LAW541 - LAW OF EVIDENCE I

BY : MAZLINA MAHALI
TOPIC 2 – RELEVANCY (SECTION 6)
LECTURE 2
RES GESTAE
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 LECTURE OUTLINE
RES GESTAE RULES
MEANING OF THE WORD TRANSACTION
MEANING OF THE WORD BYSTANDER
RES GESTAE AS AN EXCEPTION TO THE RULE
AGAINST HEARSAY
RES GESTAE: THE STRICT/TRADITIONAL APPROACH
RES GESTAE: THE LIBERAL/ALTERNATIVE
APPROACH
RES GESTAE: MALAYSIAN POSITION

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 RES GESTAE RULES
Sec 6: 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.

This section relates to the rule of evidence commonly

referred to as Res Gestae i.e ‘things done’, which refers to
conduct or statement that are so connected to the fact in
issue or incidental to it.

Sec 6 to be read with Sec 7, Sec 8, Sec 9, Sec 14

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 MEANING OF THE WORD
TRANSACTION
THAVANATHAN A/L BALASUBRAMANIAN V PP [1997] 2 MLJ
401:
‘Transaction’ means ‘a group of facts so connected together as to be
referred to by single name, as crime, a contract, a wrong or any other
subject or enquiry which may be in issue.’

Thus, 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.

Refer also to Chin Choy v PP [1955] MLJ 236

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 MEANING OF THE WORD
‘BYSTANDER’
ILLUSTRATION (a) SEC 6
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.

Nasir Din v Emperor AIR1945 Lah 46: The word bystander in

illustration (a) of the section refers to persons who were actually
present at the time of the occurrence of an event.

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 RES GESTAE RULES
Sec 7 Facts which are the occasion, cause or
effect of facts in issue

Sec 8 Motive, preparation and previous or

subsequent conduct

Sec 9 Facts necessary to explain or introduce

relevant facts

Sec 14 Facts showing existence of state of mind

or of body or bodily feeling
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 RES GESTAE RULES:
FACT INVOLVING CONDUCT
TAN GEOK KWANG V PP [1949] MLJ SUPP 203:
Evidence was led to show that a hand grenade had been
thrown to a ‘belukar’ into which the accused had run, and
no other person was found by the police. The court held
that the evidence is admissible under Section 6 of the
Evidence Act 1950.
JAAFAR B HUSSAIN V PP [1950] MLJ 154:
The accused was charged with two offences, carrying a shotgun
and carrying a hand grenade at the same time. However, the trial
only proceed on the second charge. It was argued by the defence
that evidence of the accused carrying a shotgun should not be
admitted. But the court held that they are admissible as to form
one transaction.
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 RES GESTAE RULES:
FACT INVOLVING STATEMENT
Res gestae rules admit evidence which are subject to rule of
exclusion (e.g hearsay), so as to enable the court to look at the
events in the proper perspective

The statement should have been made at or about the same

time the act was being done.

Contemporaniety or spontaniety must be shown before the

statement is made admissible.

If a statement sought to be admitted does not satisfy the

requirements Res Gestae, it will be rejected as hearsay.
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 RES GESTAE AS AN EXCEPTION TO
THE RULE AGAINST HEARSAY
Whether or not the admission of res gestae statements should
properly be regarded as an exception to the rule against hearsay, the
question is whether a given statement can actually be regarded as
forming part of the res gestae.

The Strict/Traditional Approach

v
The Liberal/Alternative Approach

The strict/traditional approach requires that:

i. the statement admitted under the rules must occur at the actual time of the
facts in issue
ii. the statement should be part of the event/occasion that becomes the fact in
issue.
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 RES GESTAE: THE STRICT/TRADITIONAL
APPROACH
TEPER V R [1952] AC 480:
The appellant had been convicted of burning down a shop owned by his wife,
partly on the basis of the evidence of a police officer who said that almost 30
minutes after the fire had started he had heard a woman shout, “Your place
burning and you going away from the fire”, after which he saw an individual
resembling the appellant in a car. It was held that this evidence was hearsay,
which could not be fitted under the res gestae exception. As it should not have
been admitted, the conviction was quashed.

Lord Norman held: “[T]he rule admits of carefully safeguarded and limited exceptions, one
of which is that words may be proved when they form part of the res gestae. The rules
controlling this exception are common to the jurisprudence of British Guiana, England and
Scotland. It appears to rest ultimately on two propositions, that human utterance is both a
fact and a means of communication, and that human action may be so interwoven with
words that the significance of the action cannot be understood without the correlative words
and the dissociation of the words from the action would impede the discovery of truth… it
is essential that the words sought to be proved by hearsay should be, if not absolutely
contemporaneous with the action or event, at least so clearly associated with it, in time,
place and circumstances, that they are part of the thing being done, and so an item or part of
real evidence and not merely a reported statement…
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 RES GESTAE: THE STRICT/TRADITIONAL
APPROACH
R V GIBSON [1887] 18 QBD 537:
A conviction was quashed because the prosecutor's
testimony - that immediately after he (the prosecutor) had
been struck by a stone, a woman bystander pointed to the
accused's door and said, “the person who threw the stone
went in there” - should not have been admitted.

In Gibson's case the words were closely associated in time

and place with the event, the assault. But they were not
directly connected with that event itself. They were not
words spontaneously forced from the woman by the sight of
the assault, but were prompted by the sight of a man quitting
the scene of the assault and they were spoken for the purpose
of helping to bring him to justice.
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 RES GESTAE: THE STRICT/TRADITIONAL
APPROACH
R V BEDINGFIELD (1879) 14 COX CC 341:
The exclamation of a murder victim as she staggered, with her throat cut, from the
room where she had left the accused (reputedly “Oh dear, Aunt, see what Bedingfield
has done to me”) was held not to be a res gestae statement, as it occurred after the
crime was committed. Cockburn CJ opined:

Cockburn CJ: “Whenever…words constitute, or…immediately accompany and

terminate in the principal act…they form part of the principal transaction and may be
given in evidence as part of the res gestae …while statements made by the
complaining party after all action on the part of the wrongdoer…has ceased… - such
as statements made with a view to the apprehension of the offender - do not form part
of the res gestae and should be excluded.”

However, he added that if the statement had been uttered when the act was being
committed, as for instance where the deceased was heard to cry “Don't Harry”, then it
would have been admitted.

R v Bedingfield was overruled in the case of R v Andrews

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 RES GESTAE: THE LIBERAL / ALTERNATIVE
APPROACH
R V FOSTER (1834) 6 C & P 325:
The witness had not seen the accident but was permitted to
testify that immediately after it had occurred he had approached
the now-deceased victim, who informed him that the accused
had deliberately run him down and the court held that what the
deceased said at the instant, as to the cause of the accident, is
clearly admissible.

DAVIES V FORTIOR LTD [1952] 1 ALL ER 1359:

The court was prepared to admit the statement of a deceased
employee (made minutes after he had fallen into a bath of acid)
that “I should not have done it,” as a res gestae statement
admitting contributory negligence.

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 RES GESTAE: THE LIBERAL / ALTERNATIVE
APPROACH
COMMONWEALTH V HACKETT 2 ALLEN 136 (1861) (US
CASE):
Where the court permitted evidence, not only that the deceased
victim had been heard to cry “I'm stabbed!”, but that when
people rushed to his aid some twenty seconds later he had said
“I'm gone, boys. Dan Hackett has stabbed me.”

Bigelow CJ: “To exclude [the evidence] would be practically to

say that…no statement however near to the principal fact or
however important as giving it color or significance could ever
be admitted…[The words] were uttered after so brief an interval
and in such connection with the principal transaction as to form a
legitimate part of it.”

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 RES GESTAE: THE LIBERAL / ALTERNATIVE
APPROACH
RATTEN V R [1972] AC 378:
The accused was charged with the murder of his wife, and claimed that he
had shot her accidentally. The court admitted evidence of a distressed
phone call by the victim which was made shortly before the shooting. The
Privy Council was adamant that the fact that this call was made was in
itself relevant, quite apart from its content. Thus, it was not hearsay
evidence. The court went on to say that even if it is a hearsay, it clearly
falls under res gestae

Followed by the Court of Appeal in:

R v Nye (1978) 66 Cr App R
R v Turnbull (1984) 80 Cr App R 104
Approved/Adopted by the House of Lords in:
R v Blastland [1986] AC 41
R v Andrews [1987] AC 281.

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 RES GESTAE: THE LIBERAL / ALTERNATIVE
APPROACH
R V ANDREWS
A murder victim who had been attacked in his home had made his way to the
flat below his own shortly after the fatal attack. The police were called almost
immediately, and two officers arrived within minutes. On their arrival the
victim made a statement identifying Andrews as his attacker. Andrews was
convicted largely on the basis of the evidence of this statement. There was no
doubt that this was hearsay evidence, as the statement was tendered as evidence
of the proof of its content.

The question then was whether it could be brought under the doctrine of res
gestae. Their Lordships ruled that it could, stressing that the main question for
the judge was whether the possibility of concoction or distortion could be
disregarded.

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 RES GESTAE: THE LIBERAL / ALTERNATIVE
APPROACH
Lord Ackner (with whom the rest of their Lordships agreed) observed:
“To answer that question the judge must first consider the circumstances in which the particular statement was made,
in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the
victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned
reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event
would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of
approximate but not exact contemporaneity.

Lord Ackner also made clear that as long as the judge were satisfied that the event still dominated the mind of the
maker of the statement, it would not matter that it was made in response to a question, while the possibility of error in
the facts narrated went to the weight to be attached to the statement rather than to its admissibility.

In light of these decisions, it must also be supposed that a written statement made shortly after the event would, in
certain circumstances, be admissible as part of the res gestae.

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 RES GESTAE: THE LIBERAL / ALTERNATIVE
APPROACH
R V ANDREWS:
Guidelines before admitting a statement as part of res gestae:
i. Possibility of concoction and distortion;
ii. The event was so unusual, startling or dramatic as to dominate the
thoughts of the victim;
iii. The statement must be so closely associated with the event that the mind
of the maker was still dominated by it (spontaneous);
iv. The existence of malice that may affect the possibility of concoction or
distortion;
v. Any other factor that would affect the fallibility of memory, but the
additional factors (such as victim had consumed alcohol before the event or
identification in dificult circumstances or by eyewitness with defective
eyesight) would only affect weight rather than admissibility.

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 RES GESTAE IN MALAYSIA: THE
STRICT/TRADITIONAL APPROACH
CONSIDERATIONS BEFORE APPLYING SEC 6:
i. Statement must explain, elucidate/characterize the
incident in some manner;
ii. Statement made must be spontaneous or
contemporaneous and possibility of concoction can be
disregarded.
iii. Statement must be of fact and not opinion.
iv. Statement made by participant in the transaction or
person who has himself witnessed the transaction.
v. Bystander statement is relevant only if it is shown
that he was present at the time of the happening of the
event.

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 RES GESTAE IN MALAYSIA: THE
STRICT/TRADITIONAL APPROACH
MOHAMED ALLAPITCHAY V R:
The cries of a person who has just been
stabbed as to his assailant were not
admissible as part of the res gestae.
LEONG HONG KHIE & TAN GONG WAI V
PP:
Statements made by certain informers over a
period of several days as to the accused’s
operation through evidence of a senior custom
officer is a hearsay as it could not be regarded as
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res gestae.
 RES GESTAE IN MALAYSIA:
LIBERAL/TRADITIONAL APPROACH
KOK HO LENG V PP:
The court accepted an evidence of a
telephone message received on the
premises during a raid as res gestae.
HAMSA KUNJU V R [1963] MLJ 228:
Threats made in the morning formed
part of the same transaction as to the
events at night and came within the
rules of res gestae.
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