Practice and Procedure


PUBLISHED December 3, 2003

Convictions for manslaughter were safe as the judge had been right to rule that evidence sought to be admitted under the res gestae principle had not been made spontaneously. The judge had also correctly ruled that the indictment should not be severed as, on the evidence, the counts were linked. There was sufficient evidence of a prima facie case to go before the jury.Appeal, with leave of the single judge, against conviction for manslaughter by the first defendant ('J') and application for leave to appeal conviction, referred to the full court by the Registrar, by the second defendant ('M'). The defendants were convicted of wounding with intent and manslaughter on 7 May 2002 at Chester Crown Court. J was sentenced to life imprisonment on each count and M was sentenced to a total of seven years' imprisonment. The defendants had sought to punish men involved in two separate incidents, one involving M's son, who was slapped by a man, and one involving J's girlfriend's sister, who was approached and grabbed by a man. On 18 July 2001, the victim ('P') was assaulted by the defendants with a hammer at his flat and then dragged out to a local park and threatened with a knife. Whilst J was beating P, M stopped him to see if P would admit anything. Later M's son said it wasn't P who had slapped him. It was the prosecution's case that on 19 July 2001 the defendants went to the flat of the second victim ('S'), violently assaulted him and then took him to be identified. J's girlfriend's sister said it wasn't the man who had grabbed her and S walked away holding his stomach. S died some weeks later in hospital. The defendants were arrested in September and gave no comment interviews. At trial J admitted assaulting P but denied intending to cause really serious harm. He denied having seen S on the day he was assaulted and stated he had been at the gym. M admitted slapping S twice but denied any other assault. An application was made by J to have a statement, made by a witness ('K'), admitted in evidence, under the res gestae principle. In a witness statement made in September, K stated she had seen S in the car park holding his ear. S had said "I've had a couple of digs from M at the flat, no-one else was there." The judge refused the application as the account was not spontaneous as it had been made sometime after the attack. The judge also refused applications to have the indictment severed and a submission, by J, of no case to answer. J appealed conviction on the grounds that: (i) the judge was wrong to exercise his discretion to exclude the evidence of K as the statement was res gestae; (ii) the judge was wrong to refuse to sever the indictment as there was no link between the events; and (iii) the judge was wrong to refuse the submission of no case to answer. M applied for leave to appeal conviction on the ground the indictment should have been severed.HELD: (1) The judge was fully entitled to reach the conclusion he did in relation to the statement of K. The assault had taken place some time before and therefore S's account was not spontaneous. (2) The judge was entitled to rule against severance, it would have been absurd if the counts had not been tried together in light of the evidence. The essence of the enterprise was that the defendants were looking for a person responsible for the assaults on M's son and J's girlfriend's sister. The evidence on count one was not only admissible as background to events giving rise to count two it was also inextricably intertwined to the motives of the defendants. (3) The judge's approach to the submission of no case to answer could not be faulted. The judge succinctly identified material that gave rise to a prima facie case against J.Appeal dismissed, application for leave to appeal granted, appeal dismissed.