Barnaby v The Director of Public Prosecutions

Hearsay evidence may be admitted under the preserved res gestae exception where the circumstances show that the maker was emotionally overpowered by the event and the possibility of concoction or distortion can be disregarded. The maker’s availability does not create an automatic bar, although the prosecution’s failure to tender an available witness may affect fairness. Particular care is required where a domestic-abuse victim fears further harm. A prosecution which establishes admissibility under the res gestae exception need not instead rely on the general interests-of-justice gateway in section 114(1)(d) of the Criminal Justice Act 2003. Continuity and provenance may be established by the surrounding circumstances and evidence identifying the recording and caller.

The appellant was convicted by the Bodmin Magistrates’ Court of assault by beating and sentenced to 16 weeks’ imprisonment. He appealed by way of case stated. The prosecution had relied on three emergency calls made by the complainant and on statements she made to police officers shortly afterwards. The complainant attended court but was not called, because she feared further violence from the appellant. The magistrates admitted the evidence as res gestae hearsay and accepted that continuity of the calls had been established at trial. The questions for the Divisional Court were whether the out-of-court statements and the 999-call evidence had been correctly admitted.

1. Appeal dismissed. The magistrates were correct to answer both questions in the affirmative.
2. Under section 118(1)(4)(a) of the Criminal Justice Act 2003, the primary question was whether the complainant was so emotionally overpowered by the event that the possibility of concoction or distortion could be disregarded. Applying R v Andrews (D) [1987] AC 281, the court considered the startling and dramatic nature of the alleged strangulation, the complainant’s repeated calls, her fear and distress, the short interval before the police arrived, and the continuing physical marks. The statements were instinctive and spontaneous and fell within the exception.
3. The fact that the complainant was available but not called did not make the evidence inadmissible. It was an important fairness consideration, but the circumstances differed from cases where the prosecution sought selectively to rely on a witness’s account while avoiding anticipated untruthful evidence. Here, the complainant’s fear of further domestic violence provided a proper reason for not calling her. The evidence could therefore be admitted notwithstanding her technical availability. The approach in Att-Gen’s Reference (No. 1 of 2003) [2003] EWCA Crim 1286 was applied and explained in that context.
4. The continuity objection failed. The same mobile number was used for each call; the calls occurred within 16 minutes; and the caller identified both the appellant and herself. Evidence from the officer who listened to the recording and prepared the edited transcript closed the evidential gap and established provenance beyond doubt.
5. The prosecution was not required to proceed under section 114(1)(d). Where evidence is properly admissible under a preserved common-law exception, the general interests-of-justice gateway and its section 114(2) factors do not provide an alternative mandatory route. Riat [2012] EWCA Crim 1509 confirmed that section 114(1)(d) cannot routinely be used to avoid the statutory conditions governing evidence falling within sections 116–118.

1. High Court (Administrative Court): the appeal by way of case stated was dismissed. The court answered both questions posed by the magistrates affirmatively.