Res Gestae and Hearsay Evidence

Author(s): Jean Campbell

Source: The Modern Law Review , Sep., 1972, Vol. 35, No. 5 (Sep., 1972), pp. 540-543
Published by: Wiley on behalf of the Modern Law Review

Stable URL: https://www.jstor.org/stable/1094483

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540 THE MODERN LAW REVIEW VOL. 35

the level of the Court of Appeal shou

such decisions. Though one would n
practice on the other side of the border,
the Scottish Court of Session and all other courts with civil
jurisdiction below that court to follow a similar practice.

J. K. BENTIL.

RES GESTAE AND HEARSAY EVIDENCE

ALTHOUGH res gestae as a description of statements reported in evi-

dence by a person other than the declarant has been denigrated as a
vague and unhelpful designation,' much thought has been expended
on the devising of different schemes of subdivision of the statements
so received.2 Such schemes have suggested distinguishing between,
inter alia, categories such as excited utterances (e.g. Thompson v.
Trevanion 3), statements of mental or physical condition (e.g.
Aveson v. Kinnaird 4) and verbal parts of relevant acts (e.g. Homes
v. Newman 5).
In Teper v. R.6 the Judicial Committee of the Privy Council
showed itself reluctant to accept these as separate categories of
admissibility. Lord Normand there described res gestae admissi-
bility at " resting ultimately on two propositions, that human utter-
ance is both a fact and a means of communication, and that human
action may be so interwoven with words that the significance of the
action cannot be understood without the correlative words," and he
concluded that the principle essentially was that the words should
be, " if not absolutely contemporaneous with the action or event, at
least so clearly associated with it, in time, place and circumstances,
that they are part of the thing being done." ? The explanation thus
attempts to combine rather than separate the three categories
mentioned above, and demands near-contemporaneity as a requisite
for reception in all of them.
In the recent case of Ratten v. R.,8 the Judicial Committee has
persisted in its reluctance to recognise the subdivisions of res gestae
which are so familiar in the academic writings. The prisoner, who
had been convicted by the Supreme Court of Victoria for the murder
of his wife at their home, had raised the defence of accident, alleging
that his gun had gone off whilst he was cleaning it. A telephone

1 Per Lord Tomlin in Homes v. Newman [1931] 2 Ch. 112, 120.

2 e.g. E. M. Morgan (1922) 31 Yale L.J.. 229; Julius Stone (1939) 55 L.Q.R.
66; G. D. Nokes. (1954) 70 L.Q.R. 370; R. N. Gooderson [1956] C.L.J. 199;
[1957] C.L.J. 55.
s (1693) Skinner 402.
4 (1805) 6 East 188.
5 [1931] 2 Ch. 112.
6 [1952] A.C. 480, 496.
7 At p. 487.
8 [1972] A.C. 378; [1971] 3 W.L.R. 930 (P.C.).

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 SEPT. 1972 NOTES OF CASES 541

operator from the local exchan

the shooting a woman had com
and said in a tearful, hysteric
but had thereafter hung up. T
to have been properly received
given for the ruling deserve ex
It has been disputed whether
condition are hearsay or origin
that the relevance of the telep
showing (if the jury thought
deceased woman was at this tim
and he cited Aveson v. Kinnaird.11 This looks like a ruling that
statements of mental state are not hearsay, which is no doubt the
better view-although, incidentally, it is contrary to that taken by
the High Court of Australia in Ramsey v. Watson.12 But Lord
Wilberforce goes on without a break to add that the facts " were
relevant and necessary evidence in order to explain and complete the
fact of the call being made." This is the Verbal Parts of a Relevant
Act doctrine, again not hearsay, the relevant act being the fact that
a telephone call was made from the house shortly before the shoot-
ing. While it is clear that the evidence was properly receivable
under either category, and that both should be regarded as compris-
ing not hearsay but original evidence, there seems to be no utility in
regarding them as either identical or interchangeable; it is not hard
to conceive of statements of mental state entirely unaccompanied
by an act, relevant or irrelevant.
Even more confusing is the fact that the Judicial Committee
apparently regarded the two categories of statements as not falling
under the description res gestae at all,13 although they have been
traditionally so subsumed by the writers on the subject. Lord
Wilberforce would, he indicated, confine the expression res gestae to
(i) the events themselves, " what was happening "; (ii) spoken
words which are themselves the relevant facts; and (iii) " a hearsay
statement . . . made either by the victim of an attack or by a
bystander-indicating directly or indirectly the identity of the
attacker." 1' This last is the category usually called " excited
utterances " or " spontaneous exclamations." (Professor Cross
has expressed doubt as to whether on the authorities these declara-

9 The conflicting views are summarised by R. W. Baker, The Hearsay Rule

(1950), p. 127 et seq.
10 [1971] 3 W.L.R. 930, 934.
11 (1805) 6 East 188.
12 (1961) 108 C.L.R. 642.
1s It is worth noting in this connection that Stone in his classic analysis of res
gestae in (1939) 55 L.Q.R. 66 regards the term as properly covering a verbal
part of a relevant act, but excludes from its ambit both statements of physical
and mental condition and spontaneous declarations. See also Baker, op. cit.,
at pp. 158-160.
14 [1971] 3 W.L.R. 930, 935.

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 542 THE MODERN LAW REVIEW VOL. 35

tions are hearsay,'5 but prefers the af

Ratten is consistent with Teper's br
although that principle would also have
tal condition, and verbal parts of an Act. However, more
significant are the respects in which Ratten has departed from it.
In Teper, the accused, charged with defrauding the insurers of
his wife's business, was alleged to have started the fire in the busi-
ness himself. Evidence was excluded that a bystander was heard to
shout, " Your place burning and you going away from the fire !"
twenty-six minutes after the fire started and a furlong away. The
reason given was that the words were not sufficiently closely associ-
ated in time and place with the central event, the starting of the
fire; and also because they were relevant to identity only. The
ruling on the identity aspect has been criticised,16 and although the
point did not arise in Ratten the formulation there adopted indicates
disagreement with Teper in this respect. On the other aspect, the
authorities on the subject of what is a sufficiently close association
between statement and event have been conflicting. On the one
hand is the flexible approach exemplified by R. v. Foster,17 and
Starke J. in the Australian High Court in Adelaide Chemical and
Fertiliser Co. Ltd. v. Carlyle '* is to similar effect. On the other
hand there is the exact contemporaneity approach, embodied in R.
v. Bedingfield 19 and expressed also by Dixon J. in Adelaide Chemi-
cal.20 Both Foster and Bedingfield were cited with approval by the
House of Lords in R. v. Christie,21 an anomaly which Cross ex-
plains 22 by saying that contemporaneity being a matter of degree,
it is not surprising that different judges should take different views
of it. It was for this very reason of uncertainty that the Privy
Council in Ratten dispensed entirely with the test of contempora-
neity. In its place they put a test of " spontaneity and involve-
ment." Bedingfield's case was disapproved,23 Lord Wilberforce
commenting that the approval given to it in Christie " was for the
principle, for there could hardly be a case where the words uttered
carried more clearly the mark of spontaneity and intense
involvement."
It is now clear that what has to be established is " the involve-
ment of the speaker in the pressure of the drama or the concatena
tion of events leading up to the crisis." It is apparently immaterial

15 Cross on Evidence (3rd ed., 1967), p. 467.

16 See Nokes (1954) 70 L.Q.R. 370, 384, note 71. The ruling in Teper on this
point was followed in Sparks v. R. [1964] A.C. 964 (P.C.).
17 (1834) 6 Car. & P. 325.
s18 (1940) 64 C.L.R. 514, 526-527. Compare Davies v. Fortior Ltd. [1952] 1
All E.R. 1359.
19 (1879) 14 Cox C.C. 341.
20 (1940) 64 C.L.R. 514, 533.
21 [1914] A.C. 545, 556, 566.
22 Cross, Op. cit., p. 466.
2* [1971] 3 W.L.R. 930, 934.

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SEPT. 1972 NOTES OF CASES 543

whether the speaker is an a

bystander (as in Teper ?), as l
" by way of narration of a de
was so disengaged from it as
account," and the statement i
this. Spontaneity alone may n
used seems to require that the
speaker-a " drama," " climax " or " crisis." If this colourful
language (going even further than Wigmore's view which has been
so influential in the United States 24) is literally what is intended, it
may be questioned whether the new test will be any more certain
than the old. Different judges would seem no less likely to differ on
the question whether an event constitutes a drama or crisis than
they were on the issue of what is " part of " a transaction. Nokes's
view 25 that where there is spontaneity no degree of excitement, even
in the participants, is required would have been the most sensible
compromise.
JEAN CAMPBELL.

DEFENCE AGAINST UNLAWFUL EXECUTIVE ACTS

Devlin v. Armstrong,' while decided on narrow grounds, touche

upon wider issues of considerable importance. Indeed, on th
assumptions concerning the facts which the court made, bu
which it seems never to have fully committed itself, it was inevitabl
that it should do so. The appellant was charged and convicte
four offences of riotous behaviour and incitement to riotous
behaviour in the Bogside area of Londonderry on August 13,
and sentenced to six months' imprisonment. Her defence wa
she honestly believed on reasonable grounds that the police w
if they entered the Bogside, act unlawfully by injuring the
of the Bogside and damaging their property. The court on a
was content to decide the case on the assumption that the app
did honestly and reasonably believe that the police were abou
act unlawfully. This assumption was appropriate to raise issu
great importance. There is much authority dealing with the
of the individual to use force against unlawful police acti
This case raises broad issues of individual and collective defence

'24 Wigmore on Evidence (3rd ed., 1940), Vol. VI, para. 1750, says there mus
" an occurrence startling enough to produce the nervous excitement wh
would render the utterance spontaneous and unreflecting."
25 (1954) 70 L.Q.R. 370, 379. It is conceded that the case he cites in supp
Manchester Brewery Co. Ltd. v. Coombs (1900) 82 L.T. 347, is perhap
better regarded as an illustration of the Verbal Parts of a Relevant Act
doctrine.

1 [1971] N.I. 13.

2 Christie v. Leachinsky [1947] A.C. 573; Kenlin v. Gardiner [1967] 2
129; Donnelly v. Jackman [1970] 1 W.L.R. 562; and a note by Mr. J
Evans at (1970) 33 M.L.R. 738 and see [1970] A.S.C.L. 170.

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