The Admissibility of 999 Calls and Out-of-court Statements to Police Officers as Res Gestae Evidence
| Author | Stephen Colman |
| Published date | 01 October 2015 |
| DOI | 10.1177/0022018315605228a |
| Date | 01 October 2015 |
| Subject Matter | Divisional Court |
The Admissibility of 999 Calls and Out-of-court Statements to Police Officers as Res
Gestae Evidence
Lee Stewart Barnaby vThe Director of Public Prosecutions [2015] EWHC 232 (Admin)
Keywords
Hearsay, res gestae, s. 114(1)(d) Criminal Justice Act 2003
The appellant appealed to the Divisional Court by way of case stated against the decision of the Bodmin
Magistrates’ Court to admit hearsay evidence under the res gestae exception in the form of telephone
calls to the police and comments made to police officers.
The appellant was charged with an offence of common assault by beating contrary to s. 39 of the
Criminal Justice Act 1988 arising out of an incident on 11 April 2014 when he was alleged to have
assaulted his partner, Glenda Gibb. Ms Gibb had not made a formal witness statement in support of the
prosecution. The prosecution sought to admit the content of three telephone calls made by Ms Gibb to
the police in which she stated that she had been assaulted by the appellant. The first two calls were made
in whispered tones and suggested that the appellant was still within the property. The third call appeared
to have been made shortly after he left. Police officers attended the address within six minutes and noted
that Ms Gibb was distressed and that she had marks to her throat and cheek.
Although Ms Gibb would not provide a witness statement or sign an officer’s pocket notebook, she
did give a brief report to the officers who attended. She stated that the appellant had strangled her and
had bitten her on the cheek. She indicated that she was not willing to provide a statement because he had
assaulted her on a previous occasion after she had made a statement to police.
At the case management stage of the proceedings, the defence indicated that they were objecting to
the introduction of hearsay evidence and asked that the matter be listed for a preliminary hearing in order
that the court could adjudicate on whether the hearsay evidence should be admitted. However, no such
hearing took place and, on the morning of the trial, the court considered the issue of whether the evidence
of the telephone calls and account given to the police at the scene should be adduced. The prosecution
relied upon the res gestae exception to the hearsay provisions.
The defence argued that the statutory test contained in s. 118(4)(a) of the Criminal Justice Act 2003,
namely ‘the statement was made by a person so emotionally overpowered by an event that the possibility
of concoction or distortion can be disregarded’, was not met. It was the appellant’s case at trial that he
had gone to Ms Gibb’s home and they had argued, but he had not assaulted her and there had been time
for ‘reasoned reflection’ before she made the calls (at [24]). It was submitted that the court would not be
able to assess whether the calls and account given to the police were sufficiently contemporaneous or
spontaneous (at [24]), and that there was evidence of ‘enduring hostility’ between Ms Gibb and the
appellant, as well as evidence that she had lied to an officer who attended her address on 11 April (at
[25]). Issues were also raised regarding the continuity of the telephone evidence.
The defence contended that the prosecution should have made a hearsay application under the ‘inter-
ests of justice’ ground contained in s. 114(1)(d), which would then require the court to take into account
the factors set out in s. 114(2). It was submitted that the appellant did not receive a fair trial as a result.
The questions for the Divisional Court from the justices were:
1. Were we correct in admitting the out of court statements of Glenda Gibb?
2. Were we correct in admitting the evidence of the 999 calls?
HELD, DISMISSING THE APPEAL, there was sufficient evidence before the justices to enable
them to properly disregard the possibility of concoction or distortion. Fulford LJ, referring to the leading
314 The Journal of Criminal Law 79(5)
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