Shiel, R. v

Factual and Procedural Background

This is an appeal against the Appellant's conviction for unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861, following a trial in The Court before Judge Scott on 27 January 2025. The Appellant was convicted and later sentenced to 15 months' imprisonment. The central contested evidential issue on appeal was whether the trial judge was wrong to admit, as res gestae, two oral statements made by the Complainant (who did not give evidence at trial) where those statements included a demonstrable lie about the whereabouts of her child.

On the evening of 26 July 2024 the Appellant and the Complainant, who had a child together, were at the Complainant's home when an argument occurred. The prosecution alleged the Appellant put his arm around the Complainant's neck and punched her, causing a cut above and bruising around her left eye. During the incident the Complainant telephoned a relative (Witness Renton) and can be heard in the background of a 999 call; CCTV and body-worn video showed the Complainant leaving and interacting with police. The Complainant signed entries in police pocket notebooks describing choking and repeated punching. The Complainant later sent an email to the Crown Prosecution Service seeking to withdraw the pocket notes and stating the notes were "not entirely accurate". She did not give oral evidence at trial.

Legal Issues Presented

1. Whether the trial judge was correct to admit the Complainant's contemporaneous or near-contemporaneous oral statements as res gestae despite the fact that the statements included a deliberate lie about the child's whereabouts.
2. Whether, alternatively, the evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1978 as having an adverse effect on the fairness of the proceedings.

Arguments of the Parties

Appellant's Arguments

• The deliberate lies told by the Complainant about the child's whereabouts demonstrated she was capable of fabrication and thus the possibility of concoction or distortion could not be disregarded.
• The statements were not sufficiently contemporaneous or spontaneous; there was time for reasoned reflection and the Complainant's mind was dominated by fear about her child rather than by the alleged assault.
• Responses were made after questioning and a warning about "getting into trouble", undermining spontaneity; the later retraction email was a special feature undermining reliability.
• In the alternative, the evidence should be excluded under section 78 because its admission was unfair in all the circumstances.

Respondent's (Prosecution) Arguments

• The Complainant's lies about the child's whereabouts were motivated by fear the child would be removed and did not undermine the spontaneity or reliability of her account of how the injuries were inflicted.
• The statements were contemporaneous or approximately contemporaneous and made while the Complainant was emotionally overpowered by the incident; any ordinary inconsistencies go to weight, not admissibility.
• The prosecution was under no obligation to take a formal statement or call the Complainant; the jury could be directed on assessing reliability and possible concoction.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court (Judge Males delivering the judgment, with Judges Tipples and Marks concurring) reviewed the trial judge's ruling and the submissions repeating the trial arguments. The Court set out and applied the Andrews test from first principles: the judge must be satisfied the possibility of concoction or distortion can be disregarded by reference to the circumstances in which the statements were made (including approximate contemporaneity, whether the declarant was emotionally overpowered, spontaneity, and any special features bearing on fabrication or mistake).

The Court analysed, in turn, the defence points considered by the judge:

• Approximate contemporaneity: the telephone call to Witness Renton occurred while the incident was in progress and the account to Officer Hall was about 10–20 minutes later; the judge reasonably concluded these were contemporaneous or approximately contemporaneous.
• Emotional overpowering: although initially focused on the child's safety, the judge found (on viewing footage) that the alleged assault dominated the Complainant's thoughts and she was not calm; the Court agreed this supported spontaneity.
• Interval for reflection: the judge was entitled to regard the overall time as short and to accept that much of it was spent arranging the child's safety, limiting opportunity to concoct the assault account.
• Provable lies: the judge concluded the lies about the child's whereabouts did not demonstrate fabrication of the assault account; the Court agreed that a contemporaneous lie prompted by panic about the child does not necessarily destroy the spontaneity or reliability of the assault-related statements.
• Prompting and warnings: the judge found the warning related to the child's whereabouts and that the subsequent account of the assault was given in response to an open question, supporting admissibility.
• Retraction email and other inconsistencies: the judge applied the section 114(2) framework and section 78 balancing, concluding the retraction and inconsistencies did not make the earlier accounts inherently unreliable or unfair to admit; the Court agreed and noted the defence could highlight these matters to the jury.

The Court emphasised that the trial judge had properly directed herself, considered each contested matter, and reached conclusions open on the material before her. The Court observed that decisions on admission and on section 78 exclusion are matters of trial judge discretion, and that the judge had been well placed to exercise it.

Holding and Implications

APPEAL DISMISSED

Holding: The Court dismissed the appeal, concluding the trial judge was entitled to admit the Complainant's statements as res gestae and to refuse exclusion under section 78. The Court held the conviction was safe.

Implications: The direct effect is that the Appellant's conviction and sentence remain in place. The decision affirms that a contemporaneous or near-contemporaneous statement may be admissible as res gestae even if it contains a deliberate lie, provided the judge is satisfied on the Andrews test that the possibility of concoction or distortion can be disregarded; no new legal precedent was created beyond applying existing authority.