The allegation was of a serious assault on the defendant’s wife. The prosecution considered she would not be a reliable witness, and did not call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There is no rider in law to the res gestae exception disapplying the exception if better (or the best) evidence is available. If such a rule exists, it applies only to documents. The defendant’s right to a fair trial was not infringed (Asch). The evidence was in fact admissible, but it ought to have been excluded anyway as part of the judge’s discretion. Procedures for tendering witnesses should be improved.
Judges:
Lord Justice Longmore Sir Richard Tucker Mr Justice Toulson
Citations:
[2003] EWCA Crim 1286, [2003] Crim LR 547, [2003] 2 Cr App R 29
Links:
Statutes:
European Convention on Human Rights 6, Criminal Justice Act 1972 36
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Andrews HL 1987
Res Gestae no means of avoiding witness
The court should deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if he or she were available. The court laid down six tests for the admission of evidence under the res gestae rule.
Lord Ackner said: . .
Cited – Regina v Giles CACD 13-Mar-1997
The case involved an assault. The crown sought to introduce as evidence a statement made by the defendant’s brother at the scene under the res gestae rule.
Held: The circumstances were such as to allow admission of the evidence under the tests . .
Cited – Regina v James NJ CACD 17-Jun-1999
The court admitted in evidence, by applying the res gestae rule, a statement of the defendant’s co-accused. . .
Cited – Regina v Russell-Jones CACD 1995
The Crown cannot be required to adduce evidence which (or to tender for cross-examination a witness whose evidence) is not capable of belief: ‘. . . the prosecution ought normally to call or offer to call all the witnesses who give direct evidence . .
Cited – Kajala v Noble CACD 1982
The best evidence rule does not generally exclude the admission of evidence of lesser quality. If such a rule exists, it applies only to documents in the possession of the party
Ackner LJ said: ‘The old rule, that a party must produce the best . .
Cited – Asch v Austria ECHR 26-Apr-1991
There was no violation of Article 6 where the statement of a co-habitee was read at the trial without her being called to give evidence but, in Austrian law, a co-habitee cannot be compelled to be a witness and the court said that the right on which . .
Cited – Ratten v The Queen PC 1-Jul-1971
Res Gestae to admit circumstances of complaint
(Victoria) Evidence had been admitted under the res gestae rule, that a woman making a telephone call was in a hysterical state.
Held: It was properly used. Where a statement is made either by the victim of an attack or by a bystander, which . .
Cited by:
Cited – Barnaby v The Director of Public Prosecutions Admn 6-Feb-2015
Admission of hearsay evidence
The defendant appealed by case stated against his conviction for assault. He said that certain evidence, a statement from the complainaint, and a recording of the 999 call, should not have been admitted as hearsay.
Held: Fulford LJ said: . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence, Human Rights
Updated: 09 February 2022; Ref: scu.181959