Morgan v Director of Public Prosecutions

Hearsay evidence may be admitted under the preserved common-law res gestae principle where the trial judge can disregard the possibility of concoction or distortion. Delay is relevant but is not necessarily decisive. The assessment depends on the whole circumstances, including the declarant’s condition, the connection with the underlying event, and any special features suggesting unreliability.

Where such evidence is admitted, its use will not necessarily render a trial unfair merely because the declarant cannot be cross-examined. The court must consider the supporting evidence, the reasons for non-attendance and the weight of the hearsay. Questions concerning inconsistencies, evidential weight and credibility ordinarily fall to be determined at trial, rather than on a submission of no case to answer.

The claimant appealed by way of case stated against convictions for assault by beating and criminal damage entered by District Judge Prowse at Manchester and Salford Magistrates’ Court. The district judge admitted a 999 call and police bodycam footage under the res gestae principle preserved by section 118(1) of the Criminal Justice Act 2003.

The complainant did not attend the trial. The claimant challenged the admission of the evidence under section 78 of the Police and Criminal Evidence Act 1984, the refusal of a submission of no case to answer, and the safety of the convictions. The central issues were whether the evidence was admissible, whether its admission was fair in the absence of cross-examination, and whether the convictions were properly open on the evidence.

1. Appeal dismissed. Each of the four questions in the case stated was answered in the affirmative.
2. The primary question under the res gestae principle was whether the possibility of concoction or distortion could be disregarded. The district judge was entitled to rely on the complainant’s extreme distress, difficulty speaking coherently, and continuing distress when speaking to the attending officers. The fact that the bodycam account involved questions did not prevent admission, because the complainant had already made allegations during the 999 call.
3. Delay was a relevant factor but was not determinative. It had to be assessed with the other circumstances. The complainant’s demeanour and the surrounding evidence entitled the judge to conclude that her mind remained dominated by the events and that the res gestae test was met.
4. The evidence was not unfairly admitted under section 78 of the Police and Criminal Evidence Act 1984. The complainant’s account did not stand alone. It was supported by evidence of her demeanour, injuries, tobacco at the scene and damage recorded on the bodycam. The judge was also entitled to accept that the prosecution’s decision not to compel attendance was principled and arose from the complainant’s fear of reliving the incident.
5. The absence of advice about special measures did not alter that conclusion. This was not an application under section 116(2)(e) of the Criminal Justice Act 2003, and special measures would not necessarily have addressed the complainant’s particular fear.
6. The inconsistencies and lack of detail relied on by the claimant concerned weight and credibility. They did not deprive the prosecution case of sufficient evidence to proceed. Applying the approach in R v Galbraith 73 Cr App R 124, the case was properly left for determination by the tribunal of fact.
7. The convictions were not perverse. Having considered both accounts and the absence of cross-examination, the district judge was entitled to find the prosecution evidence proved the charges so that he was sure of guilt. The respondent was awarded £1,113.20 in costs, not enforceable without leave of the court, and the claimant’s legal aid costs were directed to detailed assessment.

• High Court (Administrative Court): The appeal by case stated was dismissed. The court affirmed the convictions and answered all four questions in the affirmative.
• Manchester and Salford Magistrates’ Court: District Judge Prowse convicted the claimant of assault by beating and criminal damage on 4 December 2014 after admitting the 999 call and bodycam evidence.