Victimless prosecution? Applying and resisting Res Gestae in domestic assault cases
November 4, 2021
Amanda Johnson and Hannah Forsyth
One of the major difficulties in prosecuting offences involving domestic violence is the unwillingness of many complainants to give evidence.
One police force within Yorkshire estimated that of the domestic incidents they attended, 65% resulted in the complainant withdrawing their complaint. This can be for a number of reasons – for example: personal connections with the defendant and their family, fear of further repercussions, or unwillingness to further involve oneself in a potentially stressful and difficult court case. However, the lack of a complainant does not automatically mean that the prosecution must stop.
One of the options a prosecutor can take is to look at the surrounding evidence in the case and determine if it can be admitted as hearsay. Hearsay evidence is defined in the Criminal Justice Act 2003 (CJA) as “a statement not made in oral evidence that is evidence of any matter stated” (section 114(1)). Ordinarily inadmissible, it can only be admitted as evidence under certain “gateways”, which include:
- Agreement between the parties (s114(1)(c)
- The witness in question being unavailable for any of a list of reasons (s116)
- The court accepts that it is in the interests of justice for the evidence to be admitted (s114(1)(d))
- A common law exception such as Res Gestae applies (s118)
The most common way to attempt to admit evidence in a victimless prosecution of domestic assault is Res Gestae.
Defining Res Gestae
Res Gestae is a Latin term which literally translates as “things done”. In a legal context, it means
“a statement made by a person so emotionally overpowered that the possibility of concoction or distortion can be disregarded”. (section 118 CJA 2003)
Although it is a common law exception (i.e. found in case law rather than legislation), Res Gestae is now expressly included as a gateway to admit hearsay under section 118 CJA 2003. Examples of the sort of statement likely to qualify are 999 calls and statements made by victims to others immediately or shortly after an attack.
Despite predating the CJA 2003 and accompanying definition, R v Andrews  AC 281 remains a helpful case in determining what evidence suffices as Res Gestae. Giving the leading judgment in the case, Lord Ackner provided the following steps (emphasis added):
- The primary question which the judge must ask himself is: Can the possibility of concoction or distortion be disregarded?
- 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.
- 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…
- Quite apart from the time factor, there may be special features in the case which relate to the possibility of concoction or distortion. … 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.
- 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 to 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…
There is a further warning in the case from Lord Ackner that Res Gestae is not to be used to avoid calling a witness when they are otherwise available.
Recent case law
Since the CJA 2003 was enacted, there have been several cases which provide more specific guidance on elements of the test found in R v Andrews.
Barnaby v DPP  EWHC 232 (Admin), heard in the High Court, provided a clear example of how the test could be met in the context of domestic abuse. The complainant made several 999 calls showing clear distress within minutes of the incident, and then continued to display distress while speaking to officers. This was sufficient to be “closely associated with the event”, even though the officers did not attend until around 30 minutes later. Officers observed that her injuries matched the allegation and there was supporting evidence in the form of messages from the defendant confessing to the attacks, removing the suggestion of concoction.
Importantly, this case also contained evidence of why the prosecution had not called the complainant to give evidence. The court heard the complainant was in fear of the defendant attacking her if she provided a statement or signed the officer’s pocket book. The High Court summarised this issue as follows:
“Although the court has a cardinal responsibility to ensure that a defendant receives a fair trial, careful decisions need to be taken in situations of this kind if there is a real risk that a victim of domestic abuse may suffer further harm following her cooperation with the prosecuting authorities.”
R v Higgins  EWHC 4129 (Admin) and R v Morgan  ACD 67(23) also involved domestic assaults, where the corroborating evidence assisted in convincing the tribunal that Res Gestae should be permitted. In both cases, police officers were able to testify to the demeanour of the complainants and their fear of giving evidence.
The concept of “contemporaneous” was further expanded in Ibrahim v CPS  (unreported), where a delay of 89 minutes between the incident and Res Gestae was allowed. In this case, the complainant remained extremely distressed and the apparent injuries confirmed her account of events.
By contrast, in the circumstances of Wills v CPS  EWHC 3779 (Admin) Res Gestae was deemed inappropriate. The complainant had alleged an assault by family members, but gave a different version of events to the police 30 minutes after the incident to her witness statement the day after. She then failed to attend at court, but no steps were taken to ensure attendance or take measures. The High Court ruled that the attendance of the complainant was essential to both the prosecution and defence case, and to admit her evidence in her absence was unfair to both defendants as they could not cross-examine her or otherwise test the allegations. The court also emphasized the importance of taking steps and using all available measures to guarantee witness attendance.
Similarly, in the pre-2003 case of R v Harris  All ER (D) 376 CA the court ruled that the absent witness’ conversations with several others before calling the police meant it was unlikely that the witness was still “dominated by the event”. The issue in the case was again the nature of an altercation rather than the fact that an altercation took place – it was prejudicial to the defendant to allow the evidence in unchallenged.
Relationship with section 116(2)(e) CJA 2003
Section 116(2) of the CJA 2003 provides a statutory gateway to admit hearsay where a witness is unavailable for a variety of reasons. The most relevant for scenarios involving Res Gestae in a domestic setting is section 116(2)(e): where a witness is unavailable to give evidence due to fear. This has to be established by the party proposing to adduce the evidence through hearsay, in the case of the prosecution beyond reasonable doubt and in the case of the defence on the balance of probabilities.
This should be the first approach where it is known that the complainant is in fear – it would require a notice to adduce hearsay and evidence in support of the application. By contrast, Res Gestae should be used (for example) if there is a “real risk that a victim of domestic abuse may suffer further harm following her cooperation with the prosecuting authorities” (Barnaby v DPP).
There are undoubtedly scenarios in which both s116(2)(e) and Res Gestae are applicable. It is important to note that when a complainant is in fear, the Court have strongly preferred using all available measures to ensure the complainant can feel comfortable giving evidence, or alternatively the use of s116(2)(e) with appropriate evidence.
Adducing Res Gestae
There is no need to produce a formal notice to adduce evidence under Res Gestae (as opposed to other hearsay “gateways”), but as with any contested evidence it would be good practice to produce written arguments for the court and other parties in advance to avoid the suggestion of ambush. If it is clear in advance that Res Gestae will be relevant to the case, it should be mentioned at the PTPH or, if later, as soon as it become a live issue. The evidence should not be mentioned in opening the case if it is still in dispute.
Before bringing a prosecution for domestic assault without the complainant, it is sensible to take all possible steps to secure attendance of the complainant, including discussing measures such as screens or live links. Any evidence that the complainant is in fear of or controlled by the defendant should also be obtained from investigating officers or if relevant, family and friends who can attest to the complainant’s state of mind. Any attempt to prosecute a case based on Res Gestae will be scrutinised for the possibility that the prosecution are avoiding calling the complainant for fear of their being unreliable – it would be wise to insulate prosecution case against this suggestion.
Resisting Res Gestae
There are multiple safeguards which apply to adducing any evidence in a criminal case. Particularly relevant to Res Gestae are sections 125 and 126 CJA 2003 and section 78 of the Police and Criminal Evidence Act 1984 (PACE).
In the first instance, the defence may wish to argue that the evidence does not qualify as Res Gestae under the definition in section 118 and subsequent case law. The steps identified by Lord Ackner in R v Andrews can assist here – is there the possibility of concoction or distortion? Are there issues or failings in police evidence? R v Andrews provides “special features” such as malice, drunkenness or poor eyesight on the part of the witness, but this list is not exhaustive and other features could apply.
In a Crown Court trial, it may be possible to argue under section 125 CJA that the prosecution case is wholly or partly based on hearsay and that hearsay is sufficiently unconvincing to render a conviction unsafe. Section 126 allows any court to exclude hearsay evidence where it is likely to cause an “undue waste of time”.
Section 78 PACE is an important safeguard on any evidence admitted by the prosecution. Under section 78 the court has the power to refuse to admit any evidence if it would have an adverse effect on the fairness of proceedings. It could be employed in Res Gestae cases in a number of different contexts: for example, if it would be unfair to admit the complainant’s evidence without any chance to challenge it in cross examination – this was particularly relevant in Wills v CPS. Insufficient effort on the part of the prosecution to produce the witness is also relevant to section 78 (R v Harris).
If this fails, it is of course open to the defence to make a submission of no case to answer, and/or to comment on the defence’s inability to challenge the evidence in closing as appropriate.
“Victimless prosecutions” are on the rise and present challenges for prosecutors and defendants alike in domestic assault cases. The CJA 2003 and accompanying case law provide guidance on the best practice for adducing evidence and prosecutors should be alive to the steps needed to adduce evidence in the absence of a complainant. When defending, there are several opportunities to exclude complainant Res Gestae evidence, of which section 78 PACE has been highlighted as particularly important.
Res Gestae does not substitute making all possible efforts to ensure that complainants give evidence. It presents a possible avenue of progressing with a case when the complainant is unable or unwilling to give evidence, but should be considered carefully in each individual case.
 Humberside Police Website: https://www.humberside.police.uk/domestic-abuse/victimless-prosecutions/