Rankin (Brian) and Carl McHargh v R

• Jurisdiction: Jamaica
• Judge: PANTON, J.A.
• Judgment Date: 28 July 2006
• Neutral Citation: JM 2006 CA 31
• Judgment citation (vLex): [2006] 7 JJC 2805
• Court: Court of Appeal (Jamaica)
• Date: 28 July 2006

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH, J.A THE HON. MRS. JUSTICE McCALLA, J.A

BRIAN RANKIN

and

CARL McHARGH

V.

REGINA

Earle deLisser for the appellant Brian Rankin.

Frank Phipps, Q.C., and Miss Kathryn Phipps for the appellant Carl McHargh.

Miss Paula Llewellyn, Miss Icolin Reid and Michael Deans for the Crown.

CRIMINAL LAW - Evidence

PANTON, J.A.

1 1. These appellants were convicted on March 11, 2004, on two counts of murder arising from the deaths of Jason Eldridge and Tahj Burrell. The trial lasted twelve days in the Circuit Court Division of the Gun Court, sitting at King St., Kingston, presided over by Reid, J. with a jury of twelve . On the first count, they were each sentenced to life imprisonment with a specification that they would not be eligible for parole before serving thirty years. In respect of the second count, they were sentenced to suffer death in the manner authorized by law.

2 2. Both deceased persons died from multiple gunshot wounds. They were attacked in Northside Plaza, St. Andrew, on July 25, 1999, at about 7.00 p.m. They, along with Miss Janice Maxwell and her son, then aged two years, had just arrived at the plaza with a view to having a bite at a restaurant known as Pizza Delite. They had earlier gone to another establishment a few miles away but seeing that it was closed, they decided to go Pizza Delite. After the party had alighted from Miss Maxwell's car which was driven by Eldridge, Miss Maxwell started to lead the way. She soon realized that the rest were not following. She turned back and noticed that Burrell and her son were standing at the rear of the car, but she did not see Eldridge. She joined them at the rear of the car, and after inquiring as to Eldridge's whereabouts, she saw him standing by a wall on the premises. At that point she noticed a man who stepped from between two cars that were parked beside her car, and that man pointed a gun at Burrell's head and fired. She ran and crouched between two cars. The man fired several shots at Burrell who had fallen to the ground, and then he ran in the direction of Old Hope Road, that is, towards the exit from the plaza. Miss Maxwell then noticed another man running past her. That man was coming from the direction in which she had seen Eldridge, and although she did not observe anything in that man's hands, Eldridge, like Burrell, had fallen mortally wounded.

3 3. The police were soon on the scene. Miss Maxwell went to the nearby Matilda's Corner police station where she remained for several hours. While there she made a telephone call to the home of the appellant McHargh whom she had met in 1996 and for whom, in 1997, she bore the son referred to earlier. In January, 1999, they had made plans to marry on December 4, 1999, at Hope United Church. However, by July, 1999, not only had they decided that there would be no wedding bells, but also that they would no longer be "in a relationship", according to Miss Maxwell. Incidentally, it was during the said month of the tragedy that Miss Maxwell met both deceased persons. She described her relationship with them as "casual". McHargh, referred to as 'Omar' by his family and close friends, was not at home at the time of Miss

4 Maxwell's telephone call, he having left earlier for Cockburn Pen. However, he later called the police station by means of the telephonic feature known as " star 69". He spoke with Miss Maxwell who informed him of the tragedy. He, in turn, enquired as to the safety of herself and their son. He then proceeded to the police station where he remained for a while trying to comfort Miss Maxwell.

5 4. According to Miss Maxwell, there was no animosity between her and McHargh despite the permanent cancellation of their altar plans. However, a few days before the murders, McHargh had removed some appliances from Miss Maxwell's dwelling-house, apparently due to a perceived snub in his not being invited to their son's birthday party. This party lasted until the next day, and the deceased Burrell, who was a guest thereat, remained at Miss Maxwell's house throughout the period until 10 a.m. The appliances were subsequently returned. Miss Maxwell saw the deceased Burrell several times during the following week at her place of work as well as at her home. Burrell was also with her on one occasion when she had gone to collect her son from the residence of McHargh. She was alone, however, when she collected her son from McHargh on the afternoon of July 25, 1999, a few hours before the murders.

6 5. Miss Maxwell attended an identification parade but failed to point out anyone on it as being involved in the commission of these murders. As a result, the prosecution's case did not have the benefit of an eye-witness. The case presented against McHargh consisted primarily of the deposition of one Clarence Salmon, a witness who had testified on November 23, 1999, at the preliminary examination held into the charges of murder preferred against McHargh who was then the sole accused person. The witness claimed to have rented a Nissan motor car on Friday July 23, 1999, to McHargh in the presence of other men. The car should have been returned on Saturday night but it was kept for another day, and was returned on Sunday night at about 9.30 o'clock. When the car was returned, McHargh was with the said men. There was an argument among them in respect of money. They were also jeering McHargh saying that after they had killed someone, McHargh had "got coward". The deponent said that on confronting McHargh about this apparent "baiting up" of the car, McHargh said that after he had trailed the people to the plaza, he had turned back and parked the car on the side of the road. In addition to the deposition, the prosecution put in evidence for the jury's consideration a statement and a further statement dated September 14, 1999, and another further statement dated September 28, 1999, all by the said Clarence Salmon.

7 6. In respect of the appellant Rankin, the deposition and statements of Salmon as well as a verbal admission were put forward as proof of the offences charged. So far as the admission is concerned, the prosecution called a private investigator, Jason McKay, who testified that Rankin told him on March 18, 2003, that although he (Rankin) was present at the time of the killings, he had not participated in the acts. Rankin, he said, named McHargh and two other persons as the killers.

8 7. Both appellants made the traditional unsworn statements to the jury. Each denied that he had participated in the killing of the deceased men. It is puzzling that in Jamaica in this day and age the law allows persons accused of serious crimes such as murder to make unsworn statements. Seeing that there is absolutely no way of testing the credibility of the makers of such statements, they may well be written and passed up to the jury without the accused having to open his mouth. McHargh, in his statement, said that he was at Cockburn Pen playing pool and having drinks in a bar between 7 p.m. and 9 p.m.. He denied renting a car from Salmon, and called a witness, Nigel Casserly, to support his alibi.

9 8. Rankin, in his statement to the jury, said that he received a telephone call from a man who said that he had received money "from foreign" for him. Thinking that the money may have been coming from his mother, Rankin arranged to meet the caller at Tastee's. As he arrived at the meeting place, he was held at gunpoint by the police. He inquired the reason for this turn of events and was told that he would find out when they arrived at the Central Police Satation. On the way to the police station, he said that the man whom he had met (McKay) kept telling him that the person they really wanted to hold was McHargh. Rankin told him that he did not know anyone by that name. At the police station, McKay asked him if he was called Marlon. He responded in the negative. He said that McKay called other names to him, and said that they (the persons bearing those names) had told him (McKay) that it was he (Rankin) who had killed Burrell. According to Rankin, he was told by McKay that if he did not co-operate with him, he was going to charge him. Rankin said that he did not know anything about the killing. He called no witness.

10 Grounds of Appeal - McHargh

11 9. Leave was granted to the appellant McHargh to argue six grounds, namely:

"(1) The verdict was unreasonable and cannot be supported having regard to the evidence;

(2) The three police statements of Christopher Salmon were inadmissible as evidence in the case against McHargh;

(3) The deposition of Christopher Salmon was inadmissible at trial to identify McHargh;

(4) The learned trial judge was in error to have allowed the statements and deposition of Christopher Salmon as competent and reliable evidence to be considered by the jury;

(5) The evidence to account for the unavailability of Christopher Salmon to testify at the trial was insufficient; and

(6) The second trial that included Rankin as a co-accused was unfair where evidence in Salmon's three statements that were not admissible at the first trial for McHargh alone were now adduced at the second trial because of the presence of Rankin."

12 Ground 3 - The evidence of identification of McHargh was inadmissible

13 10. Mr. Frank Phipps, Q.C. submitted that there was no proper evidence of identification in respect of McHargh at this trial. According to learned Queen's Counsel, Salmon's deposition identifying McHargh at committal proceedings is not the same as identification of the person in the dock before the jury at trial. The jury, he said, needed to be satisfied that the person charged was properly identified at the trial as the person referred to in the respective documents as being involved in the criminal activity...