Tag Archives: res gestae

News

Admissability of Evidence argument at Chesterfield Magistrates

admissability of evidenceWe have previously written about the increase in prosecutions over recent years where there is no statement from the alleged victim in the case.  The victim might not be supporting the prosecution or may even be unknown.  This will lead to arguments over the admissability of evidence.

The reasoning is that even though a victim is unwilling to assist the Prosecution, a person should not be able to avoid responsibility for offending that they have committed.  Of course, there are a number of risks to proceeding without evidence from the person who ought to know best what, if anything, happened.

Prosecution rely on principle of Res Gestae

In order to present such cases the prosecution will often rely on a rule of evidence called Res Gestae.  This allows hearsay evidence that would usually not be allowed in court to be used as admissable evidence.

You can read more about this rule of evidence here.

Unfortunately we have noted that the prosecution seek to rely on this exception to the usual rules of evidence in a number of cases where it doesn’t apply.

As a result it is vital to have an experienced solicitor who is able to argue your case in Court to try and avoid this from taking place.

Recent case defended by Chesterfield crime solicitor

Chesterfield Crime Solicitor Kevin Tomlinson was recently presented with such a scenario.  His experience told him that the prosecution was trying to admit evidence in circumstances where it was not admissable.

His skill and expertise as an advocate persuaded the Magistrates that he was right.  The evidence was ruled inadmissable and his client was found not guilty.

Domestic violence allegations

Kevin’s client faced charges of common assault and criminal damage within a domestic setting.  Police officers attended the alleged victim who gave an account implicating stating that our client was responsible for the offending.

She alleged that he had been aggressive and threatening towards her when she returned home with a friend after a night out.  After the friend left he had then assaulted her in the bedroom and caused damage to a wall and perfume bottle.

The police had obtained a recording of the 999 call.  The initial complaint had also been recorded on police bodycam footage.  Finally she made a written witness statement.  Here friend had also made a statement describing our client’s behaviour before she left.

During the course of the investigation, the complainant had provided a further statement stating that she no longer supported the prosecution and wished to withdraw her complaint.

From the outset of the case our client had set out a defence.  He told the police that he had not done what was alleged against him and was therefore not guilty of the offences.

Key witness did not attend the trial

In light of the later statement taken from the complainant it was not surprising that the complainant failed to attend Court for the trial. The supporting witness also failed to attend.

admissability of evidenceDespite this, the prosecutor informed Kevin that they wished to proceed with the case.  They intended to use the account provided by the complainant in the 999 call as well as what she told the police upon their arrival.  The reasoning was that this evidence would be admissable using res gestae.

Kevin argued against the admissability of evidence relating to these allegations.  The key requirement, that the witness was so overcome with circumstances of the situation that she could not have made the allegations up, did not exist in this case. She was calm during both the call and the conversation.  The assertion that the allegation could not have been made up did not stand up to scrutiny.

Additionally, Kevin was able to argue that instead of trying to admit evidence in this way the prosecution, who had known for weeks that the witness did not intend to attend Court, should have taken the appropriate steps to have her there.  The doctrine of Res Gestae should not be used to avoid calling witnesses as it prevents the prosecution challenging the evidence.

Not guilty verdict after trial

admissability of evidenceKevin’s argument found favour with the Court who refused the Crown’s application meaning the Prosecution had no option but to offer no evidence against Kevin’s client.

This case highlights the importance of instructing a solicitor.  It is important that you do not rely on a solicitor appointed by the court as their responsibilities to you in your case are limited.

Had the defendant in this case been unrepresented it might be unlikely that they would effectively challenge the admissability of evidence of this nature and the outcome could have been very different.

Instruct an solicitor who is an expert in the admissability of evidence.

Criminal trials will always feature a certain level of complexity.  The best way to prepare for trial is to seek legal advice at the earliest possible moment.

If you are arrested or know that the police wish to speak to you about an offence of then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

A further example of a successful argument against the admissability of evidence can be found here.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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VHS Fletchers offices across the East Midlands

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News

Prosecution Res Gestae Argument fails at Derby Magistrates’ Court

Derby crime solicitor John Young recently represented  a client alleged to have assaulted his partner.  Success hinged on a prosecution res gestae argument.

The prosecution allegation

The complainant alleged that an incident had taken place outside her home address early in the morning.  Our client’s vehicle was said to have been parked outside at the time.

It was alleged that our client had pushed the complainant into the road causing her to fall over.  She alleged that this resulted in two broken bones in her foot. Our client was also alleged to have threatened to kill her whilst threatening her with a screwdriver.  He was said to have snatched her mobile phone from her and then left the scene.

Denied allegations

John’s client denied the allegations. He accepted that he had been at the scene but maintained that the complainant was the aggressor. Our client then described how she had tried to hit him but had fallen over in the process, landing in the road. He denied that he had made any physical contact with her.

Our client provided an explanation explaining why he was in possession of the mobile phone and the screwdriver.

In the event the victim declined to provide a forma statement to the police.  She did not support the prosecution.  The allegation as set out above was set out in the complainant’s first contact with the police.

Prosecution depended on res gestae argument

res gestae argument derby crime solicitorDespite the lack of a formal complaint,  our client was charged.  The prosecution case was to be based on a 999 call made twenty minutes after the incident was said to have taken place.  CCTV footage showed the delay in making the call.

Bodycam footage from police officers captured an initial complaint but this was nearly fifty minutes after the incident. There was a statement from a delivery driver who saw the complainant falling the road.  He  could not say how or why she fell.

As no-one saw the incident aside from the complainant and the defendant, the prosecution had to rely on hearsay evidence to try and secure a conviction.  This evidence would come from the 999 call and the bodycam footage.  Surprisingly, the prosecution did not make an application to admit this hearsay evidence prior to the trial date.

At the beginning of the trial the prosecution made clear the basis upon which they were presenting their case and made the hearsay application.  The prosecution conceded that if the application was unsuccessful then the prosecution could not proceed.

Problems with the hearsay evidence

There were several problems with the res gestae argument:

  • the bodycam footage showed that by the time the police arrived the victim was not “so emotionally overpowered” that the possibility of concoction or distortion could be disregarded
  • During the 999 call the complainant initially stated her leg was broken.  after questioning the operator establish that the victim only believed this because her leg was ‘painful’
  • It was clear from the bodycam footage that the leg was not broken.
  • During the 999 call the complainant alleged that she had taken the screwdriver from the client in order to stop him stabbing her with it.  Police evidence showed that the screwdriver had been recovered from the client’s vehicle when he was arrested
  • The timing of the incident showed that the complainant’s suggestion that this had been a chance encounter could not be true.
  • The CCTV footage showed that the complainant was not telling the truth when she said she had been assisted by a stranger while she lay in the road.
  • The footage also showed that, despite her allegation, she had not been swung around and then pushed by our client.
  • There were further significant differences between the accounts given in the 999 call on captured on bodycam footage.

A detailed analysis of the evidence by the defence

John’s detailed analysis of the evidence meant that he was able to use all of the above features of the case to argue against the admission of this purported res gestae evidence.  This included a thorough understanding of the timeline in the case and all of the inconsistencies between the different parts of the evidence.

He argued that it would be wrong to conclude that the complainant was so emotionally overpowered that there could not have been concoction or distortion.

successful res gestae argument derby crime solicitorThe Magistrates agreed with John’s submissions.  They refused to allow the Crown’s application to admit any of this evidence under section 118(1)(a) Criminal Justice Act 2003 and the relevant case law.

Once the Crown’s res gestae argument had been refused the Prosecution accepted that they had no further evidence to place before the Court.  No evidence was offered and the charge was dismissed.

Some more information about Res Gestae and hearsay evidence can be found here.

Defendant’s Costs Order Made

Our client was not financially eligible for Legal Aid.  He had funded the matter privately.  John successfully applied for a Defendant’s Costs Order which permitted recovery of a proportion of the private costs paid.

Contact Derby Crime Solicitor John Young

crime solicitor res gestae argument
Derby crime solicitor John Young

If you face allegations before the Magistrates’ court you will need an experienced solicitor with an eye to detail to ensure that your best case is placed before the court.

You will also want to instruct a solicitor who understands all of the relevant law and is fully prepared to make the arguments that you need to win your case.  This will particularly be the case if there is to be a difficult res gestae argument.

Please telephone John Young for an appointment on 01332 546818 or use the contact form below.

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Hearsay Evidence – can the prosecution proceed without a witness in domestic violence cases?

hearsay res gestae evidenceOur solicitors are often instructed in cases involving allegations of domestic violence.  The complainants in some of these cases do not support the prosecution.  This lack of support 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 hearsay 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 hearsay 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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News

Res Gestae evidence – does the prosecution need a complainant?

res gestae derby legal aid solicitor vhs fletchers
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.res gestae magistrates court trial

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 res gestae hearsay evidenceis 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.

Contact