W, R. v

A statement which satisfies the res gestae exception to the hearsay rule is admissible even though its maker is available to give evidence. There is no general best-evidence rule requiring its exclusion in that situation.

In a criminal trial, however, the court should consider exclusion under section 78 of the Police and Criminal Evidence Act 1984. Admission may be unfair where the prosecution relies on a victim’s spontaneous accusation but does not make that victim available for cross-examination. Whether exclusion is appropriate depends on the circumstances and on the practical ability to make the witness available.

The Attorney-General referred a point of law under section 36 of the Criminal Justice Act 1972 after W was acquitted at Manchester Crown Court of alternative counts of causing grievous bodily harm with intent and inflicting grievous bodily harm on his mother.

The prosecution proposed to prove the mother’s immediate accusations to several witnesses, including that W had thrown her downstairs and set her alight. It did not propose to call her because she had later made a sworn deposition exculpating W. The trial judge held the witnesses’ evidence inadmissible, although it was accepted before the Court of Appeal that the statements formed part of the res gestae.

The central issue was whether otherwise admissible res gestae evidence must nevertheless be excluded because its maker can attend court but is reasonably believed likely to give untruthful evidence.

1. The reference was answered by holding that the evidence was admissible in law. The trial judge was wrong to treat the mother’s availability as creating an additional rule of inadmissibility. The statements met the requirements of the res gestae exception: there was no risk of concoction or distortion, and they were sufficiently spontaneous and contemporaneous.

2. There is no general rule that otherwise admissible res gestae evidence must be excluded because the maker can give evidence. Nor is there a general best-evidence rule requiring exclusion of oral evidence of lesser quality. Any such rule is confined to documents.

3. The proper route was discretionary exclusion under section 78 of the Police and Criminal Evidence Act 1984. The judge should have admitted the evidence subject to a defence application to exclude it if its admission would adversely affect the fairness of the proceedings. The relevant concern was that the Crown might rely on the victim’s earlier accusation while declining to tender her for cross-examination.

4. As a general principle, the Crown should not be permitted to select only the part of a victim’s evidence it considers reliable without making the victim available to the defence. It was not an adequate answer that the defence could call the victim itself, since the defence would then be unable to lead or cross-examine the witness as the Crown could. That procedural imbalance might itself render admission unfair.

5. The court considered that, had the issue been approached under section 78, the judge might well have excluded the evidence. The answer to the Attorney-General’s question was therefore fact-sensitive and depended, in particular, on the circumstances of the statements and the practical ability to make the witness available.

• Court of Appeal (Criminal Division): On an Attorney-General reference under section 36 of the Criminal Justice Act 1972, the court held that the proposed res gestae evidence was admissible but that fairness fell to be addressed through section 78 of the Police and Criminal Evidence Act 1984.

• Crown Court at Manchester: His Honour Judge Woodward excluded the proposed evidence as inadmissible. The prosecution offered no evidence and W was acquitted on both counts.