This document discusses the legal concept of res gestae, which is an exception to the rule against hearsay evidence. It provides that spontaneous statements made during or immediately after an event are admissible in court because the context provides credibility, with little chance of misunderstanding. The document then discusses the development of res gestae in various common law cases, including relaxing the requirement of exact contemporaneity. It also discusses the concept of res gestae under Islamic law and Malaysian evidence law.

1. Res Gestae
• Res Gestae is an exception to the rule
against hearsay evidence.
• Res gestae is based on the belief that
because certain statements are made
naturally, spontaneously and without
deliberation during the course of an event,
they leave little room for
misunderstanding/misinterpretation upon
hearing by someone else (i.e. by the
witness who will later repeat the statement
to the court) and thus the courts believe
that such statements carry a high degree of
credibility.

2. • Example: Imagine then a young woman
standing on the side of a main road (the
witness). She sees some commotion across the
street. On the opposite side of the road to her
she sees an old man shout 'The bank is being
robbed!' as a young man runs out of a building
and away down the street. The old man is never
found (so can't appear in court and repeat what
he said) but the woman repeats what she heard
him say. Such a statement would be considered
trustworthy for the purpose of admission as
evidence because the statement was made
concurrently with the event and there is little
chance that the witness repeating the hearsay
could have misunderstood its meaning or the
speaker's intentions.

3. • Res gestae is a Latin phrase with a meaning that
connotes (to suggest or imply) ‘a fact’ or ‘an event.
Literally it means "the thing done". The phrase is used
in various senses in the law of evidence but more
particularly to justify or explain the admission of the
use in certain circumstances of words, which might
otherwise be inadmissible. Words are said to be
admissible when they accompany and explain a
relevant fact or a fact in issue. For declarations to be
admitted as part of res gestae, the following conditions
must be met:
1. The words must explain "or qualify"; for example,
the act of handing over or receiving money can be
construed either as a loan, a gift or a repayment.
2. The statement must have been made
contemporaneously (simultaneous, concurrent,
happening during the same period of time) with the
act, i.e., made either during, or immediately before or
after its occurrence, but not at such interval (gap) as to
allow of fabrication, or to reduce them to mere
narrative (story or tale) of a past event. Case laws,
however, allow the admissibility of declarations made
not exactly at the time of the commission of the events
which excited them, so long as they were closely
connected to the events and made spontaneously
(applies to that which is done so naturally).

4. Res Gestae: Its Application In England
• The basis for the admissibility of the evidence as part of res
gestae is its close connection to the facts in issue as to form
part of the transaction out of which the facts in issue arose.
• In R v. Bedingfield (1879) 14 Cox CC 341, however,
evidence was excluded as lacking the necessary
contemporaneity where, a minute or two after the prisoner
was seen going into a house, the victim of the crime came
suddenly out with her throat severely cut and said to her
aunt "Oh, Aunt, see what Bedingfield has done to me!".
The words so uttered were excluded by Cockburn CJ either
as a dying declaration (because she was not in fear of death
then) or as res gestae. He observed: “It was not part of
anything done, or something said while something was
being done, but something said after something done. It
was not as if, while being in the room and while the act was
being done, she had said something which was heard”. This
means that the statement made by the victim before she
died was not admitted as part of the res gestae as it was
made after the event.

5. Continue…
• In R v. Teper [1952] AC 481, a statement by the by-
stander that “Your place burning and you go away from
the fire” which was overheard by a police officer, was
not admitted as part of res gestae.
• Lord Norma said: “It is essential that the words sought
to be proved ... should be, if not absolutely
contemporaneous with the action or event, at least so
clearly associated with it in time, place and
circumstance that they are part of the thing being done
and not merely a reported statement”.
• Thus, the requirement of contemporaneity, that is the
statement must be made at ‘the moment of the act,
explaining the act itself, accompanying it’ as applied in
Bedingfield was thought to be too strict.

6. Continue…
• If we look at the decision of Bedingfield case, it was
thought to be too strict. However, this decision was
overruled in the case of Ratten v. R [1972] AC 378
where under common law, the doctrine of res gestae
was defined in liberal and wider terms. Hence, the
requirement was relaxed in the case of Ratten v. R.
• In Ratten v. R, the facts in this case were that 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 while he was cleaning
it. To rebut that defence, the prosecutor called for the
evidence of 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.

7. Continue…
• The witness said that the call was from a female, who
in a sobbing voice and hysterical state said, “Get me
the police, please!” and gave the address, but before
she could make the connection to the police station,
the caller hung up. In this regard, Lord Wilberforce
said: “Evidence would have been admissible as part
of the res gestae because not only was there a close
association in place and time between the statement
and the shooting, but also 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 wife by an
overwhelming pressure of contemporary events”.

8. Continue…
• The Privy Council held that the telephonist’s evidence
was not hearsay and was properly admitted because of
its relevance to the issues. The Privy Council did
however consider the fact that the evidence, in a way,
did contain a hearsay element, namely, that the words
as used by the wife did involve an assertion of the
truth of the fact that she was being attacked by her
husband.
• It was held, nevertheless, that the evidence would
have been admissible as part of res gestae because,
not only was there a close association of place and
time between the statement and the shooting, but the
way in which the statement came to be made, i.e. in a
call for the police, and the tone of voice used, showed
intrinsically that the statement was being forced from
the wife by an overwhelming pressure of
contemporary event.

9. Continue…
• Lord Wilberforce, in the circumstances, laid down the rule that
to be part of res gestae, it is not necessary for a statement to be
contemporaneous, provided that:
(i) the statement is so clearly made in circumstances of
spontaneity or involvement in the event and
(ii) the possibility of concoction can be disregarded. It is to be
noted that in Bedingfield’s case, the action must be
contemporaneous and spontaneous under common law and the
act must have happened before the actual incident, whereas in
Ratten’s case, the statement and conduct are not exactly
contemporaneous, but are enough to be proximately
contemporaneous and it also provides that the statement or act
made before and after the actual incident is a relevant fact.

10. Continue…
• The principle in Ratten’s case was applied in the case of R v.
Andrews [1987] 1 All ER 513 where the appellant and another
man knocked on the door of the victim’s flat and when the victim
opened it, the appellant stabbed him in the chest and stomach with
a knife and the two men then robbed the flat. The police were
called and they arrived very soon after that. The victim, who was
seriously wounded, told the police that he had been attacked by
two men and gave the name of the appellant and the name and
address of the other man before becoming unconscious.
• The court held that since the victim’s statement to the police was
made by the seriously injured man in circumstances that were
spontaneous and contemporaneous with the attack, there was thus
no possibility of any concoction or fabrication of identification. A
statement made to a witness by the victim of an attack describing
how he had received his injuries was admissible in evidence as
part of the res gestae.
• Thus in R v. Andrews, the decision in Bedingfield was expressly
overruled by the House of Lords. The House of Lords held that
the victim’s statement to the police had been properly admitted
under the res gestae doctrine.

11. • In his judgment, Lord Ackner summarized the relevant principles to be applied
by the trial judge as follows:
1. The primary question the judge must ask himself is : can the possibility of
concoction or distortion be disregarded?
2. The event must be so unusual or startling or dramatic as to dominate the
thoughts of the victim, such that his utterance (word/statement) was an
instinctive (natural/automatic) reaction to that event and not a form of a
reasoned reflection.
3. The statement must be ‘spontaneous’ i.e. it must be so closely associated
with the event which has excited the statement that it can fairly be stated that
the mind of the declarant was still dominated by the event.
4. The judge must be satisfied that the circumstances were such that, having
regard to the special feature of malice, there was no possibility of any
concoction or distortion (lie/alteration or misrepresentation) to the advantage
of the maker or the disadvantage of the accused.
5. There must be no special features likely to result in error for example,
drunkenness.
Continue…

12. • In short, the main concern of the doctrine is the admissibility of statements
made spontaneously or contemporaneously with the performance, occurrence
or existence of some act, event or state of affairs which is in issue.
• Despite judicial dicta to the contrary, it is clear from the authorities that such
statements may be admitted by way of exception to hearsay rule.
• In Criminal Justice Act 2003 Section 118 Paragraph (4) preserves the common
law rule known as “res gestae”. One justification for this exception is that
reported words which are very closely connected to a relevant event are reliable
accounts and should therefore be admissible in certain circumstances. Such
statement may be admitted if one of the following conditions is met: the
statement is made by a person who was so emotionally overpowered by an
event that the possibility that he was lying can be disregarded; the statement
accompanied an act which can properly be evaluated as evidence only if
considered together with the statement.
• For example, if the act doesn't make sense without the statement; or the
statement relates to a physical sensation or mental state, such as an intention or
emotion.
Continue…

13. Res Gestae:
Islamic Law Perspective
• Under the Islamic point of view, res gestae is similar
to the concept of circumstantial evidence (al-
Qarinah).
• Qarinah literally means together, accompany or
related. Technically, qarinah means a thing, which
happens, explains something. It can be said that
qarinah is similar to res gestae, where res gestae
means things done before or after the actual incident
• Qarinah is a mode of proof under Islamic Law of
Evidence, which means circumstantial evidence
where a thing exists to explain something. The
majority of the ulama have accepted qarinah as one
of the means of proof besides shahadah and iqrar
based on the Al-Quran, As-Sunnah and the practice
of companions.
The alleged
grave of Prophet
Joseph.

14. Continue…
• The admissibility of al-Qarinah in the al-Quran can be found
in Surah Yusuf: 25-27:
“So they both raced each other to the door, and she tore his
shirt from the back: they both found her lord near the door.
She said: “What is the (fitting) punishment for one who
formed an evil design against thy wife, but prison or a
grievous chastisement?”. He said: “It was she that sought to
seduce me, from my (true) self”. And one of her household saw
(this) and bore witness, (thus) “If it be that his shirt is rent
from the front, then her tale is true, and he is a liar! “But if it
be that his shirt is torn from the back, then she is the liar, and
he is telling the truth!”.

15. Continue…
• Islamic Law of Evidence recognised the concept of res gestae as a method of
proof, where the doctrine is dealt with under the area of al-Qarinah
(circumstantial evidence).
• The admissibility of al-Qarinah is recognised by the Holy Quran, as-Sunnah and
practice of the companions. However, there is no specific requirement or
authority under the Islamic Law of Evidence that to constitute certain facts as
relevant facts, they must be spontaneous and contemporaneous in nature.
• However, it is submitted that if the nature of the fact before the court is so
closely connected to the fact in issue, it preferably should be contemporaneous
and spontaneous due to the fact that it is more reliable and justifiable in
establishing justice.

16. Res Gestae: Its Application In Malaysia
• The common difference between res gestae under common law and section 6
of the Evidence Act 1950 is that under common law, the incident must occur
at the same time and same place because it must satisfy two conditions, that is,
spontaneity However, under Malaysian law, the concept of res gestae differs,
as it is more flexible, liberal and wider as governed under section 6 of the
Evidence Act 1950, where it includes the incidents which happened at
different times and places.
• There are some significant differences between the common law doctrine and
the provision of section 6. The common law doctrine only admits evidence
which, if not absolutely contemporaneous with the action or event in issue,
must at least be so closely associated with it in point of time, place and
circumstance, as to be part of the thing being done. The decision in Andrews
case made the requirement of spontaneity less rigid today. Nevertheless, there
is still the requirement of close association or connection with regard to the
time and place where the events took place.

17. Continue…
• Section 6, in contrast, is positively more liberal. It provides as follows:
“Facts which, though not in issue, are so connected with a fact in issue as to
form part of the same transaction are relevant, whether they occurred at the
same time and place or at different times and places”.
o The wording of section 6 does not seem to insist on the contemporaneity or
close association with regard to the time and place. Illustration (b) to the
section clearly illustrates that section 6 indeed seeks to adopt a liberal
approach. In this illustration, the accused was not even present at the time and
place when the events occurred. All that the section requires is that the events
were so connected as to form part of the same transaction, and this need not be
based on proximity of time, proximity of place or even continuity of action.
• Decided cases have however shown that the following criteria must be fulfilled
before a statement can be admitted into evidence under section 6:
1. The statement must explain, elucidate (clarify/explain) or characterize the
incident in some manner.
2. The statement must be spontaneous or contemporaneous and not a mere
narrative of a past event. It must also be such that the possibility of concoction
can be disregarded.

18. Continue…
3. The statement is a statement of fact and not of opinion.
4. The statement must have been made either by a participant in the
transaction or by a person who has himself witnessed the
transaction.
5. The statement made by a by-stander would be relevant only if it is
shown that he was present at the time of the happening of the event
and has witnessed the same.
• In Kok Ho Leng v. Public Prosecutor [1941] MLJ 19, a
telephone message received on the premises during a raid under
the Betting Enactment was admitted as res gestae under section 6
of the Act. Murray-Aynsley J observed: “But there was one point
of some interest, whether a telephone message to the premises
during the raid was admissible in evidence.

19. Continue…
• In an unreported case Mr. Justice Howes held that such message was not
admissible.
“ I personally am inclined (tending) to think that it is admissible under
sections 6 which is the section which deals with what are known as res
gestae in England. I think that a telephone message has some analogy to the
shouting of the by-standers”. It must be emphasised that if not for the
doctrine of res gestae this telephone call would become hearsay and would
thus be excluded as evidence. Thus a telephone message is analogous
(similar) to the shouting of the bystanders and is admissible as forming part
of the res gestae.
o Similarly, in Jaafar bin Hussin v. PP [1950] 16 MLJ 154, the appellant was
charged with two offences; in possession of a shotgun and with carrying a
hand grenade at the same time and place. At the trial, the learned judge
directed that the case should proceed on the second charge only. At the trial
of this charge, evidence was given that the appellant was carrying a gun. The
appellant was convicted. On appeal, it was argued that evidence that the
appellant was carrying a gun should not have been admitted because he was
being tried on the second charge only, namely for carrying a hand grenade

20. Continue…
• The court held that although in this case one of the charges was stayed and the other
was proceeded with, the evidence touching the charge which was stayed was
admissible, as the facts were so connected with the facts on which the other charge was
based as to form part of the same transaction.
• In Tan Geok Kwang v. Public Prosecutor [1949] MLJ Supp 203, one Chinese ran
wounded into a patch (area) of blukar, and whilst the party of police were surrounding
the blukar the hand-grenade was thrown at them. The blukar was then surrounded and
searched, and the appellant alone was found, lying wounded therein. No other person
was seen to enter or leave the blukar, and the appellant in his own evidence admitted he
saw no one else in that blukar at that time.
• There is therefore a direct connection between the wounded Chinese who entered the
blukar, the throwing of the hand-grenade and the arrest of the wounded appellant in the
blukar. The evidence relating to the throwing of the hand-grenade is therefore
admissible under section 6 of the Evidence Enactment as part of the res gestae, because
the group of facts forming this transaction was so connected that the exclusion of
evidence relating to the hand-grenade would tend to render evidence as to other facts
unintelligible (meaningless/pointless).

21. continue…
• In Leong Hong Khie & Tan Gong Wai v. Public Prosecutor [1986]
2 MLJ 206, 208 where the principles in Ratten’s case were adopted.
In this case the two accused were jointly charged, tried, convicted
and sentenced to death for trafficking in heroin. The evidence
against the accused included a testimony by a Senior Customs
Officer, Liew, concerning statements made by two informers (who
were not summoned as witnesses) to him and his superior officer
about the nature of the transaction.
• It was held that the informers’ statements to Liew were not hearsay
but that even if they were, they would be admissible under s. 6 of
the Evidence Act as forming part of res gestae since the statements
constituted a sequence of events leading to the principal act,
namely, trafficking.
• Leong Hong Khie was however reversed (overturned) by the
Federal Court holding that the statements were hearsay and that
none of the reasons for admissibility given by the learned trial judge
“constituted a valid one in law for admitting hearsay evidence ...
nor did any of them come within the statutory exception to the
hearsay rule contained in section 32 of the Evidence Act 1950”.
• The Federal Court also rejected the res gestae argument on the
ground that the statements were made over the course of three days.
Seah FJ, delivering the judgment of the court, said: “No binding
authority has been cited to prove that hearsay evidence spanned
over a period of several days had been admitted as part of the res
gestae”.

22. Continue…
• Though section 6 seems to be broad enough to include the
events that do not occur contemporaneously, the case of Leong
Hong Khie is proof of the courts’ reluctance to extend the time
span of evidence forming res gestae.
• Another good example will be the case of Tan Geok Kwang,
where the revolver was found at the place where the police
found the appellant lying and wounded. At the trial, it was
admitted that the revolver was the same revolver which had
been fired three days previously at Sungai Bakap, four miles
from the place of arrest of the appellant. Willan CJ said:
“It may be that evidence that this particular revolver was in that
area shortly before the arrest of the appellant was admissible,
but its evidential value was negligible as many persons in that
area at the time may have had a similar opportunity to possess
it. There can be no question that this evidence was highly
prejudicial to the appellant as tending to show that he was
guilty of another offence, namely, the possession, or the
carrying and using, of this same revolver three days
previously...”. “We are of the opinion that the learned judge in
the exercise of his discretion should have rejected this evidence
in view of its trifling weight and its gravely prejudicial
character”.

23. Res Gestae; Its Application In Malaysia
• In the Singapore case of Hamsa Kunju v. Regina [1963] 29
MLJ 228, an event that occurred in the morning was held to be
part of the same transaction as another event that occurred later
in the night. The appellant was convicted on three charges of
causing hurt by a dangerous weapon. In his appeal, the
appellant objected to the admission of the incident that
occurred between him and one Simpson, a fellow labourer, at
the Delta Road worksite on the morning of 21 March 1962, in
which Samsuddin, one of the complainants, intervened. The
appellant struck Simpson when Samsuddin, who was on top of
a piling frame nearby called out that it was not right for the
appellant to hit such a weak man and the union could deal with
the matter. According to Simpson’s evidence the appellant said
to Samsuddin, “if you want you can come too”, to which
Samsuddin replied that he did not come there to fight but to
work and that he would report the matter to the union. The
whole of this evidence was admitted by Buttrose J as part of res
gestae.
• It is interesting to note that in Hamsa Kunju, the Singapore
court was willing to accept the earlier incident, which had
passed a whole day before, as part of res gestae. The same
position may very possibly be adopted by Malaysian court as s.
6 is in pari materia with its Singapore equivalent.

24. CONCLUSION
• As far as res gestae is concerned at common law and under section 6 of the Evidence Act
1950, there is not much difference between the two jurisdictions except that at common
law, the facts must be very closely connected to the fact in issue, and must be
contemporaneous and spontaneous to the fact in issue. On the other hand, under section 6
of the Evidence Act 1950, the concept of res gestae is slightly modified as it is more
flexible, liberal and wider, where it includes incidents which happened at different times
and places. It is said that s. 6 of the Act is an attempt to codify the common law doctrine
of res gestae, a doctrine born out of the necessity to overcome the cumbersome hearsay
rule. There are however significant differences between the common law doctrine and the
provision of s. 6 which seems to have adopted a more liberal approach.
• Put in a nutshell, the present application of the doctrine in Malaysia can be
summarized as follows:
1. Evidence of both statements and acts is admissible under the doctrine.
2. To be admissible, the declarations need not be contemporaneous with the fact they
accompany, but must be spontaneously made. Thus, the gap of a few hours does not affect
relevancy and admissibility of the incidents as evidence, i.e., happenings within the same
day. A few days gap however does.
3. Words, acts and declarations, in order to form part of res gestae, must be relevant to the
facts in issue. A statement is thus received as part of res gestae because of its relevance via
spontaneity and contemporaneity where “the possibility of concoction can be disregarded”.
Yet being relevant per se may not be sufficient to be admissible. Thus, where there is a
conflict of res gestae and bad character evidence, the statement may be excluded as
irrelevant, hearsay, opinion and tending merely to show bad disposition.

25. EXTRA INFO:
• Section 6 provides:
“Facts which, though not in issue, are so connected with a
fact in issue as to form part of the same transaction are
relevant, whether they occurred at the same time and place
or at different times and places”. “Fakta – fakta yang,
walaupun tidak menjadi isu, sebegitu berkaitan dengan
suatu fakta isu hingga menjadi sebahagian daripada
transaksi yang sama adalah relevan, sama ada fakta – fakta
itu belaku pada masa dan tempat yang sama atau pada masa
dan tempat yang berlainan”.
• Res gestae in United Kingdom
- Mills v R [1945] 3 All ER 865 where it involve the case of
chopping the victim by three individuals. The three
individuals were charged for murder. They were a witness
present at the scene of the crime to which the deceased had
uttered the words “That dam boys had chopped me up”.
However the witness could not be found. Such statement
was heard by someone else and it was held to be hearsay.
But it was accepted within res gestae.

26. EXTRA INFO:
• Res gestae in Malaysia: The issue of the word
“bystander”
• The word ‘bystanders’ in illustration (a) refers to
persons who were actually present at the time of the
occurrence of an event. Section 6.
• Illustration (a) A. is accused of the murder of B. by
beating him. Whatever was said or done by A. or B. or
the bystanders at the beating or so shortly before or
after it as to form part of the transaction is a relevant
fact. “A dituduh membunuh B dengan memukulnya.
Apa – apa jua yang telah dikatakan atau dilakukan oleh
A atau B atau orang – orang yang ada disitu pada masa
B dipukul atau sejurus sebelum atau selepasnya hingga
menjadi sebahagian daripada transaksi itu adalah suatu
fakta relevan”.

27. EXTRA INFO:
• Per Tja Singh J in Nasir Din v
Emperor AIR 1945 Lah 46, wager
it was held that the word bystanders
means the persons who are present
at the time of the beating and not
the persons who gather on the spot
after the beating. The remark made
by a person other than the eye-
witnesses could only be hearsay
because they must have picked up
the news from others.

28. EXTRA INFO:
• In the case of PP v Sam Chong Hoey [1998] MLJ, where
there involved robbery when the accused grabbed a bag
belonging to a lady. The lady shouted “Tolong saya,
perompak ambil duit saya”. A bystander heard the called and
gave a chase. He managed to caught him. Evidence of the
incident was later given in evidence. It was objected for
being hearsay. Held that the statement made by a bystander
was relevant under section 6.
• Res gestae in Malaysia: The meaning of the expression
“same transaction” in the section
- In the case Chin Choy v PP [1955] MLJ 236, Mathew CJ
stated that “The best test which ha been laid down in
considering this matter is contained in Amrita Lal Hazra v.
Emperor 42 Cal. 957, where it is not possible to frame a
comprehensive formula of universal application to determine
whether two or more acts constitute the same transaction; but
circumstances which must bear on the determination of the
question in an individual case may be easily indicated: they
are proximity of time, unity or proximity of place continuity
of action and community of purpose or design.

29. EXTRA INFO:
• Res gestae in Malaysia: The meaning of the expression “same transaction” in the
section
• In Thavanathan a/l Balasubramaniam v PP [1997] 2 MLJ 401, where Chong Siew Fai
CJ also stated that:
“Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction are relevant, whether they occurred at the same time and place or at
different times and places”.
o The term 'transaction' in s 6 had been defined by Sir James Stephen, the author of the Bill
which later became the Indian Evidence Act 1872, as 'a group of facts so connected
together as to be referred to by a single name, as a crime, a contract, a wrong or any other
subject of enquiry which may be in issue'.
o In each ease, the judge has to decide according to the circumstances, drawing the line
between the facts which are so connected with the fact in issue as to be part of the same
transaction and facts which are beyond that limit. No precise limits can be prescribed. In
some cases, the transactions lie within narrow limits of time; in other cases, they may be
spread over a long period (see 1 Sarkar on Evidence (14th Ed, 1993) at p 125).

30. Continue…
o In some cases, two facts occurring at the same time and place may have no connection
between them; but in other cases, two facts separated by a vast distance and place may
be parts of the same transaction. As stated earlier, it all depends on the circumstances of
each case. Where the transaction consists of different acts, in order that the chain of such
acts may constitute the same transaction, they must be connected by such factors as the
proximity of time, proximity or unity of place, continuity of action, and community of
purpose or design.
o In Mohamed Bin Allapitchay v R [1958] MLJ 197. It was a murder case where on the
night of the murder, the deceased went to sleep at his stall sometime before midnight;
several other stall-holders, among them Yusoff and Krishnan, did likewise. At 3.45 a.m.
Yusoff and Krishnan were woken up by the noise of the deceased shouting, "Matamata
(police), Mohamed has stabbed me." They saw the deceased a few yards away on the
road, pursuing 3 men who were running away from the scene. Yusoff and Krishnan
joined the chase, Yusoff following a few yards behind the deceased, and Krishnan a few
yards behind Yusoff. The latter recognised the three men as Mohamed, Hassan and Haja
Mohideen, the three appellants, as they ran towards the corner of the road before
disappearing from view. The deceased, who had been mortally injured, collapsed after
running 100 yards and Yusoff and Krishnan broke off the chase to help him. When they
asked him who had stabbed him, the deceased replied, "Mohamed stabbed me and
Hassan and Haja Mohideen were with him." A telephone message was sent to the Radio
Police Patrol and in a few minutes a Radio Police Van arrived and a Sergeant began to
take down a statement from the deceased

31. Continue…
• In the statement the deceased said that he had been woken up by four Indians, whom he
named as Mohamed, Hassan, Haja Mohideen and Kakak, and that Mohamed had
stabbed him in the stomach with a knife. Shortly afterwards the ambulance arrived and
the deceased was taken to the General Hospital where he fixed his thumb impression to
his statement and died shortly afterwards. Accordingly the Court is of the opinion that
this statement was not part of the res gestae”. This decision is based on the ratio of
Bedingfiled’s case where the statement was not admitted as part of res gestae as it was
made after the event.
• However, section 6 Illustration (a) makes a statement admissible whether it was made
shortly before or after it as to form part of the transaction. The evidence in the present
case does not establish that Rahim's cry "Mohamed has stabbed me" was "part of the
thing being done". On the contrary, the three persons who it is said committed this crime
were running away from the scene of the crime as fast as they could when the cry was
heard. The thing had been done. In the words of Cockburn C.J. in Reg v Bedingfield 14
Cox CC 341 cited with approval by Lord Reading in R v Christie (1914) AC 545, "It
was not part of anything done, or something said while something was being done, but
something said after something done."

32. EXTRA INFO:
• In Don Promphinit v PP [1994]
3 SLR 193, where one Tan
gave evidence of the events
spanning a period of three
months in which negotiations or
abortive sales took place
between him and the first
appellant and between him and
the third appellant. Held that “it
is sufficient to say that the
evidence of Tan of the earlier
instances of abortive sales and
negotiations between him and
the first appellant was
admissible against the first
appellant”. The same position
may very possibly be adopted
by Malaysian court as s. 6 is in
pari materia with its Singapore
equivalent.

33. EXTRA INFO:
• Res gestae in Malaysia: The court
exclusionary power to exclude the evidence
if its prejudicial effect outweigh it
probative value.
• In PP v Veeran Kutty [1990] 3 MLJ 498, the
two accused and some others took part in a
robbery at Batu Gajah on 7 September 1983.
They were apprehended outside the town
after being chased by police. During the
chase they were observed to have been
holding a pistol each. When arrested, they
were no longer in possession of the pistols.
After being interrogated, both accused led the
police back to the place where they were
arrested and two pistols and 11 rounds of
ammunition were recovered. They were
subsequently charged under the Internal
Security Act 1960 for unauthorized
possession of firearms. It was held that
“though it was admissible, eg just to quote
only section of the Evidence Act 1950, ie s 6
for being connected to the fact in issue, ie the
possession of the firearms in question. If
evidence allowed has a sufficient degree of
prejudicial effect override any probative
value, such evidence still can still be
excluded.
Give me the Scarf, and Nobody
Gets Hurt...

34. EXTRA INFO:• Dying declaration
• In the case of Yeo Hock Cheng v R [1939] MLJ 91, the
defendant was charged of killing his girlfriend. Before he killed
and thrown the girlfriend into the river, she had made two
statements. The admissibility of the two statements alleged to
have been made by the deceased was in issue in the case. The
first statement was made 11 days before her death to her father
alleged about threat by the accused that he would kill the
deceased if she told her father of her cohabitation with the
accused, it is extremely doubtful whether such threat can be
regarded as "any of the circumstances of the transaction which
resulted in her death." After the father came to know that his
daughter had cohabited with the accused, the situation was
materially altered by the accused promising to marry the
deceased and by the arrangement that a mutual friend (Su Peck)
should draw up a proper agreement. It may well be that the
promise itself, which the accused was unwilling to perform,
supplied the motive for causing the death of the deceased, or
there may have been some quite different motive. In either case
the threat to kill her if she told her father would appear to be
too remote and cannot properly be treated as one of the
circumstances of the transaction resulting in her death, when
other, and probably more cogent, motives had intervened.
Therefore, the statement was inadmissible.

35. EXTRA INFO:
• The second statement were made to her sister that the
boyfriend wants her to dress as a man that night. The
second statement however seems to be in a different
category. The statement, it admissible, is very
material. The deceased is stated to have said (a) that
she was going out with the accused, and (b) that it was
the accused who told her to put on man's clothing. In
view of the evidence of the body being found pegged
(hang) down to the side of the creek (stream), and tied
with rope, the conclusion appears to be inevitable that
the murder was premeditated (planned), and that the
necessary preparations had been made. If therefore the
accused himself arranged for the deceased to go out
with him and to wear man's clothes, presumably to
avoid recognition, these would undoubtedly appear to
be circumstances of the transaction which resulted in
the deceased's death, and the deceased's statements to
that effect become relevant under the express
provisions of section 32(1).