Case No: 2003 00207 S4
Neutral Citation No: [2003] EWCA Crim 1286
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
(His Honour Judge Woodward)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 8th May 2003

Before :

LORD JUSTICE LONGMORE
MR JUSTICE TOULSON
and 
SIR RICHARD TUCKER
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Between :

	Regina	Appellant	
	- and -		
	W
(Reference under section 36
of the Criminal Justice Act 1972)	Respondent	

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NICHOLAS HILLIARD Esq for the Crown
FAUZ KHAN Esq for the Respondent

Hearing date : 1st May 2003
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Longmore: 
1.	On 13th May 2002, W appeared in the Crown Court to stand his trial on an indictment which contained alternative counts of causing grievous bodily harm with intent and inflicting grievous bodily harm to Mrs W, his mother.
2.	On 14th May 2002, the prosecution informed the judge that they did not intend to call Mrs W because they believed she would give untruthful evidence and exculpate her son.  They accordingly proposed to adduce evidence from other witnesses as to what Mrs W had said about her injuries at the time when she sustained them.  The judge held that the evidence of those other witnesses was inadmissible.  As a result, the prosecution offered no evidence and not guilty verdicts were entered on both counts.
3.	The Court of Appeal is now asked by the Attorney-General to give its opinion on the following point of law:
“If a statement is otherwise admissible as part of the res gestae, is it nonetheless to be excluded when the witness who made the statement can be brought to court but there are reasonable grounds for believing that the witness would not give truthful evidence in accordance with the res gestae statement?”
Facts
4.	The prosecution proposed to adduce evidence of two witnesses who would be able to say that they were walking past Mrs W’s house at 12.35 pm on 29th August 2001 and heard Mrs W calling out to them.  They found Mrs W lying by the steps of her house in great distress.  Mrs W said to them:-
“He’s gone bonkers.  He threw me downstairs and set me on fire.  Phone the police and the ambulance.”
One of the witnesses asked Mrs W who had done this to her and she identified her son and said he had thrown her downstairs.  Mrs W’s hair was burnt and singed and she looked terrified.  One of the witnesses went to telephone the emergency services while the other witness stayed with Mrs W.  W came out of the house and tried to lift his mother up.  She shouted to the witness:-
“Don’t leave me.  He’ll do it again.”
She also accused her son directly of having broken her leg.
5.	The prosecution also had available the evidence of a neighbour who, at about 12.40 pm, came into Mrs W’s front garden and saw both Mrs W and W.  This witness said that Mrs W looked terrified and said to her (the neighbour):-
“Don’t let him anywhere near me”
and to her son:-
“Look what you’ve done, you’ve broken my other leg now”
And then, again, to the neighbour after the son went back into the house:-
“He’s tried to set me on fire, he’s burnt my hair and my clothes and he wouldn’t let me out of the house.  Look what he’s done to my hair.”
6.	A fourth witness came round and asked Mrs W what had happened.  Mrs W said to this witness that her son had gone off his head, had poured lighter fuel over her and set her cardigan alight with a lighter.  She said she thought W had “done” her left leg.
7.	An ambulance arrived at Mrs W’s address at 12.55 p.m.  Mrs W was taken to hospital.  It was discovered that she had sustained a fracture to her left leg.
8.	The police arrived at Mrs W’s address at 1 p.m.  They found a lighter on the front door step.  W was in the upstairs rear bedroom.  There were 2 tins of lighter fuel in the room.  W was lying on the bed with his arms crossed and looking at the ceiling.  He shut his eyes when the officers went into the room.
9.	He was taken to hospital where he was seen by psychiatric staff.  Once it was decided that he was fit to be detained, he was arrested on suspicion of assault.  He was interviewed and declined to answer questions.  He was charged on 27th September 2001.
10.	Mrs W had, at some unidentified stage, been asked by the police to make a witness statement but she declined to do so.  On 16th November 2001, she made a deposition on oath in the magistrates’ court, pursuant to paragraph 4 of Schedule 3 of the Crime and Disorder Act 1998.  She said that she had injured both her legs by slipping on the stairs.  She said that she had no comment to make about how her hair had been singed.  She said that she had no comment to make about the fact that a number of people said that she had blamed her son for her injuries.  She had been hysterical.  She said in terms that she was not willing to attend court to give evidence against her son.
Proceedings in the Crown Court
11.	The prosecution sought to adduce evidence of what Mrs W had said to witnesses as outlined above.  It was submitted that her statements to those witnesses were admissible as part of the res gestae.  The judge was referred to R v Andrews [1987] 1 AC 281, HL.  Mr Friesner for the Crown submitted that the evidence of what Mrs W had said could be brought within the principles set out in Andrews.  It was the prosecution’s case that Mrs W must have been lying when she gave evidence in the magistrates’ court.  The judge observed that it was perfectly proper for the prosecution to have come to that view.  However, he said that her evidence was still available to the prosecution.  He pointed out that Lord Ackner had said in Andrews that he would deprecate any attempt to use the res gestae doctrine as a device to avoid calling the witness if he or she were available.
12.	Mr Friesner for the prosecution submitted that truthful evidence from Mrs W was not available.  He referred the judge to two cases he had found overnight, R v Giles 13th March 1997 (unreported) and to R v James, 17th June 1999 (unreported) in which statements made as part of the res gestae were received in evidence when the makers were, respectively, the brother and the co-accused of the defendant.  Counsel for W submitted that Mrs W was available to give evidence and that, accordingly, the prosecution could not rely upon the res gestae principle.
13.	The judge ruled that what he called the best evidence was available to the prosecution because Mrs W could give evidence on oath and be subject to cross-examination.  Although the prosecution’s submission that her evidence would not be truthful may have been soundly based, nonetheless it was a device to avoid calling a witness who would destroy the prosecution’s case.  The rules of evidence did not enable him to allow the evidence of what Mrs W had said to be called;  the evidence of the relevant witnesses was, therefore, not admissible.
14.	Similar arguments to those put before the judge by Mr Friesner have now been advanced on behalf of the Attorney-General on this reference, on this occasion by Mr Hilliard.  Counsel for the acquitted person did not appear but sent to the court a written argument.  Significantly, he accepted in that note (correctly in our view) that the evidence sought to be adduced by the Crown was part of the res gestae.  We should explain why we think this is correct.
15.	In R v Andrews [1987] 1 AC 281, the House of Lords affirmed the existence of the res gestae doctrine, as clarified by the Privy Council in Ratten v The Queen [1972] AC 378.  For present purposes it is sufficient to say that before hearsay evidence can be admissible as part of the res gestae, the judge must be satisfied that the evidence could not have been concocted or distorted and that the relevant statements were made in conditions of approximate if not exact contemporaneity.  The judge appears to have accepted for the purposes of his ruling that there was no risk of concoction or distortion and that the statements were made in conditions of sufficient spontaneity.  We agree.
16.	Lord Ackner however added (at p. 302 D-F) that:-
“the doctrine of res gestae applies to civil as well as criminal proceedings.  There is, however, special legislation as to the admissibility of hearsay evidence in civil proceedings.  I wholly accept that the doctrine admits the hearsay statements, not only where the declarant is dead or otherwise not available but when he is called as a witness.  Whatever may be the position in civil proceedings, I would, however, strongly deprecate any attempt in criminal prosecutions to use the doctrine as a device to avoid calling, when he is available, the maker of the statement.  Thus to deprive the defence of the opportunity to cross-examine him, would not be consistent with the fundamental duty of the prosecution to place all the relevant material facts before the court, so as to ensure that justice is done.”
The judge ruled that the res gestae exception was not to apply where what he called “the best evidence” is still available and relied on this part of Lord Ackner’s speech to hold that the evidence of the four witnesses sought to be adduced by the prosecution was not admissible.
Arguments on appeal
17.	Mr Hilliard submits that is not correct.  He submits:-
(1)	That there is no rider in law to the res gestae exception disapplying the exception if better (or the best) evidence is available;
(2)	That the Crown cannot be required to adduce evidence which (or to tender for cross-examination a witness whose evidence) is not capable of belief, see R v Russell-Jones [1995] 1 CAR 538 and Archbold (2003) 4-275;
(3)	That accordingly the case cannot be regarded as an attempt to use the res gestae doctrine as a device to avoid calling, where he or she is available, the maker of the statement.
Decision
18.	We accept proposition (1).  Once evidence is within the res gestae exception to the hearsay rule, it is admissible.  There is no rider that, as a matter of law, it is not to be admitted merely because the maker of the statement is available and can give evidence.  To the extent that the judge may have thought that there was a best evidence rule that excludes evidence of lesser quality, that is wrong.  If such a rule exists, it applies only to documents, see Kajala v Noble (1982) 75 CAR 149, per Ackner LJ.
19.	Proposition (2) is more debatable.  Normally the Crown cannot be required to adduce evidence which is not capable of belief but whether the Crown can in some cases be expected to tender a witness, who will give evidence which they suspect will not be capable of belief, is an entirely different question.
20.	Proposition (3) we accept in the sense that the prosecution in this case were not attempting to use the res gestae exception as a device.  But the question remains whether either prosecution or judge dealt with the matter in an appropriate way.
21.	As it seems to us, the correct procedure was for the judge to have accepted that the evidence was admissible, as it plainly was, but that he should have been prepared to entertain an application by the defence under section 78 of the Police and Criminal Evidence Act 1984which empowers the court to refuse to allow evidence to be given if it appears to the court that:-
“. . . the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
If the purpose of the Crown was that the res gestae evidence should be given without any opportunity being given to the defence to cross-examine the maker of the statement, the court might well conclude that the admission of the evidence would indeed have an adverse effect on the fairness of the proceedings and refuse to allow it to be given.  As a general principle, it cannot be right that the Crown should be permitted to rely only on such part of a victim’s evidence as they consider reliable, without being prepared to tender the victim to the defence, so that the defence can challenge that part of the victim’s evidence on which the Crown seeks to rely and, if so advised, elicit that part of her evidence on which the defence might seek to rely.
22.	Mr Hilliard submitted that the defence could always call Mrs W to give evidence themselves.  We do not consider that is an adequate response.  If the defence calls a witness, they cannot ask her leading questions or cross-examine her while the Crown can do so.  That gives the Crown an advantage which might well, of itself, adversely affect the fairness of the proceedings.
23.	Articles 6 (1) and (3)(d) of the European Convention on Human Rights provide as follows:-
“1.	In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . . . . . .
3	Everyone charged with a criminal offence has the following minimum rights:-
.. . . . (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
Strasbourg jurisprudence has held that the rights available under Art. 6 (3)(d) are not absolute.  The provisions of the Criminal Justice Act 1988 permitting statements in documents to be given in evidence in certain special circumstances do not, for example offend the Article, see R v M (witness statement), The Times 2nd May 2003.  Nevertheless, Mr Hilliard’s arguments do not sit easily with the provisions of the Convention.  He relied on Asch v Austria (1991) 15 EHHR 597 as showing that there was no violation of Article 6 where the statement of a co-habitee was read at the defendant’s trial without her being called to give evidence but, in Austrian law, a co-habitee cannot be compelled to be a witness and in paragraph 28 the court said that the right on which the co-habitee “relied in order to avoid giving evidence cannot be allowed to block the prosecution”.  Mrs W can rely on no such right.
24.	If the judge had dealt with the matter in the way we consider to be appropriate, he might well have concluded that the adduction by the Crown of the admissible evidence without making Mrs W available to the defence for cross-examination would have had such an adverse effect on the fairness of the proceedings that the evidence ought not to be admitted.  We therefore have effectively come to the same conclusion as the judge.  The only difference between us is that he dealt with the question as a strict matter of admissibility whereas we think that he ought to have dealt with it pursuant to his discretionary power, because the evidence was, in fact, admissible.  It is only to the extent that he thought that Lord Ackner’s dicta in Andrews created an extra bar to the admissibility of hearsay evidence, that we respectfully disagree with him.
The Question
25.	As can be seen from the foregoing, the question referred by the Attorney-General is not capable of a sensible answer in its present form other than “it all depends on the circumstances in which the statements were made and on how practicable it is to make the witness available”.  Once it is accepted that the problem should be dealt with as a matter of discretion rather than law, there is no black and white answer.
Footnotes
26.	We make two observations in conclusion:
(1)	There was no evidence before us that fear of her son  was the reason why Mrs W no longer supported her original statement.  Cases where fear is alleged can be dealt with under the Criminal Justice Act 1988 if the original statement is made in a document.  Evidence of fear (or, indeed, improper pressure) might be very relevant on any application to exclude evidence otherwise admissible.
(2)	We note that, in relation to civil proceedings, section 3 of the Civil Evidence Act 1995 enables rules of court to be made (as they have been) requiring, in an appropriate case, that when any person serves notice of intention to rely on hearsay evidence, any other party may call that witness and cross-examine him.  That other party is thus not confined to asking non-leading questions of the witness.  The criminal law ought not to be less favourable to a defendant than the civil law.  We do not think it is.