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Res Gesta in Criminal Cases
Published online by Cambridge University Press: 16 January 2009
Extract
Sir Frederick Pollock once said that the phrase res gesta meant in English neither more nor less than part of the story. This indicates that the idea behind this principle of the law of evidence is fundamentally a simple one, yet the present state of the law is such that a learned judge may confess without shame that he sees as through a glass darkly, and of the writers, Wigmore and Julius Stone, despairing of finding any firm basis for any such principle, favour a fresh start upon a different foundation or foundations. The general impression conveyed to lawyers is of an idea of great amplitude, and one fraught with tremendous possibilities. Lord Blackburn, a Victorian common lawyer, and Harman J., a modern Chancery judge, both jocularly advise any counsel seeking to obtain admission of a doubtful piece of evidence to pin his faith in res gesta. The feeling that at a pinch the doctrine might give some relief is not unjustified. Owing to the many exclusionary rules of the law of evidence, it is rarely possible to tell a plain tale in court. The importance of the res gesta principle is that where it applies it will nullify certain of these exclusionary rules. An act, a declaration accompanying an act, or a mere declaration may form part of the res gesta. Before qualifying for admission, all such evidence must satisfy the test of relevancy in the sense of materiality. In the case of an act, this is normally the only test, at any rate if the act is offered in evidence for its own sake, and not as equivalent to an assertion of fact or opinion.
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- Copyright © Cambridge Law Journal and Contributors 1956
References
1 Homes v. Newman [1931] 2 Ch. 112, 120.Google Scholar
2 R. v. Wilkinson [1934] 3 D.L.R. 50, 52Google Scholar, per Ross J. in the Supreme Court of Nova Scotia.
3 In Molino v. New York (1921) 186Google Scholar N.Y.Supp. 742, a lorry driver, after running over a child, jumped from the lorry and began to run away. This was held inadmissible as part of the res gesta in an action against the driver's employer to prove the negligence of the driver. Chafee criticises, as in his view conduct cannot be hearsay: (1922) 35 Harv.L.R. 430. But it has been argued convincingly that conduct may be hearsay if offered by the proponent as equivalent to an assertion of fact or opinion: Cross in (1956) 72 L.Q.R. 94–100. Even if prima facie hearsay, it is submitted that the act of flight should have been accepted as part of the res gesta, being substantially contemporaneous with the transaction, as required by Thayer's test—see note 12 (see also (1921) 30 Yale L.J. 866).
4 See infra.
5 Most writers nowadays consider that some forms of res gesta evidence are admitted as exceptions to the hearsay rule, some as original evidence: Morgan (1922) 31 Yale L.J. 229, Stone (1939) 55 L.Q.R. 66. Contra Phipson, Evidence. 9th ed., 229, who regards res gesta as only a spurious exception to the hearsay rule.
6 This is the rule against hearsay as formulated by Cross, , op. cit., at p. 100.Google Scholar
7 For this rule, see Phipson, , op. cit., 512.Google Scholar
8 Between Cockburn C.J., the trial judge (see (1879) 14 Cox 341 for his judgment, and (1880) 15 L.J. 5 for his reply to Pitt Taylor), and Judge Pitt Taylor, author of the classic work on Evidence, who attacked his view in a Pamphlet (1880), Thayer, the great American writer intervening in (1880) 14 Am.L.R. 817 and (1881) 15 Am.L.R. I, 71. Years later battle was again joined with similar acerbity between Sibley ((1903) 19 L.Q.R. 203 and (1904) 20 L.Q.R. 85) and Phipson ((1903) 19 L.Q.R. 435).
9 The complaint rule looms large in the conflict—Cockburn bases himself upon remarks of Cresswell J. in the complaint case of R. v. Osborne (1842) 1 C. & M. 622. Pitt Taylor in reply argues on an analogy from such cases (Pamphlet, pp. 16–17). and Sibley considers that the famous complaint case of R. v. Lillyman [1896] 2 Q.B. 167 supports Cockburn's view: (1903) 19 L.Q.R. 203, 218.
10 e.g., Thayer (1880) 14 Am.L.R. 817, 828–829; (1881) 15 Am.L.R. 71, 91.
11 (1880) 15 L.J. 16–17.
12 (1881) 15 Am.L.R. 107.
13 (1940) vi, para. 1756, 1776. pp. 162–164, 197. See also infra.
14 Ibid., para. 1746, p. 134.
15 Ibid., para. 1750. p. 142.
16 See Chafee (1922) 35 Harv.L.R., p. 447.
17 Baker, , The Hearsay Rule, 155Google Scholar; R. v. Leland (1951) 11 C.R. 152, 168 (Ontario Court of Appeal reversing McRuer C.J.); Adelaide Chemical & Fertilizer Co. v. Carlyle (1940) 64 C.L.R. 514, 531–532, per Dixon J. In some civil cases, notably Lloyd v. Powell [1914] A.C. 733, the House of Lords has stretched the idea of transaction to an extent that worries Wigmore: vi, para 1757, pp. 169–170. For other American comment on this case, see (1915) 28 Harv.L.R. 299 and (1924) 37 Harv.L.R. 513, 520.Google Scholar
18 Where so-called res gesta evidence is admitted as original evidence, Stone takes his stand on relevancy, but a statement is not necessarily receivable as soon as its relevancy is shown, for apart from hearsay it may come up against other exclusionary rules such as that against self-corroboration, or the rule that to be received in sexual cases complaints must be made promptly. He cites Guttridges (1840) 9 C. & P. 471 as a case where the words, whether contemporaneous or not, of the victim of alleged rape were admissible as relevant to prove a fact in issue, i.e., consent, but a complaint in a letter written two months after the alleged assault showing anger would be relevant on a fact in issue, i.e., absence of consent, but would be inadmissible. It is submitted that the object of the English lawyer should be to try to determine the operation of the res gesta doctrine in overcoming the obstacle of exclusionary rules: where one of the latter is concerned, it is useless to raise the cry of relevancy. The plea of relevancy is answered by the reply of the exclusionary rule, e.g., hearsay, self-corroboration, and to rebut the reply it is needful to pray in aid the principle of res gesta.
19 Outlines of Criminal Law, 16th ed. (Turner), 402, 404. The Bedingfield declaration is rejected by the learned editor not because it was not contemporaneous, but on the ground that it was evidential.
20 The learned editor also considers statements as to bodily feelings to be admissible not being evidential in character: Ibid., 405.
21 It is submitted that the better view is that of Cross in (1956) 72 L.Q.R. 91, 93, who considers that exclamations fall under the hearsay rule, and that the test is not what the speaker intended, but the purpose for which the exclamation is offered by the proponent—see, e.g., the definition of hearsay in the Model Code of Evidence of the American Law Institute, cited in (1949) 62 Harv.L.R. 177, 215. The illustration of a non-evidential statement in Kenny (402) is: “Hallo, Mr. X., where are you going?” It is submitted that if this is tendered to prove that Mr. X. was present, it is hearsay of the most objectionable kind, for identification evidence is notoriously unreliable unless subjected to cross-examination.
22 Per Cockburn C.J. Field and Manisty JJ., who had previously been asked by the L.C.J. to read the depositions, agreed with his view. The remark was also rejected as a dying declaration, as Mrs. R. did not indicate that she had no hope of recovery.
23 There was no cogent evidence that Mrs. R. had this knowledge: Pitt Taylor scores heavily on this point: Pamphlet, p. 11.
24 If the accused had been present, the statement would be evidence against him to the extent that by his conduct he had admitted the statement: D.P.P. v. Christie [1914] A.C. 545.
25 (1880) 15 L.J. 17.
26 (1907) 38 S.C.R. 284. Supreme Court of Canada.
27 (1882) 15 Cox 7. Admitted as a dying declaration.
28 (1887) 18 Q.B.D. 537.
29 Baker, , op cit., 160. (1909) 43 Ir.L.T. 186.Google Scholar
30 See note 17. Two of the witnesses reported Mr. M. as having said: “She stabbed me through the heart.” The trial court made no ruling on admissibility as a dying declaration. Is a declarant deemed to have abandoned hope if he acknowledges a stab through the heart? See (1879) 14 Cox 341, 343 (a), for the controversy, arising in Bedingfield, whether a declarant, who has sustained a wound obviously mortal, must expressly say he is dying before his statement can be admitted as a dying declaration.
31 [1947] 1 S.A.L.R. 162. Policeman B. was also called as a witness. Crown counsel conceded that the evidence was not admissible as res gesta. It is analogous to a cry of “Stop thief!” which Cockburn would reject, but Thayer and Pitt Taylor would admit: Pamphlet 21. Pitt Taylor continues: “If the pickpocket, when taken, declares that the purse found upon him was given to him by the loser of it, that plausible story must go to the jury without the antidote offered by proof of the cry.” This is an erroneous comment, for ex hypothesi the “plausible story” is not part of the res gesta, and will be excluded under the rule against self-corroboration.
32 (1861) 2 Allen 136 (Mass.). Discussed in (1881) 15 Am.L.R. 84. Thayer is not however ready to concede a “liberal time-allowance”; e.g., he does not accept Com. v. McPike (1849) 3 Cush. 181Google Scholar, where the statement was made after a considerable interval, and he rejects other cases based on the loose doctrine, which he ascribes to the activity of some “famously ignorant” English judges in bankruptcy cases: Ibid., p. 20.
33 Archbold, , Criminal Pleading, 33rd ed., 393Google Scholar, relying on R. v. Goddard (see note 27).
34 The Times, June 2, 1898.Google Scholar
35 Pamphlet, p. 6.
36 (1834) 6 C. & P. 325.
37 (1897) 14 S.C. 424.
38 (1931) N.P.D. 557.
39 It is not admissible as a statement made in the presence of the accused, for he is insensible and his silence cannot be interpreted as an acceptance of D. 's version: Watson [1955] Crim.L.R. 566 (Court of Criminal Appeal).
40 Before Denman, J. (1876) Browne, & Stewart, , Trials for Murder by Poisoning, 268–269.Google Scholar
41 The Times, July 5, 1932.Google Scholar It has been said that the judge strained the laws of evidence in favour of the defence (see Williams, Dr. G. L., Proof of Guilt, 154, quoting Sir Patrick Hastings, Cases in Court, 272Google Scholar), but it is submitted that the evidence was admissible according to Thayer's test, though Cockburn would clearly reject it.
42 See note 9.
43 Ibid.
44 (1880) 15 L.J. 17.
45 Sibley (1903) 19 L.Q.R. at p. 218.
46 See note 34.
47 (1834) 6 C. & P. 397.
48 See also Thayer in (1880) 14 Am.L.R. 817, 837—it is plain that Cresswell J. was not contemplating nice questions like Bedingfield.
49 [1914] A.C. 545.
50 [1952] A.C. 480, where it was held that on a charge of arson against T. for setting fire to his shop P.C. Cato could not testify that, as a car drove by, 230 yards from the fire, and 26 minutes after the outbreak, he heard some woman say: “Your place burning and you going away from the fire.” (The lapse of time was so great that neither Cockburn nor Thayer would have accepted this evidence.)
51 See note 36.
52 (1854) 6 Cox 477. An Irish case, relied upon by Pitt Taylor in the famous dispute, and probably too lax even by Thayer's standard, unless the complaint of robbery was made sooner after the crime than seems indicated by the report.
53 [1914] A.C. at pp. 556, 567.
54 1941 S.C. 363, 381—a Scottish civil case.
55 Lord Normand in Teper (487) refers to the requirement of close association of “time, place and circumstances.” See also Morgan in (1922) 31 Yale L.J. at p. 236, though in rather a restricted context. Place does seem to be important.
56 See the concluding submissions in this article.
57 There is a similar risk where the question is whether the transaction had yet begun at the time of the declaration (see infra).
58 Pamphlet, pp. 23–24.
59 (1880) 15 L.J. 18.
60 [1905] 1 K.B. 551 (Court for Crown Cases Reserved).
61 See Sibley (1904) 20 L.Q.R. 86–87, quoting the relevant passages from Bracton, not merely that cited by the C.C.R.
62 Per Bankes, L.J. in Jones v. S.E.R. (1918)Google Scholar 118 L.T. 802, 805; R. v. Folley (1896)Google Scholar 60 J.P. 569. Beatty v. Cullingworth (1896)Google Scholar is often cited to the contrary, but though the obiter of Hawkins J. in the lower court ((1896) 60 J.P. 740) is clear, the C.A. (The Times, January 14, 1897Google Scholar) merely decide that complaints are not admissible in civil cases.
63 See note 9.
64 See comment by the reporter in (1879) 14 Cox 341, 345, and The Times, November 14, 1879Google Scholar, for the full summing up. It may be noted that Pitt Taylor considered the details of Mrs. R. 's complaint could be admitted only because of the defence of suicide. His view is that had the question been whether B. or say X murdered Mrs. R., the reference to B.'s name in the complaint should have been excluded. In other words, the complaint can be used only to disprove consent, not to establish identity. He relied on the analogy of complaints in sexual cases: Pamphlet 16–17. Thayer convincingly disposes of this view: (1881) 15 Am.L.R. 1, 2–4.
65 As a declaration as to symptoms (see infra). The Times, June 6, 1898.Google Scholar See also R. v. Rowland (1898) 62 J.P. 659.Google Scholar
66 (1933) 290 U.S. 96. Supreme Court of U.S.A.
67 It is doubtful whether the defence evidence of declarations of suicidal intent would be admitted in England (see infra).
68 In Guttridges (1840) 9 C. & P. 471Google Scholar, on a charge of rape, Parke B. held a complaint inadmissible where the complainant was dead. Contra, Megson (1840) 9 C. & P. 420Google Scholar, and Nicholas (1846) 2 C. & K. 246Google Scholar, but both were cases where the evidence was received without objection. See also Wills, Evidence, 3rd ed., 357.
69 Another difficulty is the attitude of Hawkins, J. himself, for in Beatty v. Cullingworth (1896) 60 J.P. 740Google Scholar, about 18 months before Horsford, his Lordship had held that complaints were admissible only in sexual cases. It seems that his Lordship must have forgotten his view in Beatty's case, or failed to appreciate that the principle he enunciated in Horsford was fundamentally similar to the rule in Lillyman's case.
70 See the summing up, The Times, June 7, 1898Google Scholar, referring to a letter from H. found under deceased's pillow: “Take it in a little water. It is quite harmless.”
71 The point is well made by Shelby, J. in the American case of Jack v. Mutual R.F. Life Association (1902) 51 C.C.A. 36, cited by Wigmore, , vi, 143.Google Scholar
72 Gardner Peerage Case (1824)Google Scholar Le March 169–174. The question was whether a birth had followed protracted gestation. A midwife testified that she had known of a case of a woman F. exceeding ten months. F. told her she was sure she had gone beyond her time. Held that the midwife could not repeat F. 's statement that the last time she menstruated was so many months before. Cf. Aveson v. Kinnaird (1805) 102 E.R. 1258.Google Scholar
73 (1857) Notable Scottish Trials, Jesse, F. Tennyson, 139.Google Scholar
74 (1752) 18 St.Tr. 1117, 1135–1137. This was possibly opinion evidence so far as the naming of the poisoner was concerned. (See infra.)
75 R. v. Palmer (1856) Bennett's S.H. Report 38.Google Scholar
76 Trial of Dr. Pritchard (for the murder of his wife), Famous Scottish Trials, 96, though on the objection of defence counsel Mary Paterson was also called as a witness and gave her own account of her sufferings: Ibid., 115. See also (in less detail) (1865) 5 Irv. 88, 98, 105.
77 See note 40.
78 (1881) Browne, & Stewart, , op. cit. 542Google Scholar (infra). Notable British Trials, 40, 50, 54, 55.
79 (1922) 16 Cr.App.R. 118 (Court of Criminal Appeal). The statement is then evidence against him to the extent that by his conduct he has admitted it (see note 24). But Cross asks what inference of guilt can be drawn from a husband's failure to comment on his wife's complaints about the ill effects of medicine he has procured: (1956) 72 L.Q.R. 114. It certainly does seem that an innocent man would say nothing in the circumstances, whereas a poisoner might well say: “I put nothing in it.” It is submitted that the courts should not be too astute in thinking up apt comments the accused might have made. In Gilbert v. R. (see note 26), the “hold on boys” case, the victim, after G. had been apprehended said: “Don't let him knife me.” The lower court held that this statement was inadmissible as not susceptible of denial, but the Supreme Court of Canada held that G. might well have been expected to say that the deceased was in no danger from him. The attitude of the lower court is to be preferred.
80 In O'Hara v. Central S.M.T. Co. (see note 54) at pp. 389–390. For the operation of this test where the commencement of the transaction is concerned (see infra).
81 See Pincus v. Solomon [1942] W.L.D. 237Google Scholar, where a South African court rejected a statement made three minutes after a road accident by a semiconscious victim on the way to hospital. Of course such a ruling, advisable as it seems, gives an advantage to a wrongdoer who renders his victim unconscious. Similarly Cockburn C.J. pointed out that Bedingfield was at a disadvantage compared with Mrs. R., for while both had suffered throat wounds his had rendered him speechless for twenty-four hours, whereas she had retained the power of speech and could at once give her version of the story: (1880) 15 L.J. 16.
82 (1867) 10 Cox 547.
83 See note 40.
84 See note 41.
85 (1881) Notable British Trials, 40.Google Scholar For the boy's remarks to other witnesses, see pp. 50, 54, 55. One witness, Dr. Berry, seems to have elicited the remark from the boy by a leading question (55). One suspects that this is because the Headmaster had already told the doctor the complaint the boy had made; it does not necessarily indicate that the original complaint to the Headmaster was prompted by a leading question.
86 (1925) 53 Cal. 372, 385. Bonomali was as sensitive on a point of honour as Falstaff: apparently he and Biseswar fied incontinently, for they are described as a precious pair of poltroons.
87 R. v. Wilkinson [1934] 3 D.L.R. 50.Google Scholar Supreme Court of Nova Scotia. There is a view that res gesta evidence can never be used except to corroborate or explain: Phipson, , op. cit., 69.Google Scholar It is submitted that there is no sufficient authority or principle in favour of any such limitation, though the judge may well exercise his discretion in favour of rejection of prosecution evidence offered as part of the res gesta to prove the inception of the transaction, and otherwise uncorroborated—see infra.