The evidence that the Crown sought to adduce in this case was admissible as part of the res gestae, but the judge had a discretion to refuse to admit it on grounds of fairness if the defence was not given the opportunity to cross-examine the maker of the statement.Attorney-General's reference to the Court of Appeal under s.36 Criminal Justice Act 1972 raising the question whether a statement otherwise admissible as evidence as part of the res gestae was nevertheless to be excluded when the relevant witness could be brought to court but there were reasonable grounds for believing that the witness would not give truthful evidence. The respondent ('W') was charged with alternative counts of causing grievously bodily harm with intent and inflicting grievous bodily harm on his mother ('M'). The prosecution proposed to adduce evidence of four witnesses who had seen and spoken to M after the incident and who would say that she had accused her son of causing her injuries. M had declined to make a witness statement, but had made a deposition on oath exculpating her son and stating that she was not willing to attend court and give evidence against him. The prosecution informed the judge that they did not intend to call M because they believed she would give untruthful evidence exculpating her son. They argued that her statements to witnesses at the time were admissible as part of the res gestae. The defence argued that since M was available to give evidence, the prosecution could not rely on the res gestae principle. The judge held that the evidence of those other witnesses was not admissible. As a result the prosecution offered no evidence and not guilty verdicts were entered on both counts. The Attorney-General referred the issue of admissibility of the evidence to the Court of Appeal.HELD: (1) The evidence sought to be adduced by the Crown had been part of the res gestae. There had been no risk of concoction or distortion and the statements had been made in conditions of sufficient spontaneity (R v Andrews (1987) AC 281). (2) Once the evidence was within the res gestae exception to the hearsay rule, it was admissible. (3) The correct procedure was for the judge to have accepted that the evidence was admissible but to consider an application by the defence under s.78 Police and Criminal Evidence Act 1984 to exclude the evidence on grounds of fairness. 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 have an adverse effect on the fairness of the proceedings and refuse to allow it to be given. (4) If the judge had dealt appropriately with the matter, he might well have concluded as a matter of discretion under s.78 of the 1984 Act that the adduction by the Crown of the admissible evidence without making M 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 have been admitted.Judgment accordingly.
 EWCA Crim 1286