Stephen Stubbs v R

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett, JA
Date24 January 2019
Docket NumberSCCrApp. No. 203 of 2013 SCCrApp. No. 106 of 2014 SCCrApp. No. 8 of 2014

IN THE COURT OF APPEAL

Before:

The Honourable Sir Hartman Longley, P

The Honourable Sir Michael Barnett, JA (Actg.)

The Honourable Mr. Justice Evans, JA (Actg.)

SCCrApp. No. 203 of 2013

SCCrApp. No. 280 of 2013

SCCrApp. No. 106 of 2014

SCCrApp. No. 8 of 2014

Between
Stephen Stubbs
Andrew Davis
Clinton Evans
Appellants
and
Regina
Respondents
APPEARANCES:

Mr. Edward Fitzgerald, QC with Mr. Murrio Ducille, Counsel for the Appellant Stubbs

Mr. Ian Cargill, Counsel for the Appellant Davis

Mrs. Ramona Farquharson-Seymour, Counsel for the Appellant Evans

Mr. Neil Brathwaite with Ms. Destiny McKinney, Counsel for the Respondent

Ajodha v State [1981] 2 All ER 193 applied

Angelo Poitier v R SCCrApp. No. 95 of 2011 mentioned

Attorney General v. Larry Raymond Jones et al SCCrApp. Nos. 12, 18 & 19 of 2007 applied Barkway v South Wales Transport [1948] 1 KB 55 distinguished

Benedetto v R [2003] UKPC 27 considered

Bennet (Andre) and John (Augustus) v R (2001) 60 WIR 123 applied

Director of Public Prosecutions v Martin Kelly [2006] 3 IR 115 considered

El Shaddai Ferguson v R SCCrApp. No. 313 of 2013 followed

Ellison Smith v R SCCrApp. No. 156 of 2010 considered France and another v R [2012] 82 WIR 382 considered Ladd v Marshall [1954] 3 All ER 745 considered Maxo Tido v R [2012] 1 WLR 115 considered

Mikko Black v R SCCrApp. No. 40 of 2014 followed Nicholls (Everard) v R (2000) 57 WIR 154 applied

Peter Meadows v R SCCrApp. No. 132 of 2009 considered

R v Beckford [2004] BHS J No 430 applied

R v Blake (2017) 91 WIR 463 considered

R v Davis [2008] 1 AC 1128 applied

R v Galbraith [1981] 2 All ER 1060 mentioned

R v Iqbal [2011] EWCA Crim 1348 considered

R v Morris [1998] Crim LR 416 considered

R v O'Laughlin and McLaughlin (1987) 85 Cr App R 157 distinguished

R v Popescu [2010] EWCA Crim 1230 considered

R v Welstead [1996] 1 Cr App R 59 considered

Reid v R (1978) 27 WIR 254 applied

Shivnarine v The State (2012) 80 WIR 357 mentioned

Director of Public Prosecutions v Donald White [1977] 3 WLR 447 considered

Ibbs v The Queen [2001] WASCA 129 considered

Ng Yuk-Kin v. the Crown (1955) 39 H.K.L.R. 49, 60 applied

R v Birks 19 NSWLR 677 considered

R v Foley [1998] QCA 225 considered

Reid v The Queen [1980] AC 343 applied

The Queen v Taufahema [2007] HCA 11 considered

Criminal appeal — Murder — Attempted murder — Possession of a firearm with intent to put another in fear — Leave to adduce additional evidence — Identification parade — Admissibility of identification evidence — Putting the defence's case to the jury — Purpose of cross examination — Sections 120 & 168 of the Criminal Procedure Code — Section 66 of the Evidence Act

On the 29 March 1999 following a fight at the Club Rock Jimmy Ambrose and Marcian Scott were shot at. Both men attempted to flee but Ambrose was set upon by a male, alleged to be the appellant Davis, who threw him on the ground, kicking him and shooting at him. Stubbs and Evans, allegedly, joined in on the shooting of Ambrose while he was on the ground. Scott, who had sought refuge behind a vehicle, saw what was happening to Ambrose. Officers Ryan and Duncombe were at a nearby club and saw a male come into the parking lot of that club holding what appeared to be a black firearm in his hand; he hid the firearm under a vehicle and left the parking lot. Both officers identified that man as the appellant Stubbs. The officers retrieved the firearm from the vehicle, no fingerprints were found on the gun but the gun matched the bullet casings found on the scene of the incident. Officers Robinson and Burrows were in the area of Club Rock when they heard gunshots and saw a man running into an alley. They gave chase and that man, they said, turned and pointed a gun at them, although he did not fire. They watched as he attempted to hide the gun in a pile of sand. This man was identified by the officers as the appellant Evans. The gun was retrieved and it matched the bullet casings collected from the scene.

Each appellant was questioned by the police and admitted their presence at the club that night. Stubbs and Davis each said that they were not involved in a shooting. Stubbs, Davis and Evans were placed on an identification parade. John Campbell gave oral testimony at the preliminary inquiry and at the trial indicating that he identified all three men. Inspector McKenzie conducted the identification parade and testified that Campbell only identified one person.

The appellants were charged with the murder of Ambrose and the attempted murder of Scott. Evans was also charged with two counts of possession of a firearm with intent to put another in fear. This is an appeal from the appellants' third trial.

Scott died in 2006 after the appellants' first trial. However, his deposition given at the preliminary inquiry and his oral evidence given at the first trial were admitted into evidence. Inspector Terence Higgs completed a ballistics report but was not called to give evidence at any of the trials. None of the appellants gave evidence at the trial but instead relied upon the contents of the interviews. Evans called three witnesses.

Following their third trial the appellants were convicted for murder of Ambrose and the attempted murder of Scott. Evans was also convicted of the firearm offences. The appellants were each sentenced to life imprisonment and 10 years imprisonment, respectively. Evans was sentenced to 3 years imprisonment for each of the firearm offences. They now appeal their convictions and sentences.

Held (Longley, P dissenting on order for retrial): appeals against conviction for the offences of murder and attempted murder with respect to Stubbs and Davis dismissed, appeal with respect to Evans allowed; no retrial ordered. Appeal against conviction for the firearm offences dismissed; sentence affirmed. Appeal against sentence following murder conviction allowed; life sentence quashed and a determinate sentence of 45 years imprisonment imposed on Stubbs and Davis. per Barnett, JA (Actg.): Stubbs and Davis allege that the transcript of Scotts' evidence was improperly admitted into evidence. There is no suggestion that the conditions set out in the section were not met and there is no dispute that the court has a discretion both at common law and under section 178 of the Evidence Act to refuse to admit the evidence if it is satisfied that it would be unfair and not in the interest of justice to admit the same into evidence. Secondly they argue that having regard to the inconsistencies in Scotts' evidence and their inability to cross examine him on those inconsistencies it was unfair to admit the evidence. Finally, they sought leave to adduce additional evidence that Scott was not a police officer at the time of the incident like he testified. They say this seriously questions the reliability of his evidence. There is no apparent reason why this information could not have been obtained before the first trial and the issue put to Scott when he testified. Nor is there any reason that the information could not have been obtained before the second or third trials and put to the jury for them to consider when assessing Scott's evidence.

Stubbs and Davis also attack the decision to admit the evidence of John Campbell and assert that insufficient directions were given to the jury with respect to his evidence. The fundamental conflict of the evidence between Campbell and McKenzie was in our view properly left to the jury. Of course proper directions must be given to the jury but in our judgment the judge's directions in this regard though not as robust as it could have been but they were adequate.

Stubbs and Davis also attack the decision of the trial judge to admit into evidence the forensic report of Terence Higgs without his oral testimony. The record does not reveal that a request was made for Higgs to testify during the first or second trials. At the third trial all three appellants asked for Higgs to give evidence. The reasons for this request were advanced by Counsel for the third appellant. The Court agrees with the trial judge that Counsel for Stubbs ought to have given some explanation as to why he thought that it was in the interest of justice that Higgs be called to give oral evidence. Regarding Stubbs' appeal his defence as contained in his statement to the police that the gun was not his. The ballistics report as to the connection between the gun and the bullets was ex facie immaterial to his defence. Regarding Evans' appeal, the only evidence against him is the identification evidence of Campbell and the forensic report linking the bullets to the gun which officers Ryan and Duncombe said he hid in the sand. The forensic report of Mr. Higgs was essential to the Crown's case against Evans. It was that evidence that linked the gun found by the police to the shooting. The purpose of cross examination is not simply to advance the case of an accused. It is also for the purpose of impeaching the credibility or accuracy of the witness against him and or the case of the prosecution. One of the purposes of cross examination is to test evidence. The burden is always on the Crown. Having found as a fact that it was in the interests of justice that Higgs be called to testify, and having found that the Crown had not taken all reasonable steps for him to testify the Court is of the view that as a result Evans was deprived of a fair trial. In the absence of the ballistic report, we are not satisfied that the identification evidence was such that a jury properly instructed could properly convict Evans.

per Longley, P: I disagree with the majority as it relates to the decision to not order a retrial in the matter involving Clinton Evans for the following reasons. Even if the Higgs report is discounted, the evidence that remains is still sufficient to found a conviction in this case because the gun and the...

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