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Lecture

6.2 Exceptions--Res Gestae & Documentary

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Law
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JSB171
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All

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Hearsay Exceptions—Res Gestae  Threshold test of relevance Whether it rationally affects the assessment of the probability of the existence of the main facts in issue: Wakely and Bartley (possession of heroin—evidence that police officer present at raid died of overdose of heroin  relevant to whether accused in possession)  Hearsay—Exclusionary Rule Out of court statements used to prove the truth of their contents are inadmissible hearsay (Walton per Mason CJ; Subramaniuam per Wilberforce LJ) because it is not the best evidence given on oath, and the opportunity to cross-examine is lost: Teper v R  Exception to Hearsay  Res Gestae (plural) means transaction = inclusionary rule for evidence due to its overwhelming relevance and reliability • Effect—Admissible as an exception as evidence to the truth of contents Incidents to the transaction (broader than exception to hearsay) • Allows bad character evidence to be admitted • Crown generally not allowed to lead evidence of bad character—highly prejudicial and inadmissible • BUT if one of a connected series of events which should be considered as one transaction → admissible due to overwhelming reliability & relevance: O’Leary (murder—lumberjacks in forest—evidence that O had been heavily drinking & unprovoked attacks against other workers in 24hrs before death  drinking & violence part of the res gestae—murder in isolation is unintelligible → part of transaction → admissible) Spontaneous & Contemporaneous statements Reactive statements made without apparent thought or reflection are admissible • an exception as evidence of the truth of contents • Rationale—reliable, less likelihood of concoction or distortion: Mason CJ in Walton (similar rationale to inherent reliability argument) Other tests Narrow View (Old UK): Bedingfield • Strict contemporaneity—only admissible if made whilst event is still occurring: Bedingfield (murder—victim came out of room and said “look what B did to me”—claimed suicide  event = slashing of throat | statement came afterwards → not res gestae → inadmissible) Broad View (Current UK): Ratten • Admissible if— o Proximate (but not exact) contemporaneity o Spontaneity—made without apparent thought or reflection such that the possibility of concoction can be disregarded Ratten (murder—husband shot wife, claimed accident—just previously wife on phone to operator “get the police”—implied: ‘because my husband is trying to kill me’  admissible as res gestae ← spontaneous even if not perfectly contemporaneous → admissible) Andrews (1987) (robbery & murder—attacked with knife—died 2 months later but told police who attacker was  admissible) Andrew Trotter LWB432 Evidence Australian Position: Vocisano v Vocisano • Admissible as res gestae if— (Vocisano per Barwick CJ; adopted in Qld by Eaton (QCA); Walton per Wilson, Dawson & Toohey JJ) o Spontaneous  BUT not enough that unlikely to be concocted and thus might be reliable o Contemporaneous • Cannot be a mere narration of past events (1-2 minutes after event): Adelaide Chemical Co v Carlyle (acid burns due to negligent employer—containers with sulphuric acid—rushed to nearby toilet—1-2min later—“I took hold of the handle of the jar, tilted it slightly towards me to get my other hand underneath it and the top of the jar seemed to come away with my hand. It must have been faulty or cracked”  excluded (only 2 judgements—no ratio) Starke J=admissible | Dixon J=inadmissible) • Liberal view—Sufficient if there is substantial contemporaneity: Adelaide Chemical Co v Carlyle per Starke J (“must have been defective and came apart in my hands”  substantial contemporaneity—not a mere narration of past events → admissible); Mason J in Walton (“Hello daddy”—Mason J also in minority in advocating inherent reliability exception) • Stricter view—No contemporaneity if— o appreciable break of time (1-2min) and place: Adelaide Chemical Co v Carlyle per Dixon J (“… must have been defective and came apart in my hands”  no contemporaneity—appreciable break in time and place 1-2min | mere narration of a concluded event | not spontaneous or contemporaneous → not admissible) o made as historical account, not part & parcel of occurrence: Vocisano v Vocisano (HCA) (MVA—suing brother through nominal defendant— motorist pulled over just after accident: A said could not remember who was driving | B said A was driving  spontaneous but not sufficiently contemporaneous (distinguishing from Ratten) ← made as historical account, not part & parcel of occurrence) • Contemporaneity satisfied— o Contemporaneous & relevant: Warren v Coombes [1976] (heard screech of brakes & crash—said to daughter ‘car was going too fast’—could not see accident—looked up in tree & saw bike  admissible ← contemporaneous & relevant) • May extend to statements made where person fleeing to seek help: Canadian position; cf. Brown (Police officer shot—stumbled up to someone’s house—said who shot him & then died  not being chased → not res gestae → inadmissible) Analogy with Statute [→also s93B (below)] • Must be reliable—not applicable if could be a fabrication (eg must actually see injuries): R v Crump (2004) (murder—complaint of bruising by wife to 3P—did not actually observe bruises  conversation could have been a fabrication → inadmissible under s93B(2)(a)&(b)) • Representation can be by person themselves or authorised agent: R v McGrane (2002) (murder by doctor—someone called from her house | made statements to 3P—concluded that either victim or authorised agent  admissible || if it had been a 3P without her authorisation then not made out—but evidence was she was security conscious so unlikely to be eg murderer breaking in) Andrew Trotter LWB432 Evidence Statute: s93B(2)(a) Representation admissible if— 1. representation is— (s93B(2)) o Made when or shortly after the fact happened and unlikely to be fabricated: s93B(2)(a) o Highly probable to be reliable: s93B(2)(b) [→Inherently Reliable Exception] o Against interests of the person at the time: s93B(2)(c) [→Admissions & Confessions] 2. Person who made the representation— o had personal knowledge: s93B(1); and o is unavailable to give evidence: s93B(1)(b) 3. Prescribed criminal proceeding: s93B(1) means— (s93B(5)) o Ch 28 (Homicide—Suicide—Concealment of Birth), o Ch 29 (Offences endangering life or health), o Ch 30 (Assaults) o Ch 32 (Rape and sexual assaults) • Cannot be substantially after the fact: R v Crump (2004) (murder—complaint of bruising by wife to 3P—did not actually observe bruises  conversation could have been a fabrication → inadmissible under s93B(2)(a)&(b)) • Must be reliable—not applicable if could be a fabrication (eg must actually see injuries): R v Crump (2004) (murder—complaint of bruising by wife to 3P—did not actually observe bruises  conversation could have been a fabrication → inadmissible under s93B(2)(a)&(b)) • Representation includes express or implied | oral, written or conduct o Even if not actually communicated: s93B(5) • Representation can be by person themselves or authorised agent: R v McGrane (2002) (murder by doctor—someone called from her house | made statements to 3P—concluded that either victim or authorised agent  admissible || if it had been a 3P without her authorisation then not made out—but evidence was she was security conscious so unlikely to be eg murderer breaking in) Contemporaneous Statements as to Health, State of Mind Statements of health at the relevant time or soon after about bodily feelings and symptoms are admissible • Contemporaneous (or substantially contemporaneous) relating to the physical or mental state: Ramsay v Watson (1961) (unsafe system of work causing lead poisoning—medical officer giving evidence that none of 21 others were experiencing symptoms of lead poisoning  statements of health admissible through doctor → no need to call all 21 witnesses) o ← Spontaneous natural expressions of suffering • BUT must be contemporaneous—not statements by people about their past physical state: Ramsay v Watson (unsafe system of work causing lead poisoning—doctor reporting that 21 men had never experienced any symptoms in the past  not admissible ← not statements about men’s contemporaneous state of health—statements about their past) Statements about state of emotion or belief: No caselaw or statute, just take Kelley’s word for it Andrew Trotter LWB432 Evidence Cases O’Leary • O was charged with murder in 1946 and the outcome was that he would be hung if found guilty • The death occurred at a camp in a remote forest area – the accused and the deceased were employed as lumberjacks to fell trees. • The deceased was found dead outside his cabin. He shared the cabin with the accused at the time. • What was at stake here to identify O as the person who had unlawfully killed with intent was evidence about what had occurred in the previous 24 hours. • That evidence came from various witnesses and it was to the effect that in the preceding 24 hours the accused had been drinking heavily and had committed a number of unprovoked attacks against his fellow workers – showed bad character independently to what would identify him as the person who killed the deceased. • It was admitted over objection and O was convicted. HELD: • In the course of the judgement Dixon J (High Court) in relation to this evidence concluded that it was admissible. • “From the time when the prisoner came under the influence of drink right up to the conclusion of the scene in the early hours of Sunday morning in the presence of the deceased’s body lying in front of the huts ‘a connected series of events occurred which should be considered as one transaction’. • The evidence disclosed that under the influence of beer and wine he had drunk and continued to drink the accused engaged in acts of violence which might be regarded as amounting to a connected course of conduct. • Without evidence of what during that time was done 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.’ • The evidence had overwhelming relevance to make the whole transaction intelligible • Therefore the res gestae was not just the killing but the series of related events, etc that went on for the previous 24 hours. Bedingfield (UK) • Murder case – woman was one room and aunt in other room – woman’s throat was slashed by B • Victim came out of room as said “look what Bedingfield did to me” to her aunt in the other room and then dropped dead • HELD: event was slashing of throat and statement came later (not contemporaneous) • not admissible as Res Gestae • held to be simply a narrative of the concluded event Adelaide Chemical Co v Carlyle (No Ratio) • This was a civil action – there was an employee who had sustained an injury in circumstances that he said the employer had breached his duty of care to him. • He was carrying earthenware or glass containers which contained sulfuric acid – wife was with him when he was delivering the containers. • Took one off the vehicle he was using to deliver them and then rushed into the nearby toilet. • His wife went in and he said words to the effect that the thing must have been defective and it came apart in his hands. • He had sustained severe burns from the sulphuric acid in the container and he ultimately died. • It was sought to bring into evidence the statements he had made in the toilets to his wife HELD: • There are only two HC judgments that discuss this and no ratio from the case Andrew Trotter LWB432 Evidence • In Dixon J’s judgement at p532-533 he concluded that there was no sufficient contemporaneity between the incident (breaking of the jar) and the statements to the wife that were made shortly afterward • “Where there is no natural connection by continuance which may have a liberal connotation and there is an appreciable break of time and place it would in our opinion be going beyond the limit of authority to admit evidence that in substance is a mere narration respecting a concluded event – a narration not naturally or spontaneously emanating from or growing out of the main transaction but arising as an independent or additional transaction.” Quoting from Brown • Concluded that those observations applied equally to this situation – similar to approach in Bedingfields case • Starke J whilst he was prepared to accept that a mere narration of past events was not admissible under the res gestae he discussed the rule at p524-527 and concluded that there was sufficient substantial contemporaneity here to allow the admissibility of the statements Vocisano v Vocisano (Main Australian Case) • Relevant discussion p159 • Circumstance here was that there was an action against the nominal defendant alleging the liability to pay damages arising out of a road accident. • The two people in the car were brothers (A and B). • A sued B through the nominal defendant for damages, alleging that B was driving the car and breached his duty of care to A in that the car was involved in a single vehicle accident and he was injured. • As part of his case A called B to give evidence and B said that he was driving the car and he negligently breached his duty of care to his brother A and the car rolled over and he was injured. • It was sought to lead evidence that just after the accident occurred a motorist pulled up and B was staggering down the street shocked saying we just had an accident, my brother A was driving and he has been injured. It was argued that it was admissible as part of the res gestae – i.e. the accident. • What more inherently reliable statement than in the pressure of the circumstances a brother approaching the nearest motorist and saying that his brother was driving the car? • Therefore it was unlikely that this would have been concocted HELD: • HC members agreed with Barwick J who said: o “A reason for the doctrine that statements as part of the res are admissible as evidence is that because of their contemporaneity and because of 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. o 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… (talks about Ratten)… o but in the present case there was in my opinion no sufficient contemporaneity of the statement made to either of the witnesses Smith to warrant the conclusion the statements were as part of the res. • The occurrence was the accident and although the statements by the respondents were made proximate to the occurrence of the accident they were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence and thus they weren’t admissible as part of the res • Met the spontaneous requirement but not the contemporaneous requirement Andrew Trotter LWB432 Evidence Ramsay v Watson • Action by the pl against the former employer – argued that after 35 years of working in the printing office he had contracted lead poisoning that was from an unsafe system of work – was seeking damages • To meet the allegation of a breach of duty of care the printing office of NSW called a govt medical officer that gave evidence that he had examined 21 other people who had worked in the same office as the former employee and that none of them showed signs of lead poisoning – giving observations about other people’s contemporaneous physical health – under the res gestae these are admissible through the doctor. • There is a slight enlargement of the res because under this exception the described physical or mental conditions are at either the time of the examination or shortly before hand – slightly broader contemporaneity for this category – AND admissible as to the truth of those statements • The doctor also wanted to give evidence that the 21 people had never in the past experienced any symptoms of lead poisoning – technically those statements can be brought into the opinion of the doctor but because they relate to past events they are not therefore statements about the contemporaneous statements of health and the doctor was prevented from giving evidence of what the persons said about their past physical sensations Andrew Trotter LWB432 Evidence Hearsay Exceptions—Statutory Exceptions for Documentary Hearsay  Threshold test of relevance Whether it rationally affects the assessment of the probability of the existence of the main facts in issue: Wakely and Bartley (possession of heroin—evidence that police officer present at raid died of overdose of heroin  relevant to whether accused in possession)  Hearsay—Exclusionary Rule Out of court statements used to prove the truth of their contents are inadmissible hearsay (Walton per Mason CJ; Subramaniuam per Wilberforce LJ) because it is not the best evidence given on oath, and the opportunity to cross-examine is lost: Teper v R  Exception to Hearsay  Applicable to all Sections (1) In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if— 1. ‘Statement’: Definitions Sch3 • “statement” includes any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise. • “fact” includes admissible opinion (e.g. expert opinion): Thiess Bros v Ipswich Hospital 2. contained in a ‘document’: Definitions Sch3 “document” includes, in addition to a document in writing— Schedule 3 QEA (a) any part of a document in writing or of any other document as defined herein; and (b) any book, map, plan, graph or drawing; and (c) any photograph; and (d) any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatever; and (e) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and (f) any film, negative, tape or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and (g) any other record of information whatever. 3. ‘tending to establish’ a fact = circumstantial and direct evidence 4. of which direct oral evidence would be admissible ← only an exception to hearsay Discretion • Has discretion to reject
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