1. Definition
- loosely means ‘things done’ or the ‘details of a transaction’
2. What does it do?
- inclusionary rule of evidence that trumps certain exclusionary rules - evidence may be received even though it infringes:
- hearsay - opinion - character - similar fact - self-corroboration
- renders statement admissible as proof of fact which it asserts - statement itself becomes direct proof, to be weighed by tribunal of fact - Sydney Electricity v Giles (1993) per Kirby P
3. Rationale
Lord Norman in Teper v R (1952):
‘[H]uman utterance is both a fact & a means of communication, and … human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, & the dissociation of the words from the action would impede the discovery of truth’
Grey J in Llewellyn v Police (2005):
‘The justification for this exception to the hearsay rule is the probability of the statement due to the lack of time for invention’
4. Problems with res gestae evidence
- other party loses chance to cross-examine on statement admitted to prove fact asserted - however, party can cross examine reporter & test report against other evidence - Sydney Electricity v Giles (1993) per Kirby P
- may be uncertainty as to exact words used because being transmitted through person other than speaker - Ratten v R (1972)
- risk of fabrication or concoction - Ratten v R (1972) 5. The ‘transaction’ approach
- approach been departed from
R v Bedingfield (1879)
- accused charged murder by cutting a woman’s throat - defence was that she committed suicide
- deceased came out of room in which accused was subsequently found - throat was cut & immediately cried: ‘see what Bedingfield has done to me!’
- Cockburn J excluded statement
- something stated after act was over & after act completed
Adelaide Chemical & Fertilizer Co v Carlyle (1940 - HCA)
- civil case for recovery of damages for loss of life for negligent construction of a glass container
- man died of blood poisoning caused by wounds sustained from acid burning his legs
& feet
- been unpacking delivery of acid in glass containers when one of them had broken - after hearing crash, wife ran & found as he was washing his legs under running
water
- he said to her: ‘I took hold of the handle of the jar, tilted it slightly towards me, to get my other hand underneath, & the top of the jar seemed to come away in my hand - it must have been faulty or cracked’
- Dixon J:
- statement had to be integral part transaction
- not admissible - mere narrative explaining even that had occurred
- Starke J:
- statement to deceased wife was substantially contemporaneous with event - statement might be legitimately used to explain accident & how it occurred but
deceased’s conclusion that jar was faulty or cracked was no evidence of that fact problems with this approach
- philosophical issue with no set meaning
- ‘explanations’ but not ‘commentary’ are admissible - different interpretations
6. The Ratten approach
R v Ratten
- Ratten charged murder of wife by shotting her with shotgun - defence was that gun had gone off accidentally while cleaning
- prosecution called evidence from telephone operator as to telephone call she had received at 1.15 pm from deceased’s home
- call cam from female who sounded hysterical & said: ‘get me the police please,’ gave her address but before connection could be made, hung up
- evidence admitted on ground that conversation formed part of res gestae &
amounted to assertion by deceased that she was frightened by something her husband was doing or saying
- Lord Wilberforce:
- if drama, leading up to climax, has commenced & assumed such intensity &
pressure that utterance can be safely regarded as true reflection of what was unfolding or actually happening, it ought to be received
- hearsay evidence may be admitted of statement provided it is made in such conditions (always being those of approximate not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused
- statements made after event it must be for judge to satisfy himself that statement was clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded
five-step judicial process:
- (a) primary question which judge must ask - can possibility of concoction or distortion be disregarded?
- (b) judge must first consider circumstances in which particular statement was made in order to satisfy himself that event was so unusual/startling/dramatic as to dominate thoughts of victim - utterance instinctive reaction to event, thus giving no real
opportunity for reasoned reflection
- (c) must be so closely associated with event which excited statement that it can be fairly stated that mind of declarant was still dominated by event
- (d) might be special features which relate to possibility of concoction or distortion - (e) if only ordinary fallibility of human memory relied on, goes to weight to be
attached to & not admissibility of statement
- prosecution cannot use this expanded doctrine as device to avoid calling, when available, maker statement
7. The Vocisano approach
- two brothers (A & B) were both injured in car crash
- A sued B (who had been insured) & whose insurance carrier took over legal defence - both brothers claimed at trial that B had been driving
- statements by witnesses indicated that soon after crash B has said A had been driving
- Barwick CJ said case was not appropriate occasion for detailed analysis of implications of Ratten but:
- reason for doctrine that statements made as part of res gestae are admissible as evidence is that, because of their contemporaneity & circumstances of their making, they are likely to be concocted & therefore might well be reliable - but that does not mean that statements made on an occasion when they are
unlikely to be concocted are for that reason admissible
- contemporaneous involvement of speaker at time statement is made with occurrence that renders evidence admissible
- in present case, no sufficient contemporaneity
- although statements by B were made proximately to occurrence of accident, they were in nature of historical account rather than in nature of a statement made as part & parcel of occurrence
8. Which approach to use?
- WA Law Reform Commission has previously stated that Vocsiaco was leading Australian authority, though they viewed it quite critically
- Ratten approach used in R v Golightly (1997), Sydney Electricity v Giles (1993), Duong and Ors v R (2011)
R v Golightly (1997)
- Owen J said law in Australia now follows guiding principles in Ratten
- use elements of spontaneity & contemporaneity to establish whether evidence qualifies for admission
- next question to be asked is whether circumstances are such that there can gleaned from them ‘an assurance of non-concoction’
Sydney Electricity v Giles (1993)
- whilst stripping cables form a switch box, worker told one of his workmates that he had bumped his head
- across day suffered headaches, lost appetite, slept, suffered nosebleeds & began to look unwell
- collapsed, rushed to hospital & diagnosed with subdural haematoma - incapacitated & unable to give evidence
- Kirby P held out of court statement admissible if statement was made in circumstances:
- (1) which are approximate, if not exactly, contemporaneous with event or transaction the subject of court’s inquiry
- (2) which prove an assurance of reliability & veracity of statement - such an assurance with normally arise:
- (a) statement is spontaneous or contemporaneous with event or transaction subject of court’s inquiry; or
- (b) statement is made by maker while involved in event or transaction subject of court’s inquiry
- timing - not impossible that individual circumstances case will sometimes be such as to allow statements made hours or even days after event or transaction to form part of res gestae - however, will be extremely rare
- limitation - if judges that malice or falsehood is established, then would forbid admission of statement
9. WA State law
WA Evidence Act
36BC Sexual experience of complainant, evidence of
(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
Bull v R (2000)
- case about prolonged sexual assault of a woman by two men across number hours - prosecution case was that she had been handcuffed & held against her will
- defence case was that activities were consensual - presented evidence phone call between one of accused & victim immediately before she arrived wherein she mentioned her sexual fantasy about having sex with two men
- court held that although reference to ‘res gestae’ is couched in negative terms, it appears to authorise admission evidence of sexual experiences of complainant if it is part of the res gestae
- where act or statement is intimately connected with particular sexual conduct which is subject of charge, it is part of res gestae & hence admissible under s 36BC - in appropriate case, transaction may include events of several days