Whither, hither and thither, Res Gestae? A comparative analysis of its relevance and application

AuthorEdwin Teong Ying Keat
Published date01 October 2021
Date01 October 2021
Subject MatterArticles
Whither, hither and thither, Res
Gestae? A comparative analysis
of its relevance and application
Edwin Teong Ying Keat
Faculty of Social Sciences and Law, University of Bristol, Bristol, UK
In Singapore, the common law doctrine of res gestae (RG) risks becoming extinct given the
statutory inclusions of hearsay evidence. Further, the test for RG is unsettled. This article thus
argues that RG is still relevant but must be applied principally. It is relevant because rst, it is
unwise to uproot a doctrine existing since 1808. Second, comparative analysis of cases from
United Kingdom, India, New Zealand and Australia evinces the residual need for RG. Third,
a modied approach to applying it can in fact exclude inadmissible evidence. This article further
proposes a three-strand test. First, as a preliminary requirement, objectively, there was no
concoction involved. Second, the evidence must relate to a fact-forming part of the same trans-
action but was not contemplated in s. 32(1) of the Evidence Act. Third, the evidence must have
sufcient probative value to outweigh its prejudicial effect.
In law especially, where until modern times conscious making of much that was new was quite unthinkable,
nothing is made at once, as it were, out of whole cloth.
Roscoe Pound (1921)
The rst trace of res gestae (RG) being applied in the law of evidence was in 1808, in America.
RG is
Latin, denoting things donein connection with words and/or actions that occur in close time and sub-
stance to each other such that they form part of the same transaction (Morgan, 1937: 93). Since 1808, the
common law doctrine has evolved. Yet today, the state of RG and its application in common law is
Corresponding author:
Edwin Teong Ying Keat, Faculty of Social Sciences and Law, University of Bristol, Wills Memorial Building, Queens Road, Clifton,
Avon, Bristol BS8 1RJ, UK.
Email: edwinteongyingkeat@gmail.com
1. Bartlett vDelprat 4 Mass. 702 (1808); see also Barnes (1891: 3); Blair (2013: 349, footnote 4).
Original Research Article
The International Journal of
Evidence & Proof
2021, Vol. 25(4) 326349
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/13657127211036168
unsettled, with some calling to abolish it (Blair, 2013: 356). In Singapore, the state of the common law
doctrine of RGits relevance and applicationis unclear for three reasons.
First, the amendments to s. 32(1) of the Evidence Act in 2012, intended to add exibility to established
statutory hearsay exceptions,
meant that the relevance of RG became less clear. While the application of
RG is disjunctive to s. 32(1) exceptions, the courts may opt to admit evidence under these exceptions
instead of under RG. With a wide variety of statutory gateways under s. 32(1), the possibility of RG
being invoked is lower. Second, s. 6 is arguably the statutory equivalent of RG, where facts of the
same transaction are deemed admissible.
This further impedes development of the common law doctrine
of RG. Third, valid academic criticisms of the application of RG in case law, without subsequent cases
addressing the same, have muddled the lines further. Therefore, this article, inter alia, examines:
(a) through historical analysis, the doctrinal roots of RG;
(b) modern-day application of RG in Singapore;
(c) the bases for and against retaining RG as a residual test by drawing on cases from jurisdictions
including Singapore, United Kingdom, India, America, New Zealand and Australia;
(d) a proposed common law test to weed out uncertainty; and
(e) potential criticisms of the proposed common law test, before addressing them.
Each aspect will be examined seriatim in each of this articlesve parts.
Historical development of RG
Edmund Morgan, then Dean of Harvard Law School in 1937, started his article on RG by observing that
a multitude of cases creates chaos in this subject.
Looking further back, in 1891, Albert Sullard Barnes, in examining the origins of RG, commented in
his introduction that while the fundamental basis of RG as a principle in Evidence Law is uniformly
agreedupon, its application is so varied, judgments so conicting, that any attempt at synthesis
seems hopeless(Barnes, 1891: 1).
Evidently, synthesising both sources, it is clear that the basis for RG was never in issue, but its application
was, and still is now. It is through this lens that we explore the early application of RG, for the purpose of
demonstrating that it is the application of RG that has always been the issue, not its doctrinal underpinnings.
Application of RG in the 18th to 20th century. The rst time the term RG was discovered was in an
English trial for treason in 1794.
The term was used in a legal discussion by the counsel representing
the English government. It was used in relation to the admissibility of a letter which the defence
claimed stated reasons for declining certain propositions why certain proposals made by one
society was not accepted by the other.
Indeed, in the 18th century, in America, RG was invoked to
admit evidence that pertained to facts relating to the same transaction. As a preliminary point, Barnes
observes that the lawyers did not stop to analyse closely how RG was applied (Barnes, 1891: 5). It is
thus ironic that an observation made in 1891 is still apposite todaythat the application of RG is not
receiving the judicial scrutiny and attention it deserves.
2. Columbia Asia Health Care Sdn Bhd vHong Hin Kit Edward [2016] 5 SLR 735 at [14]; see also Siyuan (2013: 265); Chin (2014:
para. 3).
3. Section6, Evidence Act (ch. 185).
4. Morgan (1937: 91); see also Bolen (1903: 187); Catterall (1935: 725); Indiana Law Journal (1930: 527)—‘it has been said that
each case involving the question of res gestae must be determined in light of its own facts, because varying conditions alter the
application of the rule so materially.
5. 25 Howells State Trials, 444 (1794); see also Barnes (1891: 2).
6. 25 Howells State Trials, 444 (1794).
Teong Ying Keat 327

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