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Chrissa Loukas,
Public Defender
The term Res Gestae is a Latin term for transaction.
At Common Law, where an incident and the alleged offence form an integral part of the same transaction and the transaction cannot be understood without it and the offence in isolation could only be presented in an unreal and unintelligible form, the incident is admissible O'Leary v The King (1946) 73 CLR 566 Dixon J at 577.
Under the Evidence Act 1995 (NSW) (' Evidence Act') such evidence may satisfy the test of relevance under s 55 R v Adam (1999) 106 A Crim R 510, [1999] NSWCCA 189 at para [26]. The Court avoided the use of the term Res Gestae.
The introduction of the Evidence Act has further complicated the discussion of Res Gestae. The first part of this paper deals with the pre-existing Common Law. The second part of the paper deals with contemporary relevance and recent Court of Criminal Appeal cases in light of the Evidence Act.
In O'Leary v The King, Dixon J stated that evidence of conduct that forms a part of a relevant transaction will itself be relevant because 'without [evidence of such conduct] the transaction of which the [fact in issue] 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'. O'Leary v The King (1946) 73 CLR 566 at 577. The O'Leary case concerned facts relating to a murder where the victim was found in a dying condition doused in kerosene at a timber camp early one Sunday morning. On the Saturday preceding the murder, the men from the timber camp had consumed a significant amount of alcohol during a day-long 'drunken orgy', O'Leary v The King (1946) 73 CLR 566 at 566. during which Mr O'Leary savagely assaulted other employees without provocation. In light of these facts, the court held that evidence of these assaults by Mr. O'Leary was admissible pursuant to the principle of Res Gestae. Consequently, the defence was unsuccessful in their objection to the admissibility of the evidence by relying on the argument that that the evidence was wrongly admitted by the trial judge because the prior violent behaviour showed no more than bad character.
The reasoning of the court in relation to the admissibility of the assault prior to the murder was based on its transactional nature. The court found that that the evidence disclosed a connected series of events that should be considered as one transaction, not as merely showing bad character. Because the prior behaviour shared inseparable features of a transaction consisting of connected events, of which the murder was an integral part, the evidence was admitted. O'Leary is an illustration of the Res Gestae principle, in that apparently inadmissible facts can be argued to be so bound up with the facts of the crime.
In an effort to clarify the doctrine further, the High Court in Vocisano v Vocisano emphasised the requirement of Res Gestae evidence to contain elements of contemporaneity and spontaneity. In Vocisano, there was a dispute as to which Vocisano brother was driving a particular motor vehicle when it overturned and injured them both. In determining who was liable for the injuries suffered by the parties, the trial judge admitted evidence of statements made by the defendant to two witnesses' five minutes after the accident, which were divergent from the oral testimony given by the defendant during the proceedings.
On appeal, the High Court was unanimous in finding that the trial judge erroneously admitted the statements made by the defendant under the principle of Res Gestae. In his judgement, Chief Justice Barwick not only acknowledged that any determination as to the Res Gestae of a particular statement is always 'fraught with difficulty', but he also acknowledged the paradox inherent in the Res Gestae principle itself:
'A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and 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. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility'. Vocisano v Vocisano (1974) 130 CLR 267 at 273 .
Although spontaneous statements made by participants or observers of an incident are prima facie admissible under the doctrine if they are clearly associated with the incident in terms of time, place and circumstances, this in itself will not mean that they will, or even should, be admitted. In essence, the principle in Vocisano states that for evidence to be admitted under Res Gestae, it must not only satisfy the court that the evidence has not been concocted by the maker, it must also be contemporaneous with the transaction and must be a spontaneous reaction.
The essential point that emerges from Vocisano is that spontaneous statements made by participants to, or observers of, an incident are admissible if they are clearly associated with the incident in terms of time, place and circumstance.
Statements made shortly after the event may be admissible under exceptions to the hearsay rule S 65(2) Evidence Act. I deal with this later in this paper under 'Contemporary relevance' when dealing with the Evidence Act.
In spite of numerous attempts to clarify the doctrinal underpinnings of Res Gestae, the actual application of the principle remains problematic, notwithstanding its long common law history. The doctrine has often been described as having uncertain boundaries and has been criticised for its formless nature. In Ratten v The Queen, it was described by the Privy Council as being an 'opaque or at least imprecise Latin phrase' which 'like many.... is often used to cover situations insufficiently analysed in clear English terms'. Ratten v The Queen [1971] 3 All ER 801 at 806. In Ratten, the spontaneous cry of a victim of an assault, who later died, identifying her assailant was held to be admissible. The facts of this case dealt with a telephone call by a woman who was alleged to have been attacked and killed by the defendant at the same time in which she asked a local telephonist to send for the police, giving her the address.
On appeal it was held that the statement of the deceased woman was admissible in evidence under the res gestae principle. The court's determination gave consideration to the notion of implied assertion; with the implied assertion in this case being that the victim was being attacked. So, although the victim's spontaneous statement had no testimonial effect because it did not expressly assert the existence of an objective fact, the Privy Council recognised that the statement could be construed as implying that the caller was being attacked.
The relevant test set down by Lord Wilberforce should be approached with caution. In his judgement, Lord Wilberforce states that:
'[T]he test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish.... 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'(at 807).
The danger with this test is that it can be interpreted to apparently extinguish the transactional nature of the Res Gestae principle. For example, in Pollitt v R (1992) 108 ALR 1 Justice Brennan asserts that 'Lord Wilberforce recognised the admissibility of hearsay in statements admitted under the res gestae exception when he rejected as a test of admissibility [the transactional nature of evidence].' Pollitt v R (1992) 108 ALR 1 at 19. The reasoning in Pollitt contradicts the definition of Res Gestae as the Latin term for 'transaction'.
The contrary view is that Lord Wilberforce's statement serves to create an alternative analogy of application to assist in determining Res Gestae. Therefore, the test set down in Ratten suggests that a relevant occurrence can be regarded as a 'drama' rather than a 'transaction' ( Vocisano, at 273) in order to more easily apply the principle of Res Gestae. In Mills and others v R [1995] 3 All ER 865 at 876 their Lordships accepted that the modern approach to Lord Wilberforce's statement on Res Gestae puts the emphasis on the probative value of evidence 'rather than on the question whether it falls within an artificial and rigid category such as being part of a transaction.' Mills and others v R [1995] 3 All ER 865 at 876. Additionally, the court commented that:
'a re-examination of the requirements governing [Res Gestae], against the analogy of Ratten v R and R v Andrews, may permit those requirements to be re-stated in a more flexible form. How far such a relaxation should go would be a complex problem.' Mills and others v R [1995] 3 All ER 865 at 876.
Overall, the principle of Res Gestae should be applied with caution. This is one of the lessons that emanate from R v Ciesielski. In that case, C and others, all members of a notorious motorcycle gang, were convicted of a serious assault upon J. Evidence was admitted at trial that at the time of the assault, a number of men had in the presence of each other engaged in sexual intercourse with two women who either permitted this or were unable to refuse. The Crown contended that such evidence was admissible pursuant to the Res Gestae principle. Allowing the applicants' appeal, the NSW Court of Criminal Appeal held that while the evidence of sexual activity was evidence against those concerned, the evidence was not admissible against the other accused as 'it was not an integral part of the circumstances surrounding the assault ... not does the fact that it took place contribute to a better understanding of the circumstances of this assault'. R v Ciesielski [1972] 1 NSWLR 504 per Taylor J at 515 referring to O'Leary v The King (1946) 73 CLR 566.
In referring to Ciesielski in Alister and Others v R (1983) 50 ALR 41, Alister and Others v R (1983) 50 ALR 41 at 50. the court noted that the greatest care must be exercised in controlling the admission of Res Gestae, lest the accused be prejudiced by evidence of association or simply by innuendo. When evidence of this kind is sought to be adduced, whether by means of cross-examination or otherwise, the trial judge should exclude it if its prejudicial effect appears to outweigh its probative value.
The application of Res Gestae subsequent to the introduction of the Evidence Act 1995 (NSW) continues to be problematic. Neither the Evidence Act itself, nor the cases dealing with the transactional evidence, refer to the doctrine of Res Gestae. Instead reliance is placed on the principles of O'Leary. In doing so the Court of Criminal Appeal has arguably stretched the principles relating to transactional evidence to include circumstances not traditionally considered as part of the Res Gestae of an offence.
This case concerned the murder of an off-duty police officer in a hotel carpark, the appellant being found guilty of maliciously inflicting grievous bodily harm on the deceased. At trial the judge admitted evidence that the appellant, at some indeterminate time before the assault, had engaged in a 'staring argument' with a patron inside the hotel.
On appeal the Crown argued the evidence was admissible on two bases:
(1) evidence of a state of mind of Richard Adam at a time sufficiently proximate to the time of the alleged offence to be capable of tending to show what was Richard Adam's state of mind at the time of the alleged offence. [20]
(2) under the principle in O'Leary v The King (1946) 73 CLR 566, that the conduct of the appellant Richard Adam formed an integral part of a 'transaction' consisting of connected events, including both phases of the attack on David Carty. [20]
The court held that the principle under O'Leary had not been abolished under the Evidence Act.
[25] Section 9(1) of the Evidence Act provides that the Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies, except so far as the Act provides otherwise expressly or by necessary intendment. The Act does not expressly provide that the principle is abolished. Nor do we consider that the Act so provides 'by necessary intendment'.
It further held that evidence satisfying the test for admissibility under O'Leary would satisfy the prima facie test for relevance and admissibility under s.55.
In relation to the primary issue of whether evidence of this type impermissibly demonstrated tendency or propensity evidence the court explained:
[30] ...Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person 'in the past' or evidence tending to show that he has a particular 'disposition' or 'propensity' or 'inclination' and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required).
When it came to considering the actual evidence in the case the court accepted that:
[31] [A] serious question would arise whether [it] would be admissible on either of the bases advanced by the Crown or whether the Crown was really seeking to use the evidence as evidence of a tendency or disposition or propensity on the part of the appellant.
Fortunately for the Court the question did not need to be decided - the jury had been effectively directed to ignore the evidence, thus removing any danger of illegitimate reasoning on their part. R v Player[2000] NSWCCA 123.
In this case the appellant was convicted of malicious damage to the window of a fruit shop. On appeal the appellant challenged the admissibility of evidence of the appellant kicking and slashing a 'For Sale' sign and kicking a bin minutes after the window had been smashed. In dismissing the appeal the court purported to follow Adam and O'Leary, concluding:
[17] ... The smashing of the window was part of the same connected series of events, namely "a drunken aggressive and destructive rampage in the early hours of Saturday morning". The material in question was admissible.
In relation to the fact that the actions of the appellant occurred after not before the offence the court referred at [10] to Beserick [1993] 30 NSWLR 510 at 520 where Hunt CJ at CL said:
"It is but a very familiar principle of the law of evidence that subsequent behaviour may be regarded in order to indicate the state of mind which existed at an earlier time...and it matters not whether [the acts] precede the time of the offence charged: (ibid) or succeed it."
This case concerned an offence of knowingly concerned in the importation of heroin, the heroin being secreted in tins of pineapple. The issue at trial was not the fact of importation but the appellant's knowledge. The evidence established that during the unpacking of the cartons of pineapple from a truck, an alleged co-offender, Mrs Vo, said to the appellant 'Hey, hey, you don't know which one(s)'The comment was relied upon as a reference to that fact that only some of the tins contained heroin. No response was made by the appellant.
On appeal the Court confirmed the admissibility of the comment. The comment was evidence of the state of mind or knowledge of the co-offender under Walton v The Queen (1988-9) 166 CLR 283 at 288. Since the Crown case relied upon joint criminal enterprise this constituted a stepping-stone to proving the knowledge of the appellant.
Although the Court found that the comment was not hearsay, it pointed out, in the alternative, that even if the statement was hearsay.
[45] ... it is still admissible on the alternate basis propounded by Wilson, Dawson and Toohey JJ, at p 302, previously mentioned. The statement in the present case was made in the final stages of the importation while the important task of unloading was taking place. It was part of the res gestae.
The 'alternative basis' propounded by Wilson, Dawson and Toohey JJ in Walton was set out earlier in the judgment of Ung.
[42] In their joint judgment, Wilson, Dawson and Toohey JJ, at p 302, acknowledged that, 'it may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay', but that, 'in other cases a person's statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them'. They continued: 'To that extent an element of hearsay may be said to be present ... . But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted'.
In this case the court considered the requirement of proximity in relation to the admissibility of evidence under the O'Leary and Adam principle. The appellant was convicted of the murder of his ex-girlfriend. At the trial the judge admitted evidence of conversations between the appellant and a friend whom he had requested to assist him to kill the deceased up to five months prior to her death. The evidence had been admitted as evidence of intention under s.72 of the Evidence Act. In considering this section the court said:
[37] The principle which governs the admissibility of evidence of intention is simply stated. Evidence of the conduct of an accused, which is part of a series of connected events, to prove the state of mind of the accused is admissible provided that it is relevant: O'Leary (1946) 73 CLR 566; Adam (1999) 106 A Crim R 510; Player [2000] NSWCCA 123. In O'Leary Dixon J, at 577, accepted that evidence of 'connected incidents of one transaction', being the accused's violent and hostile conduct shortly before the murder occurred, was admissible to explain the 'mind and attitude [of the accused] and, therefore, to implicate him in the resulting homicide'. As his Honour explained:
'Without [the evidence in question] 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'.
[38] In Adam this Court accepted the ' O'Leary principle' but appears to have added a temporal requirement as a condition of admissibility. The Court stated at 516:
'Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person 'in the past' or evidence tending to show that he has a particular 'disposition' or 'propensity' or 'inclination' and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort may be required) ...'(emphasis added)
The Court concluded that 5 months was proximate enough in the circumstances of the case.
[39] Did the Radwan conversations satisfy this description, given that the time lapse was some five months? In my opinion, they did. The conversations were an integral part of the setting of fear that the deceased found herself in, in November 1994. Specifically, they occurred at the time of a serious deterioration and eventual but not final split in the relationship of the deceased and the appellant. They demonstrated that the appellant reacted to the break up with the expression of a violent and murderous intent directed towards her. In about February 1995, the appellant, in the further conversation with Radwan, referred back to his earlier conversations in terms that indicated his intention was continuing. Four to six weeks after that, the relationship having again broken up, the deceased told her mother she was meeting the appellant so that sentimental items could be returned. The deceased's body was found a few days later.
[40] Considered in the context of this on and off, volatile relationship, the November 1994 conversations, the February 1995 conversation and the murder are part of a continuum. Being part of a continuum, I do not consider that the apparently lengthy time over which the conversations occurred affected their admissibility. That is not to say that time is an irrelevant consideration. There must be a point where the connection between a series of events is broken because of a lapse of time. What lapse of time will be sufficient to break the continuum will depend on the circumstances in a particular case. It might be quite short or it could be lengthy. In this case I do not consider that a time lapse of five months was sufficient to do so. Indeed, the trial judge's description of the conversations as being 'reasonably proximate' with the murder was, in my view, an accurate one.
This appears to be a significant extension from the original transactional nature of evidence under the res gestae rule.
In this case the appellant was convicted of maliciously inflicting grievous bodily harm on his partner. On appeal the appellant challenged the admissibility of evidence of his aggressive and threatening conduct and comments after the police arrived at the scene of the offence, including evidence that he had pointed the rifle at police, the police had taken cover and he had threatened the police to 'back off or I'll kill you'.
After a detailed review of the cases the Court applied Adam and O'Leary and concluded:
[135] The evidence of the appellant's subsequent aggressive behaviour towards the police was relevant to the appellant's state of mind at the time of the alleged earlier assault on the complainant. It was also transaction evidence. The appellant's subsequent behaviour towards the police and his alleged aggressive behaviour towards the complainant were in very close temporal proximity.
An interesting aspect of this case is the observation that transaction evidence maybe restricted if it also constitutes tendency or coincidence reasoning.
[118] Despite being relevant, the use of transaction evidence may be restricted if it involves 'tendency' or 'coincidence' reasoning within the meaning of the Evidence Act, or 'propensity evidence' in common law terms. If it is relevant for a use which does not involve tendency or coincidence reasoning, for example being evidence relevant to a person's state of mind or evidence of conduct forming part of a relevant transaction, it may be admitted for that use, subject to the discretions in ss 135 and 137, Evidence Act.
It is important to note that the Evidence Act contains several sections providing for the admission of contemporaneous statements independent from any reliance upon the doctrine of Res Gestae or any principles under O'Leary.
Section 65 provides for the admission of the following statements in criminal proceedings where the persons making the statement is not available.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication
This has been used to admit evidence of statements made by dying victims naming their assailant, as well as statements from victims made prior to their death expressing fear of their alleged assailant. (see for example Polkinghorne (1999) 108 A Crim R 189; Serratore (1999) 48 NSWLR 101; Harris [2005] NSW CCA 432).
Section 66 provides for the admission of representations made by a person provided that when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. There has been a plethora of cases considering the application of this section including the High Court cases of Graham v The Queen (1998) 195 CLR 606 and Papakosmas (1999) 196 CLR 297.
Under s.72:
The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
It is this section that was used by the court in Serratore to extend the application of O'Leary to statements made by the appellant five months prior to the offence.
The common law principle of Res Gestae has attracted much judicial and academic criticism.
There is a general perception that 'the term [Res Gestae] tends to generate more confusion than assistance'. S Odgers, Uniform Evidence Law (2006) 7th Edition, Lawbook Co, at 404. Such criticism of the principle is not a contemporary phenomenon. As far back as 1939, Professor Julius Stone described Res Gestae as a 'lurking place of a motley crowd of conceptions in mutual chaos and reciprocating chaos', commenting that 'no evidential problem is so shrouded in doubt and confusion'. J Stone, 'Res Gesta Reagitata'(1939) 50 Law Quarterly Review 66 at 67. He argued that the term Res Gestae had been used too loosely to cover a series of distinct conceptions, each of which warranted it's own rules of operation.
There has also been significant judicial criticism, as far back as the 1930s. In Homes v Newton [1931] 2 Ch 112 at 121 Lord Tomlin commented:
'What is meant by saying that a document or act is admissible because it is part of the Res Gestae has never so far as I am aware been explained in a satisfactory manner. I suspect it of being a phrase adopted to provide a respectable legal cloak for a variety of cases to which no formula of precision can be applied.' Homes v Newton [1931] 2 Ch 112 at 121 . See also, A Keane, The Modern Law of Evidence (2008) Oxford University Press, at 352; Lundy v Attorney General [1996] JLR 193 at 203; F Davidson, 'Res Gestae in the Law of Evidence' (2007) 11 Edinburgh Law Review 379, at 379.
Similarly, in Ratten v The Queen, Res Gestae was described by the Privy Council as being an 'opaque or at least imprecise Latin phrase' which 'like many.... is often used to cover situations insufficiently analysed in clear English terms'. Ratten v The Queen [1971] 3 All ER 801 at 806.
The problems with practical application were highlighted by Brennan J in Pollitt v R (1992) 108 ALR 1 who emphasised that '[t]he classification of evidence according to this distinction, though clear enough in principle, is frequently obscure in practice'. Pollitt v R (1992) 108 ALR 1 at 12.
The subsequent cases under the Evidence Act suggest that the problems continue unabated.
Chrissa Loukas - Barrister, Public Defender, Public Defenders Chambers
Rachel Muscat - Student, University of Wollongong
Practical Legal Training, Public Defenders Chambers
Jennifer Wheeler - Legal Research Officer, Public Defenders Chambers
Prita Supomo - Legal Research Officer, Public Defenders Chambers
15 Nov 2024