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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.
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.
• 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.
Res Gestae:
Islamic Law Perspective
• Under the Islamic point of view, res gestae is similar
to the concept of circumstantial evidence (al-
Qarinah).
• 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.
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.
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• 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.
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3. The statement is a statement of fact and not of opinion.
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
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• 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).
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• 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.
• 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”.
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• 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.
• 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).
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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
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• 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."
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.
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 Give me the Scarf, and Nobody
for being connected to the fact in issue, ie the
possession of the firearms in question. If Gets Hurt...
evidence allowed has a sufficient degree of
prejudicial effect override any probative
value, such evidence still can still be
excluded.
• Dying declaration
EXTRA INFO:
• 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.
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).