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Derby criminal law specialist John Young
Derby criminal lawyer John Young has been instructed in cases involving allegations of domestic violence. The complainants in the cases have not supported the prosecution. This was indicated at a very early stage. None of the witnesses made statements when the police were investigating the allegations. The prosecution try to rely on res gestae evidence.
As a result, the prosecution has sought to rely entirely on hearsay evidence. In particular, the res gestae exception as preserved by Section 11(4) Criminal Justice Act 2003 has been relied upon.
The test for admitting res gestae evidence
Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”.
This principle has been developed in subsequent case law. As a result the following points have been established which the court should consider in deciding whether to allow a Prosecution application to admit the evidence:
Ultimately, the Court has to determine whether the possibility of concoction or distortion can be disregarded;
The court will need to look at the particular circumstances in which the relevant statement has been made.
It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness. Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection.
The statement must be closely associated with the relevant event. The court must be sure that the event was still operating to effect the mind of the witness when the statement was made.
Does the case have particularly features which relate directly to the possibility of concoction or distortion. This might include evidence of fabrication. The court must be satisfied that there was no such possibility of concoction or distortion.
Any issues such as mistakes in the account given are not matters relevant to admissibility of the evidence but factors the court will consider in deciding what weight to give to such evidence.
There is clear case law that the prosecution should not make an application to admit res gestae to circumvent other statutory hearsay provisions.
What evidential matters will the court look at?
The issue of the timing of the statement will be key to any application. These will include
when the victim called the police
how soon after the incident the victim gave the account said to be res gestae
These are not the only factors that the Court should consider however. The Court will also need to look at
whether there is any supporting evidence for example visible injuries
the victim’s demeanour when first witnesses attend
their subsequent words and behaviour
is there an accurate transcription of recorded evidence such as 999 calls, police bodycam footage or CCTV evidence
where the victim has made more than one statement, the accuracy and consistency of those statements will need careful consideration
If there has been more than one telephone call or electronic communication have been made by the same person?
Ultimately each case has to be considered on its own facts.
Should the prosecution give notice of an application?
The Criminal Procedure Rules do not require the prosecution to give notice of an application to admit hearsay evidence under the res gestae principles. Any notice given very much depends on the prosecutor dealing with the particular case. Where an application is made in advance and refused the case will end at that stage unless there is other admissible evidence to secure a conviction.
Even where a court admits res gestae evidence it must still evaluate that evidence in the usual way. The prosecution must still proved its case to the required standard.
Exclusion of evidence under section 78 PACE 1984
A defendant has an opportunity to apply to exclude evidence of res gestae. If a court has admitted the evidence, application can be made under Section 78 of Police and Criminal Evidence Act 1984. The court has a discretion to exclude evidence which would otherwise be admissible.
For example, there may be cases where the prosecution have failed to take sufficient steps to ensure a witness’s attendance at court. The prosecution might have purported to tender the prosecution to the defence. This means that the defendant would be at liberty to call the witness.
Circumstances like these might permit a persuasive argument that the defendant has been denied an opportunity to test the evidence through cross examination of the witness.
An application to admit hearsay evidence should be an application of last resort. In many cases the prosecution will attempt such an application when a witness might be available to give evidence as to the facts.
In the case of R v Andrews it was stated that a court should “strongly deprecate any attempt in criminal prosecutions to use the doctrine [of res gestae]as a device to avoid calling, when he is available, the maker of the statement”.
Contact a specialist criminal defence solicitor
On behalf of a defendant, a solicitor must make sure that the prosecution does not use a res gestae application to place otherwise inadmissible hearsay evidence before the court. Solicitors must ensure that the statutory and procedural safeguards are used to ensure a defendant’s right to a fair trial.
A defendant will wish to instruct a solicitor who is alive to all of the issues relating to this evidence and prepared for an argument at short notice against the admissibility of re gestae.
If you face allegations before the court where the decisive evidence is that of an absent witness then contact your nearest office to speak to a specialist criminal defence solicitor. Alternatively you can use the form below.
Legal aid will often be available to ensure that the defence of your case will be free of charge to you.
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Nottingham crime solicitor Lauren Fisher secured a not guilty verdict for her client following careful cross examination of a witness. He faced an allegation of common assault. He was said to have punched his partner once to the face when drunk. She had visible injuries – bruising and swelling to her cheek bone.
Preparation of cross examination
In order to present your best case at trial, an experienced advocate will plan how best to ask the questions. For example, in this case, Lauren would have to question the witness to suggest that she was not telling the truth. If a witness’s truthfulness is challenged immediately, it might be unlikely that they help an advocate with other information that they could give.
As a result, Lauren questioned the witness first to establish that a third person had been present during the incident. The witness, in answer to questions, confirmed that this person was a mutual friend who would not favour one party over another. They had no reason to lie that the witness could think of.
This information was important as the third person was to be called as a witness for the defence.
Lauren then moved on to more contentious issues. She cross-examined the witness on the important differences between the account she gave in her statement and the evidence she had given to the court.
At one point the witness conceded that she had “tried to contact the police to change my statement as I knew it did not make sense”. This was an important concession by the witness.
Self-Defence raised
Our client’s defence was that he had been acting in self-defence but the injury was accidental. He maintained that he was being hit by both the complainant and her friend. Perhaps unsurprisingly, if this was true, her friend had not given a statement to the police.
A statement had been taken by Lauren from the mutual friend who had been present. Unfortunately the police had failed to seek accounts from anybody else who had witnessed the incident.
Closing speech dealt with the detail
In closing, Lauren was able to outline all of the problems and inconsistencies with the account that the witness had given under cross examination. She was able to point to the consistent account given by her client and the third party.
After due consideration, the Magistrates found her client not guilty.
Lauren’s client took the time to thank her for the work that she had put into his case. He wrote:
“Hi Lauren, I’m very happy with what happened today. You are a good solicitor. The way you handled the whole situation was good. Thank you again for helping me”
Contact Nottingham crime solicitor Lauren Fisher
Nottingham crime solicitor Lauren Fisher
Whether you face a police investigation or proceedings before the Magistrates’ or Crown Court you will wish to instruct a solicitor who will spend the time preparing your case. This might involve making sure that advice on the law is correct. If could be giving careful advice on plea or sentence. In this case it involved preparing a structure for cross examination of a witness to ensure Lauren’s client had the best opportunity for a not guilty verdict.
If you want to contact Lauren to discuss a case then please call her on 0115 9599550. Alternatively you can use the contact form below.
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Derby crime solicitor Stacey Mighty provided advice and representation to a client charged with an allegation of criminal damage. She had already provided free and independent legal advice to her client in police interview. Stacey then gave her client the continuity of representation that he wanted by going on to provide Magistrates’ Court representation.
Denied allegation of criminal damage
Our client faced allegations that he had had damaged his girlfriend’s property. You can read more about the law on criminal damage here. He was denying the allegation. Further, our client believed that his girlfriend was no longer interested in cooperating with the prosecution.
In this case, the complainant in the case had told the police that she did not want to pursue the allegation. As a result the prosecutor at court already knew that was the case. Despite this a decision had been made that the prosecution should continue.
Prosecution in the public interest?
Stacey had made representations prior to the case being heard that the prosecution should simply drop the case. It was a minor allegation and it could not be in the public interest to proceed when the witness was no longer interested.
Other factors suggested that the prosecution was not necessary:
there was no history of domestic incidents
a defence had been put forward in interview
our client’s limited convictions
there would be a need to force the witness to attend court
Magistrates’ Court representation by solicitor will make a difference
Stacey’s client pleaded not guilty due to the position adopted by the prosecution. He was ready to contest the case at trial. The case was, however, listed before a District Judge in the Magistrates’ Court.
Stacey took the opportunity to raise the same issues again but with the Judge. He shared Stacey’s concerns as to whether the case should proceed.
Instead of listing the case for trial the District Judge gave the prosecution two weeks to fully review the decision to proceed. As a result of Stacey’s representation at court the prosecution decided to discontinue the charge. This decision ultimately meant that the resources of the prosecution and the court could be diverted to other cases.
Stacey’s client avoid the risk of being convicted after trial before Magistrates.
Contact Derby crime solicitor Stacey Mighty
Derby criminal solicitor Stacey Mighty
The benefit of instructing specialist crime solicitors VHS Fletchers solicitors is that we will aim to provide you with continuity of representation at the police station and Magistrates’ Court.
This means that the solicitor with knowledge of your case will deal with you throughout proceedings where possible. This case demonstrates the benefits of such an approach.
Whether you need free legal advice in the police station or Magistrates’ Court representation please call Stacey to discuss your case. She can be contacted on 01332 546818. Alternatively you can use the contact form below.
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Nottingham crime solicitor Stacey Mighty
It is sometimes the case that a person will make a complaint but then think better of it and not make a formal statement to the police. In these circumstances it is perhaps more important that free legal advice is sought from a solicitor on the police station.
Witness changes mind about complaint
In this case the police had received a 999 call from our client’s girlfriend stating that she had been assaulted. He had grabbed at her and scratched her face.
It appears that she simply wanted Stacey’s client taking away from the scene as once he had been arrested and taken to the police station she declined to make a statement. The scratches had, however, been witnessed by the police.
No solicitor in interview
Our client was spoken to without a solicitor present in the police interview. As a result he did not have the benefit of the free independent advice and assistance that a criminal legal aid solicitor could have provided.
He made admissions to the offence which meant that the prosecution did not need a statement from his partner in order to proceed with the case. His position was aggravated by the fact that he had previous convictions for violence.
Early guilty plea
Stacey advised him to enter an early guilty plea to the charge. She was able to persuade the Magistrates that the assault was minor in nature and did not lead to serious injury. As a result, the court felt able to impose a conditional discharge in the circumstances of this case.
Our client was no doubt fortunate that when the matter came to court he chose to take advantage of the advice and representation that is available under the Magistrates’ Court legal aid scheme. Stacey presented the case in a way that allowed the Magistrates’ to take a lenient view.
Instruct a criminal legal aid solicitor
Whether you face a police investigation or proceedings before the Magistrates’ or Crown Court you will want to instruct an expert to help you prepare and present your case.
Under our criminal legal aid contract our advice and representation at the police station will always be free of charge to you.
If you are financially eligible the Legal Help scheme will allow us to undertake early preparation during the investigation stage, such as seeing witnesses or securing other evidence on your behalf.
The Magistrates’ Court legal aid scheme is means and merits tested. If you are granted legal aid then our services will be free.
Legal aid will always be granted for Crown Court cases subject to means. Dependent upon your circumstances, there may be a contribution from your income or capital. If you are found not guilty of the charges then the money will be returned to you and your representation will have been free.
Please call Stacey at our Derby office on 01332 546818. Alternatively use the contact form below if you wish to discuss your case.
The client’s situation was made worse by the circumstances of the case. He rolled his car in the early hours of the morning and then abandoned it. When he provided a sample of breath he was over twice the legal limit to drive.
Tim’s client had been out of trouble for sometime, having put significant difficulties with drink behind him. Unfortunately, the loss of a close family member meant that he turned once again to drink. This offence was committed at the end of that period.
An early guilty plea
We provided advice that an early guilty plea would stand our client in good stead at his sentencing date. Tim also advised that character references should be obtained setting out all of the good work that his client had done on his own behalf to tackle his drinking. They could also touch on the effect of the bereavement upon him.
Hospice staff were kind enough to provide written confirmation of the closeness of our client and the deceased, and the meetings that they had leading up to his death.
The Magistrates’ were persuaded that there should be some input from the probation service to investigate alternatives to custody. The probation office liaised with third party agencies who had been assisting our client on a voluntary basis since he was charged with this offence.
A prison sentence was avoided
Careful mitigation that stressed the particular circumstances of this case and our client’s clear intention to put his drinking behind him again mean that he received a community order. This involved unpaid work. Supervision was not necessary due to the efforts he was making on his own behalf.
He was of course subject to a lengthy driving disqualification. This can be reduced if he completes the alcohol impaired drivers course.
Contact a Mansfield road traffic solicitor
Although there are always serious risks involved with any allegation of drink driving there are sometimes compelling circumstances that will allow the court to depart from the expected sentence. An experienced solicitor such as Tim will provide you with advice as to how best to prepare for sentence, and then try to secure the best outcome through his expert mitigation on your behalf.
In a case such as this, free criminal legal aid might be available for your representation in the Magistrates’ Court dependent upon your means. We will always give you advice on how best to fund your case.
Mansfield road traffic solicitor Tim Haines
If you wish to discuss your case then please call Tim on 01623 675816 or use the enquiry form below.
is that of an absent witness then contact your nearest office to speak to a specialist criminal defence solicitor. Alternatively you can use the form below.
