By NICO SCAVELLA
Tribune Staff Reporter
THE Court of Appeal has granted the Crown leave to appeal its decision to acquit Clinton Evans of murdering Detective Constable Jimmy Ambrose and trying to kill another officer almost 20 years ago.
Appellate President Sir Hartman Longley and fellow Justices Sir Michael Barnett and Milton Evans granted leave for the appeal to be heard before the Privy Council in London on the “usual conditions” concerning the unanimous acquittal last month of Evans of the March 29, 1999 crime,
The Crown claims the appellate court was wrong in finding that Evans’ trial was unfair because of the admission of Inspector Terrence Higgs’ report— which linked the gun Evans allegedly had to the shooting—without calling him to testify and/or be cross-examined by Evans’ attorney.
The Crown also contends that the appellate court was wrong in finding that other than the ballistic evidence, the only other evidence implicating Evans was the identification of eye-witness John Campbell, particularly as the majority on the tribunal affirmed the convictions and sentences for the firearms offences.
The Crown also takes issue with the appellate court’s decision to not order a retrial for Evans having regards to all of the circumstances of the case.
The Crown further contends that Evans’ matter involves “substantial points of law of general public importance on which it is necessary to have the advice of the Judicial Committee of Her Majesty’s Privy Council.”
In particular, the Crown argues that the issue of the trial judge’s discretion to admit Insp Higgs’ report was “clearly one of great public importance,” as it “affects the manner in which that discretion should be exercised generally, and the admissibility of such evidence generally.”
The Crown asserts that given the “regularity” with which analyst’s reports are relied upon, it is an issue of “far reaching effect”.
However, in seeking to persuade the appellate court to refuse the Crown’s application for leave to appeal to the Privy Council, Evans’ attorney Ramona Farquharson-Seymour contended that the Crown has not raised any point of law for the Privy Council to determine, and that no issue of law arises from the Court of Appeal’s decision.
She further contended that the Crown’s appeal would be “academic”, since it would “make no difference” to the outcome. She further asserted that there were “multiple failures” in the trial process that rendered her client’s trial unfair and his convictions unsafe, and not just the “unfair admission” of Insp Higgs’ report.
During proceedings yesterday, the appellate judges noted what they considered to be a salient issue, namely whether Evans’ trial was fair in light of the trial judge admitting Insp Higgs’ report into evidence, despite having already determined that it was in the “interest of justice” that he attend to give evidence and be cross-examined, and that the Crown did not take all reasonable steps to obtain Insp Higgs’ oral testimony.
Thus, Sir Michael questioned if he and his appellate colleagues were correct in criticising the trial judge for admitting Insp Higgs’ report into evidence if its admission was not dependent on the officer’s availability to give evidence.
Mrs Farquharson-Seymour noted her disdain that the court had formulated that question, as such a point was not referred to in the Crown’s notice of motion, nor its submissions in support of the action.
However, Justice Evans noted that if the appellate court is to send a matter up to the Privy Council, they themselves “need to be sure what we’re sending”.
In January, Evans was acquitted by majority decision of D/C Ambrose’s murder and the attempted murder of security officer Marcian Scott outside the now-closed Club Rock Disco on West Bay Street.
Sir Michael and Justice Evans quashed both his sentence and conviction and did not order a retrial because it would not be in the “interest of justice” to have him undergo a trial “for the fourth time some 20 years later.”
Sir Hartman dissented on the decision to acquit Evans, asserting that Sir Michael and Justice Evans “have engaged in acts of fantasy” to reach that conclusion.
Sir Michael Barnett and Justice Milton Evans said in the absence of a ballistics report that stated that the gun Evans allegedly had matched bullet casings found at the scene of the incident, they were not satisfied that the identification evidence “was such that a jury properly instructed” could convict him.
The appellate judges further stated that admitting the report by Inspector Terence Higgs—which was essential to the Crown’s case against him as it linked the gun Evans allegedly had to the shooting—into evidence without calling the officer to give evidence and be cross-examined, deprived Evans of a fair trial.
Further, the appellate judges noted that the only other evidence against Evans came from eye-witness John Campbell, who misidentified Evans as Stubbs during the identification parade on April 20, 1999, despite claiming to have known Stubbs for almost a decade up to that point.
Evans’ two former co-accused, Stephen “Die” Stubbs and Andrew “Yogi” Davis, had their life sentences quashed and a 45-year sentence imposed on them both by the appellate court, which was further reduced to 35 and 34 years respectively from yesterday’s date to reflect the 10 and 11 years they have already served.
According to the Court of Appeal ruling, Stubbs has already spent 10 years in prison while Davis has spent 11 years.
Stubbs’ mother, Nathalie Stubbs, as well as his girlfriend Jacqueline Miller, both indicated to The Tribune after the hearing that they planned to instruct their attorneys to appeal the decision to the London-based Privy Council.
Ian Cargill, Davis’ attorney, also confirmed that he plans to take the same course of action concerning his client.