By NICO SCAVELLA
Tribune Staff Reporter
A KEY witness against Stephen “Die” Stubbs, Clinton Evans and Andrew “Yogi” Davis identified Evans as Stubbs during an identification parade almost 20 years ago, despite his claims that he had known Stubbs for almost a decade up to that point, appellate judges heard yesterday.
Stubbs’ lead attorney Edward Fitzgerald, QC, told the tribunal of Sir Hartman Longley, Sir Michael Barnett and Milton Evans that while John Campbell picked out Evans on March 30, 1999, he then referred to Evans as someone he had known for eight years.
However, Mr Fitzgerald said Campbell’s evidence that he identified his client as one of those responsible for the March 29, 1999 death of Constable Jimmy Ambrose, was contradicted by the evidence of Inspector McKenzie, who later stated that Campbell had picked out only Davis on the parade.
And in any event, Mr Fitzgerald submitted that Stubbs, Evans and Davis being placed on the same ID parade was in contravention of the Royal Bahamas Police Force’s (RBPF) Standing Orders, as they were not of roughly similar appearance, amongst other things.
Additionally, Mr Fitzgerald said Campbell was later allowed to make a dock identification of his client, something he said the trial judge should have never allowed because it was “too dangerous” to rely on the circumstances, thus making it “wholly unfair” to his client.
The submissions by the English attorney came during day one of the trio’s respective appeals concerning their convictions and sentences for murdering Constable Ambrose and attempting to murder Constable 2265 Marcian Scott at the now-closed Club Rock disco.
Mr Fitzgerald also submitted that during trial, Constable Scott, the Crown’s other key witness, claimed he was a police officer during the time the killing occurred. However, Mr Fitzgerald said National Insurance Board (NIB) records showed that the officer was discharged on January 11, 1999.
Mr Fitzgerald further asserted that the NIB records show that Scott was paid up to February of that year, but by that March he was employed by a private security company. Mr Fitzgerald thus submitted that had such evidence been available at the time, it would have had a “significant” impact on the case. He further stated that such evidence now raises a “serious doubt” as to whether Constable Scott was an officer at the time.
The English QC also submitted that Constable Scott was permitted to make a dock identification during trial, despite there being no evidence that he participated in an ID parade, something he submitted was “fundamentally flawed”.
According to a summary of the facts, Constable Ambrose, an officer in plainclothes, was shot and killed outside the night club after a fight between two rival groups of men broke out around 1am on the date in question.
The fight had resulted in a young man running out of the club and approaching Constables Ambrose and Scott. A short time later, four men came to the club’s entrance and words were exchanged between them and the young man.
Constable Ambrose told the young man to go to the police station and tried to stop him from further engaging the men at the entrance. However, the four men started shooting in the direction of the young man and the two constables.
Constable Scott hid behind a car and eventually made his way to the door of the club. He claimed he looked back and saw both Stubbs and Davis shoot Constable Ambrose. Evans, meanwhile, was said to have pointed his weapon at two other police officers as he ran from the West Bay Street nightclub.
The three men were first convicted in May 2002, but their convictions were overturned on appeal. The second trial before then-Supreme Court Justice Jon Isaacs, since deceased, was aborted on the first day of the summation of the case.
In a second retrial in July 2013, the three men were convicted of murder and attempted murder, while Evans was further convicted of two counts of possession of a firearm with intent to put another in fear. A week before sentencing, Crown prosecutors gave notice of their intent to seek the death penalty.
However, then-Supreme Court Justice Roy Jones, who also now sits as an appellate judge, ruled that the case did not meet the “worst of the worst” requirements for the death penalty, and even if it had, the Crown had failed to follow sentencing guidelines by giving notice of their intention in the specified time. The men were ultimately sentenced to life imprisonment.
Following the verdicts in the second retrial, the three men appealed successfully against their convictions and, with the exception of Stubbs, their sentences.
Prior to the substantive hearing of the matter before Justice Isaacs and since departed Justices Abdulai Conteh and Neville Adderley, Stubbs’ attorney Murrio Ducille requested that Justice Isaacs recuse himself on the bases that the judge had presided over the second aborted trial.
However, the Court of Appeal refused Mr Ducille’s application for recusal. At the time, Justice Isaacs ruled that in his view, him participating in the appeal would not give rise to a reasonable apprehension of bias, citing the length of time that had passed since the second trial.
Justice Isaacs also noted that the court should not be too quick to grant recusal applications because of the unnecessary delays it would cause in the administration of justice.
The Privy Council, in a written ruling, said it is of the “clear view” that the complaint made by the appellants is well founded. The London-based tribunal further said that the decisions Justice Isaacs made during the second trial would lead a fair-minded and informed observer to conclude that “there was a real possibility that he had pre-judged issues which fell for consideration on the appeal to the Court of Appeal and that the appellants did not have the appearance of a fresh tribunal of three judges to consider their appeals.”
Ramona Farquharson-Seymour represents Evans, while Ian Cargill represents Davis.