R v Danilowski 2025
D was convicted of intentional strangulation contrary to section 75A(1)(a) and (5) of the Serious Crime Act 2015 against his partner.
In this immediate case, two officers attended a disturbance at D’s address. Upon arrival they saw D's partner, climbing out of a downstairs window. She was barefoot, wearing only a bra on her top half, and appeared to be very distressed. She was shouting in a foreign language, suspected to be Polish, and appeared to be trying to get back into the property, but the front door was locked from the inside. Both of the officers were wearing a body worn camera and statements made by the complainant recorded on the body worn video footage and still images taken from that footage became a key part of the prosecution evidence at trial. In summary, the complainant, who can be seen to have a substantial patch of redness on her upper chest around the area of the collarbone, identified the occupant of the property as her partner and when asked by one of the officers whether he had hurt her, indicated "yes" and told them in English, with accompanying gestures demonstrating it, that he had strangled her "with two hands". At this point D was arrested. The complainant declined to make a statement concerning the incident.
In a careful and detailed written ruling the Recorder decided that the statements made by D’s partner on the body worn footage were admissible as res gestae evidence, which means that a hearsay statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded. Body worn video footage is now commonly used as evidence and admitted under that section in domestic violence cases, where complainants often retract their complaint and do not give evidence.
After the evidence had been ruled admissible, and prior to the trial, D’s partner sought to disavow it. She said that she had been drinking heavily and she was now unsure that what she had told the police was accurate. She now believed that the blow to her head may have been caused accidentally by a friend who was trying to take her away from D. She sent a letter to the CPS in which she set this out and indicated that she was very distressed about the prospect of having to be called as a defence witness. When D’s partner appeared at trial the prosecution declined to take a statement from her, or to call her as a witness because of concerns that if they did she would not give a truthful account.
D appealed on three grounds:
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The Recorder erred in finding that body worn video footage of two police officers recording the complainant's account was admissible under the res gestae principle.
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Alternatively, if the footage was admissible, the Recorder erred in refusing to exclude it pursuant to section 78 of the Police and Criminal Evidence Act 1984 (on the basis that it was so prejudicial that it would be unfair to D to allow it to be adduced).
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The Recorder erred in rejecting the defence submission that there was no case to answer.
Held
Appeal dismissed. Conviction upheld.
The Recorder properly directed himself on all three matters and reached the right conclusion on each of them for the reasons that he gave.
He found that the complainant could be seen to be so emotionally overpowered by the event that the possibility of concoction or distortion could be disregarded and therefore the evidence was correct in being admissible under the res gestae principle.
The fact that a complainant does not support the prosecution should not be viewed as an insurmountable obstacle in most cases. The question of whether it will be fair to proceed without calling the complainant will depend upon the circumstances of the individual case and on the strength of the available evidence. The evidence would not be excluded under section 78. The absence of the complainant did not put D at a material disadvantage. The reliability of her recorded account of what had happened to her was quintessentially a matter for the jury.
The Court of Appeal was satisfied that the evidence in question was not only admissible res gestae evidence but obviously so; there was no unfairness to the appellant caused by its admission and that in the light of it there was plainly a case to answer.
View the full case document here, with links to related legislation and similar cases.
