Two-time loyalist killer appeals second conviction
A loyalist killer's conviction was wrongly used at his trial for the separate murder of a Catholic chip shop owner nearly 40 years ago, the Court of Appeal has heard.
Counsel for Robert Clarke argued that mistakes were made in allowing bad character evidence which contributed to him being found guilty of murdering Alfredo Fusco.
It was claimed that a medical report identifying difficulties in Clarke being capable of firing a pistol due to the loss of two fingers in an industrial accident was not properly considered.
Frank O'Donoghue QC told the three judges hearing the appeal: “If I had managed to keep out the bad character evidence in this case I don't think there is anybody in this courtroom who would disagree with the proposition that the dynamic of this trial would have been very different indeed.”
Clarke (59), formerly of Dundrod Road, Nutts Corner, is challenging his conviction for murdering Mr Fusco in Belfast in February 1973.
He was sentenced to a minimum 25 years in jail for the sectarian killing, but is likely to serve just two years under the terms of the Good Friday Agreement.
Two gunmen went to the 53-year-old victim's fish and chip shop on the night he was shot.
He was chased into the storage area by one attacker armed with a machine-gun. But when the weapon jammed the killer swapped weapons with his accomplice, using a Webley revolver to shoot Mr Fusco.
The case was reopened by the Historical Enquiries Team after new fingerprint technology allowed them to identify Clarke's prints on Mr Fusco's cafe door.
Clarke declined to give evidence at his trial, which also allowed details of his subsequent murder conviction for the sectarian drive-by shooting of 58-year-old north Belfast woman Margaret O'Neill two years later in June 1975.
Mr O'Donoghue contended that such bad character evidence should not have been admitted if it didn’t show he was more likely to have been Mr Fusco's murderer.
The barrister also claimed there was not enough focus on whether his client's disabled right hand meant he was able to pull the trigger on the Webley.
Gordon Kerr QC, for the prosecution, argued: “Common case among the doctors is that it's perfectly possible for this man to have fired either double handed or with his left hand.”
The judges hearing the appeal reserved their decision.