Res gestae

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Res Gestae, Topic 3, law of evidence. Prepare
by ikram Abdul Sattar

 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, thus the courts
believe that such statements carry a high
degree of credibility.
 Res gestae is a Latin phrase means "the thing
done".
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Res Gestae, Topic 3, law of
evidence. Prepare by ikram Abdul
Sattar

 For declarations to be admitted as part of res
gestae, the following conditions must be met:
 1. The words must explain "or qualify".
 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.
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 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.
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 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.
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 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.
 Under Bedingfield 2 condition has to be
fulfilled:
1. Surrounding fact must be contemporaneous
with respect to fact in issue.
2. It must be spontaneous.
 (Bedingfield was overruled by the case of
Ratten v. R [1972] AC 378)
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 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.
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 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. 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.
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 Held: 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.
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 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.
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 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.

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 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.
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 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.
 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”.
 The wording of section 6 does not seem to insist on the
contemporaneity or close association with regard to the
time and place.
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 Illustration (b) 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.
 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.
 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.
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 A telephone message received on the premises
during a raid under the Betting Enactment was
admitted as res gestae under section 6.
 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.
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 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.
 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.
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 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
worksite on the morning, in which Samsuddin,
one of the complainants, intervened.
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 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 as part of res
gestae.
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 The court ruled that the threat in the morning
formed part of the same transaction as to the
events at night hence admissible.
 The same position may very possibly be adopted
by Malaysian court as s. 6 is in pari materia with
its Singapore equivalent
 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
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 The word ‘bystanders’ in illustration (a),
Section 6 refers to persons who were actually
present at the time of the occurrence of an
event.
 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.
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 Mills v R [1945] 3 All ER 865
 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.
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 H: 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.
 In Sawal Das v State AIR 1974 729, there was a
problem with a dowry, where there was a fight and
the wife said “Bachao! Bachao!” and wife was
eventually killed. The children and bystander heard it.
The repeated statement was objected because of
hearsay.
 H: that the statement uttered spontaneously relevant
under section 6.
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 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.
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 The best test which has been laid down in considering this
matter is contained in
 Amrita Lal Hazra v. Emperor 42 Cal. 957,
 It may vary from case to case. However the circumstance
must bear on determination are; proximity of time, unity
or proximity of place continuity of action and community
of purpose or design
 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
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 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. 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.
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 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.
 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.
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 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.
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 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.
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 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.
 Held: If evidence allowed has a sufficient
degree of prejudicial effect override any
probative value, such evidence still can still
be excluded.
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