Gian & Anor v Crown Prosecution Service

A criminal case should not be withdrawn from the jury merely because expert evidence cannot exclude, with scientific certainty, a theoretical possibility consistent with innocence. The jury must assess the expert evidence with all the evidence and decide whether it is sure, considering realistic rather than fanciful possibilities.

Where hearsay evidence is admitted without the required notice, the court must scrutinise fairness under section 78 of the Police and Criminal Evidence Act 1984, informed by the factors in section 114(2) of the Criminal Justice Act 2003. A substantial disparity between minimum terms must be justified by a demonstrable difference in culpability or relevant personal circumstances.

The appellants were convicted at the Central Criminal Court of the murder of Xing Xing Xie. Gian was also convicted of doing an act tending and intended to pervert the course of justice. The prosecution alleged that the deceased was killed at the house occupied by the appellants, after which her body was disposed of in docklands.

On appeal, the appellants argued that the evidence did not safely establish either the cause or location of death, or their participation. They also challenged the fairness of the summing-up and, on behalf of Mohd-Yusoff, the admission of an un-noticed hearsay account of a threat to kill. Gian separately appealed his 22-year minimum term as disproportionate to Mohd-Yusoff’s 15-year term.

1. The conviction appeals were dismissed. The pathologist’s inability to exclude a theoretical possibility that cocaine poisoning caused death did not require withdrawal of the case. The correct distinction is between scientific certainty and legal proof. The jury could accept the pathologist’s clear opinion that the stab wounds caused death after considering all the evidence, including the realistic alternatives: Bracewell [1979] 68 Cr App R 44.
2. The absence of the blood and tissue expected after a stabbing and decapitation was powerful defence evidence. It nevertheless had to be considered with evidence connecting the deceased’s body and its packaging to the house, the appellants’ presence, their conduct after the disappearance, and Mohd-Yusoff’s admission. The judge could not choose between those competing inferences at the close of the prosecution case. That was a matter for the jury.
3. The jury were also entitled to distinguish the deep stab wounds from the later cutting injuries and to reject the suggestion that they were inflicted in the belief that the deceased was already dead. The summing-up, read as a whole, fairly presented the essential defence points.
4. The hearsay evidence of the deceased’s account of a threat was properly admitted. Her death satisfied section 116(2)(a) of the Criminal Justice Act 2003. Although notice had not been given, the omission was inadvertent. Applying section 78 of the Police and Criminal Evidence Act 1984, and the fairness factors in section 114(2) of the 2003 Act, the court held that the statement was highly probative and that the defence had ample means to challenge the reliability of both the witness and the deceased. The careful jury direction removed no basis for finding the verdict unsafe.
5. Gian’s appeal against sentence was allowed in part. A 22-year minimum term was not justified when the judge could not determine the respective roles of the offenders and Gian’s previous violence did not warrant the full seven-year disparity. His minimum term was reduced to 19 years.

• Court of Appeal (Criminal Division) Conviction appeals dismissed. Gian’s appeal against his minimum term was allowed to the limited extent of reducing it from 22 years to 19 years: [2009] EWCA Crim 2553.
• Central Criminal Court Both appellants were convicted of murder on 1 August 2008. Gian was also convicted of doing an act tending and intended to pervert the course of justice. Gian received life imprisonment with a 22-year minimum term and Mohd-Yusoff received life imprisonment with a 15-year minimum term.