The general principle is that hearsay evidence are not admissible in court. It's because we cannot test the truthfulness of the words spoken by the witness by cross-examination. However, there are exception to this known as res gestae principle.

So what is this res gestae all about?

Res gestae is a Latin word which literally mean things done. It originated from common law. 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. Read more here -

Res gestae can be divided into two kinds which is acts or statements forming res gestae. My focus here will be on statements made as part of res gestae only.

COMMON LAW POSITION:

The common law position of res gestae is more narrow and strict. Res gestae in common law only allow evidence if not absolutely contemporaneous with the action or event in issue; it must be so closely associated with it in time, place and circumstances as to be part of thing done. 


Referring to the first case - Ratten v Regina, court held that:

"There was ample evidence of the close and INTIMATE CONNECTION between the statement ascribed to the deceased and the shooting which occurred very shortly afterwards. They were closely associated in place and in time. 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 deceased by an overwhelming pressure of contemporary event. It carried its own stamp of spontaneity and this was endorsed by the proved time sequence and the proved proximity of the deceased to the appellant with his gun. Even on the assumption that there was an element of hearsay in the words used, they were safely admitted."

HOWEVER, in Teper v R -    There was a charge of arson and the Crown wanted to lead evidence involving a police officer recounting an out of court assertion by another person. It was sought to be proved by the out of court statement that the other person had said to Teper that his place was on fire and he was rushing away – inviting the inference that Teper had set the fire.


Lord Normand at p 486 stated:

“The rules against the admission of hearsay evidence is fundamental.  It is not the best evidence and it is not delivered on oath.  The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost."

MALAYSIA

So how does this res gestae principle apply in Malaysia when no mention of the word can be found in Evidence Act 1950?? The Common Law doctrine of res gestae is codified in Section 6. S. 6 admit those facts as res gestae, i.e. things done (including words spoken) in the transaction. Section 6 ought to be read together with section 7, 8 and 9.

Section 6 of Evidence Act 1950 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."

In order that different acts may constitute the same transaction, they must be connected:
i. by proximity of time
ii. unity or proximity of place
iii. continuity of action and continuity of purpose or design.

For hearsay to be admissible as res gestae in Malaysia, it need to be relevant fact and fulfill the criteria  in section 32 of Evidence Act 1950. Besides, if the hearsay is prejudicial to the accused like in Teper v R, thus hearsay is not admissible. 

In my opinion, indeed hearsay can be admitted in exceptional circumstances depending on the facts of the case.  Although we adopt a wider view on res gestae compared to common law, but this doctrine ought to be accepted with caution. Hearsay is relevant evidence indeed but not all hearsay can be admitted under this doctrine of res gestae especially if it prejudice the accused. Nonetheless, this doctrine does benefit us as to corroborate other evidence in that particular case. Thus, judge ought to know when to admit hearsay as res gestae in court.