A complainant calls: How fair is res gestae?

Res gestae is the principle that any statement made by a person so emotionally overpowered that they could not have concocted it is not to be treated as hearsay evidence (see R v Andrews [1987] 84 Cr App R 382).

This principle has acquired new and potent force in the context of recorded telephone calls to the police and the growing determination of the Crown Prosecution Service to increase convictions for domestic violence.

Under the Criminal Justice Act 2003 the res gestae principle is specifically 'preserved', thus apparently validating all the pre-existing case law which defines it.

Increasingly, the
(admirable) concern to increase convictions for domestic violence has led to increased use of contemporaneous evidence which effectively determines the case (most often a 999 call and/or statements of police officers who attend the scene).

While many of the older cases concern short, clear statements (see, for example, R v Turnbull [1985] 80 Cr App R 104, which concerns a dying man naming attackers), 999 calls can vary in length. Further, and for good reason, 999 operators often encourage complainants to continue talking to them until the police arrive at the scene.

Contextualised statements

This practice can lead to a
great deal of relevant material being given and the Crown's application will usually be to
play it all in court. However, i
t is perfectly conceivable that
the caller is emotionally overpowered for the first part of the call but not for its remainder. This can result in a situation where the tribunal of fact hears the entirety of a long 999 call, only part of which falls within the res gestae exception. Moreover,
it may be difficult for the defence to justify the playing of only part of the 999 call if the second part contextualises or further explains the res gestae statement.

Of even greater significance
is the use of res gestae as an alternative to the complainant giving oral evidence. In Barnaby v DDP [2015] 2 Cr App R 4 (an appeal by way of case stated to the High Court), the court admitted three 999 calls under the res gestae principle, thus blessing a route increasingly adopted by prosecutors.

As in many other cases, the victim had not been willing to give evidence (or, indeed, make a statement) and was not called to give evidence. The court suggested that, particularly in domestic violence cases, the availability of a witness will not frustrate a res gestae application. Mr Justice Fulford commented that, while the court had a 'cardinal duty' to ensure a fair trial, 'the Crown's stance was a seemingly sensible recognition of the potentially dangerous position in which [the complainant] had been placed'.

Public-driven agenda

This suggestion was not
entirely novel. In the case of R v C [2007] EWCA Crim 3463, Lord Justice Moses, having noted
the public (as opposed to the complainant's) interest in prosecuting perpetrators of domestic violence and the difficulties of a complainant in such a case, gave unqualified support for a case proceeding without the complainant giving evidence.

It is open to question how far the use of res gestae evidence untested by cross-examination can, in practice, be fair. The courts in both Barnaby and R v C comment little on issues such as how severe the fear of reprisals must be, whether that fear is to be judged objectively, and
what role section 78 has to
play in such situations.

Most importantly, no explanation of why it is fair for
a defendant to be effectively deprived of the right to challenge their accuser is given - these are important issues meriting further discussion.

Particularly surprising is the apparent assumption of the higher courts that a failure by a complainant to give oral evidence enhances their safety where the trial still results in conviction. Perpetrators are likely to be angered by the fact
of conviction, whether or not the complainant gave oral evidence against them.

One aspect of Barnaby that will be of interest to defence lawyers is the strength of the evidence supporting the res gestae material. This comprised injuries consistent with the complainant's account and her evident distress. The High Court specifically took these factors into account in ruling that there was no possibility of concoction and therefore the 999 calls fell within the res gestae principle. How strong an application would be without such evidence is open to question.

In short, the increased use
of 999 calls is being actively encouraged by the higher courts, with perhaps less attention to the potential consequences than fairness might demand. SJ

Ben Henriques is a barrister at Sonn Macmillan Walker