JUNE 24, 2012 was the day of decision for 48-year-old Donald 'Zeeks' Phipps, as the United Kingdom Privy Council, in a nine-page judgment, dismissed his appeal against conviction on two counts of murder and the sentence of life imprisonment, with a minimum of 30 years in prison.
And in dismissing the appeal of the reputed Matthews Lane area leader, the Lordships declared:
"The Board sees no basis for challenging the decisions of the courts below. Indeed, the Court would commend the judge's thorough and balanced summing-up in a complex case, and the very full and convincing review by the Court of Appeal. It was for the jury to resolve the direct conflict of evidence as to the involvement of the appellant. There was ample material on which they could reach their conclusion."
'Zeeks', who reigned in and around Matthews Lane in downtown Kingston, was alleged by the prosecution to have murdered Rodney Farquharson, o/c 'Rodney' and Deighton Williams, o/c 'Scotch Brite', both of Bayshore Park in Harbour View, St Andrew, on April 15, 2005.
The bodies of the two men were found in a burning heap of tyres in an open lot near Matthews Lane in Western Kingston around 4 o'clock that fateful morning. Forensic evidence later revealed that the victims had died from multiple gunshot wounds before being burnt.
Shortly after the bodies were found, 'Zeeks' underwent 12 days of intense questioning from members of Operation Kingfish, spearheaded by Assistant Commissioner Glenmore Hinds. Eventually, he was arrested and charged, along with one Garfield Williams, for the two murders.
During a hearing in March 2006 before Justice Marsh and a jury, Williams was discharged after the prosecution had conceded that he had no case to answer. The trial continued thereafter against Phipps.
But this was a trial fraught with security concerns, as during an application for bail on his behalf, in November 2005, shots rang out near the precincts of the Supreme Court and an attorney — Alecia Thomas — sitting in her office at 22-24 Duke Street was hit in the face by shotgun pellets. She was later treated at the University Hospital of the West Indies.
The shots ricocheted from the police barrier at Tower and King streets a few yards away where the police reported they observed a large number of Phipps' supporters had gathered. The crowd was dispersed after members of the security forces fired shots in the air.
The result was that security was heightened in and around the Supreme Court building with the presence of additional soldiers and police personnel at every appearance of Phipps, up to the conclusion of the case.
'Zeeks' was defended by K Churchill Neita, QC and attorney-at-law Lloyd McFarlane. Appearing for the prosecution was then Senior Deputy Director of Public Prosecutions Paula Llewellyn, now QC and director of public prosecutions.
A third application for bail by defence attorney Neita was opposed by Llewellyn on grounds that the main witness in the case had received death threats twice. She told the court that the murders had been committed while the accused had been on bail on a possession of ammunition charge. Also, she added, the prosecution was relying on a conversation which was alleged to have taken place on April 15, 2005 between Phipps and a certain gentleman.
A British chartered forensic engineer was dealing with the analysis of the phone calls, the Court was told. Further, prosecuting counsel spoke to the voice identification by the witness, adding that the unnamed witness was someone who had known Phipps for about 10 years and had allegedly spoken to him on many occasions, both on the phone and in person.
Llewelyn alleged that when Farquharson's cellular phone was dialled, Phipps answered and told the witness that he should "listen to Rodney for the last time as it is the last time you will hear his voice".
The witness, she related, also knew Rodney and revealed that Rodney came on the phone and in a low voice said: "Boss, boss?" It was later that same morning that the bodies were found, she told the Court.
And finally, prosecuting counsel released the information that the scientific analysis of the cell site activities confirmed that Farquharson's cellphone was called by the main witness and friends at 3:00 am on April 15 and confirmed also that the phone was answered in the vicinity of Matthews Lane.
The allegation against Williams, she further added, was that a voice which sounded like his was heard in the background.
Application for bail was, therefore, denied in October 2005 by Senior Puisne Judge Marva McIntosh (now retired).
At the trial in March 2006, three witnesses gave evidence for the prosecution in relation to the alleged conversations taking place with the accused, Phipps, at or about the time of the murders.
The first of the three, identified only by his alias 'Kelroy', testified that he was a friend of Rodney, and he had known Phipps since 1991; he had often heard his voice but not previously on the phone. He said he had also heard a CD from 'Zeeks' titled 'Cool Tuesday parties' in which his voice could be heard.
The other witness, described as 'Joe', said he had worked for 'Zeeks' for two weeks in 2004 and heard him speak but not on the phone.
The main witness, who had received death threats twice, according to the prosecuting counsel, testified that he had known 'Zeeks' for over 10 years through their membership in the People's National Party (PNP). He said he had spoken to him, both in person and on the telephone.
The witness told the Court that the calls started around midnight with one from 'Kelroy' to Rodney on his cellphone and this led to a conversation with 'Zeeks'. 'Zeeks' called back on the same phone and 'Kelroy' put his phone on speaker so that others with him, including 'Joe', were able to hear.
Thereafter the witness recounted that they all gathered at his house where further calls were made to and from 'Zeeks' on Rodney's phone. It seemed, he continued, from the way the conversations were heading that 'Zeeks' was holding Rodney and he wanted 'Kelroy' to "come over" with another friend called 'Tim'. But 'Zeeks' did not say why.
According to the witness, it seemed that Rodney was in trouble, for on the last exchange, 'Zeeks' asked him: "You love Rodney?"
And before he could respond, the witness said that 'Zeeks' continued: "This is the last time you're going to hear his voice."
The following morning, the witness told the judge and jury, he called 'Zeeks' to find out what had happened to Rodney and his response was that he had not seen Rodney for two weeks. The witness described 'Zeeks' then as appearing "very calm and humble", in contrast with his "very aggressive" manner the previous night.
In an unsworn statement from the dock, Phipps told the Court that Rodney was a good friend but he did not know 'Scotch Brite'.
He claimed he had nothing to do with the murders and that the prosecution witnesses were telling lies on him.
He called one witness — David Foster — who testified that he had known the accused for about 10 years; he knew him as the community leader in the Matthews Lane area. On the day in question, there had been a dispute between Rodney and a man known as 'Scandal' about a quantity of ganja which was being stored by him (Foster).
He testified further that he then arranged for them to meet at Luke Lane around midnight. At that meeting, he said, Rodney was with 'Scotch Brite' and 'Scandal' was with two friends known as 'My Lord' and 'Lion Heart'.
Foster then described a struggle which he reported took place over a bag of ganja and the matter ended with 'Lion Heart' shooting 'Scotch Brite' in the head and 'Scandal' following suit by shooting Rodney.
He, himself, was also shot, and fell unconscious to the ground. He added that he had no recollection of any cellphones being used in the exchanges.
According to Foster, the next thing he knew was that he found himself in a cart with Rodney and 'Scotch Brite' being pushed by 'My Lord' and 'Scandal' along Beeston Street and onto Rose Lane where they were dumped in an open lot.
The Court heard from the witness that he managed, at that stage, to get away before collapsing unconscious at the intersection of Matthews Lane and Heywood Street. He regained consciousness, he said, at the Kingston Public Hospital and remained there for about two weeks, during which time he gave a statement to the police.
In that statement, Foster claimed he had been forced by 'My Lord', who had threatened him, to say he had been shot "out by Ward Theatre area". Finally, Foster, who claimed to have been not only an eyewitness but also a victim of the same shootings, told the Court that Phipps was not involved.
It is noteworthy to mention that independent technical evidence in the case revealed three important points:
* Evidence was supplied by the prosecution to show that there was usage of the relevant cellphones in the area between 2:00 and 3:00 on the morning when the murders took place.
* Foster's account of his own treatment was consistent with DNA evidence, linking him to bloodstains found by the police at Matthews Lane.
* The hospital records disclosed that Foster was admitted to the Kingston Public Hospital at 3:13 am with a history of a gunshot wound to the right mid-face and an exit wound on the left neck.
Following upon the summing-up by His Lordship on April 12, 2006, Phipps was found guilty by the jury of two counts of murder and sentenced to life imprisonment, with a minimum term of 30 years.
His appeal to the Court of Appeal was heard in January 2010. At that hearing, he was represented by Frank Phipps, QC and his daughter, attorney-at-law, Kathryn Phipps (no relation to the accused).
The director of public prosecutions was represented by prosecutors Jeremy Taylor and Vaughn Smith, while the deputy solicitor general, Lackston Robinson, appeared on behalf of the attorney general.
It was argued by the defence, among other things, that the constitutional rights of Phipps were breached during his trial in that the evidence led in relation to the phone conversations and the data were in violation of the Interception of Communication Act.
The Court of Appeal dismissed the appeal on July 30, 2010 and in September 2011, the appellant was granted final leave to appeal to Her Majesty in Council.
The Court of Appeal comprised justices Seymour Panton, president; Karl Harrison and Dennis Morrison.
Next week: The Warwar murder trial and the late Ian Ramsay
Sybil E Hibbert is a veteran journalist and retired court reporting specalist. She is also the wife of Retired ACP Isadore 'Dick' Hibbert who was rated among the top detectives of his time. Send comments to email@example.com