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: ‘My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as ‘hearsay evidence’?
1. The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.’
. . And: ‘Whatever may be the position in civil proceedings, I would, however, strongly deprecate any attempt in criminal prosecutions to use the doctrine as a device to avoid calling, when he is available, the maker of the statement. Thus to deprive the defence of the opportunity to cross-examine him, would not be consistent with the fundamental duty of the prosecution to place all the relevant material facts before the court, so as to ensure that justice is done.’
Lord Ackner
[1987] 1 AC 281, (1987) 84 Cr App R 382, [1987] 2 WLR 413, [1987] 1 All ER 513
England and Wales
Citing:
Cited – Ratten v The Queen PC 1-Jul-1971
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 . .
Cited by:
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 – 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 Twist and Others CACD 12-May-2011
The court considered the application of the 2003 Act to communications made to, or by, the defendant, and in particular text messages sent by mobile telephone.
Held: The four appeals against conviction were dismissed. Singh established that . .
Cited – Barnaby v The Director of Public Prosecutions Admn 6-Feb-2015
Admission of hearsay evidence
The defendant appealed by case stated against his conviction for assault. He said that certain evidence, a statement from the complainaint, and a recording of the 999 call, should not have been admitted as hearsay.
Held: Fulford LJ said: . .
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.181979