R v Mackie
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON |
| Judgment Date | 23 February 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J0223-12 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4355/A/72 |
| Date | 23 February 1973 |
[1973] EWCA Crim J0223-12
THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Orr
and
Mr. Justice Forbes
No. 4355/A/72
MR. P. BACK, Q.C., and MR. A. NEWMAN appeared on behalf of the Appellant.
MR. COX appeared on behalf of the Crown.
On 16th July 1972 at the Bristol Crown Court the Appellant was convicted of manslaughter by a majority of 10 jurors to 2 and was sentenced by Mr. Justice Cusack to 2 years' imprisonment. He was in breach of a Probation Order upon which no action was taken. He appeals to this Court by leave of the single Judge against his conviction on the ground that evidence was wrongly admitted which renders the jury's verdict unsatisfactory and unsafe.
The Appellant lived with a Mrs. Halsey and it was ultimately conceded that he was in loco parentis to her two children, boys named Vincent aged 5 and Terry aged 3. On 4th April 1972 the Appellant was alone with the two children in the house where he lived with them and Mrs. Halsey when Terry fell downstairs and died as a result of a dislocated neck. The Appellant tried to revive him, summoned a doctor and was genuinely distressed by his death.
The prosecution case was that he had disciplined Terry so excessively in the past that Terry was frightened of him and fell downstairs when running away in fear of ill-treatment. Before opening the prosecution case Mr. Hall for the Crown discussed with the Judge the law and the evidence which he proposed to call. He submitted that the law was that when one person causes in the mind of another by violence or the threat of violence a well-founded sense of danger to life or limb so as to cause such other to try to escape, and in the endeavour to escape he is killed, the person creating that state of mind is guilty at least of manslaughter. He formulated four questions to the jury to consider:
- 1. Was Terry at the material time in fear of physical injury or pain?
- 2. Was the fear in his mind that morning such as to cause him to try to escape from the Defendant?
- 3. In the course of and as a consequence of trying to escape was he killed?
- 4. Was the fear in Terry's mind caused by unlawful conduct that morning on the part of the Defendant, that is to say excessive or unreasonable punishment or the threat of it on the part of the Defendant if he was in loco parentis?
He then submitted that evidence of previous injuries should be admitted, not as relevant to the question whether the Defendant was guilty of an unlawful act on the morning of Terry's death but as relevant to the question what was Terry's state of mind on that morning.
Mr. Back for the Appellant accepted that one of the things the jury had to consider was whether the child had a well-founded sense of danger and therefore whether the relationship between the Defendant and Terry was one of friendliness and affection or one of fear and apprehension.
Before he opened his case Counsel for the Crown reformulated his four questions omitting the words "that morning" from the fourth and also conceded that the Appellant was in the position of a parent. With those questions Counsel for the Appellant agreed, but he now takes a point on the omission of those two words to which we refer later. Counsel for the Crown obtained a ruling from the Judge that evidence of previous injuries to Terry for which the Appellant was responsible was admissible to prove Terry's state of mind.
The prosecution then called a neighbour named Mrs. Petherick to give evidence that both the children were frightened when the Appellant was there; that he used to tease Terry; that on one occasion when both children were present and one of them (she was not sure which) made a spelling mistake he struck him across the face with a blow too hard for a child and then dragged him to bed. She added that the Appellant had once admitted to her that he had hit and cut Vincent with a shoe and she had at other times seen bruises on Terry's face and head. However, she found the Appellant was pleasant. Another neighbour named Mrs. Belcher said that she had once seen the Appellant pinch Terry's cheek though the child seemed not to mind. In her opinion the children were frightened when the Appellant was at home. There was a suggestion that her evidence was influenced by hostility towards the Appellant.
After further submissions the Judge ruled that the evidence of Dr. Kennard as to his post mortem examination of Terry was admissible except as to Terry's having suffered a broken arm. In the course of his objection to Dr. Kennard's evidence Counsel for the Appellant made it plain that he agreed that the evidence of previous injuries inflicted by the Appellant on Terry might be relevant to Terry's state of mind but he contended that it was highly prejudicial.
Dr. Kennard gave evidence that he examined the dead boy and found many bruises on his body in particular:-
12 bruises on the chest; these were consistent with poking with a finger. It was highly improbable that the child could have got those injuries through falling down (31F). The force with which the child had been poked would not have been very great (32B). The individual bruises would not be detrimental to the child's health, but the doctor would have wanted to make enquiries had he seen these bruises when examining the child normally (40C).
A bruise on the right lower abdominal wall; 2 bruises below the left jaw; 2 small bruises below the right jaw; 3 bruises behind the right armpit; all those were in the doctor's opinion produced up to about a week before death. 3 bruises on the front of the right leg; these were between 4 and 7 days old and could have happened while the child was playing.
Bruises on the left arm up to 48 hours old, and consistent with someone gripping the arm very tightly. 8 or 9 bruises inside the scalp, and 6 towards the lower back of the scalp; all consistent with injuries up to 5 days old and consistent with somebody's having tapped the child on the head with a hand or knuckles. It was highly improbable they were caused by a fall or falls (34G). These particular bruises were not of great severity and the child would probably not feel ill as a result of them (36c and 36G). The doctor could not see how one blow could have produced so many bruises spread over the comparatively large area of the head (38E).
A bruise on the forehead: this was probably the cause of fluid pressure inside the brain and occurred a day or two before death. The bruise on the forehead would not make the child ill but the fluid on the brain might have given him a headache. It would have cleared up of its own accord in the normal course of events (36H-37A).
The doctor added that there was no evidence on the body of beating or chastisement to the back or backside (41F).
The Appellant first told the doctor whom he called to the house that he had sent Terry upstairs to fetch the chamber pot and was himself in the kitchen making coffee when he heard a thumping sound, came out, found Terry lying at the bottom of the stairs, tried to revive him and ran to get a doctor. This account he embodied in a witness statement, and persisted in it until 10.30 on the evening of the day the boy died. Then it was pointed out to him that Vincent had given a story which was inconsistent with his account. He recanted and said "something else happened upstairs that I didn't tell you about. It's true I did tell Terry to go upstairs to get his potty. He didn't come down. I went up. He was on the ledge. I've told him and told him about sitting on that bloody window. It was dangerous. I belted his arse. He ran out. God, he ran out like hell. I picked up a book and threw it at him. He didn't even touch the top stair. He just went over the top and right down to the bottom."
According to Sergeant Greenslade and Inspector Tombs, Greenslade told Tombs what the Appellant had said, and then under caution the Appellant repeated this story saying: -
"I went up to our bedroom and he was on our window ledge. I smacked his arse and he run out, and I chucked a book at him. He went down the stairs like a ton of bricks. That's the truth, God help me."
The Appellant then made a further written statement under caution, the following being extracts: -
"I went upstairs, I see him sitting…. on window ledge. I asked him if he had got his pot, he said, 'No'. I got him down and gave him a tap on the backside….I just told him to get downstairs, as he went out of the door I flung a book after him. The next thing, I just heard a thumping and banging. He had fallen downstairs…·· his shoes were slippy."
The Appellant gave evidence that he found Terry sitting on the window sill upstairs, took him off the sill, gave him a medium type smack on the backside and told him to go downstairs. The boy did not seem distressed but went out of the room. The Appellant started to strip the bed; on it was a magazine which he flung towards the wall simply to get it off the bed; then he heard a noise, went out of the room and found that Terry had fallen downstairs. He agreed that he had made the first oral and written statements to the police in the terms which were...
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