Hearsay part 5, res gestae part 2

Last week we looked at the case of Regina v Andrews in the House of Lords [1987] A.C. 281, a key case on res gestae, an exception to the hearsay rule. This week we look at the principles they applied. (For a brief summary of the facts see last week's article). Lord Ackner delivered the judgment with which all other members concurred. The case concerned comments by the deceased shortly after the attack stating that two persons (including Andrews) were responsible. The prosecution wanted the statement to be evidence that the deceased had been attacked by those two persons. (There was no question of this constituting a "dying declaration", which we will explore in more detail next week, because there was no evidence that when the deceased made the statement he was aware that his injuries were likely to prove to be fatal.).

Lord Ackner considered at length the judgment of Lord Wilberforce in the previous Privy Council case of Ratten. Lord Wilberforce had made it clear that the res gestae could be applied in different types of circumstances. Sometimes it is admitted as part of the actual event which the court is considering (murder, burglary, rape, etc). Firstly when considering the actual event, one has to take a view as to what the actual event was. If for example a stabbing occurred during an argument, it would not just be the moment that the stabbing occurred which would be part of the event, because frequently what was happening simply could not be understood unless the actual moment of violence was seen as part of a wider event. In different circumstances a greater or lesser period might be part of the relevant event, without which that which happened would be incomprehensible. In such a case what was said at the time would be relevant as part of the event whether or not it was true. In certain circumstances however, such as where the identity of an attacker was referred to, or where some other relevant fact (e.g. something showing state of mind) was referred to (for example the tone of voice and making of a call to the police by woman during a domestic incident who was shortly afterwards killed) statements could also be important. Lord Wilberforce regarded the key matter as being for the judge to consider whether what was stated was spontaneous or part of involvement in the events to an extent that the possibility of the person making the statement concocting it could be disregarded.

Lord Ackner set out the tests which a judge would ask himself. The first was whether the possibility of concoction or distortion could be disregarded. Essentially if the judge thought that what was said was an instinctive reaction to the event, then even if not exactly contemporaneous with the event it would make it unlikely that the statement had been concocted. The test was whether one could fairly say that the person making the statement was likely to be in such a state that their mind was still dominated by the event. Ultimately the concern about hearsay is that it is untested because the person who actually made the statement cannot be cross-examined. Therefore if a statement was made up then it could be totally false and extremely damaging. Likewise if the person hearing the statement had misheard it. If for example someone was attacked and shortly afterwards in circumstances where one would not expect them to have had the time or the motivation to make a false accusation, what they said could be admitted. If however in the circumstances it was thought that there had been sufficient time so that instead of being instinctive this could equally be an attempt to settle some different grudge by suggesting falsely that someone had been the assailant, then that would be a risk which would justify exclusion. Essentially the judge had to consider all of the circumstances to decide exactly where in the scale of things the particular attempt to introduce evidence as part of the res gestae stood.

The judge also as part of this would have to consider whether there was any special reason as to why the person making the statement might have had a motive to fabricate an allegation. A judge must also consider whether there was a possibility of error or distortion, whether by the person making the statement or the person hearing it. Once the judge decided that the statement should be admitted, he or she would need to make it clear to the jury that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said to them as well as being satisfied that the person who made the statement did not concoct or distort to his advantage or the disadvantage of the accused the statement relied upon. As part of this they would need (if appropriate) to consider whether the person making the statement was motivated by any malice or ill-will.

Those then the circumstances in general at common law in which the res gestae applied and how the law was specified in Andrews.