HEARSAY

INTRODUCTION

FORMULA

RELEVANCY
(IF NOT RELEVANT
WILL BE
EXCLUDED)
IF RELEVANT -MOVE TO THE NEXT STEP
ADMISSIBILITY (IS IT HEARSAY??)
IF IT IS NOT HEARSAY = ORIGINAL
EVIDENCE (admissible )
IF IT IS HEARSAY = NOT ADMISSIBLE AS GR
EXCEPTIONS (IF THE HEARSAY EVIDENCE
FALLS UNDER AN EXCEPTION = ADMISSIBLE)

OUTLINE
3 ISSUES :
a. Definition /Rule /Reason
b. Distinction between original
evidence and hearsay
c. Exceptions to the hearsay rule.
Note : 6 main exceptions

Exceptions

i) s.32*
ii)s.33
iii) s.73A*
iv) s.90A*
v) res gestae / s.6*
vi)Confessions /Admissions[next
chapter]

Definition /Rule /Reason

Definition ? What is hearsay??
CROSS an assertion other than one made
by a person while giving oral evidence in
the
proceeding
is
inadmissible
as
evidence of the fact asserted.
SUBRAMANIAM V PP [1956] MLJ 220

 a. out of court assertion

b. repeated in court
c. the original maker of the statement is not
witness(cannot be cross examined )
d. the purpose of adducing the assertion is
to prove the truth of contents
(all 4 elements must be present for the
statement to fall within the definition of
hearsay. If it does as a GR it is not
admissible )

Rule
SECTION 60.Oral evidence must be direct.
(1) Oral evidence shall in all cases whatever be direct, that is
to say (a) if it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
(b) if it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it;
(c) if it refers to a fact which could be perceived by any other
sense or in any other manner, it must be the evidence of a
witness who says he perceived it by that sense or in that
manner;
(d) if it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person who
holds that opinion on those grounds.

 A. PAUL
LIM AH OH V R [1950] MLJ 269

THE REASON
Not given under oath
Maker cannot be tested under cross
examination
To avoid fabrication and concoction
Unreliable (misreporting &
inaccuracy)
Time
TEPER VR (1952) AC480

Distinction between original

evidence and hearsay
Note : not all out of court assertions
will fall within the definition of
hearsay.
It is only hearsay if the statement is
being tendered to prove the truth of
its contents.
It the out of court statement is being
tendered for some other purpose
ORIGINAL EVIDENCE/DIRECT
EVIDENCE

Statements which are being tendered for :

-to show knowledge
-that a statement was made
-state of emotion/mind
-duress
Have been accepted as OE and not hearsay.
Very subjective one mans Hearsay is
anothers OE. (matter of judicial opinion)

Case Law

SUBRAMANIAM V PP (1956)
RATTEN V R (1972)
R V BLASTLAND (1986)
SPARKS V R [1964]
MYERS V DPP (1964)
CHANDERASEKARA V R (1937)

EXPRESS & IMPLIED

ASSERTIONS
2 TYPES OF ASSERTIONS IN A
STATEMENT :
-EXPRESS ASSERTION
-IMPLIED ASSERTION
EXPRESS ASSERTION :
-Statement tendered to prove the
truth of its direct meaning.

Example

It was X who attacked me

It was a white boy
The get away car no was PUxxx
EXPRESS ASSERTION :
Statement tendered to prove the
truth of its direct meaning.

 Implied assertion : statement is

tendered to prove the hidden
meaning/ fact.
EXAMPLES:
Hello X
Implied assertion : X was there
I saw Ms. X coming out of Hotel
Dunia

Example
Note : hearsay rule will apply to
implied assertions :
R V KEARLEY (92) 2 ALL ER 345
R V HARRY (87) CRIM LR 325
Note : the practical problem of
distinguishing between Hearsay
(implied /express) and OE.

CASE LAW
R V TEPER [1952] 2 ALL ER 447
WALTON V R [1989] 84 ALR 59
R V LYDON [1987]- Sean Rules /
Sean Rules 85
WOODHOUSE V HALL [1980]CRIM LR
645

Exceptions

6 main exceptions:
*S.32*
S.33
*S.73A*
*S.90A*
*RES GESTAE/S.6*
CONFESSIONS/ADMISSIONS (next
chapter)

 Note :s.14 facts showing state of

mind
Original evidence ( Re SOO LEOT
[1956] MLJ 54)

S.32 EVIDENCE ACT 1950

32.Cases in which statement of relevant
fact by person who is dead or cannot be
found, etc., is relevant.
(1) Statements, written or verbal, of relevant facts
made by a person who is dead or who cannot
be found, or who has become incapable of
giving evidence, or whose attendance cannot
be procured without an amount of delay or
expense which under the circumstances of
the case appears to the court unreasonable,
are themselves relevant facts in the following
cases:

 Are relevant under the following

circumstances: para (a) to (j) [10
paras)
When will s.32 exception apply :
PRECONDITION + AT LEAST 1 PARA
(a-j) applies
= s.32 exception
Precondition ( dead, cannot be found,
incapable, unreasonable
delay/expense )

PRECONDITIONS
Under s.32 a statement could only be admitted as
an exception to hearsay provided it was made by
4 categories of persons :
a. a person who is dead, or
b. who cannot be found, or
c. who has become incapable of giving evidence,
or
d. whose attendance cannot be procured without
an amount of delay or expense which under the
circumstances of the case appears to the court
unreasonable

 Must be strictly proven (A.Paul):

ALLIED BANK BHD V YAU JIOK HUA
(1998) 6 MLJ 1:
Precondition + para
Burden : s.104
Party wishing to rely on the exception
must explain & provide evidence to
support.

 PP V LAM PENG HOA [1996] 5 MLJ

405
NG YIU KWOK V PP [1989] 3 MLJ 166
SIM TIEW BEE V PP [1973] 2 MLJ 200
tally sheet , manifest and gunny sack
Sim Tiew Bee,Sibu

Section 32(1) a
when the statement is made by a person as to
the cause of his death, or as to any of the
circumstances of the transaction which resulted
in his death, in cases in which the cause of that
person's death comes into question.
Such a statement is relevant whether the
person who made it was or was not at the time
when it was made under expectation of death,
and whatever may be the nature of the
proceeding in which the cause of his death
comes into question;

Section 32(1) a

Dying declarations
Conditions:
- maker is dead
- cause of death comes into issue
Statement relates to :
i) cause of death (after infliction of injury), or
ii) the transaction which results in death (before
infliction of injury)
No need for statement to be made in expectation of
death
Can be verbal (exact words based on recollection) or in
writing (actual words)

 What is the logic of dying

declarations??

CASE LAW
CHANDRASEKARA V R [1937] 1 AC 220
PAKALA NARAYANA SWAMI V KING EMPEROR
[1939] MLJ 59
YEOH HOCK CHENG [1938] MLJ 166
BOOTA SINGH V PP [1933] MLJ 195
HAJI SALLEH V PP [1931] FMSLR
NEMBHARD V R [1982] 1 AER 183
TOH LAI HENG V R (1961) MLJ 53
ONG HER HOCK V PP (1987) 2 MLJ 45
NARANJAN SINGH V PP [1949] MLJ 122
CHAN PHUAT KHOON V PP (1962) MLJ 127

SECTION 32(1) b
when the statement was made by any such person
in the ordinary course of business, and
in particular when it consists of any entry or
memorandum made by him in books kept in
the ordinary course of business or in the
discharge of professional duty; or of an
acknowledgment written or signed by him of
the receipt of money, goods, securities or
property of any kind; or of a document used in
commerce, written or signed by him, or of
the date of a letter or other document
usually dated, written or signed by him;

 What is the logic??

SECTION 32(1) b
ELEMENTS :
PRECONDITION
STATEMENT MADE IN THE ORDINARY
COURSE OF BUSINESS etc
BY A MAKER WHO HAS PERSONAL
KNOWLEDGE OF MATTERS STATED
(ONLY ALLOWS FIRST HAND
HEARSAY)
cf: section 73A

SECTION 73A

73A.Admissibility of documentary evidence in civil cases etc.

(1) Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral
evidence of a fact would be admissible, any statement made by a person in a document and tending
to establish that fact shall, on production of the original document, be admissible as evidence of
that fact if the following conditions are satisfied:
(a) if the maker of the statement either (i) had personal knowledge of the matters dealt with by the statement; or
(ii) where the document in question is or forms part of a record purporting to be a
continuous record, made the statement (so far as the matters dealt with thereby are not
within his personal knowledge) in the performance of a duty to record information supplied
to him by a person who had, or might reasonably be supposed to have had, personal
knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called as a witness
need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to
attend as a witness, or if he is beyond the seas and it is not reasonably practicable to
secure his attendance, or if all reasonable efforts to find him have been made without
success.
(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the
circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order
that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may,
without any such order having been made, admit such a statement in evidence (a) notwithstanding that the maker of the statement is available but is not called as a
witness; and
(b) notwithstanding that the original document is not produced, if, in lieu thereof, there is
produced a copy of the original document or of the material part thereof certified to be a
true copy in such manner as may be specified in the order or as the court may approve, as
the case may be.

Note :
Difference between s.32(1)b & s.73A:
i. s.32 applies to both civil & criminal , s.73A
only civil.
ii. S.32 applies to both verbal &
documentary ,s.73A only documentary
iii.s.32 only 1st hand hearsay , s.73A can
admit both 1st hand and 2nd hand hearsay.
iv. S.32 precondition must be satisfied, s.73A
hearsay can be admitted even if witness is
available.

Examples
1. Dr X examines Mr. Y and Dr.X prepares
the report.
Dr.X has died and now the report is being
tendered by another witness , Dr.Z .
2.J takes the measurements of the
shipment and reads it to K while K records
the details and signs the document. Both J
& K cannot be found. Document is tendered
through L.

 SIM TIEW BEE V PP [1973] 2 MLJ 200

SYARIKAT JENGKA SDN.BHD V ABDUL RASHID [1981] 1
MLJ
WAN SALIMAH WAN JAFFAR V MAHMOOD OMAR [1998]
1 CLJ 480
ABDUL KHODER V LOW YAM CHAI [1989]2 MLJ 483
NG YIU KWOK V PP [1989] 3 MLJ 166
VAYNAR SUPPIAH V KMA ABDUL RAHIM[1974] 2 MLJ
183
ALLIED BANK BHD V YAU JIOK HUA [1998] 6 MLJ 1

S.32(1)c
when the statement is against the
pecuniary or proprietary interest of
the person making it, or when, if
true, it would expose him or would
have exposed him to a criminal
prosecution or to a suit for damages;

Conditions
1.Precondition
2.Statement against pecuniary %, or
3.Would expose maker to criminal or
civil action
What is the logic??
Ills: f

 SUSSEX PEERAGE CASE [1844] 11 CI

& F 85
PP V FORSTER [1988] 2 MLJ 594
WARD V PITT [1913] 2 KB 130
TUCKER V OLD BURY UDC [1912] 2
KB 317

S.32(1) h
when the statement was made by a
number of persons and expressed
feelings or impressions on their part
relevant to the matter in question;
DU BOST V BERESFORD [1810] 2
CAMP 511
beauty & the beast

s.32(1) i & j
(i) when the statement was made in the
course of, or for the purposes of, an
investigation or inquiry into an offence
under or by virtue of any written law; and
(j) where the statement was made by a
public officer in the discharge of his duties.
(2) The provisions of paragraph (i) and (j) of
subsection (1) shall apply only in relation to
a criminal proceeding.

s.32(1) i & j
Note :
Only applies to criminal cases
More recent additions to EA 1950
Issue : of conjunctive or disjunctive
reading

Why ???
(i)

and (j)

i & j should be
read together
(conjunctive)
(disjunctive)

marks the end

of the section

Impact : Conjunctive
Reading
1.Precondition
2.When the statement is made in the course
of an investigation;
and
3.Where it was made by a public officer
(Both i & j must be satisfied ie only
statements made by a public officer in the
course of any investigation will be
admissible)
narrow
interpretation1
exception)

Disjunctive Reading
1.Precondition

( i ) Statement
Made by any person in the
public
Course of an investigation

( j) statement
made by a
officer

(wider interpretation : 2 exceptions)

Case Law :Conjunctive

Reading
MICHAEL ANOYO AKABOGU V PP
[1995] 3 MLJ 42,HC.
Pg 177 (M.Peters)

Disjunctive Reading
PP V MOHD JAMIL BIN YAHYA [1993] 3
MLJ 702,HC (pg 176)
PP V LAM PENG HOA [1996] 5 MLJ
405 ,HC(pg 178)
PP V MOHD.FAIRUS [1997] 5 MLJ
57,HC
(i):s.107 ,112 ,113/ (j) 119/112
AYOROMI HELEN v PP [2005]1
MLJ699,CA

KOBRA TABA SEIDALI v. PP [2014] 2 CLJ 12,CA

It is essential to note that s. 32(1) (i) must be
read conjunctively with (j) and is only related
to public officers and not witnesses. Section
32(1) (i) and (j) was dealt by Hamid Sultan JC
(as he then was) in PP v. Sim Kay Chay
[2008] 1 CLJ 838; where he had this to say:

 Whether ss. 32(1) (i) and (j) must be read

conjunctively or disjunctively is a matter of
controversy and cases have been decided in both
ways .If it is read conjunctively, then the new
provision is only limited to the statements made by
public officers. On the other hand, if it is read
disjunctively, then it relates to a wide variety of
statements. Jeffrey Tan JC (as he then was) stated in
Public Prosecutor v. Michael Anayo Akabogu that it is
trite that any ambiguity in the language of provisions
leading to proof in criminal proceedings, such as ss.
32(1) (i) and (j), is to be narrowly construed.

 BANDAHALA UNDIK v. PP[2014] 1 CLJ

708,CA
The doctor who confirmed that the
deceased was dead did not give
evidence as he had left the country
and his report was admitted under s.
32(1)(j) of the Evidence Act 1950
('the Act').

s.33
Allows for evidence by a witness in
case to be admitted in a subsequent
proceeding or at a later stage in the
same proceeding as an exception to
hearsay.

 Evidence given by a witness in a judicial proceeding, or before any

person authorized by law to take it, is relevant for the purpose of
proving in a subsequent judicial proceeding, or in a later stage of the
same judicial proceeding, the truth of the facts which it states, when
the witness is dead or cannot be found or is incapable of giving evidence, or is
kept out of the way by the adverse party, or if his presence cannot be
obtained without an amount of delay or expense which under the
circumstances of the case the court considers unreasonable:
Provided that (a) the proceeding was between the same parties or their representatives in
interest;
(b) the adverse party in the first proceeding had the right and opportunity to
cross-examine;
(c) the questions in issue were substantially the same in the first as in the
second proceeding.
Explanation - A criminal trial or inquiry shall be deemed to be a proceeding
between the prosecutor and the accused within the meaning of this section.

Elements

1.Precondition (witness is not available)

i. Dead
ii. Cannot be found
iii. Incapable
iv. Kept away
v. Unreasonable delay
2.The evidence was given in a judicial proceeding or
before anyone authorised to by law to take it.
3.Same parties
4.Opportunity & Right to cross examine (in earlier
proceeding)
5.Same issues

Case law
Lakshamanna v Vardhanamma AIR
1919:
Applies not only evidence given by a
witness in a judicial proceedings but
also evidence given by a witness
before any authorised person.
Note : Will apply to both civil and
criminal

s.73A
73A.Admissibility of documentary evidence in civil cases etc.
(1) Notwithstanding anything contained in this Chapter, in any civil
proceedings where direct oral evidence of a fact would be admissible, any
statement made by a person in a document and tending to establish that fact
shall, on production of the original document, be admissible as evidence of
that fact if the following conditions are satisfied:
(a) if the maker of the statement either (i) had personal knowledge of the matters dealt with by the statement; or
(ii) where the document in question is or forms part of a record purporting to
be a continuous record, made the statement (so far as the matters dealt with
thereby are not within his personal knowledge) in the performance of a duty to
record information supplied to him by a person who had, or might reasonably
be supposed to have had, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called as a witness
need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to
attend as a witness, or if he is beyond the seas and it is not reasonably practicable to
secure his attendance, or if all reasonable efforts to find him have been made without
success.
(2) In any civil proceedings, the court may at any stage of the proceedings, if having
regard to all the circumstances of the case it is satisfied that undue delay or expense
would otherwise be caused, order that such a statement as is mentioned in subsection
(1) shall be admissible as evidence or may, without any such order having been made,
admit such a statement in evidence (a) notwithstanding that the maker of the statement is available but is not called as a
witness; and

s.73A

Elements:
1.Only civil cases
2.Only statements in a document
3.Under this section a statement would
be admissible in 3 circumstances:
a. Where the maker is called as a
witness(document will be admitted to
show consistency) - Original Evidence
(S.73A (1) b)

 b. Where the maker of the statement is not

available (proviso :s.73A(1)b- statement is
admitted as an exception to hearsay.
c. where the maker is available but not
called as a witness( s.73A(2)a) statement
is admitted as an exception to hearsay.
4. This section will allow both primary and
secondary copies.(s.73A (1)+ (2) b)
5.Statement must be made before the
dispute(s.73A (3))

 ALLIED BANK BHD V YAU JIOK HUA

(1998) 6 MLJ 1
Note : allows second hand hearsay
provided it was in the performance of
a duty to record information supplied
to him by a person who had, or might
reasonably be supposed to have had,
personal
knowledge
of
those
matters.
(s.73A (1) a (ii))

 ARAB MALAYSIAN MERCHANT BANK V

CHONG ON FOH MEDICAL HALL
[1997] 4 MLJ 532
Pg: 190

s.90A
90A.Admissibility of documents produced by computers and
of statements, contained therein.
(1) In any criminal or civil proceeding a document produced by a
computer or a statement contained in such document, shall be
admissible as evidence of any fact stated therein if the
document was produced by the computer in the course of its
ordinary use, whether or not the person tendering the same
is the maker of such document or statement.
(2) For the purposes of this section it may be proved that a document
was produced by a computer in the course of its ordinary use by
tendering to the court a certificate signed by a person who either
before or after the production of the document by the computer is
responsible for the management of the operation of that computer,
or for the conduct of the activities for which that computer was used.

Elements
Civil /criminal
Document was produced by a
computer in the course of its
ordinary use
Any facts stated therein shall be
admissible in evidence
Whether or not the person tendering
the same is the maker of such
document or statement. (exception
to hearsay rule)

Condition
Document was produced by a computer in
the course of its ordinary use
S.90A(2):this may be proved by tendering in
a certificate signed by the person
responsible for the operation of that
computer.
GNANASEGARAN v. PP [1997] 3 MLJ 1 :
Oral evidence by person in charge of
operations was sufficient to satisfy the
requirements of s.90A (2)

Document Produced By A Computer

Note : s.3 definition of document &
computer
Note : smartphone would fall w/I this def
Note : s.62
In Malaysia a wide interpretation has
been adopted and has been held to
include the following documents:
a . Bank statements (GNANASEGARAN
v. PP [1997] 3 MLJ 1)

 b. computerised bus tickets (Hanafi Mat

Hassan v PP [2006] 4 MLJ 134
c . DNA results (Ahmad Najib Aris v PP
[2009] 2 MLJ 613
d. CCTV recordings (Ahmad Najib Aris v
PP [2009] 2 MLJ 613
e. E- mail print outs (Petroliam Nasional
(PETRONAS) V. Khoo Nee Kiong [2003] 4
CLJ 303

 f. H/p call logs data (AZILAH HADRI & ANOR v. PP

2013] 7 CLJ 577,CA, PP V AZILAH HADRI & ANOR
[2015] 1 CLJ 579
Witness : Celcom Officer who prepared the
scripted logs data from raw data (computer print out
)
CA Held : s.90A(2) not satisfied as : We noted that
it was not the evidence of SP61 that he was the
person responsible for the management and
operation of that computer. What he said was:
Pada masa saya mencetak dokumen ini daripada
computer saya, computer saya tersebut adalah di
dalam berkeadaan baik dan di dalam perjalanan
fungsinya yang biasa begitu juga printer untuknya.

FC:
In this case, the call logs were produced by
computers in the course of their ordinary use by
the very makers, namely PW61, PW62 and PW63
hence dispensing with the requirements of
tendering to the court signed certificates that
they were responsible for the management of
the operation of the computers, or for the
conduct of the activities for which those
computers were used for. The need to adduce
the certificates as required by s. 90A(2) of the
Evidence Act 1950 had thus become redundant.

Note :
Is this too wide an interpretation??
Should the operation of s.90A be
confined to only computer print outs
where
the
document
contains
information processed and calculated
by the computer itself and not to any
document created using a computer
only as a processing tool for an
identifiable human maker of the
document.

 Examples :
DNA results , CCTV recordings , bank
statements , automatic bus tickets, parking
ticket , call logs from handphone etc
E- mails ,MMLS announcements , Bulletin
Boards, facebook postings,
WhatsApp
messages ,SMS, letters , contracts
created using a computer by an
identifiable human maker.

Res Gestae(RG)
What is RG??
statements which are part of the
same transaction as the fact in issue
spontaneous statements
excited utterance rule
instinctive reaction to the drama
unfolding
It is an exception to hearsay

 stop thief!!
get me the police!!
Your house is on fire!!

 Logic : no threat of fabrication or

concoction as it is a spontaneous and
instinctive reaction to an event.

Common Law

s.6

Common Law RG
BEDINGFIELD (1879)
Facts : Murder charge . Defence
claims it was a suicide .
Victims throat had been cut, she
rushed out of the room and said to
her aunt:
See what Harry has done to me

 Cockburn CJ : it is RG only if the

statement
is
made
contemporaneously with the fact in
issue.
On facts: not RG as not part of same
transaction. Statement was made
after it was all over.

 TEPER (1952) AC480

Your place burning and you are
going away from the fire
(26 minutes after the fire started)
Is it RG ??

RATTEN (1972)
Get me the Police(few minutes b4 attack)

Original Evidence

Implied Assertion
(Husband was attacking her)

The statement was sufficiently contemporaneous

to be RG
RG Test : facts are such that they exclude the
possibility of concoction or fabrication.

 R V ANDREWS (1987)
BEDINGFIELD overruled
Test : can the possibility of concoction and
distortion be disregarded.
Will consider the circumstances in which the
statement was made.
Was the event unusual/ dramatic as to
dominate the mind.
Need not be contemporaneous
(approximate)

Does common law RG apply in

Malaysia
YES
Note : Mohamed Allapitchay (1958)

S.6 & RG As An Exception To

Hearsay
S.6 seems to reflect the common law
principle of RG.
A. Paul suggests that s.6 is
an
exception to hearsay and that it is
the codification of the common law
RG principle.
End effect of this approach: Any
Evidence which falls w/i s.6 would fall
within RG and can be admitted as an
exception to hearsay.

Cases suggesting that s.6 is

RG
Chotka v State AIR 1958
KOK HO LENG V PP (1941)
LEONG HONG KHIE V PP (1986)
- applied the Ratten test in the
context of s.6 and rejected the
statement.

Arguments that s.6 is not RG as an

exception to hearsay
There is a misconception on what is
RG at common law .

 L. Wilberforce in Ratten:
RG can be used 3 ways :
a. assaults before the killing which are part
of the continuous orgy /act . (Original
evidence :HAMSA KUNJU: Buttrose.J)
b. spoken words which are not admitted to
show truth of contents(original evidence
:PP V SAM HONG CHOY (1996) /Ratten
c. hearsay statements by victim
/accused/bystanders : Teper

Which is wider ??

S.6RG
Chin Choy test as an exception
hearsay.

to

Andrews test
( can the possibility of concoction
and distortion be disregarded)

 HAMSA KUNJU: Buttrose.J

PP V SAM HONG CHOY (1996)

LEONG HONG KHIE V PP (1986)
BOOTA SINGH
TAN GEOK KWANG (1949) MLJ 203
Note : CHIN TET YUNG Relevancy ,Res Gestae
And Hearsay: A Malaysian Perspective [1987]
1 MLJ cxxix.

BANDAHALA UNDIK v. PP
Res gestae stands as an exception to the hearsay
rule Res gestae literally means things done. It
refers to all facts so connected with a fact in issue,
and are incidental to it. They are admissible as
truth of its contents although they may be hearsay.
The res gestae principle is embodied in sections 6
to 9 and 14 of the Act. The statement in order to
constitute res gestae can be made by the parties
to the transaction or even by bystanders.
However, the statement should have been made
at or about the same time the act was being done.
Contemporaneity or spontaneity must be shown
before the statement is made admissible

 The statements accompanying the act to be admissible

should as far as possible be contemporaneous to the
act in issue which it relates. Further, they should be
spontaneously made so that there is no opportunity for
fabrication. The whole purpose of the res gestae rules
is to admit evidence of matters which are usually
subject to some rule of exclusion, so as to enable the
court to look at the events in the proper perspective.
The leading cases which demonstrate the concept,
application and limitations are many. To name a few are
as follows: (i) Ratten v. R [1971] 3 All ER 801; (ii) Nye
and Loan [1977] 66 Cr App Rep 252; (iii) Teper v. R
[1952] 2 All ER 447.

 MOHD KHAYRY ISMAIL v. PP[2014] 1 LNS

412,CA
Tape recording evidence or CCTV recording,
etc. at common law will be admissible based
on 'res gestae' principles as truth of its
contents although they may be hearsay or
even self serving statement. Section 6 of EA
1950 and also other sections give statutory
recognition to 'res gestae' principle in the
widest form and is not restricted to the
common law parameters.

 The new amendments such as

section 90A do not displace common
law rules as to admissibility. That is
to say if the party cannot admit a
document in consequence of the
common law restriction then he may
get the document admitted under
any of the new provisions such as
section 90A, etc.