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.

• 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.

• 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).

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.

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.

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• 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.

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• 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”.

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• 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.

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• 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.

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.

• 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.

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• 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.

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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.

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• 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!”.

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.

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.

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.

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.

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

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).

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”.

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”.

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.

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.

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.

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”.

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.

• 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. The court held that the statement uttered spontaneously relevant under section 6.

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.

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).

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

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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 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...

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.

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).