Regina v Andrews: HL 1987

March 12, 2017 dls 0 Criminal Evidence,

References: [1987] 1 AC 281, (1987) 84 Cr App R 382, [1987]

2 WLR 413, [1987] 1 All ER 513

Coram: Lord Ackner

Ratio: The court should deprecate any attempt to use the res

gestae doctrine as a device to avoid calling a witness if he or

she were available.

The court laid down six tests for the admission of evidence

under the res gestae rule.

Lord Ackner said: My Lords, may I therefore summarise the

position which confronts the trial judge when faced in a criminal

case with an application under the res gestae doctrine to admit

evidence of statements, with a view to establishing the truth of

some fact thus narrated, such evidence being truly categorised

as hearsay evidence?

1. The primary question which the judge must ask himself is

can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the

circumstances in which the particular statement was made, in

order to satisfy himself that the event was so unusual or

startling or dramatic as to dominate the thoughts of the victim,

so that his utterance was an instinctive reaction to that event,

thus giving no real opportunity for reasoned reflection. In such

a situation the judge would be entitled to conclude that the

involvement or the pressure of the event would exclude the

possibility of concoction or distortion, providing that the

statement was made in conditions of approximate but not exact

contemporaneity.

3. In order for the statement to be sufficiently spontaneous it

must be so closely associated with the event which has excited

the statement, that it can be fairly stated that the mind of the

declarant was still dominated by the event. Thus the judge

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 under this heading.

4. Quite apart from the time factor, there may be special

features in the case, which relate to the possibility of

concoction or distortion. In the instant appeal the defence

relied upon evidence to support the contention that the

deceased had a motive of his own to fabricate or concoct,

namely, a malice which resided in him against ONeill and the

appellant because, so he believed, ONeill had attacked and

damaged his house and was accompanied by the appellant,

who ran away on a previous occasion. The judge must be

satisfied that the circumstances were such that having regard

to the special feature of malice, there was no possibility of any

concoction or distortion to the advantage of the maker or the

disadvantage of the accused.

5. As to the possibility of error in the facts narrated in the

statement, if only the ordinary fallibility of human recollection is

relied upon, this goes to the weight to be attached to and not to

the admissibility of the statement and is therefore a matter for

the jury. However, here again there may be special features

that may give rise to the possibility of error. In the instant case

there was evidence that the deceased had drunk to excess,

well over double the permitted limit for driving a motor car.

Another example would be where the identification was made

in circumstances of particular difficulty or where the declarant

suffered from defective eyesight. In such circumstances the

trial judge must consider whether he can exclude the possibility

of error.

. . And: Whatever may be the position in civil proceedings, I

would, however, strongly deprecate any attempt in criminal

prosecutions to use the doctrine as a device to avoid calling,

when he is available, the maker of the statement. Thus to

deprive the defence of the opportunity to cross-examine him,

would not be consistent with the fundamental duty of the

prosecution to place all the relevant material facts before the

court, so as to ensure that justice is done.

Jurisdiction: England and Wales

This case cites:

Cited Ratten v The Queen PC ([1972] 2 AC 378, Bailii,

[1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18,

[1971] 3 WLR 930)

(Victoria) Evidence had been admitted under the res gestae

rule, that a woman making a telephone call was in a

 hysterical state.

Held: It was properly used. Where a statement is made

either by the victim of an attack or by a bystander, which . .

(This list may be incomplete)

This case is cited by:

Cited Regina v W (Reference Under Section 36 of the

Criminal Justice Act 1972) CACD (Bailii, [2003] EWCA Crim

1286, [2003] Crim LR 547, [2003] 2 Cr App R 29)

The allegation was of a serious assault on the defendants

wife. The prosecution considered she would not be a reliable

witness, and did not call her. Other evidence being

inadmissible, the defendant was acquitted. The AG

appealed.

Held: There . .

Cited Regina v Giles CACD (Bailii, [1997] EWCA Crim

731)

The case involved an assault. The crown sought to introduce

as evidence a statement made by the defendants brother

at the scene under the res gestae rule.

Held: The circumstances were such as to allow admission of

the evidence under the tests . .

 Cited Regina v Twist and Others CACD (Bailii, [2011]

EWCA Crim 1143)

The court considered the application of the 2003 Act to

communications made to, or by, the defendant, and in

particular text messages sent by mobile telephone.

Held: The four appeals against conviction were dismissed.

Singh established that . .

Cited Barnaby v The Director of Public Prosecutions

Admn (Bailii, [2015] EWHC 232 (Admin))

The defendant appealed by case stated against his

conviction for assault. He said that certain evidence, a

statement from the complainaint, and a recording of the

999 call, should not have been admitted as hearsay.

Held: Fulford LJ said: . .

Cited Morgan v Director of Public Prosecutions Admn

(Bailii, [2016] EWHC 3414 (Admin))

The appellant challenged by case stated the admission by

magistrats at his trial oftwo pieces of evidence under the

res gesta principle under section 118(3) of the 2003 Act.

The allegation was one of domestic violence. Te court had

admitted the .