Powell v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Kerr and Henry, JJ. A.)
• Judgment Date: 01 December 1988
• Court: Court of Appeal (Cayman Islands)
• Date: 01 December 1988

Court of Appeal

(Zacca, P., Kerr and Henry, JJ. A.)

POWELL

and

R.

P. Lamontagne, Q.C. for the appellant;

A.S. Smellie, Principal Crown Counsel, for the Crown.

Cases cited:

(1) R. v. Andrews, [1987] A.C. 281; [1987] 1 All E.R. 513; (1987), 84 Cr. App. R. 382, dicta of Lord Ackner applied.

(2) R. v. BradleyUNK(1980), 70 Cr. App. R. 200, considered.

(3) Ratten v. R., [1972] A.C. 378; [1971] 3 All E.R. 801; (1972), 56 Cr. App. R. 18, distinguished.

Evidence-res gestae-scope of rule-statement admissible if sufficiently spontaneous and continuous with principal event to rule out possibility of concoction or distortion-report to police of finding victim”s body 20 minutes later not part of res gestae

The appellant was charged in the Grand Court with murder contrary to s.168 of the Penal Code.

The appellant was charged with two counts of murder. The evidence in relation to the first was circumstantial and based primarily on the testimony of one witness who had shared a house with the deceased and testified that he had left the deceased in the company of the appellant. When he returned 5 minutes later, he found the appellant gone and the deceased lying in a pool of blood with a wound in his throat. Some 20–25 minutes after this, he was able to stop a police officer to whom he reported that he had ‘just found the body’ of the deceased. He, however, made no mention of the appellant. The Grand Court (Hull, Ag. C.J.) excluded the police officer”s evidence of this statement as inadmissible on the basis that it was not part of the res gestae. The appellant was convicted.

On appeal, he submitted that (a) the trial judge had erred in ruling the statement inadmissible since (i) it was admissible as part of the res gestae; (ii) even if it was technically not part of the res gestae, no objection had been taken to it by the prosecution and it had not therefore been open to the trial judge to exclude it; and (b) the statement was highly relevant and crucial to his defence, and its exclusion would be detrimental to him.

The case is reported solely on the question of the admissibility of the excluded statement.

Held, dismissing the appeal:

(1) The significance of the res gestae rule in determining the admissibility of a hearsay statement was that the statement must be so interwoven or connected with the principal event as to be regarded as part of it, either because it had an immediate causal relationship to it or was a spontaneous reaction to it which excluded the possibility of concoction or distortion. In the present case, the witness”s statement, as reported by the police officer, of having ‘just found the body’ had been too far removed by time and circumstance from either the shooting (which the witness did not see) or his finding of the deceased, to give it a sufficiently immediate and direct connection with the killing of the deceased. It had

been, in the circumstances, a mere narration respecting a concluded event as part of a report to the police officer and not a continuous part of that event. Accordingly, there was no justification for determining by application of the res gestae rule that the statement was admissible nor could it be made so by the fact that it had been tendered by the defence and the prosecution had not objected to it. The court had therefore acted properly in excluding it (page 247, line 32 – page 249, line 11).

(2) Moreover, the statement had been a reported one when the maker of it was available as a witness. The court would not allow the defence in a criminal case to use the res gestae principle as a device for getting in secondary evidence when the witness who allegedly made the statement was not only available and had given evidence but had not been questioned as to whether or not he had made the statement or about the circumstances under which he might have made it. In these circumstances, the exclusion of the statement could not be considered prejudicial to the appellant and the appeal would be dismissed (page 249, line 38 – page 250, line 5).

KERR, J.A., delivering the judgment of the court: On July
25	31st, 1987, in the Grand Court at George Town before Hull, Ag.
C.J., the appellant was convicted of the murders of Charles
Edward Ebanks and Gaynell Marion Ebanks, committed on the
night of June 23rd, 1986, and sentenced to death. The first to
occur was that of Charles Ebanks at his home at Sheddon Road,
30	George Town; the second was at Cloret Anglin”s yard, Birch Tree
Hill, West Bay. In the absence of evidence no close kinship
between Charles and Gaynell can be assumed as the surname
‘Ebanks’ is very popular in Grand Cayman. After two days of
arguments we dismissed the appeal against the convictions.
35	Herein are our reasons for so doing.
Harley Welcome, a landscape gardener, was living at the house
of Charles up to the time of his death. His evidence was that on
the night of June 23rd, he was among certain acquaintances by
the laundromat at Mary Street, George Town when at Charles”
40	suggestion he and the deceased set out for home. On arriving
there he saw and recognized the appellant, whom he had known

for a ‘couple of years,’ sitting on the porch of Charles” house. At
Charles” request he gave him his only cigarette and Charles in
turn gave him a dollar and asked him to purchase a pack of cigar-
ettes. He set off on his errand leaving the appellant still on the
5	porch with the deceased standing nearby.
On his return some five minutes later the appellant was gone.
He then went upstairs in their house and in an apartment there he
saw the body of Charles lying on the floor. When there was no
answer to his call he took a closer look and saw ‘a hole in his
10	throat and a heap of blood’ around the deceased. He was frigh-
tened by the sight and ran to where he had left his companions at
Mary Street. Not getting a satisfactory reaction to his alarming
news he ran further up the road where he saw and spoke to one
Kendal Myles. Myles returned with him to the room where the
15	deceased lay. They then set out with intent to inform the police.
On the way to the station they met a patrol car and made a report
to the patrol officer, Michael Gooding. In cross-examination he
said that when he entered the yard, Rita Dilbcrt was sitting at her
doorway at the other end of the yard and her radio was playing
20	but not loudly. On his return from purchasing the cigarettes Rita
was as when he left. Rita”s hearing was not too good. He admit-
ted that in his first statement to the police he omitted to mention
the appellant”s name because he was frightened and confused.
Myles”s evidence supported Welcome”s as to his informing him,
25	visiting the scene and informing the police.
Michael Gooding, the patrol officer, said that acting on the
reports of Welcome and Myles, made at about 12.05 a.m. accord-
ing to his watch, he visited the home of Charles Ebanks and there
saw the dead body. He communicated by radio to the Central
30	Police Station and, shortly after, Sgt. Innes and Const. Elliott
arrived and took charge of the investigations.
At 12.10 a.m., as a result of a radio communication, he drove
to Walker”s Road, picked up Sgt. Beatrice Ebanks and drove to
Cloret Anglin”s yard where he saw the dead body of Gaynell
35	Ebanks lying on the ground beside a mattress. The ambulance
crew was already there.
Direct evidence of this murder was given by Austin Kempton
Ebanks. He had gone to Cloret Anglin”s yard some time after 11
p.m. that night. Gaynell (the deceased) was lying in a hammock.
40	He was there in conversation with her for about 20 minutes when
the appellant drove up. The witness was sitting on a box and the

appellant stopped the car beside him and said: ‘This is what you
are doing.’ The appellant came out of the car with a gun in his
hand and fired three shots at Gaynell. The witness ran, chased by
Powell who fired a shot at him. The shot missed and he ran into a
5	bush. From there he saw the appellant jump into his car and drive
away towards Barkers. He had known the appellant for about
four years. He recognized him by the floodlight that lit Anglin”s
yard. The appellant was dressed in a beige shirt and jeans. The
car he drove was a white Charade. In cross-examination he des-
10	cribed the gun the appellant had as a black gun, apparently a .38.
His opinion on this was based on his seeing policemen with guns
of similar calibre. He estimated the time at around midnight. He
was cross-examined as to previous convictions. He admitted only
two-one in 1968 when he was 16 years of age and another in
15	1982 for ganja, for which he had served a term of six months”
imprisonment.
Cloret Anglin in evidence said that in her yard and near her
bedroom there is a hammock beneath naseberry and guinep
trees, and, on the ground nearby, a mattress. Gaynell was a guest
20	in her house. On the night of June 23rd she retired to bed about
11 p.m. She was awakened by cracking sounds and she heard
Gaynell”s voice saying: ‘No, William.’ She went outside and
found Gaynell lying on her side on the ground making gurgling
sounds. Before she came out she had heard the sound of a car
25	‘screaming away.’ George Hennington Webster was with her
that night. She had known the appellant for several years before
that night. She knew him as ‘William’ and ‘Puggy’ and had seen
him and Gaynell together.
She last saw him on the evening of June 22nd when he came to her
30	home and said he wanted to speak with Gaynell. She told him he
could do so but he was not to make any trouble. She so spoke
because on the Friday before he had come to the yard,

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