Rankine v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Kerr, JJ.A.)
• Judgment Date: 01 January 1996
• Court: Court of Appeal (Cayman Islands)
• Date: 01 January 1996

Court of Appeal

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

RANKINE

and

R.

J.H. Furniss for the appellant;

W. Helfrecht, Crown Counsel, for the Crown.

Cases cited:

(1) -R. v. Andrews, [1987] A.C. 281; [1987] 1 All E.R. 513, applied.

(2) -R. v. NyeUNK(1977), 66 Cr. App. R. 252; [1978] Crim. L.R. 95.

(3) -R. v. TurnbullUNK(1984), 80 Cr. App. R. 104; [1984] Crim. L.R. 620.

(4) -Ratten v. R., [1972] A.C. 378; [1971] 3 All E.R. 801, applied.

Evidence-res gestae-scope of rule-statement made by victim identifying assailant admissible as part of res gestae if spontaneous reaction and no possibility of fabrication or distortion

The appellant was charged in the Grand Court with attempted murder.

The victim, Newball, who was wanted by the police and had a criminal record, alleged that he had driven past the appellant, who was carrying a shotgun, had recognized him just as his car passed the appellant and that immediately after it had done so the appellant shot and wounded him twice. Newball was found by the police a few minutes after the shooting. They took him to hospital and while in the emergency room Newball told a police officer that the appellant had shot him.

During the trial, several defence witnesses gave evidence that Newball had told them that the appellant had not shot him. Newball claimed to have lied to one of those witnesses and denied having made such an admission to any of the other witnesses. The defence also led evidence, inter alia, that the lighting in the area of the alleged shooting had been poor. The court ruled that the police officer”s evidence of Newball”s identification of the appellant was admissible and the appellant was convicted. He was sentenced to 15 years” imprisonment and appealed against conviction.

He submitted that his conviction was unsafe and unsatisfactory because (a) the police officer”s evidence was hearsay and should not have been admitted; and (b) Newball”s identification of the appellant was unreliable because (i) the visibility in the area of the alleged shooting was poor; (ii) Newball would only have had an instant to recognize his assailant before he was shot; (iii) he had a criminal record and was wanted by the police at the time of the shooting; and (iv) he had subsequently made several statements to witnesses that the appellant was not his assailant.

The Crown in reply submitted that (a) the police officer”s evidence was admissible under the res gestae exception to the rule against hearsay, because Newball”s statement was uttered a few minutes after he had been shot and there was no possibility of fabrication; and (b) Newball”s identification of the appellant was reliable and the conviction should therefore stand.

Held, allowing the appeal and quashing the conviction:

(1) Since the trial judge had properly directed himself as to the approach to be taken and there was material entitling him to conclude that the evidence of the police officer was admissible, his decision was final.

A trial judge was entitled to admit, as part of the res gestae, hearsay statements made by the victim of an attack indicating the identity of the attacker, provided he was satisfied that the possibility of fabrication or distortion could be disregarded because (a) the attack was sufficiently startling or dramatic that the victim”s statement was an instinctive reaction to it, giving no opportunity for reasoned reflection; (b) the mind of the victim was still dominated by the attack; and (c) there were no special features which increased the possibility of fabrication or distortion, such as malice. Further, the possibility of error was a factor which went to the weight to be attached to the statement and not to admissibility (page 47, line 28 – page 49, line 2; page 49, lines 18–24).

(2) However, the conviction was unsafe and unsatisfactory because it was based almost entirely on Newball”s own evidence which was unreliable because (a) he only had an instant in which to recognize his assailant in an area of poor lighting; (b) his previous convictions made him a less than credible witness; and (c) he had subsequently made conflicting statements as to the identity of his assailant. The possibility of a mistake could not therefore be ruled out and the appeal would accordingly be allowed (page 50, lines 30–35; page 51, lines 31–41).

ZACCA, P., delivering the judgment of the court: On March 28th,
30	1995, the appellant, Ricky Rankine, was convicted by a jury of the
attempted murder of Simon Julio Newball, committed on the night of
June 8th, 1994. He was sentenced to 15 years” imprisonment. The verdict
of the jury was by a majority of five to two.
Direct evidence was given by Newball, who received injuries as a
35	result of gunshots to the back of his head and to his shoulder. The
evidence, as related by him, was that at about 11 p.m. on Wednesday,
June 8th, 1994, he was driving his brother”s car along Goring Avenue
when he saw the appellant standing by a new parking lot. He was able to
see him by the bright lights of his car and the street lights. He estimated
40	that he was about 50 ft. from the appellant when he first saw him. This
distance was, however, estimated to be about 50 yds. by Insp. McKay,
who paced it out.
Newball stated that he had known Rankine for about seven to eight
years and knew him by the name ‘Ish.’ As he got closer to the appellant,
45	he saw that Rankine had a shotgun which was aimed at him. He was then

about 4 ft. from the appellant. Newball ducked down in the car and was
shot in the head; he blacked out and received a second shot in his
shoulder. He lost control of the car which ran off the road into a fence. He
opened the door and started running. He jumped over several fences and
5	got to the main road. A white car came along and he was placed in the
car. On seeing that the driver was a police officer, he jumped out but he
was subsequently placed back in the car and taken to the emergency room
of the hospital. The driver of the car was Det. Const. Earl White. It
appears that Newball was wanted by the police. Newball also stated that
10	when the gun was fired he had passed the appellant. This is borne out by
the fact that he was shot in the back of his head.
There was evidence from Det. Const. White that at the emergency
room of the hospital he asked Newball who had shot him and Newball
replied that it was Ricky. He asked him a second time and he again
15	replied: ‘Ricky.’ Having been asked a third time, he replied: ‘Ricky
Rankine, Ish.’ The admissibility of this evidence has been challenged and
will be dealt with later.
In cross-examination, Newball stated that it was a terrifying experience
that all happened very quickly. He was shot when he was by Sheila”s
20	Restaurant and it was at that spot that he first saw the gun. He had seen
the person earlier but did not then recognize him. It was at that point,
Sheila”s Restaurant, that he saw the person”s face. The transcript states:
‘Suggestion: It was only immediately before you were shot that
you saw the person who shot you.
25	Answer: I saw the person earlier. I did not recognize him, but it
was only at that point that I saw the person”s face.
Suggestion: The only time you did recognize him was
immediately by Sheila”s Restaurant, immediately before you were
shot, only for that brief instant.
30	Answer: Yes Sir, I drove past him. I did not turn around. I had
mirrors in the car.’
Newball was a reluctant witness. He admitted having been hiding from
the police and having previous convictions. He also admitted having told
William Powell, a witness for the defence, that it was not Ricky Rankine
35	who had shot him and that he did not know who had. He claimed,
however, that that was a lie. He denied having told Curtis McCoy, Police
Officer Gail Elliott and Patty Whittaker that it was not Ricky Rankine
who shot him.
The evidence of Gail Elliott was received by way of her statement
40	being read to the judge and jury. She recorded a statement from Newball
in which he stated that it was Ricky Rankine who had shot him. Patty
Whittaker was called as a witness for the Crown. Under cross-
examination she stated that she saw Newball some time in January 1995
and he told her that Rankine did not shoot him. Tessa Nixon gave
45	evidence on behalf of the appellant. She stated that Newball told her that

he had given a statement to the police to the effect that Ricky Rankine did
not shoot him. Curtis McCoy, a defence witness, stated that on June 9th,
1994, Newball at the hospital told him that he was not shot by the
appellant. At a later time he saw Newball at Northward Prison and he told
5	him it was Rankine who shot him. Michael McLaughlin also gave
evidence on behalf of the appellant. He stated that he was the appellant”s
cousin and that on a Tuesday during the hearing of the case he saw
Newball outside the court and spoke to him. He said to Newball: ‘Why
don”t you go into court and set Ricky free “cause you know it wasn”t him
10	who did the shooting?’ He said that Newball replied that he wanted to set
him free but was being pressured by the police. Dwight Wright”s
evidence was that he saw Rankine by the Zodiac Club on the night that
Newball was shot, at about 9 p.m. He heard the appellant say that he had
three shots, and he was going to use one on Gary Hurlston, one on Julio
15	Newball and one on Joel Smith.
Evidence was led by the Crown to the effect that on Friday, June 3rd,
1994, the appellant was set upon near the Zodiac Club by Gary Hurlston
and Joel Smith. They had come there in a car driven by

...