Practice and Procedure

R v G (2003)

PUBLISHED February 12, 2003

Where a trial judge in his summing up had misrepresented the defence raised the court had to consider whether subsequent correct directions undid any harm caused, and in the circumstances the court could not be sure that the conviction for manslaughter was safe.Renewed application for leave to appeal against conviction following refusal by the single judge. On 25 September 2002 the defendant ('G'), a child of fifteen, was convicted of manslaughter. G was sentenced on 1 November 2002 to an 18 month detention and training order. On 25 October 2001 G had become involved in a scuffle with a boy and punches were thrown. Another boy ('S') joined in in an attempt to break up the fight. G punched the left side of S's face. S staggered and fell giving the impression that he was suffering from a fit. S was in fact suffering from a rare condition, Gulliane-Barre syndrome, whereby he lacked the reflex mechanism to regain composure after being hit. In consequence the punch by G, which had been a relatively mild one, caused S's head to be thrown back rupturing his main artery. As a result S suffered a haematoma and subsequently died. G had had no idea that S had suffered from any condition. G was interviewed by police and said that S had not approached the scuffle to break it up but had in fact joined in and thrown a punch to his head which had missed. At trial the defence raised was one of self-defence on the basis that G had been attacked and all he had done was to reasonably respond. It was put to the jury that, in the alternative, even if no actual blow had been aimed at G, he might have reasonably and honestly believed that he was about to be hit. In his summing up the judge referred to the alternative defence as "muddying the waters". G renewed his application to appeal against conviction on the ground that the trial judge did not adequately, sufficiently or even fairly deal with the alternate way the defence had been put.HELD: (1) The application for leave would be granted. (2) In his summing up the judge had effectively removed the alternate defence from the jury's consideration. That was not unimportant given that the jury were trying an otherwise respectable young boy who had become involved in a normal scuffle that boys of that age often did. (3) The judge had misrepresented the defence advanced when he told the jury that if G had had a genuine and honest belief that S was about to hit him then he had lied in saying that S had hit him. The defence advanced was that if the jury was sure that S had not hit G then G had honestly and reasonably believed that he was about to be hit. (4) Whilst later in his summing up the judge gave correct directions the court had to consider whether that undid the harm caused by the misrepresentation. The court was not confident that the corrected direction achieved that result and therefore was not sure that the conviction was safe.Appeal allowed.