R v Sylwester Danilowski

For the res gestae exception preserved by the Criminal Justice Act 2003, hearsay may be admitted where the maker was so emotionally overpowered that concoction or distortion can be disregarded. A statement may remain admissible although it followed police questions or gestures, if the real-time circumstances show an instinctive response. In domestic-abuse cases, the complainant’s absence or lack of support is not an automatic bar. Fairness depends on the circumstances and the strength of the evidence. Under the Police and Criminal Evidence Act 1984, recorded evidence need not be excluded where the defence can challenge reliability and the jury can assess the footage. Reliability is generally for the jury, and sufficient evidence defeats a no-case submission.

The appellant was convicted in the Crown Court at Kingston upon Thames of intentional strangulation of his domestic partner and received a suspended sentence. The complainant declined to make a statement and was not called by the prosecution. The Crown relied on body-worn video footage recording her account shortly after the incident. The appeal concerned whether the footage was admissible as res gestae, whether it should nevertheless be excluded under section 78 of the Police and Criminal Evidence Act 1984, and whether there was a case to answer.

The appeal was dismissed and the conviction was held to be safe.

1. The court confirmed the res gestae approach preserved by section 118(1) 4(a) of the Criminal Justice Act 2003, as described in R v Andrews [1987] AC 281. The question was whether the complainant was so emotionally overpowered by the event that the possibility of concoction or distortion could be disregarded. Relevant circumstances included the timing, her distress and breathlessness, her state of undress, climbing from the window immediately after an argument, and whether her utterances appeared instinctive rather than reflective.

2. The court viewed the footage and agreed with the Recorder’s assessment. The complainant appeared sufficiently lucid to answer questions, identify what had been done and indicate where. The officer’s reference to strangulation confirmed the physical demonstration already made by the complainant; it did not necessarily suggest the allegation. Her language difficulties and possible intoxication did not require exclusion at the admissibility stage. Any remaining question about factual accuracy was principally one of weight.

3. The court expressly endorsed the observations in DPP v Barton [2024] EWHC 1350 (Admin). That decision did not alter the law and was not confined to its facts. In domestic-abuse cases, the absence or lack of cooperation of the complainant is not an insurmountable obstacle, although there is no carte blanche to proceed without calling the complainant. Fairness depends on the circumstances and the strength of the available evidence.

4. Admission of the recording did not materially disadvantage the appellant. The defence could challenge the account through submissions, and the jury could view the footage and assess its context and reliability. The Recorder therefore correctly refused exclusion under section 78 of the Police and Criminal Evidence Act 1984.

5. The reliability and alleged vagueness of the account were matters for the jury. There was plainly sufficient evidence to leave the case to them. The appeal was dismissed.

• Court of Appeal (Criminal Division): appeal against conviction dismissed and conviction held safe, [2025] EWCA Crim 1279.
• Crown Court at Kingston upon Thames: appellant convicted on 21 June 2024 and sentenced on 21 November 2024 to 22 months’ imprisonment suspended for 22 months, with requirements including unpaid work.