The exceptions to the hearsay rule can be complex and difficult to understand. Especially thorny is the common law exception of the res gestae. It was once concerned with words uttered in the course of an offence. But it has now evolved into an exception covering words uttered in the heat of excitement of an event and in circumstance that render it improbable that the statement was false.[1]
As a result of the injustice caused by the rigid framework of the hearsay rule, the inclusionary exception of the ‘res gestae’ was created at common law for statements so closely intertwined with the events in issue as to amount to part of what actually happened.[2]’Res gestae’ is a Latin phrase that literally means ‘remarks which relate to a particular act’. The res gestae exception provides that a statement is admissible if it accompanies and explains an act. The reasoning being, “that human action may be so interwoven with words that the significance of the action cannot be understood without the relevant words, and ignoring these words from the action would impede the discovery of the truth”. The rationale for preventing use of the hearsay inference is not because we value fairness more than truth.[1] There are many advantages of allowing the inclusionary rule, however there are also substantial grounds that question the justifying reasons for permitting such an exception.
In general, four categories of situations are covered by the res gestae exception. These categories consist of;
1.
Spontaneous statements made by a participant in
an act.
2.
Spontaneous statements of contemporaneous
physical sensation felt by the maker
3.
Spontaneous statements showing the maker’s
contemporaneous state of mind and
4.
Spontaneous statements which accompany and explain
a relevant act.
Discussion:
Is the hearsay rule a required, useful and justified rule? Should a more liberal approach to the res gestae be followed?
Despite its long established position in the Law of Evidence, the res gestae inclusionary rule has attracted some criticism throughout the years.[1] In Holmes v. Newman, the phrase res gestae was criticised by describing it as a “respectable legal cloak for a variety of cases to which no formulae of precision can be applied”. This implies that the exception has been established so that the judiciary may justify the admission of Evidence upon which the judiciary may arrive at a verdict that they deem to be appropriate. For law practitioners to refer to the exception so negatively, personifies their dissatisfaction with the area. The justification given for the reception of such evidence is the light that it shines upon the act or event in issue. In its absence, the transaction in question may not be fully or truly understood and may even appear meaningless.[2] If the court were to dismiss Evidence which is so clearly relevant to the case, it would lead to substantial injustice that would undermine the primary function of the legal system. On its merits, the res gestae exception gives discretion to Judges to decide whether such Evidence shall be admitted. The fact that each case can be decided on a subjective basis is something which should be commended. The judiciary is responsible for interpreting the law as they deem appropriate and giving them discretion empowers them to do so. In this regard it is an extremely useful rule from a judge’s perspective. In contrast, it may be argued that discretion to this extent should be prohibited as the judiciary’s ability to alter a conclusion on unsupported grounds is unjust and contravenes the entire function of the legal system. Many argue that it merely accommodates the Judiciary to support decisions they wish to draw. Lord Denning is renowned for tweaking the law so that the law supports a decision that he deems to be appropriate. However, the law exists to be respected and applied. Varying the law to favour one’s opinion can prove ineffective and simply unfair to certain parties. The law is founded on the basis of equality and altering it in specific circumstances may impede one right to a fair trial. The res gestae exception is based on the view that because certain statements are made spontaneously in the course of an event, they carry a high degree of credibility. Provided that credibility can be established on an objective basis with the application of certain test, Justice can be administered appropriately and fairly. The categories coming under the head of res gestae are so vague as to suggest that res gestae is a general safety valve designed to render admissible otherwise inadmissible evidence when exclusion is considered unacceptable.[3]
.
In reference to case law, ‘R v. Andrews’ was an important English decision on the res gestae principle. It showed a more liberal approach by the courts to the admissibility of hearsay Evidence.[4] In Andrews, two men entered M’s flat and attacked him with knives and property was stolen. Two police officers arrived shortly after and M informed them that O and the defendant were responsible. M. died two months later as a result of his injuries. The defendant and O were charged with aggravated burglary and the murder of M. The deceased’s statement was admitted as coming within the res gestae exception. In coming to his decision, Lord Ackner established and applied a five stage objective test for the admission of such evidence:
The five stage test is as follows;
1.
Can the possibility of concoction or distortion
be disregarded?
2.
If the event was so unusual or dramatic that it
dominated the thoughts of the victim causing an instinctive reaction without the
possibility of fabrication, in conditions of approximate but not exact contemporaneity.
3.
To be sufficiently spontaneous that statement
must be closely connected with the event causing it.
4.
There must be no special features making
concoction or distortion likely.
5.
There must be no special features likely to
result in error. eg. Intoxication.[5].
In Andrews the House of Lords restated the principles laid down by Lord Wilbeforce in the Privy Council decision in Ratten v. the Queen. In doing so, he placed emphasis on the possibility of concoction or distortion as the basis for the admissibility or inadmissibility of res gestae statements.[7]
Clark stated in reference to the Andrews case, that ‘ it may well herald the end of the hearsay rule as we know it, bringing English Law in line with most other systems, where the nature and source of an item of Evidence is significant only as regards weight and does not affect its admissibility’.[8] This outline the significance the decision was deemed to have at the time it was made.
In an Irish case, ‘Attorney General v. Crosbie’, the Composite approach was followed.
This involved giving due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication. It was noted that it would be quite wrong to hold that the admissibility should be determined by reference solely to a given time period as to do so would be unfair. [9]
In Crosbie, the appellants C and M together with two other accused, were charged with the murder of C.N.M. It was during a fight C.N.M was stabbed. Within a minute after the stabbing, C.N.M stated when C was beside him “he has a knife, he stabbed me”. This statement was held to be admissible against all the accused as it formed part of the criminal act for which the accused was being tried. Therefore coming under the res gestae inclusionary rule.
In a more recent Irish case of, ‘DPP v. Lonergan’, the CCA applied a fresh approach to the interpretation of the res gestae. The accused stabbed the deceased during an argument and was convicted of murder. In the Central Criminal Court, a number of witnesses gave Evidence that the deceased had identified the applicant as responsible. The statements were admitted under the res gestae exception. The applicant appealed his case but it was dismissed on the basis that the correct approach had in fact been taken. The correct approach therefore being the ‘composite’ approach, that gives due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication.[10]
McGrath in his judgement stated, ‘it is well established in Irish law that spontaneous declarations constitute an exception to the hearsay rule’ .Interestingly when reaching its decision, the court in Lonergan indicated that the correct approach to cases of this type should not be confined to a question of contemporaneity, but should apply a composite approach by also considering the possibility of concoction or fabrication of Evidence.[11] Lonergan is now the leading Irish authority on the res gestae. Therefore the contemporaneous test takes precedence in Ireland and correctly so.
In some respects, the range of inclusionary exceptions has become almost more important than the hearsay rule itself. Ormerod says that the technicality of this area of law can hardly be doubted. As with all hearsay, four major dangers can be identified. The dangers are ambiguity, insincerity, misperception and faulty memory.[12]
Do these dangers arise where hearsay Evidence is permitted under the res gestae inclusionary rule? Yes, without doubt they do. The fact that these dangers arise could be interpreted as a valid reason for the abolishment of the rule; however it must be noted that these dangers accompany all forms of Evidence that is presented in court.
While it is true that the danger of fabrication is present in accepting such evidence under the res gestae, this danger may also be argued to be inherent in all forms of Evidence . The legal procedure would be an extremely simple procedure if one could be entirely certain that there is no possibility of these dangers accompanying their Evidence and it would be naive to suggest otherwise. There is always a mere possibility of these dangers, but provided there is satisfactory safety barriers (ie. Objective test’s applied) to determine the admissibility of Evidence, the possibility of these dangers existing can be substantially reduced. What is required of Evidence is that it is credible and credibility can be determined by objective tests if applied.
The res gestae exception is ineffective in a number of respects. In many circumstances, it is difficult to comprehend why it applies to the extent that it does, but no further. [13]It appears that the exception was established because a requirement arose when the hearsay rule itself proved inconvenient in specific circumstances.[14] As noted previously, despite its historic position in the Law of Evidence, the res gestae inclusionary exception has attracted criticism which has failed to inspire reform.[15] The exception has been said to provide ‘a respectable legal cloak for a variety of cases, to which no formulae of precision can be applied.’[16]Naturally with unsatisfactory statements as just noted, shouldn’t reform be imminent? Cowen and Carter note that ‘refuge is sought in the dustbin of res gestae’.
[1] Law Reform Commission’s Report on Hearsay in civil and criminal cases at p90.
[2] Adrian Keane, ‘Modern Law of Evidence’ 8th ed. Oxford at 350.
[3] A.A.S Zuckerman ‘ The principles of criminal Evidence’ ,Claredon Law series 1989 p204.
[4] R.A Clark: Changing face of the rule against heasay in English law, Akron law review 1987-1988 at 71.
[5] R v. Andrews [1987] A.C. 281.
[6] Res Gestae in the Law of Evidence, Fraser Davidson Edinburgh Law Review 2007.
[7] .A Clark: Changing face of the rule against heasay in English law, Akron law review 1987-1988 at 71.
[8] P72.
[9] The People (Attorney General) v. Crosbie [1996] I.R 490
[10] DPP v. Lonergan [2009] IECCA52.
[11] 2009 19(3) ICLJ 89: Evidence and Procedure update John P.Byrne.
[12] 60 J. Crim. L. 201 (1996) Reform of implied assertations, David Ormerod.p201
[13] CP at p80
[14] Law Reform Commission, Consultation paper. ‘Hearsay in civil and criminal cases’. LRC CP 60 – 2010.
[15] Ibid at 3.31.
[16] Holmes v. Newman. English case.
[1] A Philosophy of Evidence Law H.L.HO 2009 P283
[2] Wigmore, Anglo-American System of Evidence (n 5) vol 6 paras 1756
[1] Zuckerman, A.A.S., “The Futility of Hearsay” [1996] Crim LR 4.
[2] Evidence, Cross and Tapper 12th ed. Oxford 2010. At 569.
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