In the absence of any other witnesses, Prosecutors in those circumstances have four options:
The first path is almost never followed given current policies surrounding DV cases. The second and third depend on whether an assessment for Domestic Abuse, Stalking and Honour Based Violence (‘DASH assessment’) has been completed by the police. In cases where a complainant is vulnerable, often Prosecutors will not apply for a warrant – indeed, it seems counter-productive to arrest and force a complainant of DV to come to court against their will to face their alleged abuser. See this article by William Staunton of Central Chambers on this point.
Hearsay evidence will be a Prosecutor’s last resort. Often in domestic violence cases, there will be a recording of a 999 call taking place during or following the incident. Police officers often attend the scene with body-worn video cameras and take an account from the Complainant. Witnesses to whom the Complainant spoke immediately following the incident may give separate statements regarding the Complainant’s emotional state and what they were told.
Although there are prescribed circumstances in which hearsay evidence may become admissible, the most common argument made by prosecutors is that an account showing the emotional distress of the Complainant is admissible as res gestae in their absence.
WHAT IS RES GESTAE?
“(1) The following rules of law are preserved…
4. Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—
(a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded…”
Recent authorities have expanded on the meaning of res gestae to account for the possibility of time delay, but the core test set out in R v Andrews  AC 281 still applies: The Crown must show that the statement was made in response to an event that was “so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection”. They must show “that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused” (per Ackner LJ at ).
WHERE THERE’S A WILLS, THERE’S A WAY
One example of a DV case in which a complainant failed to attend on the day of trial was Wills v CPS  EWHC 3779 (Admin). Collins J ruled that “before reaching the stage of considering whether it was appropriate to consider the admission under the res gestae principles, it was in my view essential for the justices to have discovered, so far as it was possible, why the witness had not attended”. Collins J went on to observe that it was “important that there should be the ability for [the complainant’s] evidence to be tested”, and that it was “a case in which the presence of the complainant was clearly essential, if there was no good reason why she should not attend”.
The High Court ruled that the failure to explore the reasons for the complainant’s non-attendance in Wills was fatal to the application to adduce res gestae evidence and quashed the Appellant’s conviction. Consideration was also given to arguments of whether the evidence constituted res gestae, as well as to the question of whether such evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 (‘PACE’).
THE THREE-PRONGED APPROACH
When successfully deployed, Wills essentially creates three questions for Prosecutors to answer before they can rely on res gestae evidence in such cases:
In practice, prosecutors tend to skip to the second question after outlining that they have made reasonable efforts to secure the witness’ attendance. This, respectfully, is not good enough. The Court should be firmly reminded of the need to consider the question in Wills before it approaches the question of whether evidence amounts to res gestae or not.
If the Crown cannot give a good reason why the Complainant is not in attendance, or there is evidence to suggest that the Complainant has voluntarily absented themselves, then it is submitted that the Crown falls at the first hurdle and the Court should not go on to consider the question of admissibility.
If the Crown is to satisfy the test in Wills, they must show that the evidence amounts to res gestae as above. It is nota question of whether a complainant is believable because she appears to be emotionally distressed – it is a question of whether the possibility of concoction or distortion of an account can be excluded based on the emotional state of the person giving it. If found admissible, arguably the Court has ruled that the account cannot have been concocted, which will render it difficult to undermine such evidence should the trial proceed. The importance of ensuring the Court considers Wills before getting to the res gestae question cannot be overstated.
If the Court is satisfied both that there is a good reason for a witness’ non-attendance and that their evidence does amount to res gestae, such evidence will be admissible and can be relied upon by the Crown. It is then open to the Defence to argue that such evidence should be excluded under s.78 of the Police and Criminal Evidence Act 1984. At this stage the Court should be invited to consider this question: would it be fair in all the circumstances to ask the Defendant to defend themselves against footage of someone saying that they are guilty, without being able to test or challenge that evidence in any way?
Practitioners should be quick to remind the courts that the Crown cannot simply “default” to res gestae whenever its key witness in a case of alleged DV fails to attend.
Wills creates an additional burden upon the Crown to satisfy the Court that there is a good reason for the Complainant’s failure to attend before the Court can go anywhere near considering whether their res gestae evidence is admissible.
In this way, Wills can be effective to protect a Defendant facing allegations of DV from being forced to fight an uphill battle against evidence that cannot be subjected to cross-examination on their behalf.
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