Carlos Vilhete v Crown Prosecution Service

Before admitting critical hearsay evidence under the res gestae exception, the prosecution and court should establish whether the witness is willing to attend, why the witness is unwilling, and whether attendance might reasonably be secured. This is guidance about informed decision-making, not a separate threshold test for admissibility.

The res gestae exception and the discretionary fairness power under section 78 of the Police and Criminal Evidence Act 1984 are distinct. Evidence satisfying the exception may nevertheless be excluded if its admission would adversely affect fairness. In domestic abuse cases, recorded res gestae evidence may often be admitted despite the complainant’s non-cooperation, provided the court evaluates the evidence fairly and takes account of the absence of cross-examination.

The appellant was convicted by Stratford Magistrates Court of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. His appeal to Snaresbrook Crown Court took the form of a rehearing. The Crown Court admitted the complainant’s statements during a 999 call and in police body-worn footage under the res gestae exception, and declined to exclude them under section 78 of the Police and Criminal Evidence Act 1984.

The complainant had withdrawn support for the prosecution because she believed the appellant required mental-health treatment and feared that attending court would worsen her diagnosed anxiety. The case stated asked whether the Crown Court had failed to investigate or secure her attendance, and whether admitting the evidence made the rehearing unfair.

1. Appeal dismissed. The answer to each question in the case stated was “No”.
2. An appeal to the Crown Court against conviction by a magistrates’ court is a rehearing of the prosecution’s case under section 79(3) of the Senior Courts Act 1981. The prosecution should ordinarily provide the court with sufficient information about the unavailability of a central witness before applying to admit that witness’s hearsay evidence as res gestae.
3. Wills v Crown Prosecution Service [2016] EWHC 3779 (Admin) did not establish a special threshold test for domestic abuse cases. Its guidance was directed to the failure, in that case, to make proper inquiries. The relevant inquiries are whether the witness is willing to attend, why the witness is unwilling, and, in light of that information, whether attendance could or should be secured, including by supportive measures or a witness summons.
4. The Crown Court was entitled to find that those inquiries had been made. The complainant had clearly and firmly decided not to support the prosecution. Her reasons had been discussed with her, including the possibility of a witness summons and special measures. Further attempts after the magistrates’ court trial would reasonably have been regarded as fruitless.
5. The res gestae question under section 118(4)(a) of the Criminal Justice Act 2003 is distinct from the section 78 fairness discretion. The recorded accounts were admissible in principle under R v Andrews [1987] AC 281. The Crown Court properly considered all the circumstances, including the lack of cross-examination, and was entitled to conclude that careful evaluation of the evidence could preserve a fair hearing.
6. Consistently with DPP v Barton [2024] EWHC 1350 (Admin), it may often be fair in domestic abuse proceedings to admit recorded res gestae evidence despite the complainant’s non-cooperation, including where the non-cooperation is not caused by fear.

• High Court (Administrative Court): [2024] EWHC 2171 (Admin) dismissed the appeal by way of case stated and answered all four questions “No”.
• Snaresbrook Crown Court: dismissed the appellant’s appeal against conviction and admitted the complainant’s recorded evidence under the res gestae exception.
• Stratford Magistrates Court: convicted the appellant of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861.