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[1972] A.C. 378

[PRIVY COUNCIL]

LEITH McDONALD RATTEN APPELLANT AND THE QUEEN RESPONDENT

[ON APPEAL FROM THE SUPREME COURT OF THE STATE OF VICTORIA]

1971 June 28, 29, Lord Reid, Lord Hodson, Lord Wilberforce, Lord Diplock and Lord
30; Cross of Chelsea
July 1;
Oct. 11

Australia — Victoria — Crime — Evidence — Admissibility — Homicide — Telephone

call by victim shortly prior to death — Evidence by telephone operator — Evidence
of “verbal facts” — Whether hearsay — Whether res gestae — Whether admissible
—

The appellant was convicted of the murder of his wife by shooting her with a shotgun.
His defence was that the gun had discharged accidentally whilst he was cleaning it. To
rebut that defence the prosecution called evidence from a telephone operator who stated
that shortly before the time of the shooting she had received a call from the address
where the deceased lived with her husband. The witness said that the call was from a
female who, in a voice sobbing and becoming hysterical, said “Get me the police, please -”
and gave the address 59, Mitchell Street, but before she could make the connection to the
police station the caller hung up. The defendant objected to that evidence on the ground
that it was hearsay and did not come within any of the recognised exceptions to the rule
against admission of hearsay evidence. The objection was over-ruled and the evidence
admitted. The defendant's application to the Supreme Court of Victoria for leave to appeal
against conviction was dismissed.

On the defendant's appeal, by special leave, to the Judicial Committee:—

Held , dismissing the appeal, (1) that the jury had been properly directed that, on the
evidence, they might find that the telephone call was made by the deceased woman (post,
pp. 386H–387B ).

(2) That the evidence of the telephone operator was not hearsay and was admissible as
evidence of fact relevant to an issue (post, p. 387B–C ).

Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965, P.C. applied.

Per curiam. Even on the assumption that there was an element of hearsay in the words
used, they were safely admitted (post, p. 392A ).

Observation on the expression “res gestae” in the context of the law of evidence (post,
pp. 388F–390A ).

Decision of the Full Court of the Supreme Court of Victoria [1971] V.R. 87 affirmed.

The following cases are referred to in the judgment:

Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R. 514.

Aveson v. Lord Kinnaird (1805) 6 East 188.

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Brown v. The King (1913) 17 C.L.R. 570.

McGregor v. Stokes [1952] V.L.R. 347.

O'Hara v. Central S.M.T. Co. Ltd. , 1941 S.C. 363.

O'Leary v. The King (1946) 73 C.L.R. 566.

People v. De Simone (1919) 121 N.E. 761.

Reg. v. Bedingfield (1879) 14 Cox C.C. 341.

Reg. v. Taylor [1961 (3 )] S.A.L.R. 616.

Rex v. Christie [1914] A.C. 545, H.L.(E.).

Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965, P.C.

Teper v. The Queen [1952] A.C. 480; [1952] 2 All E.R. 447, P.C.

Thompson v. Trevanion (1693) Skin. 402.

The following additional cases were cited in argument:

Agassiz v. London Tramway Co. (1872) 21 W.R. 199; (1872) 27 L.T. 492.

Gilbert v. The King (1907) 38 Can.S.C.R. 284.

Glinski v. McIver [1962] A.C. 726; [1962] 2 W.L.R. 832; [1962] 1 All E.R. 696, H.L.
(E.).

Lloyd v. Powell Duffryn Steam Coal Co. Ltd. [1914] A.C. 733, H.L.(E.).

Mawaz Khan v. The Queen [1967] 1 A.C. 454 [1966] 3 W.L.R. 1275; [1967] 1 All
E.R. 80, P.C.

Noor Mohamed v. The King [1949] A.C. 182; [1949] 1 All E.R. 365, P.C.

Reg. v. Buckley (1873) 13 Cox C.C. 293.

Reg. v. Edwards (1872) 12 Cox C.C. 230.

Reg. v. Lunny (1854) 6 Cox C.C. 477.

Reg. v. McIntosh [1968] Qd.R. 570.

Reg. v. O'Malley [1964] Qd.R. 226.

Rex v. Foster (1834) 6 C. & P. 325.

Rex v. Podmore (1931) 22 Cr.App.R. 36, C.C.A.

Rex v. Sales [1936] S. Rhod. Rep. 55.

Rex v. Wilkinson [1934] 3 D.L.R. 50.

Wilson v. The Queen (1970) 44 A.L.J.R. 221.

Wright v. Doe d. Tatham (1837) 7 Ad. & El. 313.

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APPEAL by special leave (No. 4 of 1971) from a conviction for murder (August 20, 1970)
by the Supreme Court of the State of Victoria (Winneke C.J. and a jury), leave to appeal
having been refused by the Full Court of the Supreme Court (Gowans, Gillard and Barber
JJ.).

The facts are stated in the judgment of their Lordships.

J. G. Le Quesne Q.C. , J. Lazarus (of the Victoria Bar) and Gerald Davies for the
appellant. The two main grounds of appeal are firstly that hearsay evidence was wrongly
admitted, and secondly that the trial judge misdirected the jury as to the circumstances in
which they might consider a verdict of manslaughter.

There was insufficient evidence to support a conviction for murder without the hearsay
evidence which was wrongly admitted. The defence was that the shooting was accidental.
This defence is supported by the evidence. At the trial the Crown relied on two matters to
disprove the defence of accident: (1) that the accused was having an affair with Mrs. Kemp
at the time, which showed motive for the killing; and (2) the evidence of a telephone
operator, Miss Flowers, concerning a telephone call which she received prior to the
shooting to rebut the account given by the accused. At the commencement of the trial a
submission was made on behalf of the accused that the evidence of Miss Flowers was
inadmissible on the ground that it was hearsay and did not come within any of the
recognised exceptions to the rule against admission of hearsay evidence. The objection
was overruled by the judge. The Crown contended that the evidence was admissible on the
lines of the decision in O'Leary v. The King (1946) 73 C.L.R. 566 as being part of the res
gestae. That was not a res gestae case but a case of evidence dealing with similar acts.
There is no rule that hearsay can be admitted to rebut the defence of an accused.
Whatever is relevant in rebuttal must be proved by properly admissible evidence.

[LORD REID. Is your case that the evidence was wholly inadmissible or only partially
admissible for a particular purpose?]

The appellant's contention is that the evidence of Miss Flowers was wrongly admitted
because it was hearsay and did not fall within any of the exceptions to the hearsay rule.
The statement must be part of the transaction to be admissible as res gestae. The “res” is
clearly something more than the actual discharge of the gun, but the question is how
Michael more? The words must relate strictly to the act and be substantially
contemporaneous. The majority of the reported cases concern statements made after the
act. Only a few concern antecedent statements. In the present case the statement was
antecedent to the act. Before such a statement can be admitted there must be shown a
sequence of events leading up to the principal act. The statement must be closely
associated with the shooting to be part of the res gestae. [Reference was made to
Thompson v. Trevanion (1693) Skin. 402; Aveson v. Lord Kinnaird (1805) 6 East 188; Rex
v. Foster (1834) 6 C. & P. 325; Reg. v. Lunny (1854) 6 Cox C.C. 477; Reg. v. Edwards
(1872) 12 Cox C.C 230; Agassiz v. London Tramway Co. (1872) 21 W.R. 199; Reg. v.
Bedingfield (1879) 14 Cox C.C. 341; Brown v. The King (1913) 17 C.L.R. 570; Gilbert v.
The King (1907) 38 Can.S.C.R. 284; Rex v. Christie [1914] A.C. 545; People v. De Simone
(1919) 121 N.E. 761; Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R.
514; O'Hara v. Central S.M.T. Co. Ltd. 1941 S.C. 363 and Teper v. The Queen [1952] A.C.
480.] All these cases illustrate generally the principle as to what may be taken to form
part of the res gestae. There must be a sufficiently close connection between the words
and the happening of the act. In order to be admissible the words sought to be proved
must be so clearly associated with the act as to be part of the thing done.

[LORD REID. The first point is whether the evidence is hearsay. If it is not hearsay the
exception in respect of res gestae does not arise. Omitting the words for the moment, the
evidence shows that there was a frightened woman in the house who made a telephone
call. Is not this admissible evidence of a relevant fact?]
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If that is so then the judge should have warned the jury that they should not take it
also as any evidence of what was going on in the house.

[LORD REID. If you omit altogether the words said by the witness the jury could draw
an inference from the facts that something was going on in the house. Your case amounts
to a proposition that the retailing of the request for the police was hearsay and should not
have been given. Is the retailing of the request for the police hearsay within the rule?]

That depends upon the purpose for which the evidence is used. In the judgment of the
Board in Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965, 970 it is said: “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.”

[LORD REID. How then does the statement in this case become hearsay? There was no
attempt to prove the truth of the words. The question seems much more to be one of
whether this evidence was hearsay at all rather than whether it was admissible as part of
the res gestae.]

The statement in the present case is hearsay because of the use the jury were invited
to make of it. It was tendered, if not to establish the truth of the statement, at least to
establish the truth of what the jury were invited to infer from the words said by the
witness to have been used. This is closely akin to the purpose of establishing the truth of
the statement. [Reference was made to Cross on Evidence , 3rd ed. (1967), pp. 380–396;
Wright v. Doe d. Tatham (1837) 7 Ad. & El. and Teper v. The Queen [1952] A.C. 480.] It is
a relevant fact that the deceased woman was frightened but the evidence used to prove
that fact was inadmissible because it was hearsay. Admissible facts may not be proved by
inadmissible evidence. The Full Court rightly treated the evidence throughout as hearsay.
The question then was whether it was admissible as part of the rho gestae. The rule which
has been formulated in recent cases is that words must form part of the transaction
including things sufficiently closely connected with the transaction. People v. De Simone ,
121 N.E. 761 stresses that the statement must be brought into existence by the
transaction outsell Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle , 64 C.L.R. 514 held
that to be admissible the statement must be contemporaneous or substantially
contemporaneous to be part of the res gestae. It must be regarded as part of the
transaction, contemporaneous or causally connected in such a way as to explain the
principal act.

In the present case the statement was not shown to be sufficiently connected with the
principal act. If the evidence was admissible only for certain purposes the judge should
have warned the jury to exclude the evidence except for the certain purposes. The judge
invited the jury to use the evidence of Miss Flowers to rebut the statement made by the
accused. It is doubtful whether, when deciding to allow the evidence, the judge addressed
his mind to the question whether or not a connection with the principal act had been
demonstrated. The evidence was admitted without proper consideration as there was not
sufficient connection between the telephone call and the killing to show that it was part of
the res gestae. If it is possible to accept it as evidence of the fact of the call, the words
given in evidence were inadmissible. [Reference was made to Rex v. Sales [1936] S. Rhod.
Rep. 55.] There was no direct evidence implicating the accused in an intentional killing.
With the exception of Miss Flowers, whose evidence was inadmissible, the circumstances
were equivocal.

The second ground of appeal is that the judge erred in directing the jury that they must
be unanimously satisfied that the accused was not guilty of murder before they could
consider whether or not manslaughter had been committed. By so directing, the judge
effectively deprived the accused of his right to have the case against him considered in
the round and the accused therefore suffered a miscarriage of justice.
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J. Lazarus (of the Victoria Bar) following. The evidence was that the gun was one which
automatically cocked when opened and that the safety catch was defective. The shot was
fired at an angle of 45 degrees. All this evidence points to accident. It is unlikely that the
accused if he had an intention to shoot would have carried on with the shooting after the
deceased had called the police. It is also unlikely that if the deceased were frightened and
hysterical she would have returned to the room to make coffee. All these things point to
accident. The evidence of Miss Flowers was unreliable in addition to being hearsay and
ought not to have been admitted. The admission of this evidence in the circumstances
goes farther than any other previously decided Australian case.

B. L. Murray Q.C. (Solicitor-General, Victoria), Mervyn Heald Q.C. and Stuart N.

McKinnon for the Crown. At the time of the shooting the accused's affair with Mrs. Kemp
had boiled up. The accused was very accustomed to the use of shotguns. The shooting
could not have been accidental. There was no way by which the firing pin could go forward
except by pulling the trigger. It was not aquaplaned how the gun came to be loaded. The
angle of 45 degrees does not fit the accused's story as to where his wife was standing
when the shooting took place and can only be accounted for if the deceased was cowering
down. The evidence of Miss Flowers, the telephone operator, showed that the shooting
was not accidental and was relevant and admissible. It was relevant in any event to rebut
the account of the accused. If the evidence were relevant and admissible only for a
particular purpose then the judge could either admit it and warn the jury as to its use or in
this discretion exclude it. The Crown's contention is that the evidence was relevant and
admissible and was rightly admitted in any event. [Reference was made to Noor
Mohammed v. The King [1949] A.C. 182.] Cogent evidence ought not to be excluded
merely because it is prejudicial. If the evidence is admissible the question may arise
whether the judge ought in his discretion to have excluded it or whether there was a
misdirection as to how it should be used. The judge recognised that he had this discretion
to reject the evidence if more prejudicial than probative, but rightly refused to do so. The
evidence was admissible in accordance with O'Hara v. Central S.M.T. Co. Ltd. , 1941 S.C.
363 on the principle that there was a close association with the shooting.

What the telephone operator said was admissible in order to give real effect to, and
being explanatory of, what was done. Such evidence could not be restricted to an account
of what was done without the words used. On any view the evidence was just as much
part of the rebuttal as the fact that it was a woman who made the telephone call.
[Reference was made to Cross on Evidence , 3rd ed., pp. 380–396; Teper v. The Queen
[1952] A.C. 480 and Wright v. Doe d. Tatham , 7 Ad. & El. 313.] The operator's statement
was receivable as original evidence. It would be hearsay if the object was to establish the
truth of the statement but not hearsay if the object was to establish the fact that the
statement was made. In the present case the evidence was admissible for the purposes of
rebuttal to prove that the accused's statement was not true and was original evidence of
verbal facts. [Reference was made to Wigmore on Evidence , 2nd ed. (1923), Vol. 3, para.
1766.] Words necessary to explain an equivocal act which is relevant are not hearsay.
[Reference was made to McGregor v. Stokes [1952] V.L.R. 347; Rex v. Podmore (1931) 22
Cr.App.R. 36 and Mawaz Khan v. The Queen [1967] 1 A.C. 454.] The trial judge correctly
put to the jury that the evidence could be used for drawing an inference that the
relationship between the accused and the deceased at the time was not good. Wilson v.
The Queen (1970) 44 A.L.J.R. 221, the facts in which were very similar to the present
case, demonstrates the relevance of the relationship between the parties. The inference
open to be drawn from the words used was that the caller was in need from the police of
protection. O'Leary v. The King 73 C.L.R. 566 and Reg. v. O'Malley [1964] Qd.R. 226 both
indicate that the cause of justice requires that evidence which is so interwoven with the
facts of the crime charged should be admitted. [Reference was made to Lloyd v. Powell
Duffryn Steam Coal Co. Ltd. [1914] A.C. 733.]

The trial judge was right in holding that Miss Flowers' evidence was admissible in any
event, as part of an interconnected series of events occurring over a short period and
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which if excluded would make the series of events unintelligible; as evidence to rebut the
account given by the accused; and in order to show the relations existing between the
accused and the deceased at the relevant time. On the accused's application for leave to
appeal the Full Court took the view that Miss Flowers' evidence amounted to hearsay but
was admissible as part of the res gestae. If that is right and the evidence is hearsay, the
Crown alternatively relies on the decision and reasons of the Full Court for its admission.
The statement was admissible as part of the transaction and leading up to the principal
act. It was an antecedent transaction and as such could not be a narrative of what had
happened. [Reference was made to Reg. v. McIntosh [1968] Qd.R. 570; Reg. v. Taylor
[1961] (3 ) S.A.L.R. 616 and Reg. v. Buckley (1873) 13 Cox C.C. 293.]

In considering antecedent transactions it is a matter for the judge to determine

whether the statement is so logically bound up with the principal act that it ought to be
admitted for the consideration of the jury. Such was the position in the present case.
[Reference was made to Professor Nokes: “Res Gestae as Hearsay” in (1954) 70 L.Q.R.
370 and to Taylor on Evidence , 12th ed. (1931), paras. 567, 570, 583, 588.]

Miss Flowers' evidence was admissible in any event to rebut the account of the
accused. It was not hearsay evidence but was admissible evidence of relevant fact.
Alternatively, if it was hearsay, it was admissible as part of the res gestae.

[Their Lordships indicated that they did not wish to hear argument from the respondent
on the manslaughter point.]

Le Quesne Q.C. in reply. The trial judge was wrong in directing the jury as he did
concerning the use to be made of Miss Flowers' evidence. The only inference that might be
drawn would be as to the effect on the person to whom the statement was made. The Full
Court were right in treating the statement throughout as hearsay, but it was not
admissible as part of the res gestae. As to the cases to which the Crown has referred:
Mawaz Khan v. The Queen [1967] 1 A.C. 454 was not concerned with the truth of the
statement made. In the present case the inference is that the statement was true. The
Crown seeks to rely on McGregor v. Stokes [1952] V.L.R. 347 that the evidence relates to
“verbal facts.” That case is distinguishable because there a quantity of telephone calls
were made for some sort of business and evidence of the content of the calls was
permitted to show what sort of business. The evidence was received on the basis that it
was explanatory of an equivocal act. Rex v. Podmore 22 Cr.App.R. 36 and Lloyd v. Powell
Duffryn Steam Coal Co. Ltd. [1914] A.C. 733 are not satisfactory cases. They are not easy
to follow and are not helpful. The Crown contends on the authority of Wilson v. The Queen
44 A.L.J.R. 221 that evidence may be given, provided it is sufficiently proximate, to show
the relationship of the parties. Although there was only a short period of time between the
telephone call and the shooting, nevertheless for the statement to be admissible as part
of the res gestae a connection must be shown. No sufficient close association was shown
in the present case. A sufficient connection was not demonstrated to bring this case within
either Reg. v. Taylor [1961 (3 )] S.A.L.R. 616 or within Wilson v. The Queen , 44 A.L.J.R.
221. If it be permissible to call evidence to rebut the accused's account, then only so much
as is necessary for that purpose is permissible.

July 1. LORD REID announced that the appeal would be dismissed for reasons to be
given later.

October 11. The reasons for their Lordships' decision were delivered by LORD
WILBERFORCE.

The appellant was convicted, on August 20, 1970, after a trial before Winneke C.J. and
a jury, of the murder of his wife. His application to the Full Court of the Supreme Court of
Victoria for leave to appeal was dismissed on September 16, 1970. By special leave he
now appeals to the Board.
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The appellant lived with his wife, the deceased, and three young children, in Echuca, a
small country town in the State of Victoria. The deceased was eight months pregnant. The
appellant, for over a year, had been carring on a liaison with another woman and it was
suggested by the prosecution, though not admitted by the appellant, that his relations
with her had reached a critical state.

The death of the deceased took place in the kitchen of her house on May 7, 1970, as
the result of a gunshot wound. The evidence established the times of certain events as
follows:

(i) At 1.09 p.m., the appellant's father S. R. Ratten telephoned to the appellant from
Melbourne; the call was a trunk call and so was timed and the time recorded. It lasted 2.9
minutes. The conversation was perfectly normal: Mr. S. R. Ratten heard the voice of the
deceased woman in the background apparently making comments of a normal character.

(ii) At about 1.15 p.m. a telephone call was made from the house and answered at the
local exchange. The facts regarding this call are critical and will be examined later.

(iii) At about 1.20 p.m. a police officer, calling from the local police station, telephoned
the appellant's house and spoke to the appellant. By this time the appellant's wife had
been shot. Thus the shooting of the deceased, from which she died almost immediately,
must have taken place between 1.12 p.m. and about 1.20 p.m.

The death of the deceased was caused by a wound from a shotgun held by the
appellant. The appellant's account was that the discharge was accidental and occurred
while he was cleaning his gun. There were in the kitchen, when the police arrived soon
after the shooting, two double barrelled shotguns and a rifle, with cleaning materials. The
gun from which the shot was fired was an old one, not normally used by the appellant,
which had been sent in February/March 1970 to a gun smith for examination. It was
returned unloaded and placed in the appellant's garage where it remained until brought
into the kitchen on May 7, 1970. The appellant was unable to explain how it came to be
loaded. It was in fact found by the police to have been loaded in each of its two barrels
and both barrels had been fired. The right barrel had misfired, but there was an imprint of
the firing pin on the cartridge. The left barrel was discharged. The appellant was
thoroughly experienced in the use of firearms.

It is clear that on the facts summarised above there was a prima facie case against the
appellant, and the case against him would depend on whether the prosecution could
satisfy the jury, on this circumstantial evidence, that the killing was deliberate or whether
the jury would accept his account of an accident.

It was relevant and important to inquire what was the action of the appellant
immediately after the shooting. His evidence, which he first gave in a signed statement to
the police on May 8, 1970, was that he immediately telephoned for an ambulance and that
shortly afterwards the police telephoned him upon which he asked them to come
immediately. He denied that any telephone call had been made by his wife, and also
denied that he had telephoned for the police. It should be added that he gave evidence
from the witness box at the trial, maintaining his account of events.

In these circumstances, and in order to rebut the appellant's account, the prosecution
sought to introduce evidence from a telephonist at the local exchange as to the call made
from the house at about 1.15 p.m.

The evidence as given by the telephonist (Miss Janet L. Flowers) was as follows:

“… I plugged into a number at Echuca, 1494 and I said — I opened the speak key and I said to
the person ‘Number please’ and the reply I got was “Get me the police please.' I kept the speak
key open as the person was hysterical.
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His Honour – You what?

Witness – I kept the speak key open as the person was in an hysterical state [later, the
witness added that the person sobbed] and I connected the call to Echuca 41 which is the police
station. As I was connecting the call the person gave her address as 59, Mitchell Street.”

The witness then said that the caller hung up but that she (the witness) after
consulting her superior spoke to the police and told them that they were wanted at 59,
Mitchell Street. It was in consequence of this that, as narrated above, the police
telephoned to the house at about 1.20 p.m. and spoke to the accused. Echuca 1494 was
the number of the appellant's house.

There were a number of matters to be considered as to the evidence relating to this

telephone call. The first, and probably the most critical, was whether it was made by the
deceased woman at all. The quotation given above from the witness' examination-in-chief
showed that she was permitted to give her evidence in her own words which, as is
normally the case where a person testifies to a matter of sense perception, combined
elements of fact and of inference from fact. The conclusion, which the witness expressed,
that the speaker was a woman, was derived by inference from the fact, which she later
stated, that the voice was high pitched and of high inflexion. This inference clearly called
for critical examination. In the first place there were inherent difficulties in accepting that
the deceased woman should have made the call — apparently without interference — so
shortly before the shooting — as to which the prosecution could offer no explanation.
Secondly, and even more significantly, the reliability of the inference, that the voice was
that of the accused, was affected by the fact that the police officer who very shortly
afterwards, spoke on the telephone to a person who was undoubtedly the appellant,
described his voice as hysterical, with a high inflexion — substantially the same
description as was used by the telephonist. The telephonist was cross-examined by
counsel for the appellant, and the Chief Justice directed the jury as to the significance of
her evidence and on the question whether they should accept it as establishing that the
voice was that of the deceased woman. The matter was again debated in the Full Court
and their judgment contains a careful passage in which the adequacy of the direction by
eke trial judge was examined and endorsed. In view of this it was not possible for counsel
for the appellant further to attack the direction on this point before the board, and he,
rightly, did not do so. Their Lordships must therefore proceed with the appeal on the basis
that the jury was properly directed that, on the evidence, they might find that the
telephone call at 1.15 p.m. or thereabouts was made by eke deceased woman.

The next question related to the further facts sought to be proved concerning the
telephone call. The objection taken against this evidence was that it was hearsay and that
it did not come within any of the recognised exceptions to the rule against hearsay
evidence.

In their Lordships' opinion the evidence was not hearsay evidence and was admissible
as evidence of fact relevant to an issue.

The mere fact that evidence of a witness includes evidence as to words spoken by
another person who is not called, is no objection to its admissibility. 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 eke words. Authority is hardly needed for this proposition, but their
Lordships will restate what was said in the judgment of the Board in Subramaniam v.
Public Prosecutor [1956] 1 W.L.R. 965, 970:

“Evidence of a statement made to a witness by a person who is not himself called as a witness
may or may not be hearsay. 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
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made.”

A fuller statement of the same principle is provided by Dean Wigmore in his work on
Evidence § 1766. He emphasises, as their Lordships would emphasise, that the test of
admissibility, in the case last mentioned, is relevance to an issue.

The evidence relating to the act of telephoning by the deceased was, in their Lordship's
view, factual and relevant. It can be analysed into the following elements.

(1) At about 1.15 p.m. the number Echuca 1494 rang. I plugged into that number.

(2) I opened the speak key and said “Number please.”

(3) A female voice answered.

(4) The voice was hysterical and sobbed.

(5) The voice said “Get me the police please.”

The factual items numbered (1) – (3) were relevant in order to show that, contrary to
the evidence of the appellant, a call was made, only some 3–5 minutes before the fatal
shooting, by a woman. It not being suggested that there was anybody in the house other
than the appellant, his wife and small children, this woman, the caller, could only have
been the deceased. Items (4) and (5) were relevant as possibly showing (if the jury
thought fit to draw the inference) that the deceased woman was at this time in a state of
emotion or fear (cf. Averson v. Lord Kinnaird (1805) 6 East 188, 193, per Lord Ellenborough
C.J.). They were relevant and necessary, evidence in order to explain and complete the
fact of the call being made. A telephone call is a composite act, made up of manual
operations together with the utterance of words (cf. McGregor v. Stokes [1952] V.L.R. 347
and remarks of Salmond J. therein quoted). To confine the evidence to the first would be
to deprive the act of most of its significance. The act had content when it was known that
the call was made in a state of emotion. The knowledge that the caller desired the police
to be called helped to indicate the nature of the emotion — anxiety or fear at an existing
or impending emergency. It was a matter for the jury to decide what light (if any) this
evidence, in the absence of any explanation from the appellant, who was in the house,
threw upon what situation was occurring, or developing at the time.

If then, this evidence had been presented in this way, as evidence purely of relevant
facts, its admissibility could hardly have been plausibly challenged. But the appellant
submits that in fact this was not so. It is said that the evidence was tendered and
admitted as evidence of an assertion by the deceased that she was being attacked by the
accused, and that it was, so far, hearsay evidence, being put forward as evidence of the
truth of facts asserted by his statement. It is claimed that the Chief Justice so presented
the evidence to the jury and that, therefore, its admissibility, as hearsay, may be
challenged.

Their Lordships, as already stated, do not consider that there is any hearsay element in
the evidence, nor in their opinion was it so presented by the trial judge, but they think it
right to deal with the appellant's submission on the assumption that there is: i.e., that
the words said to have been used involve an assertion of the truth of some facts stated in
them and that they may have been so understood by the jury. The Crown defended the
admissibility of the words as part of the “res gestae” a contention which led to the citation
of numerous authorities.

The expression “res gestae”, like many Latin phrases, is often used to cover situations
insufficiently analysed in clear English terms. In the context of the law of evidence it may
be used in at least three different ways:

1. When a situation of fact (e.g. a killing) is being considered, the question may arise
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when does the situation begin and when does it end. It may be arbitrary and artificial to
confine the evidence to the firing of the gun or the insertion of the knife, without knowing
in a broader sense, what was happening. Thus in O'Leary v. The King (1946) 73 C.L.R. 566
evidence was admitted of assaults, prior to a killing, committed by the accused during
what was said to be a continuous orgy. As Dixon J. said at p. 577:

“Without evidence of what, during that time, was done by those men who took any significant
part in the matter and especially evidence of the behavior of the prisoner, 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.”

2. The evidence may be concerned with spoken words as such (apart from the truth of
what they convey). The words are then themselves the res gestae or part of the res
gestae, i.e., are the relevant facts or part of them.

3. A hearsay statement is made either by the victim of an attack or by a bystander —

indicating directly or indirectly the identity of the attacker. The admissibility of the
statement is then said to depend on whether it was made as part of the res gestae. A
classical instance of this is the much debated case of Reg. v. Bedingfield (1879) 14 Cox
C.C. 341, and there are other instances of its application in reported cases. These tend to
apply different standards, and some of them carry less than conviction. The reason, why
this is so, is that concentration tends to be focused upon the opaque or at least imprecise
Latin phrase rather than upon the basic reason for excluding the type of evidence which
this group of cases is concerned with. There is no doubt what this reason is: it is twofold.
The first is that there may be uncertainty as to the exact words used because of their
transmission through the evidence of another person than the speaker. The second is
because of the risk of concoction of false evidence by persons who have been victims of
assault or accident. The first matter goes to weight. The person testifying to the words
used is liable to cross-examination: the accused person (as he could not at the time when
earlier reported cases were decided) can give his own account if different. There is no such
difference in kind or substance between evidence of what was said and evidence of what
was done (for example between evidence of what the victim said as to an attack and
evidence that he (or she) was seen in a terrified state or was heard to shriek) as to
require a total rejection of one and admission of the other.

The possibility of concoction, or fabrication, where it exists, is on the other hand an

entirely valid reason for exclusion, and is probably the real test which judges in fact apply.
In their Lordships' opinion this should he recognised and applied directly as the relevant
test: the 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:
such external matters as the time which elapses between the events and the speaking of
the words (or vice versa), and differences in location being relevant factors but not, taken
by themselves, decisive criteria. As regards statements made after the event it must be
for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly
made in circumstances of spontaneity or involvement in the event that the possibility of
concoction can be disregarded. Conversely, if he considers that the statemelt was made by
way of narrative of a detached prior event so that the speaker was so disengaged from it
as to be able to construct or adapt his account, he should exclude it. And the same must
in principle be true of statements made before the event. 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.

A few illustrations may be given. One of the earliest and as often happens also the
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clearest, is that of Holt C.J. at nisi prius in Thompson v. Trevanion (1693) Skin. 402. He
allowed that “what the wife said immediate upon the hurt received, and before that she
had time to devise or contrive anything for her own advantage” might be given in
evidence, a statement often quoted and approved. Reg. v. Bedingfield , 14 Cox C.C. 341 is
more useful as a focus for discussion, than for the decision on the facts. Their Lordships
understand later indications of approval (Rex v. Christie [1914] A.C. 545; Teper v. The
Queen [1952] A.C. 480) to relate to the principle established, for, though in a historical
sense the emergence of the victim could be described as a different “res” from the cutting
of her throat, there could hardly be a case where the words uttered carried more clearly
the mark of spontaneity and intense involvement.

In a lower key the evidence of the words of the careless pedestrian in O'Hara v. Central
S.M.T. Co. Ltd. , 1941 S.C. 363 was admitted on the principle of spontaneity. The Lord
President (Normand) said that there must be close association: the words should be at
least de recenti and not after an interval which would allow time for reflection and
concocting a story: see p. 381. Lord Fleming said, at p. 386: “Obviously statements made
after there has been time for deliberation are not likely to be entirely spontaneous, and
may, indeed, be made for the express purpose of concealing the truth” and Lord Moncrieff
refers to the “share in the event” which is taken by the person reported to have made the
statement. He contrasts an exclamation “forced out of a witness by the emotion generated
by an event” with a subsequent narrative (pp. 389–90). The Lord President reaffirmed the
principle stated in this case in an appeal to this board in Teper v. The Queen [1952] A.C.
480, stressing the necessity for close association in time, place and circumstances
between the statement and the crucial events.

In Australia, a leading authority is Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle
(1940) 64 C.L.R. 514 in which the High Court considered the admissibility of a statement
made by the injured man soon after the breaking of a sulfuric acid jar over his legs. This
question was not decisive to the decision, but was discussed by Starke J. and Dixon J.
with numerous citations. Both emphasise and illustrate the uncertainty of decided cases
and legal writers on the question of admissibility of statements of this type and on the
question what they may be admitted to prove. Dixon J. with some caution reaches the
conclusion that although English law, in the general view of lawyers, admits statements
only as parts or details of a transaction not yet complete, while in America, greater
recognition is given to the guarantee of truth provided by spontaneity and the lack of time
to devise or contrive, yet English decisions do show some reliance on the greater
trustworthiness of statements made at once without reflection.

In an earlier case in the High Court (Brown v. The King (1913) 17 C.L.R. 570) where
evidence was excluded, Isaacs J. and Powers J. in their joint judgment put the exclusion
on the ground that it was a mere narration respecting a concluded event, a narration not
naturally or spontaneously emanating from or growing out of the main narration but arising
as an independent and additional transaction (l.c. p. 597).

In People v. De Simone (1919) 121 N.E. 761, the Court of Appeals of New York
admitted evidence that a passer-by immediately after a shooting had shouted “He ran over
Houston Street.” Collin J. referred to deeds and acts which are “forced or brought into
utterance or existence by and in the evolution of the transaction itself, and which stand in
immediate causal relation to it.” The evidence was, expressly, not admitted as part of the
res gestae, because it was not so interwoven or connected with the principal event (viz.
the shooting which the person did not see) as to be regarded as part of it.

These authorities show that there is ample support for the principle that hearsay
evidence may be admitted if the statement providing it is made in such conditions (always
being those of approximate but not exact contemporaneity) of involvement or pressure as
to exclude the possibility of concoction or distortion to the advantage of the maker or the
disadvantage of the accused.
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Before applying it to the facts of the present case, there is one other matter to be
considered, namely the nature of the proof required to establish the involvement of the
speaker in the pressure of the drama, or the concatenation of events leading up to the
crisis. On principle it would not appear right that the necessary association should be
shown only by the statement itself, otherwise the statement would be lifting itself into
the area of admissibility. There is little authority on this point. In Reg. v. Taylor [1961
(3 )] S.A.L.R. 616 where witnesses said they had heard scuffles and thuds during which
the deceased cried out “John, please don't hit me any more, you will kill me,” Fannin J.
said that it would be unrealistic to require the examination of the question (sc. of close
relationship) without reference to the terms of the statement sought to be proved. “Often
the only evidence as to how near in time the making of the statement was to the act it
relates to, and the actual relationship between the two, will be contained in the
statement itself,” (p. 619). Facts differ so greatly that it is impossible to lay down any
precise general rule: it is difficult to imagine a case where there is no evidence at all of
connection between statement and principal event other than the statement itself, but
whether this is sufficiently shown must be a matter for the trial judge. Their Lordships
would be disposed to agree that, amongst other things, he may take the statement itself
into account.

In the present case, in their Lordships' judgment, there was ample evidence of the
close and intimate connection between the statement ascribed to the deceased and the
shooting which occurred very shortly afterwards. They were closely associated in place and
in time. The way in which the statement came to be made (in a call for the police) and the
tone of voice used, showed intrinsically that the statement was being forced from the
deceased by an overwhelming pressure of contemporary event. It carried its own stamp of
spontaneity and this was endorsed by the proved time sequence and the proved proximity
of the deceased to the accused with his gun. Even on the assumption that there was an
element of hearsay in the words used, they were safely admitted. The jury was,
additionally, directed with great care as to the use to which they might be put. On all
counts, therefore, their Lordships can find no error in law in the admission of the evidence.
They should add that they see no reason why the judge should have excluded it as
prejudicial in the exercise of discretion.

One other matter was raised. It was said that the Chief Justice did not properly direct
the jury as to the alternative possibility of bringing in a verdict of manslaughter. Their
Lordships are clearly of opinion that this contention is without substance. The Chief
Justice directed the jury that they must first consider whether the accused was guilty of
murder and that only if, and when, they found him not guilty of murder should they go on
to consider whether he was guilty of manslaughter. This procedure was entirely correct and
no abjection was taken to a direction in this form at the trial. No ground of appeal relating
to this aspect of the direction was stated to the Full Court. On the detailed formulation of
the direction, if objection may be taken to one sentence in the summing up relating to the
requirement of unanimity, their Lordships are of opinion that this was amply put right and
that there was no possibility that the jury might have been misled. In any event, the point
taken is not of a character which this board can entertain.

Their Lordships have previously announced that they must humbly advise Her Majesty
that this appeal be dismissed.

Solicitors: Coward Chance; Freshfields.

R. W. L-S.
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