Res Gestae to admit circumstances of complaint
(Victoria) Evidence had been admitted under the res gestae rule, that a woman making a telephone call was in a hysterical state.
Held: It was properly used. Where a statement is made either by the victim of an attack or by a bystander, which is itself hearsay, but indicates directly or indirectly the identity of the attacker, the admissibility of that statement is dependent on whether it was made as part of the res gestae (all facts so connected with a fact in issue as to introduce it, explain its nature, or form in connection with it one continuous transaction). The two difficulties with such evidence are that it may be concocted, and the exactness of the words may not be sure. The possibility of concoction is the real test of admissibility.
Lord Wilberforce said: ‘Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially,’ i.e. as establishing some fact narrated by the words. Authority is hardly needed for this proposition . . ‘ and ‘It is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but whether this is sufficiently shown must be a matter for the trial judge.’
Wilberforce, Reid, Hodson, Diplock, Cross of Chelsea LL
[1972] 2 AC 378, [1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18, [1971] 3 WLR 930
Bailii
Australia
Citing:
Cited – Subramaniam v Director of Public Prosecutions PC 1956
(Malaysia) The defendant sought to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions, ‘nothing is an offence which is done by a person who is compelled to do it . .
Disapproved – Regina v Bedingfield 1879
The court had excluded evidence that the murder victim, who had run out of a house with her throat cut, had said to her aunt ‘see what Harry has done’. . .
Cited by:
Cited – Regina v Giles CACD 13-Mar-1997
The case involved an assault. The crown sought to introduce as evidence a statement made by the defendant’s brother at the scene under the res gestae rule.
Held: The circumstances were such as to allow admission of the evidence under the tests . .
Cited – Regina v Andrews HL 1987
Res Gestae no means of avoiding witness
The court should deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if he or she were available. The court laid down six tests for the admission of evidence under the res gestae rule.
Lord Ackner said: . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972) CACD 8-May-2003
The allegation was of a serious assault on the defendant’s wife. The prosecution considered she would not be a reliable witness, and did not call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There . .
Cited – Morgan v Director of Public Prosecutions Admn 6-Dec-2016
Res Gestae Evidence correctly admitted
The appellant challenged by case stated the admission by magistrates at his trial of two pieces of evidence under the res gestae principle under section 118(3) of the 2003 Act. The allegation was one of domestic violence. The court had admitted the . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Leading Case
Updated: 01 November 2021; Ref: scu.181980