Res gestae

1

Res Gestae

Topic 3, Law of Evidence

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


2

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".

Res Gestae


3

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.


4

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.

Res Gestae and the application In England


5

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.


6

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)

…cont


7

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.


8

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.

Ratten v. R [1972] AC 378


9

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.


10

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 principle in Ratten’s case was applied in the case of :


11

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.


12

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.

Res Gestae: Its Application In Malaysia


13

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.

Significant differences between the common law doctrine and section 6 of EA.


14

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.


15

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.

Kok Ho Leng v. Public Prosecutor [1941] MLJ 19


16

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.


17

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.

Hamsa Kunju v. Regina [1963] 29 MLJ 228, (Singapore)


18

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.


19

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 place or at different times and places”.


20

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.

The issue of the word “bystander”


21

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.

Res gestae in United Kingdom


22

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.

Nasir Din v Emperor AIR 1945 Lah 46,


23

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.


24

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 place or at different times and places”.

The meaning of the expression “same transaction” in the section


25

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.

Mohamed Bin Allapitchay v R [1958] MLJ 197.


26

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.


27

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.


28

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.

The court exclusionary power to exclude the evidence if its prejudicial effect outweigh it probative value.


29

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.