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Report No. 69

7.11. Declarations.-

Academic writers in England and elsewhere, when discussing res gestae, usually concentrate on declarations or utterance1, because, in practice, they figure frequently.

1. For example, see Morgan, "A suggested classification of utterances admissible as res gestae", (1922) 31 Yale tj 229.

7.12. Three senses of res gestae.-

The expression "res gestae", in the context of the law of evidence, may be used in at least three different ways, as has been pointed out in the judgment of Lord Wilberforce in Ratten v. R., (1971) 3 WLR 930 (HL).

1. When a situation of fact (e.g. a killing) is being considered, the question may arise when does the situation begin, and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife without knowing, in a broader sense, what was happening. Thus, in O'Leary v. The King, (1946) 73 CLR 566 (577) (Aus), evidence was admitted of assaults, prior to a killing committed by the accused during what was said to be a continuous orgy.

As Dicon, J. said (in that case):

"Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event."

2. The evidence may be concerned with spoken words as such (a part from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, i.e., are the relevant facts or part of them.

3. A hearsay statement is made either by the victim of an attack or by a bystander-indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae.

7.13. The following discussion by Taylor, on the subject, will also be found to be very useful1:

"Certain other declarations and acts are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and, in its turn, becomes the prolific parent of others; and each, during its existence has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be known, in order to a right understanding of its nature.

These surrounding circumstances may always be shown to the jury along with the principal fact, provided they constitute parts of what are termed the res gestae; and whether they do so or not must, in each particular case, be determined by the Judge in the exercise of his sound discretion, according to the degree of relationship which they bear to that fact2. Thus, on the trial of Lord George "Gordon for treason, the cry of the mob, who accompanied the prisoner on his enterprise received in evidence, as forming part of the res gestae, and showing the character of the principal fact3."

1. Taylor on Evidence, cited in Field on Evidence, (1964), Vol. 1, p. 263.

2. Per Parke, J., in-

Rawson v. Haigh, 2 Bing 104;

Ridley v. Cyde, 9 Bing 349 (352);

Pool v. Bridges, 4 Pick 379;

Allen v. Dancan, 11 Pick 3099.

3. Lord George Gordon, 21 Howard ST 14.

7.14. It has often been pointed out1 that statements which are otherwise excluded would be admissible if they fall within section 6 or, in England, the doctrine of res gestae. In particular, evidence which may be excluded by virtue of the hearsay rule, the opinion rule, rule against self-corroboration2 or rule against evidence showing bad character3, may be admissible as providing the circumstances in which the statement was made.

1. R. v. Hardy, 24 Howard ST 1066 (1067-1096).

2. Spittle v. Spittle, (1965) 3 All ER 451.

3. R. v. Egerton, R&R 375, approved in R. v Sims, 1946 King's Bench 531 (542).

7.15. Time and place how far material under section 6.-

After this general discussion, a few special features of section 6 may be noted. Section 6 takes care to make it clear that the declaration or other facts relevant thereunder-"facts which are so connected with a fact in issue as to form part of the same transaction"-are relevant, whether they occur at the same time and place or at different times and places.

7.16. Bedingfield's case.-

In this respect, the position in England is somewhat controversial. In Bedingfield's case1 a man who had cut a woman's throat was tried for murder. It was proved that the deceased, with her throat cut, came suddenly out of a room, in which she had left the prisoner. Evidence was tendered to show that immediately after coming out of the room, and shortly before she died, she had made a remark was something like "Oh: See what Harry's done". It was held that her statement was not admissible in evidence, either as a dying declaration, as it did not appear that she was in fear of death, or as res gestae as it was made after the transaction was complete.

1. R. v. Bedingfield, (1879) 14 Cox CC 34.

7.17. This was a judgment1 of Cockburn C.J. and the case gave rise to considerable comment. Writing extra-judicially, Cockburn6 (whose view is phrased with Bedingfield in mind), enunciates the principle as follows:-

"Whatever act, or series of acts, constitute, or in point of time immediately2 accompany and terminate in, the principal act charged as an offence against the accused, from its inception to its consummation or final completion, or its prevention or abandonment-whether on the part of the agent or wrongdoers, in order to its performance, or on that of the patient or party wronged, in order to its prevention-and whatever may be said by either of the parties during the continuance of the transaction3, with reference to it, including, herein, what may be said by the suffering party, though in the absence of the accused, during the continuance of the action of the latter, actual or constructive-as, e.g., in the case of flight or application for assistance-form part of the principal transaction, and may be given in evidence as part of the res gestae, or particulars of it; while, on the other hand, statements made by the complaining party, after all action on the part of the wrong-doer, actual or constructive, has ceased, through the completion of the principal act or other determination of it by its prevention or its abandonment by the wrong-doer-such as, e.g., statements made with a view to the apprehension of the offender-do not form part of the res gestae, and should be excluded."

This shows that what weighed with the court in Bedingfield's case was the interval that had lapsed between the crime and the exclamation which destroyed the continuity.

1. R. v. Bedingfield, (1879) 14 Cox CC 34.

2. Cockburn, writing extra-judicially in, (1880) 15 LJ 16 (17), quoted by R.N. Gooderson Res Gestae in Criminal Cases, (1956) Cambridge 14 199 (201 to 203).

3. Emphasis supplied.

7.18. Thayer's view.-

Thayer, who was one of the first to intervene in the Bedingfield controversy1, considered that Cockburn should have received the declaration. He observed2:

"The leading notion of the doctrine seems to have been that of withdrawing from the operation of the hearsay rule declarations of fact which were very near in time to what they tended to prove, fill out, or illustrate-being at the time not narrative, but importing what was then present or but just gone by, and so was open, either immediately or in the indications of it, to the observation of the witness who testifies to the declaration, and who can be cross-examined as to these indications; this nearness of time is made specific by the term 'contemporaneous' and 'a part of the res gestae', and it is enough that the declaration be substantially contemporaneous; it need not be literally so."

Both Cockburn and Thayer, thus, insist on the requirement of substantial contemporaneity, and the controversy between them is a matter of degree, Cockburn requiring that at the time of the statement the action of the accused should be continuing, either actually or constructively, while Thayer does not demand this, provided that the statement is substantially contemporaneous with such action.

1. Para. 7.17, supra.

2. Thayer (1881) 15 American LR 107, cited in R.N. Gooderson Res gestae in Criminal Cases, (1956) Cambridge LJ 199 (201 to 203).

7.19. Wigmore's view.-

Wigmore1 rejects both these views. He regards the element of contemporaneity as properly applicable only to what he calls the "verbal act" doctrine, where the utterance is offered irrespective of its truth as accompanying and explaining a material equivocal act2. His other main head of res gestae evidence is "spontaneous exclamations"-a statement of exclamation, by a participant, immediately after an injury, declaring the circumstances of the injury, or by a person present at an affray, or rail road collision, or other exciting occasion, asserting the circumstances of it as observed by him3.

Instead of the requirement of contemporaneity, there is, according to Wigmore, a "liberal time-allowance" which is exhausted only when the influence of the exciting cause has been dissipated4. Wigmore explains the cases as depending upon the consideration that the exciting nature of the event evokes a spontaneous and sincere response which tends to put aside self-interest and to make the utterance particularly trustworthy.

1. Wigmore, referred to in R.N. Gooderson Res Gestae in Criminal Cases, (1956) Cambridge LJ 199 (201 to 203).

2. Wigmore, (1940) vi, para. 1756, pp. 162-164, 197.

3. Wigmore, (1940) vi, para. 1746, p. 134.

4. Wigmore, (1940) vi, para. 1750, p. 142.

7.20. Wigmore's reasoning, however, ignores psychological considerations put forward over a quarter of a century ago by Hutchins and Slesinger1, who pointed out that the exciting event might very well prevent or limit accurate observation, so that the assumption of truthfulness in Wigmore's argument might, for reason not considered by him, be very dubious. The criticism of Wigmore's position did not, however, lead the authors to conclude that such utterances should be excluded under the hearsay rule; but that they should be admitted on more satisfactory grounds.

1. Hutchins and Slesinger in (1928) 28 Columbia LR 432.

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