Monday, 21 March 2011

When or shortly after

Hollingworth J said this in R v McDonald [2011] VSC 241 [at 16 - 18, then 56 and 57],

There was a dispute as to whether some of the representations were made “shortly after” the asserted fact occurred.

The phrase “shortly after” in s 65(2)(b) does not require the same degree of temporal proximity or contemporaneity as the res gestae exception at common law, where the representation was required to be made “in such conditions ... of involvement or pressure as to exclude the possibility of concoction or distortion.” Although the phrase “shortly after” involves more flexibility than the old test, there is still some requirement of temporal proximity.

And it is no longer necessary to exclude the possibility of concoction, for the evidence to be admissible; rather, the court must consider whether the circumstances make it unlikely that the representation is a fabrication.


However, the defence objected on a number of grounds to the italicised words in the following evidence from Truck City workmate, Margaret Goullet:

... notes started to be put on windscreen wipers of Marlene’s car. ... I remember one particular night Marlene finished work and was escorted outside by a truck driver who walked her to her car. This was standard practice for all of us women that worked there. We would always have a truck driver walk us to our cars for safety reasons. On this occasion I remember that Marlene after leaving the restaurant walked back in a short time later and she was visibly very upset. She was crying and was very scared. She held out her hand and showed me a note. The note was a scraggy bit of paper but I have visions of the writing on this piece of paper. The only words I remember that were scribbled on this piece of paper were “Your dead” [sic]. I remember Marlene saying that her hubby was up to his old tricks. This was the only note that I remember seeing although I am aware of other occasions that Marlene talked about receiving them. I recall that on these occasions she would screw up what appeared to be pieces of paper and say the same thing about her husband being responsible. (page 2 of statement)

There was no hearsay involved in Ms Goullet saying that she saw the words “Your dead” on the note. The representation by Ms McDonald that the accused was responsible for the note was made at, or shortly after, the time that she showed Ms Goullet the note. I was satisfied that it was made in circumstances that made it unlikely that the statement was a fabrication and, indeed, made it highly probable that the statement was reliable. The hearsay evidence was therefore admissible under either s 65(2)(b) or (c).

The trial judge did not go on then to examine the statement as a statement of opinion, which it clearly was. The evidence was admitted.

One of the statutory exceptions to the hearsay rule requires a representation to have been made when or shortly after the asserted fact it relates to: s 65(2)(b) of the Evidence Act 2008.

How long is shortly after?

Like as soon as practicable the phrase is difficult to pin down. The accused in Finn v The Queen [2011] VSCA 68 applied for interlocutory appeal to the Court of Appeal, asking for evidence admitted by the trial judge to be excluded. The Court declined to grant Finn's application and consider the question. The trial is short, the Court said, and the issue can be raised after your conviction, if there is one.

The legislation

The relevant part of s 65 reads,

65. Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a
previous representation is not available to give evidence about an asserted

(2) The hearsay rule does not apply to evidence of a previous representation
that is given by a person who saw, heard or otherwise perceived the
representation being made, if the representation-

(a) ... ; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) ...

Various commentators favour the view that s 65(2)(b) is intended to protect against fabrication rather than general concerns about reliability. The case law is inconsistent.

Victorian cases

Victorian courts since the introduction of the Evidence Act have applied s 65 without having to consider this aspect in detail. In R v Middendorp [2010] VSC 147 statements by the deceased to her mother about domestic violence were admitted. Though the judgment does not make clear how much time elapsed between each incident and the deceased speaking of it, it seems to have occurred within a short period of time. In R v Lubik (Ruling No 1) [2010] VSC 465 evidence of the same kind was held not to be admissible under s 65(2)(b). The witness was vague as to when the relevant information had been communicated. (The evidence was admitted under s 65(2)(c), the trial judge ruling the the representation was made in circumstances that make it highly probable that it was reliable.

In both Easwaralingam v DPP & Anor [2010] VSCA 353 and DPP v Nicholls [2010] VSC 397, which both deal with unavailable witnesses, the timing of the making of the statements was not central to the case.

Interstate authorities

The Full Federal Court in R v Conway [2000] FCA 461 said [at 123] that the use of when implied strict notions of contemporaneity. (I must admit that I think strictly contemporaneous is a contradiction in terms, a bit like firmly undecided). The Court went on to say that the addition of or shortly after expanded the admissibility of evidence beyond what was traditionally allowed under the common law doctrine of res gestae.

The Full Court [Miles, van Doussa and Weinberg JJ] quoted with approval from Sperling J in R v Mankotia [1998] NSWSC 295,

The phrase "shortly after" is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase "shortly after" must be the actual time that has elapsed and whether that fits the ordinary usage of the expression "shortly after" in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.

In Williams v The Queen (2000) 119 A Crim R 490 a differently composed Full Federal Court [Whitlam, Madgwick and Weinberg JJ this time] refined what the Court had said 8 months earlier in Conway.

The Full Court said,

46 It seems that the exception set out in s 65(2)(b) was intended to restate and reform the common law res gestae exception to the hearsay rule, ensuring that an overly narrow approach adopted in cases such as R v Bedingfield (1879) 14 CoxCC 341 would be avoided. The terms of s 65(2)(b) indicate that the "approximate ... contemporaneity" approach pre-figured in Ratten v The Queen [1972] AC 378 is to be preferred to the exact contemporaneity apparently required by Vocisano v Vocisano (1974) 130 CLR 267, thus disposing of any ambiguity that may exist at common law. The Australian Law Reform Commission ("ALRC") proposal, which led to the provision, took the case law as a starting point for its considerations:

"The proposal includes an exception for representations made `[when] or shortly after' the events referred to in it. A formula is used which takes up the suggestions of the Privy Council in Ratten's case. It directs attention to the question of the likelihood of fabrication."

47 Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase "shortly after". As noted by Sperling J in R v Mankotia [1998] NSWSC 295 at 10, s 65(2)(b) ought not be regarded as simply importing a test of:

"reliability at large. It is a narrower test... [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial."

48 For these reasons, it would be a mistake, in determining whether a statement has been made "shortly after", to over-emphasise such matters as whether the events in question were "fresh" in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ("when") or under the proximate pressure of ("shortly after") the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking "terrible", that she had been drugged and had been "off her face for about three or four hours". The comments of the Court in Conway regarding the meaning of "shortly after" should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case.

49 In this case, the statements were not made during the events in question, and, we think, could not be said to have been made "shortly after". Despite being made within a time in which Mr Stewart may be considered to have retained a good recollection of events generally, the lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. This time lapse, therefore, takes the representations outside the exception contained within s 65(2)(b). Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made "soon after" it.

The NSW Court of Criminal Appeal applied the previous cases but came to a different conclusion in R v Harris [2005] NSWCCA 432. Studdert (Grove and Wheally JJ agreeing] said,

38 [The appellant's counsel] submitted that it was not open to the judge in the present case to determine that the statement of the deceased, made as it was some twenty-four hours after the event, was made “shortly after” the event the deceased described. I am not persuaded by that submission.

39 [The appellant's counsel] did not seek to argue that “shortly after” meant “immediately after”. No attempt has been made in the decided cases to prescribe the words “shortly after” by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. For example, as [the appellant's counsel] properly acknowledged in the course of his able argument, a statement made by a person recovering consciousness five days after an event may well be considered to have been made “shortly after” that event.

40 I have come to the conclusion that it was open to the judge in the circumstances of the present case to determine that what the deceased told the police was conveyed “shortly after” the incident he described.


Early decisions appeared to suggest non-contemporaneous evidence would be admitted under the UEA. More recent decisions suggest that something akin to contemporaneity is still required.

If the test was one of general reliability, it's likely that the period of time considered shortly after would be a significant period, perhaps even the days rather than weeks test of Orchard v Spooner (1992) 28 NSWLR 114. But if the timing of the representation must leave a low risk of fabrication, the period of time will have to be much shorter, unless a reason why fabrication could not take place (eg. unconsciousness) is provided.

This isn't a settled issue in Victoria. In rejecting the interlocutory application in Finn, Hansen JA seemed doubtful (without further consideration) of the inclusion of proximate pressure as an essential ingredient of admissibility under s 65(2)(b).

Odgers (in his Uniform Evidence Law) makes the point that the proposition that a witness typically provides more accurate information close to an event may itself rest on a false premise.


Brian Furst said...

Your last point is your best one, even if you do give the credit to Stephen Odgers.

Codifying the doctrine of res gestae in statue is - to borrow a phrase - piling fiction on fiction. There was never a coherent explanation for why statements that were made closer to events were more likely for that reason alone to be more accurate.

For each and every time a true statement has been made in the heat of the moment and later falsely retracted there has been another where a lie was told and the maker later recanted it after the chance for further reflection.

Res gestae was an undisciplined celebration of circular logic.

Trent said...

Did sect 65(2)(b) EA replace the common law res gestae principal or do they each get applied now to see if the evidence is admitted?