Hearsay Exceptions: Res Gestae (Spontaneous Utterances)

Hearsay evidence is inadmissible for the truth of its contents unless it satisfies the principled approach to the admission of hearsay (in which both the necessity and threshold reliability of the hearsay evidence must be established) or it falls in one of the traditional hearsay exceptions, such as the res gestae exception (pronounced “res jest-eye”).

The phrase “res gestae” means literally “the thing done” and it is used in law as meaning the circumstances which are the automatic and undesigned incidents of the particular act in issue, and which are admissible in evidence when illustrative and explanatory of the act.

Keefe v. State (1937), 50 Ariz. 293.

The phrase is frequently applied to the statements or explanations of witnesses of the act where the act and those communications are integrated in a way which makes the communications sufficiently reliable as to permit their admission as evidence.

Res gestae has been described (somewhat quaintly) as “words brigaded to action”.

See R. v. Ly, 1996 ABCA 402, at para.3.

There are two situations where hearsay utterances may be admitted under the res gestae doctrine:

·         Declarations accompanying and explaining a relevant act, and

·         Spontaneous utterances.

R v. Sheri, 2004 CanLII 8529 (ON CA) at para. 107; but see Cross on Evidence (4^th edition) at p. 502: There are "four exceptions to the hearsay rule associated with the doctrine of res gestae in criminal cases. These are statements accompanying and explaining a relevant act, spontaneous statements relating to an event in issue, a person's statements concerning his contemporaneous state of mind or emotion, and a person's statements concerning his contemporaneous physical sensation."

As with all statements by an accused, the  hearsay statements are subject to the general requirements of voluntariness.

R. v. Ervern (1978) 1978 CanLII 19 (SCC), 44 C.C.C. (2d) 76 at 94.

Spontaneous Utterances (also known as “excited utterances”, etc.)

The theory underlying the spontaneous utterance exception to the hearsay rule was explained in R. v. Khan (1988), 27 O.A.C. 142 (C.A.), at p. 148, aff’d [1990] 2 S.C.R. 531:

[A] spontaneous statement made under the stress or pressure of a dramatic or startling event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. 

The motive to mislead

Evidence of a sufficiently strong motive to mislead can influence whether to find that a statement was made in circumstances where “the possibility of concoction or deception can safely be discounted.” Where, however, a trial judge determines that a statement was made when the stress or pressure of the act or event is “such that the possibility of concoction or deception can be safely discounted,” or “before there has been time to contrive and misrepresent,” then the presence of a motive to mislead becomes unimportant to admissibility. If one is so caught up in the event that, realistically, they are not capable of contriving, evidence that they may have a motive to contrive against another is immaterial.

R. v. Carty, 2017 ONCA 770, at para. 9.

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca