of Doughty Street Chambers acted for Bermudan Quincy Brangman in his appeal to the Privy Council in which judgment was handed down today. The appeal of Mr Brangman against conviction for attempted murder, along with two other similar cases from Bermuda, were dismissed on the facts, but illuminated the potentially unfair nature of expert evidence about gangs given by the police officers at trial.
The Privy Council, as the Court of final appeal from the Caribbean, clarified and strengthened curbs on the use of experts in criminal trials.
The original trials revolved around three separate Bermudian shootings in which the alleged perpetrator deliberately sought out their victim for the purposes of shooting to kill. In two cases, Myers and Cox, the victim was shot dead and in the third, Brangman, the victim was hit but ultimately survived.
All were convicted in trials where important strands of evidence came from police witnesses who specialised and claimed expertise in gang culture. The lead officer was Sergeant Rollin who was attached to a small police unit charged with targeting gangs in Bermuda.
Sergeant Rollin's expertise was said to come from patrolling the streets where gangs congregated, frequently speaking to gang members and studying the internal structures of the gangs. The three officers in his unit patrolled the areas relevant to the shootings regularly and pooled their information, sightings and like material into a shared database.
Sergeant Rollin received specialising training in gang monitoring and studied with the FBI.
Based on this, in all three cases the Crown put Sergeant Rollin forward as an expert on gang culture in general and Bermudan gangs in particular. His evidence was admitted in all three trials against objections taken on behalf of the defendants.
The cases reached the Privy Council following appeals to the Bermuda Court of Appeal which were dismissed. The Appellants were given permission to appeal regarding the admission of the gang evidence in the original trials.
The central issues were the admissibility of the expert evidence, the extent to which it was admissible despite its potentially prejudicial effect and what ought to be the practice relating to the advance notice, form and presentation of the expert evidence.
The Privy Council used deficiencies in the way Sergeant Rollin's evidence was treated by the lower court to emphasise the importance of restrictions on the use of expert evidence.
For example, the judgment reiterates the rule in Makin v Attorney General for New South Wales  AC 57, that evidence showing a mere propensity to behave badly should not be admitted as it would be unfair to the Defendant.
Despite this rule, Sergeant Rollin had been allowed to give evidence about the suspected drug trafficking of the gangs the defendants were allegedly a part of, even though it had no relevance to the offence charged. The Privy Council deemed this evidence to be 'simply irrelevant' and stated that it 'offended the Makin rule'.
The judgment takes particular issue with the fact that Sergeant Rollin made a number of bare assertions, unsupported by any basis for making them, such as, "I consider X to be a member of the B gang". The Privy Council held "he did not sufficiently distinguish between assertions based on his own observations and contacts and those to which others had contributed".
In addition to this Sergeant Rollin's witness statements did not disclose some of the evidence he went on to give in court despite it being perfectly feasible to do so.
These issues led to the judgment stating plainly that an expert's duty involves at least the following:
- He or she must set out his qualifications to give expert evidence, by training and experience
- He or she must state not only his or her conclusions but how these have been arrived at. . .
- In relation to primary conclusions regarding the defendant, or other key persons, he or she must go beyond a mere general statement that he or she has sources. . .but must say whence the particular information advanced has come
The Privy Council was clearly concerned about Sergeant Rollin having stated a conclusion as an expert without identifying his sources and logic to the jury and emphasised that an expert must clearly state why they have reached a particular conclusion rather than expecting the blind faith of the jury.
It is to be hoped that in future expert evidence is restricted to those conclusions which the expert can demonstrated to be more than 'bare assertions' and so ensure that Defendants who face adverse expert evidence in the future will do so in a fairer environment. In these cases however the Privy Council allowed the convictions to stand because of the strength it perceived the other evidence.