Stubbs v The Queen (Bahamas)

A first in-court identification is not automatically inadmissible. Where a witness claims prior acquaintance with the accused, the evidence may be recognition, even if the acquaintance or parade account is disputed. Where the witness did not know the accused and the earlier identification is inconsistent or contradicted, a first in-court identification may lack a safe basis and render a conviction unsafe. Statutory hearsay exceptions remain valid if the proceedings as a whole are fair; they do not create an absolute right to cross-examine every available analyst. Accusatory hearsay requires circumstances from which acceptance can reasonably be inferred. Repeated trials and inordinate delay may make a retrial oppressive. Sentencing must account for the original sentencing date and relevant constitutional breaches.

Three consolidated appeals arose from a third trial for murder and attempted murder in the Bahamas. Stubbs, Davis and Evans were convicted in 2013. The Court of Appeal dismissed Stubbs’s and Davis’s conviction appeals but reduced their murder sentences. It quashed Evans’s murder and attempted-murder convictions and, by a majority, declined to order a retrial.

The Privy Council had previously allowed the conviction appeals on the separate ground that a Court of Appeal judge should have recused himself: [2018] UKPC 30; [2019] AC 868. The present appeals concerned identification evidence, the admission of a deceased witness’s evidence, a ballistics report admitted through another examiner, alleged hearsay accusations, directions to the jury, retrial and sentence. The central issues were whether the convictions were safe and whether a further trial or the sentences imposed would be just.

Disposition. Lord Lloyd-Jones and Lord Hamblen delivered the joint judgment, with Lord Kerr, Lord Kitchin and Lord Burrows agreeing. Stubbs’s and Davis’s conviction appeals were dismissed. The Crown’s appeal concerning Evans was dismissed. Stubbs’s and Davis’s sentence appeals were allowed, their murder sentences were quashed, and resentencing was remitted to the Court of Appeal.

1. Identification. A true dock identification involves a first-time identification by a witness who did not previously know the accused. Where the witness claims prior acquaintance by name or nickname, an in-court identification may instead be recognition and a confirmation of the earlier account. The Board held that Campbell’s evidence against Stubbs was properly treated as claimed recognition. The inconsistencies concerning the parade and the mistaken naming of Evans remained matters for the jury’s assessment of credibility and weight.
2. Evans’s case was different. Campbell accepted that he had not previously known Evans. His claimed parade identification was inconsistent, contradicted by the parade officer, and affected by his deliberate misidentification at the preliminary inquiry. There was no safe basis for the later dock identification. The general identification directions did not cure that material irregularity, which rendered the convictions unsafe.
3. Prior evidence and expert report. The admission of Scott’s deposition and former trial transcript was a proper exercise of discretion under the Criminal Procedure Code and Evidence Act. Absence of cross-examination alone was insufficient. The court had to consider the quality of the evidence, inconsistencies, identification dangers and appropriate warnings. Section 120 of the Criminal Procedure Code was not unconstitutional. It required an overall fairness assessment, not an absolute right to cross-examine every available analyst. Thompson had equivalent expertise, the unexamined material was removed, and no useful questioning unique to Higgs was identified.
4. Other evidence and retrial. Accusatory statements made in Davis’s presence were admissible under section 39(2)(d) of the Evidence Act only if acceptance of their truth could reasonably be inferred. The trial judge failed to address that issue, but the error caused no miscarriage of justice in view of the strong independent evidence against Davis. The judge also erred by omitting material evidence concerning the absence of a firearm from Evans’s detention record. Evans’s convictions were nevertheless unsafe because of the identification irregularity. A fourth trial, after repeated trials, prolonged delay and no responsibility on Evans’s part, would be oppressive and contrary to the interests of justice.
5. Sentence. Stubbs’s and Davis’s sentences should run from 25 July 2013, when they were originally imposed, to avoid unfairness in remission calculations. The breach of the right to trial within a reasonable time and the earlier unlawful mandatory death sentences were important mitigating factors requiring appropriate weight on resentencing.

1. Privy Council: The present Board dismissed the conviction appeals of Stubbs and Davis and the Crown’s appeal concerning Evans. It allowed Stubbs’s and Davis’s sentence appeals and remitted resentencing.
2. Court of Appeal of the Commonwealth of the Bahamas: On 24 January 2019, the court dismissed Stubbs’s and Davis’s conviction appeals, reduced their murder sentences, quashed Evans’s murder and attempted-murder convictions and, by a majority, declined to order a retrial.
3. Privy Council: The earlier appeal was allowed on the recusal issue and the matter was remitted for rehearing: [2018] UKPC 30; [2019] AC 868.
4. Third trial: Jones J convicted all three defendants in 2013 and imposed life sentences for murder.