A man jailed for murder almost a decade ago has had his conviction quashed after the island’s final appeal court ruled that a judge gave improper directions about gunshot residue evidence.

Devon Hewey was sentenced to life imprisonment in February 2013 after a jury found him guilty of the gun killing of Randy Robinson.

But the Privy Council found in a decision released yesterday that the conviction was unsafe because Puisne Judge Carlisle Greaves had misdirected the jury over gunshot evidence.

The Privy Council decision, written by Lord Anthony Hughes and Lord David Lloyd-Jones, said: “The board considers that the case against the appellant, although based on circumstantial evidence, was nevertheless a strong one.”

But the judges added: “However, the board is unable to conclude with confidence that no substantial miscarriage of justice has actually occurred as a result of the misdirections.”

The Privy Council quashed Mr Hewey’s conviction and sentence and ordered the case back to Court of Appeal in Bermuda to decide if a retrial should be held.

A Supreme Court jury heard that Mr Robinson was shot by two men on a dark motorcycle on March 31, 2011 as he walked from his home to his father’s house on Border Lane North, Devonshire.

Mr Hewey and another man, Jay Dill, were arrested the morning after the murder at Dill’s home.

Prosecutors alleged that Dill had been the gunman and that Mr Hewey had driven the motorcycle.

The jury heard that the defendants’ hands and several seized items were swabbed for gunshot residue – particles of lead, barium and antimony released when a firearm is discharged – as part of the investigation.

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 Privy Council said that the judge was correct to allow the evidence of the particles, but that the summary of evidence for the jury by Mr Justice Greaves, who retired in 2019, was “muddled”, “tendentious” and “unbalanced”.

The judgment said: “On this appeal the respondent has been hard pressed to identify where the judge fairly presented the points in the appellant’s favour, in particular the significance of the absence of any three-component particles on the appellant or items associated with him.

“Moreover, the summing up did not provide the careful directions on the possible significance of the scientific evidence, which were so clearly required.”

Expert witnesses said the particles could come from innocent sources, but the judgment said Mr Justice Greaves told the jury there was no credible evidence the particles had come from anything other than a firearm.

The judgment said: “The judge was there pointing out to the jury that the defendants had not provided an explanation for the particles found on them and on their possessions.

“In the absence of any three-component particles on the appellant or items associated with him, it would be speculative to suggest that the one-component and two-component particles found were or were not GSR particulate – it was for the prosecution to disprove innocent sources.

“In this way, the judge effectively reversed the burden of proof.”

The Privy Council also found that the judge had improperly highlighted the number of one-component and two-component particles as suggestive that they came from a gun.

The board added: “The judge also expressed himself in immoderate terms, observing, for example, that the defendants were ‘infested’ together.

“The point which we understand the judge to have been making is that the sheer number of one-component particles detected is capable of increasing the likelihood that they were the product of a discharge.

“It is certainly likely to have been understood by the jury in this way.”

But the UK judges said the suggestion was not supported by expert evidence, nor was a suggestion that the presence of one-component particles of lead, barium and antimony increased the likelihood they came from a firearm.

The board added: “This was a substantial error in explaining the effect of the scientific evidence and this is likely to have influenced the jury.”

Counsel for the Crown argued that the case against Mr Hewey was strong, even without the gunshot residue evidence, but the Privy Council insisted it could not be sure that there had not been a miscarriage of justice.

But the judgment added: “The gravity of the alleged offence and the strength of the prosecution case might appear to suggest that a retrial is appropriate, notwithstanding the passage of time since the events with which it would be concerned.

“However, in the board’s view the question whether a retrial should be ordered is pre-eminently one to be decided by the Court of Appeal, which has the benefit of first-hand knowledge of local procedures and conditions.”

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