- Anvita Singh
Res gestae has been defined as “Things done, or liberally speaking, the facts of the transaction explanatory of an act or showing a motive for acting; a matters incidental to a main fact and explanatory of it; including acts and words which are so closely connected with a main fact as will constitute a part of it, and without a knowledge of which the main fact might not be properly understood, even speaking for themselves though the instinctive words and acts of participants not the words and acts of participants when narrating the events, the circumstances, facts and declaration which grow out of the main fact, and contemporaneous with it and serve to illustrate its character or these circumstance which are the atomic and undersigned incidents of a particular litigated act and are admissible when illustrative of such act.”
A Common Law Understanding of Res Gestae: In the first part of this paper, the researcher seeks to establish the basis for the res gestae exception under Common Law and its characterisation by the English courts in the context of the hearsay rule. It illustrates the expansion of this exclusion up until its most recent codification in 2003.
The Manifestation of Res Gestae in Statutory Law: In the second part of this paper, the researcher identifies the relevant provisions of the Criminal Justice Act, 2003, and the Indian Evidence Act, 1872, contrasting each with the Common Law principles as established in authoritative judicial decisions.
Statements that constitute part of the res gestae are attributed a certain degree of reliability because they are contemporaneous, making them admissible by virtue of ‘the nature and strength’ of their connection with a particular event and their ability to explain it comprehensively. The law considers them as sufficiently reliable to overcome the expansive coverage of the exclusionary hearsay rule, making admissible statements that would otherwise constitute inadmissible hearsay. In understanding the nature of the res gestae exception to hearsay and the manner in which it must be construed in individual cases by the Judiciary, it is important to rely repeatedly on the underlying consideration that is often overlooked – the reliability of the statement.
Through the course of this paper, the researcher seeks to appreciate the manner in which this exception has developed under Common Law, with special focus on the relationship between res gestae and its quality of reliability. The researcher has provided a comprehensive analysis of leading case law in order to fully appreciate the manner in which the res gestae exception to the hearsay rule has expanded in order to accommodate considerations that were earlier ignored by the formalist interpretation of this doctrine under criminal law. This also involves an evaluation of endeavours to codify this principle under both English and Indian law, and the implications of these endeavours. Finally, the researcher compares the extent to which the English and Indian legal systems have included the res gestae doctrine into the laws that determine reliability of hearsay evidence, respectively.
A COMMON LAW UNDERSTANDING OF RES GESTAE
Defining res gestae as an exception to the hearsay rule
The principle of res gestae suggests that events should be appropriately contextualised in order to appreciate their significance; this understanding is inaccurate if the event is considered, conversely, as an event in factual isolation. Simply stated, statements that form part of the res gestae are attributed a respectable degree of reliability, arising out of the assumption that they are ‘closely associated’ with the event. While the determination of what events shall form part of the transaction remains undefined and is a matter best dealt with by the exercise of subjective discretion, identifying the extent of the res gestae principle is of particular importance in the context of the hearsay rule and its exceptions.(1)
Why are statements made during the course of the transaction exempt from the general Common Law rule of evidence excluding hearsay? In understanding completely the circumstances in which an event occurred, it is often necessary to take into consideration statements made along with the act, or during the transaction in which the act took place, as the account of the event may otherwise be incomplete or ambiguous. Ensuring accuracy as to the events that transpired almost inevitably necessitates a consideration of statements made contemporaneous with the act, notwithstanding that they may fall under the broader category of hearsay. Often, actions and words comprise a single act, and it would be improper to consider actions without the words that accompany them.
Res gestae statements constituted one of several exceptions to the hearsay rule recognised under the Common Law in England. Statements forming part of the transaction of events in dispute were granted immunity from the all-encompassing exclusionary hearsay rule that often resulted in injustice and necessitated the development of exceptions to overcome its rigidity. Extremely similar is the American principle of excited utterances; admissible hearsay is a spontaneous reaction to an event so startling so as to negate the possibility that it was the result of reflective thought.(2)
Evidence in criminal cases is still required to comply with Common Law standards that have been incorporated into statutory provisions operating today. Although it was impossible to envisage any settled, universally acceptable test to adjudge whether hearsay be admissible on the basis of the principle of res gestae, the Courts in England have made a laudable attempt to identify the nature of this exception.
AN EARLY INTERPRETATION OF THE RES GESTAE EXCEPTION TO THE RULE AGAINST HEARSAY
The res gestae exception was first circumscribed definitively in the infamous decision of Cockburn C.J. in R v. Bedingfield. This case showcases the principal test to determine the admissibility of hearsay, that is, the spontaneity principle which tended to ignore the need for reliability, the overarching consideration. In this case, the victim made a statement implicating the accused just moments before her death. Unexpectedly, the court declared the narration of the statement inadmissible on the grounds that the transaction of the event was complete when it was made. Although this decision has been effectively overruled, it accurately illustrates the erstwhile principle used to define the res gestae exception (attributed to legal formalism), which often resulted in unjust consequences. By insisting on a strict interpretation of what statements shall form part of the res gestae, Cockburn C.J. seems to have failed to appreciate the underlying purpose behind the establishment of this exception in the first place, that is, the more pertinent question of how reliable the statement is. Thus, the test of contemporaneity that constituted the basis for admitting certain statements (though hearsay) was gradually challenged during the nineteenth century as a result of the irrational extents of conviction in its accuracy.
A more flexible understanding of res gestae as an exception to the hearsay rule was formulated by the Judicial Committee in 1952. Carefully carving out this exception, it seemed easy enough to characterise statements as falling within the res gestae on the basis of two fundamental principles. First, the proposition that human utterances are facts just as actions are, and secondly, ‘that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth.’ In this case, the statement of a bystander was rejected on the grounds that it was highly prejudicial to the accused and that there was no other evidence supporting the culpability of the accused. Though the res gestae exception was broadly construed, the statement was excluded in this case for these reasons.
The Committee’s endeavour to categorically define res gestae as an exception to the hearsay rule was problematic for two reasons. First, the rule was strictly laid down in this case solely because the statement was one identifying the accused. Under other circumstances, statements may be prejudicial to the accused though the verdict may not depend on them, and thus, it is difficult to determine which statements (though prejudicial to the accused) shall be admissible because they were part of the transaction. Secondly, the Committee’s characterisation of res gestae statements as a ‘carefully safeguarded and limited’ exception is difficult to swallow in light of the fact that (as mentioned above) filtering out statements that are prejudicial to the accused is itself a contentious process that depends largely on the circumstances surrounding the act and the issue of whether the statement would unjustly prejudice the interests of the accused.
A mechanism for determining the admissibility of statements that gained broader acceptance was proposed, with substantial clarity, by the Privy Council in 1956, through a consideration of the purpose for which the statement is to be admitted. The following classification endured through subsequent judicial interpretation:
‘It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.’
In this case, the question of whether the accused was acting under duress fell for consideration. Although the principle of res gestae finds no mention in the Council’s decision, it rejected the contention that after the accused had been subjected to threats, the cause of duress must have ceased to exist and stated, conversely, that threats made previously constituted a ‘continuing menace’.
RECONSIDERING ADMISSIBLE HEARSAY: A SHIFT FROM RES GESTAE TO RELIABILITY (3)
One of the leading decisions in relation to the res gestae exception is that of the Privy Council in Ratten v. The Queen, which dealt with the admissibility of the statement of a telephone operator who received a call from the deceased minutes before she was allegedly murdered by her husband. The Council characterised the statement as original evidence of ‘verbal facts’, as opposed to hearsay evidence, as the object of admitting the statement was not to establish the truth of the statement made, but merely to establish the fact that it was made. The following observation was made:
‘Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonially," i.e., as establishing some fact narrated by the words.’
Despite the fact that the Council identified the conversation as original evidence, it addressed concern that the manner in which the evidence was presented to the jury tended to assert the truth of the statement, rather than the fact that it was made. This is a valid concern, as juries may be misled by hearsay evidence by attributing it with more importance than is warranted.
This decision contradicts the reasoning of the Court in Bedingfield’s Case. The Council observed that the reason for the earlier erroneous assessment was because the court had chosen to focus on the ‘opaque or at least imprecise’ doctrine of res gestae rather than the fundamental reasons behind the exclusion of hearsay evidence (hearsay evidence may be excluded either because of the threat of inaccuracy or because of the possibility of fabrication of evidence). The Council recognised that in cases like Teper and Bedingfield, it is essential to adopt a purposive interpretation in construing statements rather than strictly deciding, as choosing between black or white, whether the statement is formally a part of the res gestae. The following observation made by the Council is relevant to this discussion:
‘The test should be not the uncertain one, 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. The expression "res gestae" may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings.’
Finally, in accepting that there is no general rule to determine whether statements may be safely admitted, the Council held that the statement made by the victim to the telephone operator was undoubtedly the result of the contemporary transaction and was intrinsically related to the event of her death. The reason for the admission of this statement was not only that it formed part of the res gestae, but because it was reliable.
Following the decision of the Privy Council in Ratten’s Case,(4) the law on this point was consolidated decisively in the celebrated case of R v. Andrews. Lord Ackner of the House of Lords exhaustively dealt with this exception, moving away from the simple question of whether the statement was a fact to be admitted as original evidence, to the more complex one of whether the truth of the statement relayed could be admissible as an exception to the hearsay rule, and by what justification. This issue was of considerable significance as the statement of the victim was one which, if admitted, would disclose the identities of his assailants. The House of Lords found itself compelled to effectively demarcate the boundaries of the exception in response to the question posed by the Defence: ‘If such hearsay is so admissible, how wide can the material events go before becoming inadmissible?’
In contending that the enlargement of the exception by the Council in Ratten deposed the previous string of authorities on the point in a manner most unwarranted, the Defence repeatedly reverted to the infamous decision in Bedingfield’s Case, adhering to the more strict, literal interpretation of the res gestae rather than the extensive underlying principle of reliability safeguarded in Ratten’s Case. The Crown defended Ratten by suggesting that in order to overcome the difficulties of Bedingfield’s strict application of the res gestae exception, the standard of ‘substantial contemporaneity’ be adopted to protect statements made under conditions of involvement in the event, though not formally a part of the transaction.
The House of Lords reiterated this proposal and expressed concern over the manner in which judicial interpretation was veering prior to Ratten. The early obsession with defining transactions resulted in a lack of certainty of pronouncements as well as injustice. Any endeavour to define in general terms, and with any appreciable degree of precision, the limits of a transaction must necessarily produce inconclusive results. This futility was finally recognised in Ratten, nearly a century after the decision in Bedingfield. The House of Lords thus approved Lord Wilberforce’s clarification of the res gestae exception, and wholly rejected the contention that Ratten was unjustified.
Ultimately, Lord Ackner identified certain criteria to be considered by a Trial Court judge in determining whether hearsay statements shall be admissible for the purpose of establishing the truth of the facts asserted by them. The chief consideration was whether there was a possibility of concoction or distortion. Other rules framed stemmed from this pivotal test, and included a consideration of the circumstances in which the statement was made and a flexible determination of whether it was sufficiently spontaneous. Most importantly, in disregarding time as the primary factor justifying the res gestae exception, Lord Ackner recognised that concoction and distortion can be determined regardless of whether the statement was formally part of the transaction. Taking the reasoning in Andrews a step further, the question that naturally arises is this: does the rationale in this judgment imply that admissible hearsay can be used not only in relation to facts in issue, but also evidentiary facts, or relevant facts? Though not directly, this debate arose for consideration in the more contemporary case, R v. Gilfoyle. The issue in this case was whether the deceased had committed suicide, or whether she had been implicated by her husband, who had, in fact, murdered his wife. During the appeal, the Crown sought to admit statements attributed to the deceased which would effectively prove that she had not been in a suicidal frame of mind before her death, a critical issue in deciding the case. Although it is well-established since Andrews that statements regarding state of mind would be valid res gestae exceptions, this case was problematic because they were used to prove that the deceased did not write the suicide note in a suicidal frame of mind (as alleged by the Defence) but instead, wrote it at the behest of her husband. The principle of res gestae was extended to suggest that the deceased’s statements regarding the note were admissible as they were part of the transaction during which it was written.
Through this interpretation, the res gestae exception has been extended to a degree that could prove problematic under other circumstances. Here, statements that constituted hearsay were admitted in relation to relevant facts (the state of mind of the deceased while writing the note), and not the fact in issue (whether the deceased had committed suicide). While scholars have recognised the need to admit ‘surrounding detail’ (a conveniently ambiguous term) in certain cases, it is generally accepted that verbal declarations are not admissible to prove the truth of the relevant facts they assert.
THE MANIFESTATION OF RES GESTAE IN STATUTORY LAW (5)
Res Gestae under the Criminal Justice Act, 2003: Statutory Definition and the Furtherance of Justice
The hearsay rule and the extent of its authority must be reconsidered in light of specific provisions of the English Criminal Justice Act, 2003. It expressly states that certain categories of hearsay evidence may be admissible; including the res gestae exception and the admission of hearsay statements in the interests of justice (a more flexible category whose limits are determined subjectively by the prudence of the courts). The definition of the res gestae exception by this enactment precludes reliance on the largely ambiguous and contentious Common Law exception.
The provision of the Act that permits the admission of statements in the interest of justice appears to be a safeguard to deal with contentious cases in which justice may require that hearsay evidence, otherwise excluded, be admissible. The bases for admissibility of hearsay in the interest of justice take into consideration factors such as the circumstances in which the statement was made and the reliability of the person making it, which seem to overlap manifestly with the erstwhile res gestae exception under the Common Law. However, it may also be argued that the codification of res gestae insufficiently addresses the dangers of individual cases; this has been remedied by the ‘safety valve’ provision that provides greater discretion in admitting hearsay in the interests of justice.
Res Gestae under the Indian Evidence Act, 1872: Identifying Its Limits
Having considered extensively the development of this hearsay exception under Common Law, it is pertinent to examine its framework under the Indian Evidence Act, 1872. Interestingly, this statute was enacted before the decision in Bedingfield, and in the formalist context in which the hearsay rule was once applied. In determining the relevance of facts, Section 6 deals with facts connected with the fact in issue so as to form ‘part of the same transaction’(6), regardless of whether they occurred at the same time and place. The relevance of the fact flows from the determination of whether it is part of the same transaction; this reflects, not surprisingly, the early interpretation of the res gestae exception. It must also be noted that the Act clarifies that the term ‘fact’ shall include statements.
Contemporary interpretation by the Indian Judiciary displays blatant disregard for important milestones like Ratten and Andrews, and, instead, focus on earlier judgments like Teper. This is in conformity with the express provisions of Section 6 and thus, the need for near-perfect contemporaneity (rather than reliability) is not surprising. The following manifestation of this rule by the Supreme Court displays this restricted interpretation:
‘But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.’
Other courts in India have also maintained this interpretation of the res gestae as including only those statements made contemporaneously with the event or immediately after it, but not ‘at such interval of time’ as to allow fabrication. In fact, even in instances where statements are clearly defined as falling within the res gestae, there is no assumption of reliability unless they are corroborated by other evidence, and cannot thus be used to sustain a conviction. This appears to contradict the very basis for the exception; the purpose of constructing the res gestae is to ensure that the response to the stimulus is sincere and uncontrolled. The assumption of reliability attributed to these statements cannot be selectively discarded depending on the circumstances of individual cases, for the exercise of such discretion is limitless. Though the Supreme Court in 1996 recognised this fundamental logic and construed Section 6 to suggest that once a statement is admitted as part of the res gestae its reliability cannot be disregarded on account of a lack of corroboration, this reasoning has been ignored in subsequent cases. The Supreme Court, in this exceptional case, observed:
‘The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a strait-jacket.’
Yet, even when consistent witness statements were recorded immediately after the crime, the Courts have insisted on limiting the res gestae to the duration of the event itself. Once again, this interpretation brings to light the Judiciary’s focus on defining the transaction in time rather than assessing a statement’s reliability. Moreover, admitting a statement under Section 6 is entirely different from evaluating the accuracy of its contents; the preliminary determination of whether it shall be admitted (and thus reliable) must not depend on whether it is likely to pass the subsequent test of accuracy through corroboration. The Judiciary seems to have failed to make this distinction.
The question that follows is this: how does res gestae under Section 6 compare when juxtaposed with the broader Common Law principles, as laid down in Ratten and Andrews? The Judiciary, in interpreting the res gestae exception, has been restricted by the confines of Section 6; focussing chiefly on identifying the limits of the transaction rather than addressing the more apposite question of whether the event actually dominated the mind of the speaker.
It is submitted that a more appropriate manner of defining the scope of this exception under Indian law would be to consider other provisions that deal with the transaction of an event. The principle of res gestae (in light of the underlying object of ensuring relevance) is better understood through a holistic and composite consideration of several provisions along with Section 6. Section 7 provides a broader basis for admitting relevant facts that are part of the transaction. However, it is important to warn against the effect of construing this provision as inclusive of hearsay; it refers not only to facts in issue but also relevant facts, and must not be interpreted in a manner as expansive as that in Gilfoyle. Similarly, Section 9 permits the relevance of facts that explain the fact in issue; this also seems to refer to facts that are related to the transaction.
A category of res gestae that has been accepted as admissible hearsay under Common Law comprises statements relating to the maker’s state of mind and emotions. A similar principle is enunciated in Section 14, including intention and knowledge. In addition, Section 15 renders admissible those facts that aid in determining whether an act is intentional or accidental. It seems prudent to infer that ‘facts’ should include contemporaneous statements, which are often relevant in determining intangible intention.
The definition of res gestae under Section 6 is noticeably narrower than that which has evolved under Common Law, however, the above mentioned provisions may effectively be used to admit statements to which it does not extend. By limiting the scope of Section 6, the Judiciary seems to have omitted to construe these provisions in a composite manner to tackle the sticky issue of admissible hearsay (7). Effectively, in order for statements to fall within this exception, they must not only be made during the transaction but must form part of it. More often than not, Section 157 is conveniently used to admit and prove ‘former statements’ for the purpose of corroboration. Perhaps this is because there is no settled position as to res gestae under Indian law and it is often easier to admit this class of hearsay as relevant under other provisions.
Thus, it appears that the Indian Judiciary has been compelled to consider strictly the provisions of Section 6; this has resulted in considerable uncertainty as to the application of this already ambiguous doctrine. Admissibility of a statement on the basis of res gestae should not be determined based on its content and implications. Unfortunately, this has not been adhered to in the context of the Act, particularly in those cases in which the statement, once admitted, would greatly prejudice the interests of the accused. Thus, there has been no consistency in judicial interpretation as far as admitting hearsay under this exception is concerned. It would be more appropriate to consider first whether res gestae applies, and then determine its value in the proceedings. The Indian courts (8) seem to have inverted this process; considering first the content of the statement, and subsequently moulding the res gestae to suit the impact they seek for it to have.(9)
Perhaps the greatest challenge, making the construction of any general rule of admissibility of hearsay entirely inconceivable, is the reality that the facts of individual cases differ to an extent that is impossible to encapsulate into a single framework. The question of whether there is a sufficient connection between the impugned statement and the act is to be decided by the subjective determination of the judge and, despite past judicial interpretation, this flexibility of interpretation is yet to be (and perhaps, never shall be) confined by any rigid formula.
Identifying the res gestae in individual cases requires careful consideration of two opposing forces; the reliability of the statement to be admitted and the possibility of prejudice to the accused. The dangers associated with admitting hearsay, including the risk of distortion, prejudice because of the inability to cross-examine and the fallibility of jury interpretation, must be taken into account.
While Common Law has exhaustively examined many facets of the res gestae exception to the hearsay rule, and despite the codification of principles settled in Ratten and Andrews, the scope of this exception is indeterminable beyond the general principles already accepted. The Indian Judiciary has chosen to construe res gestae to transactions strictly defined by Section 6 of the Indian Evidence Act, 1872, and has failed to appreciate its holistic construction in view of other relevant provisions. However, just as the Criminal Justice Act, 2003, has circumvented the task of conclusively defining res gestae by including a safety-net provision for admitting statements in the interest of justice, so also the Indian Judiciary has effectively breached the strict interpretation of Section 6 by avoiding entirely the principle of res gestae and relying on other statutory provisions. While this has undeniably broadened the scope of admissibility, the comparatively strict interpretation of res gestae under Section 6 is certainly limiting in view of the Common Law position and its embodiment in the Criminal Justice Act, 2003.