The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

STEPHEN "Die" Stubbs and two other convicts' claims that an appellate judge ought to have recused himself from sitting on their appeal on the grounds of apparent bias are "well founded" and warrants the matter being reheard, the country's highest court has ruled.

The Privy Council said appellate Justice Jon Isaacs being a member of the tribunal to hear Stubbs', Clinton Evans' and Andrew Davis' appeal could lead a "fair-minded" and independent observer to conclude that there was a "real possibility" that he had "pre-judged" issues that would arise on appeal.

The Privy Council also said that as Justice Isaacs sat as a member of the appellate panel that rejected the three men's appeals, having made rulings on "intermediate issues of major significance" during the three men's second trial in the Supreme Court, the fair-minded observer could conclude that Stubbs, Evans and Davis did not have the appearance of a "fresh tribunal" of three judges to consider their appeals.

As such, the London-based appellate committee said the appeals of the three men should be allowed on the ground of apparent bias, the decision of the Court of Appeal "quashed" and the case be remitted to the appellate court to be reheard.

However, it noted nothing in its ruling on the present issue involves "any assessment, even of a preliminary nature, of whether any of the other grounds of appeal relied upon has substance."

The Privy Council's ruling is in reference to Stubbs', Evans' and Davis' appeals of their convictions and sentences for the murder of Constable Jimmy Ambrose at a nightclub on March 29, 1999.

On the date in question, Constable Ambrose, an officer in plain clothes, was shot and killed outside the now-closed Club Rock disco after a fight between two rival groups of men broke out. According to the brief facts of the case on the Privy Council's website, Evans is said to have pointed his weapon at two other police officers as they chased him from the scene.

The three men were first convicted in May 2002, but their convictions were overturned on appeal. The second trial before then-Supreme Court Justice Isaacs, who now sits as an appellate judge, was aborted on the first day of the summation of the case.

During that trial however, the Privy Council said Justice Isaacs made rulings on "issues of mixed questions of fact and law or involving the exercise of judicial discretion," which were in turn rulings on "intermediate issues of major significance" in the trial.

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 appellants 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 appellate Justices Abdulai Conteh and Neville Adderley, Stubbs' attorney Murrio Ducille requested that Justice Isaacs recuse himself on the basis 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 "wholeheartedly" agreed with the Court of Appeal that a judge should not recuse him or herself unless there is a "sound reason" for recusal. Otherwise, the Privy Council said "unmeritous applications for recusal" would become the norm and result in damage to the administration of justice.

The Privy Council also said it is "necessary" to "stand firm" against "illegitimate attempts to influence which judge shall sit in a particular case". And the London-based panel further said it is "conscious" that the "limited size" of the Court of Appeal in some jurisdictions, in this case the Bahamas, can make it difficult to avoid "accidental listings before judges who have had some prior involvement with parties or with earlier stages in the proceedings."

However, the Privy Council said it is of the "clear view that the complaint made by the appellants is well founded."

"In its view, the decisions of (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," the Privy Council's ruling said.

"Having heard arguments from all parties on the apparent bias ground, the board came to the unanimous view that the appeal should be allowed and the decision of the Court of Appeal set aside on that ground."