R v Sylwester Danilowski

On 21 June 2024 in the Crown Court at Kingston upon Thames the appellant was convicted of intentional strangulation, contrary to section 75A(1)(a) and (5) of the Serious Crime Act 2015. The victim of that offence was the appellant's domestic partner. On 21 November 2024, the appellant was sentenced by the trial judge, Mr Recorder Adam Gadd, to a suspended sentence order, comprised of 22 months' imprisonment suspended for 22 months, subject to various requirements, including an unpaid work requirement. The appellant appeals against his conviction on the following grounds by leave of the single judge:

Before considering the specific facts of the case it is helpful to consider briefly the relevant legal context. Section 118(1) 4(a) of the Criminal Justice Act 2003 preserves any rule of law under which in criminal proceedings 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: the res gestae principle.

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. There are strong policy reasons for admitting the footage, as recognised in the case of DPP v Barton [2024] EWHC 1350 (Admin). In that case, police officers had arrived at the scene of an incident around 25 minutes after receiving a 999 call from Mrs Barton who said that she had been hit by her husband. Mrs Barton gave an account of the incident to one of the officers who witnessed a "golf ball" size lump on her head. A few minutes later she spoke to a different officer and stated that her husband had assaulted her. That discussion, which included Mrs Barton showing the officer her injury, was captured on the officer's body worn video footage. Mr Barton was charged with assault by beating, to which he pleaded not guilty.

The prosecution's position from the onset was that it was not going to call Mrs Barton as a witness, as she had refused to make a statement. That remained their stance at trial, although Mrs Barton appeared at court. Prior to the trial, at a case management hearing, a District Judge ruled that the body worn footage of what Mrs Barton had said was admissible in evidence under the res gestae principle. The application to admit the evidence was unopposed, but the Divisional Court described the admissibility ruling as "plainly correct" and consistent with the relevant principles summarised in Archbold. The District Judge also dismissed an application by the defence to exclude the evidence pursuant to section 78 of the Police and Criminal Evidence Act.

After the evidence had been ruled admissible, and prior to the trial, Mrs Barton 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 Mr Barton. 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 Mrs Barton 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. The trial judge acceded to defence counsel's argument that Mr Barton could not receive a fair trial in those circumstances, and stayed the case as an abuse of process.

The Divisional Court, on appeal by way of case stated, overturned that decision. They pointed out that the defence could have called Mrs Barton themselves, which would put them in no worse position than if the prosecution had called her and she were treated as hostile. Alternatively, the judge could have called her and afforded both parties the opportunity to cross-examine her. On the question whether it would be appropriate to admit res gestae evidence notwithstanding that in a strict sense the victim was available as a witness, the President of the King's Bench Division, Dame Victoria Sharp said this at [64]:

As the single judge observed when giving leave, res gestae evidence is now commonly relied on as the only or main evidence in the context of domestic violence. This is in the public interest so that such crimes can be detected and the perpetrators punished. That does not of course mean that the Crown is given carte blanche in any case to choose not to call the complainant. But the value of res gestae evidence is not confined to situations like that in Barton where the complainant has not only retracted her statement but turned hostile. It is just as valuable in cases where the complainant is unwilling or unable to give evidence in circumstances other than those in which he or she is afraid to do so.

In the present case we are satisfied, for the reasons that we set out below, that the evidence in question was not only admissible res gestae evidence but obviously so, that 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.

On 8 April 2023 at 10.45 pm the police received a 999 call reporting a domestic disturbance at a property occupied by the appellant and his partner, the complainant. When two officers, PC Gregory and PC Brooke, attended they saw a female 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.

At least to some extent because of the language barrier it was difficult to establish what had happened. However, 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".

PC Brooke knocked at the door of the property and arrested the appellant for domestic assault. The appellant pointed to the inside of the house and it was apparent that there had been a disturbance, as various items were in disarray, others were scattered on the floor and there was liquid on the wall.

During his interview on 9 April 2023 in which he otherwise made no comment, the appellant provided a prepared statement to the police in which he accepted that there had been an argument and a physical altercation, he said to prevent the complainant from grabbing at his pockets to take money from them. He said that he was angry because he had already given her £50 that day. However, he denied that he had strangled her or struck her.

It was part of the agreed facts at trial that on 5 May 2023 the police again attended the property where a male and a female could be heard shouting at each other inside. An officer spoke to the complainant who said that everything was fine and that she had been shouting at her boyfriend because she had bipolar disorder. The appellant was in the bedroom when the police arrived. Both parties denied that any offence had occurred, explaining that they were just arguing.

The complainant declined to make a statement concerning the incident on 8 April 2023. She was not called by the prosecution at trial, nor was the neighbour who made the 999 call. The Crown applied to admit the body worn footage from the two police officers as part of the res gestae. That application was contested by the defence. Mr Wade, who appeared at trial as he did on this appeal, submitted that the evidence was inadmissible. Among his objections were the fact that the complainant was not being called as a witness and the defence therefore had no opportunity to cross-examine her, inter alia about her supposed mental health difficulties.

The allegation of strangulation was made after about five seconds on the footage. Mr Wade submitted that the complainant, who is Polish, was being led by the officer asking questions in English and it was the officer who first suggested strangling, such that there was a clear risk of distortion of the evidence. Moreover, in the crime report concerning the incident on 8 April the officer had assessed the complainant as being intoxicated and hard to get much sense out of and unable to give a statement.

Alternatively, if the evidence were admissible Mr Wade submitted that it should be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the basis that it was so prejudicial that it would be unfair to the defendant to allow it to be adduced.

In a careful and detailed written ruling the Recorder decided that the statements made by the complainant on the body worn footage were admissible as res gestae evidence. He directed himself in accordance with the approach set out by Lord Ackner in R v Andrews [1987] AC 281. 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. She was out of breath and trying to regain her breath throughout the first few minutes of the footage from both officers. Her state of undress and the fact that she climbed out of the bedroom window supported the view that the incident had taken place in such proximity of time as to remove the possibility of concoction and distortion. Her utterances recorded on the footage appeared to be an instinctive reaction to the event without opportunity for reasoned reflection.

Although her statements and demonstrations may have been in response to questions and gestures made by PC Gregory, the way in which those statements and gestures can be seen to have been made supported the conclusion that they were instinctive, particularly the explanation and demonstration on the footage of "like this, two hands". The jury would be able to make its own assessment of the state of the complainant as seen in the footage. The possibility of error on the facts stated by the complainant was a matter of weight, and it was of relevance that it was not disputed that an altercation had taken place between the complainant and the defendant inside the property immediately before the events seen on the footage. The defendant would be entitled to give his own explanation to the jury, should he decide to give evidence.

The Recorder dismissed the defence application to exclude the evidence under section 78. He considered Barton in some detail, including paragraph 64 which we have quoted above, and said that this appeared to him to be a situation similar to that envisaged in that paragraph. He pointed out that it was still possible for the defence to challenge the truth of what the complainant said, including by the defendant himself giving evidence (which, in the event, he declined to do.) As the evidence was recorded, the jury could see exactly what was said. The defence could ask the jury to consider all the ways in which the allegation of strangulation was deficient and point to aspects of the evidence that called into question the reliability of the complainant. The jury could assess the circumstances in which the statement was made and decide for themselves its probative value. The admission of the body worn footage would not have such an adverse effect on the fairness of the proceedings that the court would not admit it.

At the close of the prosecution case the defence made a submission of no case to answer on the basis that the inherent weakness and vagueness of the allegation taken at its highest was that no jury properly directed could convict. The Recorder rejected that submission on the basis that issues about the complainant's reliability were quintessentially within the province of the jury and that there was sufficient evidence to leave the matter to them. Again, the Recorder provided a careful and detailed analysis in his written ruling.

On behalf of the appellant, Mr Wade submitted that the Recorder failed properly to apply the law to the facts and reached the wrong conclusion on admissibility. He took issue with the Recorder's characterisation of the complainant's reference to strangulation as an instinctive reaction because he says it was suggested or prompted by the police officers. Intoxication was a factor that went towards the possibility of distortion, rather than a matter to be left for the jury to assess. Barton does not set policy, change the law on res gestae or extend far beyond its own facts which are distinguishable. There was no other evidence corroborating the allegation of strangling and the defendant's prepared account went no further than to accept that there had been an argument.

As to the submission of no case to answer, Mr Wade argued that the Recorder mistook the defence's concerns. There could be no doubt about what the body worn video evidence shows, but without the complainant giving evidence or even a statement, or any other evidence of the alleged strangulation, the jury and the defence were "left rudderless without traction on the truth of what it shows".

In the Respondent's Notice it was submitted that the Recorder properly applied the law to the facts and reached conclusions that were reasonably open to him. He was entitled to conclude that the probative value of the evidence once admitted outweighed any prejudice to the defendant which could be overcome and that there was plainly a case to leave to the jury.

We have viewed the body worn video footage for ourselves and we consider that the Recorder's description of the complainant as distressed and breathless is a fair one. The red patches on her upper body near the collarbone area are clearly visible on the footage, as well as on the stills taken from it, and the presence of the marks was confirmed by one of the police officers in evidence. Irrespective of the degree to which she may have been intoxicated, she appears on the footage to be fairly lucid and relatively measured in her communication with the officers.

It is not normal behaviour to climb out of a bedroom window late at night in a state of undress and barefoot, and it is important to note that it was not in dispute that those actions were immediately preceded by an argument with the appellant. The complainant was able to tell the officers the name of her partner, that he was still in the house and that she did not have a key. She appeared concerned about her state of undress and managed to pull a blanket through the window to cover her upper half. She was also able to tell one of the officers, in answer to a question about a bruise on her arm, that this was there before, and thus was not an injury caused in this particular incident.

The Recorder's note of the relevant part of the body worn video footage which was agreed by both trial counsel is as follows:

What the note does not capture is how those exchanges actually played out in real time. It seems clear upon viewing the footage that when PC Gregory used the word "strangling" she was seeking to confirm what the complainant appeared to have just physically demonstrated, and the complainant then gave that confirmation and added the detail that two hands were used. Whilst English is not her first language, she did show sufficient understanding of the officers' questions to give intelligible answers. She clearly indicated what had been done to her by the appellant and where. It is telling, of course, that she did not say that the bruise on her arm had been caused by the appellant in this incident, and that added to the credibility of her account.

We agree that Barton does not change the law on res gestae, but it is not a case to be confined to its own facts. What the President said in that case reflects the important role that evidence of this nature will often play in bringing the perpetrators of domestic violence to justice. The fact that the complainant does not support the prosecution should not be viewed as an insurmountable obstacle in most cases, and 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.

Here the absence of the complainant did not put the appellant at a material disadvantage. Whilst she was not there to be cross-examined, it was possible to make submissions to the jury about the unreliability of her account of what had just happened and about the potential for misunderstanding in her exchanges with the police. The reliability of her recorded account of what had happened to her was quintessentially a matter for the jury. The appellant had a choice between going into the witness box himself and giving his account of what occurred before she climbed out of the window, or submitting to the jury that her account was insufficiently reliable for them to be sure that he did what she alleged. In this case, he chose the latter course, and the jury believed what she said to the officers in the immediate aftermath of the incident.

We are satisfied that the Recorder properly directed himself on all three matters and reached the right conclusion on each of them for the reasons that he gave. The conviction is safe. This appeal is therefore dismissed.