Hearsay: Specific Exceptions Continued

Res Gestae; Spontaneous Exclamations, Statements of Contemporaneous Physical Sensation

Res Gestae

The doctrine of res gestae permits into evidence statements that occur contemporaneously with the transaction in question, such statements being so inextricably bound up with the transaction, that these statements must be admitted so that sense may be made out of the whole transaction.

Res Gestae

Necessity: unavailability of declarant

Reliability: these are seen as “excited utterances” that arise from the transaction itself, and as such, reduce the opportunity for concoction

Requirements

The statement must accompany the act in question, even recognizing that the act may be a “transaction” of lengthy duration.

The words must accompany or form part of the transaction, or at least must be substantially contemporaneous, as this reduces the possibility of concoction or distortion.

Ratten v. R. [1971] 3 All.E.R. 801 (P.C.)

Accused charged with murdering his wife by shooting her with a shotgun.

Defence: it was accidental (the gun went off as he was cleaning it).

Evidence adduced that his wife had been alive and was behaving normally at 1:12 p.m. and within ten minutes thereafter had been shot.

Ratten v. R.

The prosecution challenged that defence by calling a telephone operator who testified as to a telephone call she received at 1:15 p.m. from the deceased’s home.

The call was from a female who was hysterical and who said “Get me the police please.” The phone went dead.

Ratten v. R.

Objection: Hearsay.

Held: Admissible. Either as “original evidence” regarding the state of mind of the deceased from which it could be inferred that the deceased was suffering from anxiety or fear of some existing or impending emergency. Or as an exception to the Hearsay Rule …

Ratten v. R.

“…hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but 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.”

Ratten v. R.

“…the possibility of concoction, or fabrication … is probably the real test …”

“As regards statements made after the event, it must be for the judge, by preliminary ruling, to satisfy himself or herself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.”

Ratten v. R.

“Conversely, if he or she considers that the statement was made by way of narrative of a detached prior event, so that the speaker was so disengaged from it as to be able to construct or adapt his account, he or she should exclude it. And the same must, in principle, be true of statements made before the event.”

Ratten v. R.

“The test should not be the uncertain one of whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.”

R. v. Andrews, [1987] 1 All E.R. 513 (H.L.) The victim was attacked by two men who

had entered his apartment. He received knife wounds that proved to be fatal.

In a statement to police after the attack, he named his two assailants.

The police had arrived within minutes of the attack.

Andrews

Objection: Hearsay.

Held: did not meet criteria of dying declaration, but was res gestae.

The circumstances satisfied the TOL that the event was so unusual or startling or dramatic, as to dominate the thoughts of the victim so as to exclude any possibility of concoction or distortion. The statement was made in conditions of approximate, but not exact, contemporaneity, justifying its admissibility.

Andrews: 5 guidelines

(1) TOL to ask: can the possibility of concoction or distortion be disregarded?

(2) To answer that question, the TOL should consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual, startling or dramatic so as to dominate the thoughts of the declarant, so that his utterance was an instinctive reaction to the event, thus giving no opportunity for reasoned reflection. In such a situation, the TOL would be entitled to conclude that the involvement in the pressure of the event would exclude the possibility of concoction or distortion, provided that the statement was made in conditions of approximate but not exact contemporaneity.

5 questions: continued

(3) For the statement to be sufficiently “spontaneous” it must be so closely associated with the event that has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus, the TOL must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider.

5 questions: continued

(4) Apart from the time factor, there may be special features in the case relating to the possibility of concoction or distortion. In Andrews a suggestion of malice between the victim and those accused, of a previous break-in and get away. IOW, there was an alleged motive to fabricate. In such a case, the TOL is to be satisfied that having regard to the special feature of malice, there was no possibility of concoction or distortion to the advantage of the maker, or the disadvantage of the accused.

5 Questions: Continued

(5) As to the possibility of human error in the statement, if the ordinary fallibility of human recollection is relied on, this goes to weight and not admissibility. In other cases, where intoxication, or the circumstances facing the eyewitness (no light etc.), or blindness are at play, the TOL can consider such matters for admissibility, and, as a matter of law, must still exclude the possibility of concoction/distortion.

Bystanders

Note: Statements by unknown or deceased (fulfilling the necessity requirement) bystanders have been admitted on res gestae grounds.

In Teper v. R., [1952] 2 All E.R. 447 (P.C.), the court considered direct evidence of an unknown bystander’s words upon seeing an individual fleeing from the scene of a fire, “Your place burning and you going away from the scene of a fire.”

The Privy Council was not concerned that he statement was made by a bystander, as opposed to a participant in the event, as long as the event was dominating the mind of the declarant, excluding the possibility of reasoned reflection. The P.C. was concerned, however, on these facts, as to the lack of contemporaneity of the statement to the crime.

Other examples

In R. v. Jobidon, (1987) 36 C.C.C.(3d) 340 (Ont. H.C.), the TOL held:

“The absolutely spontaneous words “It’s a fair fight,” spoken during the affray with no possibility of contrivance are evidence of the character of the fight, or at least the character as it appeared to the onlookers …There is no reason in principle to treat the statements of onlookers any different from the statements of the participants.”

Statements of Contemporanerous Physical Sensation

In Youlden v. London Guarantee & Accident Co. (1912) 4 D.L.R. 721 (Ont. S.C.); afff’d 12 D.L.R. 433 (C.A.), the deceased was insured with the Defendant against accident. The fact-in-issue was whether the manner of his death met the requirements of the policy.

Youlden

The Plaintiff’s case was that the insured died following straining himself at work, after lifting a piece of lumber. The insurance company’s defence was that the deceased died as a result of an infection, likely from his consumption of impure ice cream the night before his death.

Youlden

The Plaintiff called to the stand the insured’s partner who testified that the deceased, after lifting the lumber, had said he was “afraid he has injured himself.”

The evidence was admitted to show the existence of bodily sensation. It did not prove the cause of death, but represented a piece of circumstantial evidence helping the TOF determine the probable cause. The Court drew the inference from the existence of these symptoms that the deceased, at that time, did suffer an injury lifting the lumber, and that injury was the cause of death.

Statements as to Physical Sensation

Contemporaneity is a requirement.

Statements Made in Course of Duty We looked at “business records” exceptions at

the time we were discussing real evidence, including documentary evidence.

We discussed how s. 30 of the CEA allowed authentication by Affidavit. But it also represents a statutory hearsay exception, as the contents of a properly authenticated s. 30 document, are admissible POTOC.

Statements Made in Course of Duty However, there is also a common law “business records”

exception to the same effect.

Records, made and kept in the ordinary course of business, by one whose duty (legal duty, or employment requirement) it is to so record, made contemporaneously with the observations recorded, are admissible for POTOC – again, assuming proper authentication.

Note: the hearsay exception is required when the declarant recorder is not on the stand/before the Court.

Statements Made in Course of Duty

Necessity: declarant is unavailable – although this may not be a requirement. The common view is that this evidence is necessary because it is the “best evidence”, better than that of the live witness.

Reliability: they are ordinary course records, made by those with a duty to record, relied on by the recording business and generally considered accurate. By definition, they are not records made in contemplation of litigation, so there is no motivation to misrepresent.

Statements Made In Course of Duty

In the seminal Canadian hearsay case of Ares v. Venner, [1970] S.C.R. 608, you will recall that nurses notes were admitted under this common law exception, without proof of unavailability of the nurses who made the notes (there were, in fact, available but not called). They were admissible POTOC.

Public Documents

Again, we looked at these sections of the Evidence Acts. The sections are important not only for their allowance of self-authentication, but also for their direction that the documents be admissible POTOC without their “source” on the stand.

Note: s. 715 CC

Remember that there are many statutory hearsay provisions.

s. 715 allows for “read-ins” of prior proceedings in the same matter, such as the testimony of a now (at the time of trial) “unavailable” witness who previously gave evidence at the preliminary inquiry into the matter

s. 715 CC

Necessity: unavailability of witness

Reliability: under oath, and subject to cross (albeit in the previous proceeding), the only thing lost is demeanour

Notes: s. 715 CC

Must have the opportunity to cross, not actual cross.

TOL retains discretion to exclude.

TOF can use absence of witness on issue of weight.