“How on earth can I be convicted when she’s not even turning up?!”
This is the frank response I received when informing my Defendant client that, despite the Complainant of a domestic common assault not attending court and even making a withdrawal statement, the Prosecution wanted to proceed against him based only on the body worn footage of the Complainant when police attended. This is an example of one of the most common uses of res gestae hearsay in the Magistrates’ court, and also one of the most controversial.
There is a fine balance to be struck in cases such as this. The CPS have a duty to prosecute domestic abuse, and rightly so. It is also obvious that in many these cases, for a wide variety of reasons, it can be very difficult for Complainants to give evidence against their partners or family members. This duty is struck against one of the deepest held beliefs of our justice system – the right to a fair trial and specifically for the Defendant to be able to properly test the evidence against them.
The common law doctrine of res gestae is used as a gateway to allow hearsay evidence against Defendants in domestic abuse cases to be adduced. Evidence can range from 999 call recordings to video footage, to simply photos of injuries allegedly caused by the Defendant.
Res gestae is “a statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”, as set out in the common law exceptions retained under s118 of the Criminal Justice Act 2003. Further to this, Part 34 of the Criminal Procedure Rules does not state that applications using res gestae must be made in writing. This is why in many cases, the application for its use is made on the day of summary trial in the Magistrates’ Court when, for whatever reason, the maker of the statement does not attend.
Criminal law students will most likely give the example of res gestae of someone who has just been stabbed, who then shouts to the gathering crowd “it was my arch nemesis, (insert desired arch nemesis), he stabbed me!” In serious (and relatively straightforward) scenarios such as this, it may seem common sense that this evidence is adduced at trial.
However domestic abuse cases are rarely as straightforward as this.
A brief history of the use of res gestae in a domestic context
The case of Andrews  A.C. 281 involved the exact scenario mentioned above. Lord Ackner set out how to approach issues of admissibility for res gestae:
"1. The primary question which the judge must ask himself is — can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied on evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O'Neill and the appellant because, so he believed, O'Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error."
But how about in the domestic context?
The later case of Barnaby v DPP  EWHC 232 (Admin) dealt with the use of 999 calls as the only evidence against Defendants in domestic abuse cases. The victim had called the police three times telling the operator that her boyfriend had strangled her. She stated that she was scared and was heard sobbing. The last call came 6 minutes before the police attended. The Complainant repeated her allegation to the officer, who saw a red mark across her throat and one to her cheek. However, the victim subsequently refused to provide a statement.
The Defendant appealed by way of case stated after the 999 calls were adduced through the res gestae gateway in the Magistrates’ Court. The High Court, dismissing the appeal, found importantly that due to the Defendant’s call only being 6 minutes before the police arrived, that her statements to them on their arrival were linked with what was being said in the call. It was held that the call and comments to the officers were correctly adduced through res gestae. This decision allowed for the possibility of just the victim’s demeanour along with the evidence of injury being sufficient to allow for the evidence to be adduced as res gestae.
The unreported case of Ibrahim v CPS (2016) (unreported) extended the use of the doctrine in this context to an extent. In essence, because of the special features of that case, delay in calling the police of an hour and 25 minutes was still allowed to be adduced as res gestae. Significantly, this shows that the timing of the statements is not the overarching consideration in these cases.
Opposing res gestae
A Defendant’s principal submission is to argue that distortion or concoction of the statement cannot be disregarded. Each res gestae argument should be heard on its own facts, and the tribunal will have a discretion to consider any points made, keeping in mind the case law as set out above.
Continuity of the statement should also be scrutinised. The statement must be properly exhibited, for example by the officer whose camera took the body worn footage, or by the photographer who takes photos of the alleged injuries.
Even if the evidence is allowed to be adduced, the Defendant can use s78 of the Police and Criminal Evidence Act 1984 to argue that the evidence would have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” This is supported by s114 of the CJA 2003, which sets out a number of aspects to consider. The most likely argument is the difficulties the Defendant faces in challenging the statement made in the res gestae evidence without the maker of the statement being available for cross-examination.
What happens in reality?
In the case I was involved in (as mentioned above) the body worn footage of the Complainant was taken 7 minutes after the 999 call was made by a third party, who had been asked by the Complainant to call the police. The Complainant was seen to be sobbing and accused the Defendant of kicking her, however she also made a number of questionable statements, including “it’s my fault” and that she would make a statement at that time, when in fact she refused to do so.
I did not refute that the footage could be classed as res gestae, mostly due to the proximity of the statement to the initial complaint in the 999 call. However I opposed the admissibility of the footage using s78 PACE. I outlined how prejudicial it was for the Defendant to not be able to cross-examine her about the footage, particularly with questionable statements she also made in the footage. The Defendant’s case was also bolstered by emails from the Complainant to the Defendant saying that she had lied to police – which clearly put the credibility of the footage in doubt.
The Bench found that the footage should not be allowed to be used, and accordingly the Prosecution offered no evidence against the Defendant.
This whole process nearly took a whole morning session of court time. Even if the s78 application had been unsuccessful in the preliminary application, I would have repeated the submissions at half-time arguing that there was no case to answer. And even then, I was questioning whether to call the Defendant and simply restate the submissions in closing. This is where the difficulties lie in the current process - between the Prosecution fulfilling their duties in pursuing convictions in domestic abuse cases, and continuing in cases where there is little hope of the Prosecution being successful.
The current process of relatively complex legal argument having to take place when considering res gestae statements in a domestic context is not the most efficient system by any means. In many cases the Prosecution’s application is not strong, and a great amount of court time is used in hearing these applications, that fail in the early stages. Even if the res gestae evidence is adduced, the prospects of conviction from this alone are slim.
There will be occasions however where a Defendant is convicted solely on the res gestae evidence of statements made by victims who do not attend court. These cases are likely to be of a more serious nature in the context of domestic abuse cases, and ones where it is clear that there is little doubt about the credibility of the statement being made. Defendants with previous convictions for offences against the Complainant, together with the res gestae statement, are likely to be relatively more successful. They are also the cases where it is clearly in the public interest for the prosecution to continue through a full trial. These cases however are highly likely to be appealable - it will not be long before the next res gestae hearsay argument makes it to the appeal courts.