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06 October
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Conditional Sentence Order and Suspended Sentences

Posted by Rory
in Conditional Sentence Orders, Suspended Sentences

The following are some cases where Courts have made Conditional Sentence Orders or Suspended Sentences for charges of assault causing bodily harm, or assault with a weapon, and aggravated assault. The cases and the descriptions have been taken from CanLii and Quicklaw.

Conditional Sentence Orders

R. v. Sim- 2004 ABCA 349

Appeal by the Crown from the sentence imposed on the accused Sim. Sim was convicted of break and enter, assault with a weapon and uttering threats to cause serious bodily harm. He was 18 when he committed the offences and 19 when he was sentenced. Sim broke into a residence in search of the complainant. The complainant was alleged to have sexually assaulted a girl who was a friend of Sim. He found the complainant and assaulted and threatened him. Sim received a suspended sentence, two years probation and a 10-year firearms prohibition. The judge was satisfied that the requirements of denunciation and deterrence would be satisfied by a suspended sentence. Sim did not have a prior record.

HELD: Appeal allowed. The sentence was set aside and was replaced with a conditional sentence of one year of imprisonment. The sentence was demonstrably unfit. It did not meet the legitimate requirements of deterrence and denunciation. However, the court recognized the importance of rehabilitation for this youthful offender.

R. v. Stewart – [2005] A.J. No. 1942

Sentencing hearing following the accused’s guilty plea to charge of assault causing bodily harm — Accused swung his goalie stick with two hands towards the head of another hockey player during a hockey game — The blade struck the victim just above the mouth cutting it and knocking out three teeth and their roots — Counsel submitted joint submission — Counsel suggested 12 month conditional sentence — Accused had prior record including conviction on a drug charge and impaired driving — Accused was 51 years of age and had been married for 33 years — Accused had continuous work history and was a correctional officer for 25 years — Accused was semi-retired — He was actively involved in the community — Court heard victim impact statement — HELD: Accused received one year conditional sentence — Accused was not a danger to the community — Primary sentencing objectives were general deterrence and denunciation and rehabilitation — Accused expressed remorse — Accused was ordered to perform 150 hours of co mmunity service — $200 victim fine surcharge

R. v. Dooley- [2005] A.J. No. 1367

Offender pleaded guilty to assault causing bodily harm — The complainant sustained scarring on her face which required plastic surgery — Costs of plastic surgery would be $3,100 — Offender had paid the complainant $500 — Offender had no prior criminal record and was remorseful — A conditional sentence was appropriate — Sentence: Three month conditional sentence, $2,600 compensation order.

R v Perepelecta, 2004 ABPC 88 (CanLII), the accused was charged with aggravated assault in a case involving a beer bottle. The court found that the accused’s offence was “best characterized as an impulsive act as opposed to premeditated or planned.” It went on to say at para 25:

She did not deny her assault of the victim, just her legal motive or responsibility for it. Ms. Perepelecta’s relative degree of moral culpability is thereby at the minimum end on the scale of fault for this type of offence, and an appropriate sentence should reflect this.

[32]           Based on the various factors that the court outlined, it concluded that a 12-month conditional sentence would be a fit and proper sentence in that case.

 In R v Neuberger, 2014 ABPC 275 (CanLII),

Assault causing bodily harm Redman PCJ was dealing with a road rage incident in which the accused and two others beat up the victim. The accused continued to beat the victim even when the victim was down. Redman PCJ convicted the accused of assault causing bodily harm. The Crown was seeking a sentence of 7 to 12 months incarceration. The accused was seeking a conditional sentence order. The accused had positive pre-sentence report and Redman PCJ held that a conditional sentence would impose hardship on accused’s family and employment. He found that there was an element of pre-meditation, it was an unfair fight with 3 against 1, and there were multiple blows struck when complainant was on ground. He imposed a $5,000 fine, which was suitable punishment in the circumstances. He found that denunciation and deterrence were important principles although specific deterrence was not necessary as accused was not community safety risk and assault was an aberration from his normal behavior. He also said that the accused’s conduct had to be denounced and sentence had to serve as substantial warning to others that this type of behaviour would not be tolerated.

R. v. Burlington, 2008 ABPC 136

The Accused has pled guilty to a charge of assault causing bodily harm. While intoxicated in a bar, he hit the victim in the face with a beer bottle. The bottle broke, and the victim sustained serious personal injury. The matter is before the Court for disposition, and the issue is a fit sentence. For the reasons that follow, the Accused is sentenced to 12 months’ imprisonment to be served in the community, pursuant to a Conditional Sentence Order (CSO).

R. v. Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 S.C.R. 780. In that case, the accused pled guilty to illegal possession of explosives and possession of a weapon for a purpose dangerous to the public peace. He had a lengthy history of mental illness and of dangerous handling of explosives. The Supreme Court of Canada restored the decision of the trial judge who imposed a conditional sentence, which was to be served in a locked, secure psychiatric facility, at his request. In referring to its earlier decision in Proulx, the Court stressed that dangerous offenders were not excluded from consideration for conditional sentences (para. 26). Further, despite the accused’s history, the risk of re-offending while serving the conditional sentence was no greater than it would be if the accused was ordered to serve his sentence incarcerated.

R. v. Perepelecta, 2004 ABPC 88 

[23]            Having reviewed numerous cases from other jurisdictions and Alberta, I recognize that where the offence is committed by an offender with a criminal record, where the nature of the attack is relatively brutal or premeditated, and the injury to the victim severe, a sentence of incarceration is likely to flow.  I find these cases distinguishable from the present one, in part, because Ms. Perepelecta is a first offender, and because her assault of the complainant was not premeditated and not completely unprovoked.  She did not break the bottle and use it as a knife-like weapon.  The assault itself was an instantaneous reaction in a tense situation and consisted of a single blow with a bottle.  The injuries suffered by the complainant while serious, were, nevertheless,  less severe than those suffered in the cases where the offenders intended to injure their victims.

ll of the circumstances and having particular regard to this offender and the nature of the offence, I find that the appropriate sentence is one to be served in the community.  The length of sentence and the conditions prescribed shall be appropriate so as to satisfy the objectives of denunciation and deterrence in these unique circumstances.  Accordingly, I sentence Ms. Perepelecta a term of imprisonment of 12 months, but as I am satisfied that the serving of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of theCriminal Code, I am ordering that Ms. Perepelecta serve the sentence within the community subject to the following principal conditions that she:

Suspended Sentences

R. v. Perry- 2011 ABPC 221

Sentencing of Perry who was found guilty of assault causing bodily harm and mischief. In June of 2009, Perry entered into a heated verbal argument with the victim over the use of a batting cage in a public park. Both were coaches of their sons’ baseball teams. While the victim’s back was turned, and he was kneeling down engaged in picking up his baseballs, Perry approached him from behind and with a low undercut, punched the victim in his face. The victim consequently sustained an injury to his nose, requiring constructive surgery, and time off work. Counsel for the Crown sought a short, sharp period of intermittent incarceration. The Crown submitted that an intermittent sentence with two years’ probation would be an appropriate sentence as the primary sentencing factors were deterrence and denunciation. The Crown pointed to the aggravating factors being the severity of the victim’s injuries and the context of the offence. In mitigation, the Crown noted Perry’s positive pre-sentence report, positive character references and his lack of criminal record. The Crown took the position that a conditional discharge would not be appropriate because denunciation and deterrence were paramount sentencing factors. On the other hand, defence counsel did seek a conditional discharge, indicating that, but for this incident, Perry was of exemplary character. The defence argued that Perry was a responsible and active member of his church and his community, who had already paid enough of a price by being penalized by release conditions for over two years; suffering adverse publicity; and being frozen out of coaching for two years.

HELD: Perry given suspended sentence and one year probation. Taking all of the aggravating and mitigating factors into consideration, as well as the pre-sentence report, the case law cited and the arguments presented, a conditional discharge was not appropriate in all the circumstances of the case. Perry had not been provoked, and so a suspended sentence, with the attendant conviction registered, could be structured to combine both the requisite deterrent and rehabilitative requisites mandated by the circumstances. The entering of a conviction was an important factor in this case. Sentence: Suspended sentence; one year probation.

R. v. Yaholnitsky- 123 A.R. 151

The accused was sentenced after pleading guilty to charges of assault and assault causing bodily harm to his two daughters, aged 12 and 16. The 44-year-old accused hit each of his daughters on the buttocks with a wooden tennis racquet after they had been arguing with their mother about cleaning up their rooms. Both daughters suffered bruising to their legs, one had a broken finger, and the other a swollen knuckle. Both of the daughters wrote letters for the bail review hearing supporting family reunification. Neither they nor their mother wished the accused to be jailed. The Crown argued that the offence warranted incarceration.

HELD: The accused received a suspended sentence and a term of probation. The court agreed with the case law stating that courts should not tolerate child abuse and should send strong messages of deterrence. However, this case had unusual aspects which could not be overlooked. This was a single occurrence of a controlled, culturally learned disciplinary technique. The father, who quickly realized that the extent of the discipline had been excessive, apologized and sought immediate psychological help for himself and his family. According to the psychologist, the offender had been rehabilitated and would likely never offend again. Further, if this offender were jailed, the whole family would suffer financially and psychologically. The court considered whether the principle of general deterrence required incarceration, and determined that in this particular case, with its unusual circumstances, it did not.

R. v. C.R.P. -2009 ABPC 32

Sentencing of the accused for sexual assault. The accused pleaded guilty. The 17-year old complainant, a friend of the accused’s daughter, had been riding her horse at the accused’s acreage. After she finished riding, the accused engaged her in some unwanted discussion about sex. After he stood up to leave, he momentarily touched her vaginal area outside her clothing. The accused, 59, was married and had children. His family was supportive. The accused had been sexually abuse as a child. Since this offence occurred, the accused, of his own volition, had been attending counseling. The accused had a 1984 conviction for sexual assault and a 1977 conviction for indecent exposure after he urinated outside a drinking establishment.

HELD: Sentence suspended for two yeas. This was an assault at the very low end of the sexual assault continuum. Although this was not a parent-child or analogous trust situation, the accused did breach an element of trust with respect to this victim in that she was entitled to expect that she would be safe in his company while attending at the acreage to ride her horse. The prior record was dated and not weighed. The accused was not a recidivist, he did not represent a danger to the community and was clearly rehabilitable. The court considered the accused’s immediate guilty plea and cooperation with police, as well as the remorse shown. The circumstances of the offence and its consequences were not so egregious as to demand prison to achieve denunciation and deterrence. Denunciation and deterrence could also be served by this accused living in the community under the terms of community supervision. Suspending the passing of sentence for a period of two years subject to terms of a probation order appropriately addressed the principles of sentencing, including the primary objectives of denunciation and deterrence. Sentence: Two-year suspended sentence; DNA order.

12 September
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Strip Searches and Charter Rights

Posted by Rory
in Charter Rights, Know your rights, search or seizure, strip searches, Supreme Court

Strip Searches engage important Charter Rights. The following cases shed some light on the constitutionality of strip searches.

R. v. Golden 2001 SCJ No 81 para 101

In this connection, we find the guidelines contained in the English legislation, P.A.C.E. concerning the conduct of strip searches to be in accordance with the constitutional requirements of s. 8 of the Charter.  The following questions, which draw upon the common law principles as well as the statutory requirements set out in the English legislation, provide a framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter:

1.     Can the strip search be conducted at the police station and, if not, why not?

2.     Will the strip search be conducted in a manner that ensures the health and safety of all involved?

3.     Will the strip search be authorized by a police officer acting in a supervisory capacity?

4.     Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?

5.     Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?

6.     What is the minimum of force necessary to conduct the strip search?

7.     Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8.     Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

9.     Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?

10.   If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?

11.   Will a proper record be kept of the reasons for and the manner in which the

strip search was conducted? [emphasis added]

 R. v. Fearon 2014 3 SCR 621

Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches: Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest. [emphasis added] para 82

In my view, we can achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search — both what is searched and how it is searched — is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why (at para 4)

In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search in Golden. Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to human dignity. That cannot be said of cell phone searches incident to arrest (at para 55).

R. v. Ly 2016 ABCA 229 at para 12

Cellphone searches, the Court went on to explain, may also be appropriate as a search incident to arrest subject to two additional conditions: the search must be tailored to its purpose and the police are required to take detailed notes of what they examined and how they examined it.  [emphasis added
R. v. Saeed 2016 SCC 24 at para 89

Mr. Saeed was informed in advance of the procedure for taking the swab and the purpose of the swab.  The swab itself was conducted quickly, smoothly, and privately.  The swab took at most two minutes.  Mr. Saeed took the swab himself.  There was no physical contact between the officers and Mr. Saeed.  The officers involved took detailed notes regarding the reasons for and the process of taking the swab. [emphasis added]
R. v. Smith [2010] O.J. No. 1596

 

ADGN/2010-172

Ontario Court of Justice

M. Greene J.

March 17, 2010

CHARTER OF RIGHTS — SECTION 7 — Abuse of process — Strip search — Stay of charge.

 

Fact that a small amount of cocaine is in one’s wallet,
coupled with accused’s original denial that he was in
possession of any narcotics, was not a sufficient basis
to warrant a strip search.

“… I do not agree that merely because Mr. Smith had a
very small amount of cocaine in his wallet it was
reasonable to conclude that he had more on him, hidden in
personal areas like under his testicles or between the
cheeks of his buttocks. I note that Mr. Smith was not a
drug dealer and it was not reasonable to conclude that he
had had more drugs concealed on him in these particular
areas. By the time the strip search was ordered, Mr.
Smith had already been subjected to a second, more
thorough and intrusive pat down search which yielded
nothing.

… I find that objectively, looking at all the facts,
while there was a slight possibility of more drugs on Mr.
Smith, there was not reasonable and probable grounds that
drugs were on him. The fact that a small amount of
cocaine was located in Mr. Smith’s wallet provided the
basis to conduct a more thorough and invasive pat down
search. When this yielded nothing, given that Mr. Smith
was not suspected of being a drug trafficker, there was
no basis to believe on reasonable and probable grounds
that more narcotics would be found on Mr. Smith. While it
was a possibility, it did not reach the standard of
reasonable and probable grounds.”

Stay of charge granted as appropriate remedy.

“Had the breach been limited to the strip search without
proper grounds, I would not have granted the stay. As
previously stated, I believe that Detective Eckland was
acting in good faith and that while the breach is
serious, had the search been conducted in a respectful
fashion with a full understanding of the gravity of the
search, it would not have been one of the clearest of
cases and would not have warranted a stay of proceedings.
When I take into consideration Officer Johnson’s blatant
disregard for the Toronto Police Services policies in
relation to strip searches and his disregard for Mr.
Smith’s privacy and dignity by conducting the strip
search in a room with the door partially open I find that
a stay of proceedings is warranted. As was stated in R.
v. Golden, supra at para89, strip searches can be
“humiliating, embarrassing and degrading for those who
are subject to them and any post facto remedies for
unjustified strip searches cannot erase the arrestee’s
experience of being strip searched”. The lack of regard
by P.C. Johnson to the impact of a strip search on a
detainee coupled with the absence of grounds to conduct
the strip search warrants the most serious remedy our
Courts can offer. In my view, the continued prosecution
of Mr. Smith, in light of the violation that occurred,
would cause irreparable prejudice to the integrity of the
judicial system.”
 

 

 

 

 

 

 

 

 

 

 

 

 

04 March
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Admissibility of 911 recordings

Posted by Rory
in 911 admissability, admissability

911 Recordings

Hearsay is presumtively inadmissible. 911 tapes are generally admissible because they fall under the res gestae exception. Alternatively, 911 tapes may also be admitted because they meet the necessity and reliability requirements under the principled approach. We can use both res gestae and the principled approach to question the admissibility of the 911 tapes.

Res Gestae:

R v Sylvain 2014 ABCA 153

“The starting point is this. As a general principle, res gestae statements are admissible as an exception to the hearsay rule: R v Khan (1988), 42 CCC (3d) 197, 27 OAC 142 at para 21 (Ont CA) [Khan]; R v Ratten, [1972] AC 378 at 389-391 (PC). Res gestae as a category has been criticized as being an unhelpful generality that actually encompasses several discrete exceptions to the hearsay rule: David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed (Toronto: Irwin Law, 2011) [Paciocco and Stuesser] at 173. That said, the particular exception involved here relates to “excited utterances” as explained by Paciocco and Stuesser, supra at 177:

A statement relating to a startling event or condition may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement caused by the event or condition.

[31] The rationale for admitting a statement in this category for the truth of its contents is that the stress or pressure under which the statement was made can be said to safely discount the possibility of concoction: see R v Klippenstein (1981), 26 AR 568 at para 17, 57 CCC (2d) 393 (Alta CA); R v Clark (1983), 42 OR (2d) 609 at 623, 7 CCC (3d) 46 (Ont CA); R v Slugoski (1985), 17 CCC (3d) 212 at 227, 43 CR (3d) 369 (BCCA). To avoid the prospect of fabrication, the statement should be reasonably contemporaneous with the alleged occurrence. However, exact contemporaneity with the event is not required: Clark, supra at 623; Khan, supra at para 25; R v Dakin (1995), 80 OAC 253 at para 20, 1995 CarswellOnt 4827 (CA).

[32] The excited utterances exception under the common law is also consistent with the principled exception to the hearsay rule: R v Mackenzie, 2011 ONSC 6770 at para 10, 2011 CarswellOnt 12578. The reliability of “excited utterances” comes from the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that call within the “excited utterances” exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls within the “excited utterances” category.

R. v. DeSouza, [2012] O.J. No. 270 was a case where Ricchetti J. ruled in the course of pretrial applications, prior to the commencement of the jury trial, and importantly, on the basis of necessity, that the 911 tape was the best evidence of the state of mind of the complainant. However, he also acknowledged that there was no doubt that the statements made by the complainant during the 911 calls, being hearsay, would be inadmissible unless ruled to be spontaneous utterances or admissible under the principled approach exception to the hearsay rule. The key issue there was necessity and Ricchetti J. ruled that the statements were necessary.

 

[6] There are two basic requirements for a res gestae statement:

(1) there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought process of the observer, and

(2) the statement of the declarant must have been a spontaneous reaction to the occurrence or event, and not the result of reflective thought. The rationale for the exception lies in the special reliability that is provided when excitement suspends the declarant’s powers of reflection and fabrication. See McCormick on Evidence, 5th ed. (St. Paul: West Group, 1999) Vol. 2, 204.

Cases where 911 tapes were not admitted

When Prejudice exceeds probative value: For example “however, the contents of the tape and the high-end emotions, screams, and specific accusations of sexual assault that it reflects, makes clear to me that it’s very high prejudicial effect relative to what I regard as its very limited probative value cannot permit the 911 tape to be played. Perhaps the result would be different on a judge alone trial, but I have concluded that the risk of the jury giving undue weight to that recording and not just for the limited purposes for which it is sought to be admitted, but in a wider context relative to the case as a whole, means that it cannot be played in this case”. R. v. Kamal Barua, 2012 ONSC 1817

Where reliability not established:

The call here was not an emergency call. The fact that it was made to 911 is merely an accidental feature of the case. Further, the caller was not describing ongoing events – the call was made two hours and fifteen minutes after the incident had ended and two hours after the police investigation had commenced. In short, the circumstances that carried the hearsay in Chrisanthopoulos over the threshold reliability hurdle are not present here

R. v. Campbell, 2012 ONSC 6743

Concoctions:

I am also concerned there might have been a motivation for this call to achieve an

objective other than to report an assault. In this regard, it is noteworthy that Ms. Garrick

testified she and Mr. O’Connell were arguing that evening because her cat was dying and Mr.

O’Connell was not willing to spend money for its care. In cross-examination Ms. Garrick

also indicated that when she made the call, she wanted Mr. O’Connell out of the house. R. v. O’Connell, 2007 ONCJ 536

 

Motive to fabricate:

The 911 call was inadmissible. The 911 call was made 16 minutes after the offence. In addition, the evidence established that Mowatt acted deliberately and made the call because she was angry at Harbin. Furthermore, there was no oath or warning with respect to the statement and Mowatt had motive to fabricate when she placed the call. Therefore, the telephone call was not made as part of the res gestae and did not meet the test of reliability- R. v. Harbin

[2008] O.J. No. 2158

 

This would be the Crown’s only evidence against the accused. There is nothing else. The basis for admissibility is said to be that the complainant’s 911 call is a res gestae (excited or spontaneous utterance) statement, or alternatively that it constitutes an exception to the hearsay rule as being necessary and reliable. The defence opposes the admission of this evidence, adding that in the particular circumstances of this case, the probative value of this evidence, even if admissible, would be outweighed by its prejudicial effect. [5] I agree with the defence position that this evidence should not be admitted. First, I do not consider the 911 call to constitute a res gestae statement. Second, while the complainant’s statements to the 911 operator are necessary to the Crown’s case since the witness has no memory of making the 911 call, and denies that she was assaulted by the accused, they are manifestly unreliable; thus they are inadmissible as an exception to the hearsay rule. Finally, I would decline to admit the 911 call for a third reason: it would cause prejudice to the accused and the trial process; the prejudicial effect of the evidence is out of proportion to its probative value. The evidence is therefore ruled inadmissible. R. v. Grahovac, 2008 ONCJ 211

 

PRINCIPLED APPROACH

In R. v. Khelawon , (2006), 215 C.C.C. (3d) 161 the Supreme Court of Canada stated that where an established exception to hearsay does not apply to evidence that is sought to be adduced, it may be admissible if it is both reasonably necessary to admit the evidence and the evidence is sufficiently reliable. It is important to note that such evidence is presumptively inadmissible and that courts must find indicia of trustworthiness sufficient to displace the general exclusionary rule.

Necessity: R. v. Parrott.  [2001] S.C.J. No. 4: Necessity cannot be assumed, it must be demonstrated. In this case, the court found that the

“Stereotypical assumptions about persons with disabilities, be it testimonial competency or trauma, should be avoided. The video of the complainant’s out-of-court statement could not afford evidence of any subsequent deterioration in her recollection of the events or her ability to communicate them. The trial judge having misdirected himself on the admissibility issue, his ruling must be set aside and the majority decision of the Newfoundland Court of Appeal ordering a new trial on the assault charge affirmed.”

In our case, we may question why more efforts have not been made to ensure the complainant’s presence in the court.

Reliability: The analysis here overlaps with what could be argued in challenging whether the 911 tapes on the facts properly belong to the res gestae exception. It would be useful to argue that while the 911 tapes were contemporaneous (an important part of the res gestae exception), there is a possibility that they may have been concocted….