Res Gestae in Malaysia

"Res Gestae" is a Latin phrase which means 'a fact' or 'an event', but the literal meaning is 'the thing done'. This term is used in various senses in the law of evidence but is focused to justify or explain the admission of the use in certain circumstances of words, which might otherwise be inadmissible. The words are said to be admissible when they are accompanying a relevant fact or a fact in issue.

 In order for a declaration to be admitted as res gestae, these elements must be fulfilled;
 1. The words used must explain “or qualify”
 2. The statements must have been made contemporaneously with the act, i.e, made either during or immediately before or after its occurrence, but not at intervals to allow such fabrication

 Section 6 of the Malaysian Evidence Act 1950 is said to have incorporated the common law principles of res gestae. Under this section, in order for a hearsay statement to be admissible as substantive evidence of the truth of the facts stated therein, must be ‘part of the transaction’ and not merely uttered in the course of the transaction. A transaction is a group of facts connected together as to be referable by a single name, as a contract, a crime or any other object of inquiry which may have be in issue. A statement does not amount to be a part of transaction when it amounts to a mere narration of past events. Therefore, a statement concerning a murder, made by a alleged by-stander on the morning following the night on which the murder was committed is irrelevant.



 The rule to admissibility of evidence as res gestae is embodied and illustrated in Section 6,7,8,9 and 14 of the Act. As a result, occasion, cause, effect, motive, preparation, conduct, explanatory or introductory facts constitute the various modes in which facts form part of res gestae. The discussion here is however confined to the ‘incorporation’ of the doctrine under Section 6 of the Act. The provision in section 6 of the Malaysian act and its application in common law have some significant differences. The common law doctrine only admits evidence which, if not contemporaneously 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 case Andrews made the requirements 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. Section 6 of the Malaysian Act provides otherwise, and is of a more liberal approach. ‘Facts though not in issue, are so connected with a fact in issue a 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 wordings that are used does not seem to insist on the contemporaneity or close association with regard to the time and place. It is clearly seen that Section 6 seeks a more liberal approach. The section only requires that the events were so connected as to form part of the transaction, and does not need the proximity of time, place or continuity of action.

 Decided cases have shown that the following criteria must be fulfilled before a statement can be admitted into evidence under Section 6.
 1. Statement must explain or characterize the incident in some manner
 2. Statement must be spontaneous or contemporaneous, not a mere narrative of a past event
 3. Statement must be of fact, not opinion
 4. Statement must have been made either by a participant in a transaction or by a person who has witnessed the transaction
 5. The statement made by a bystander would only be relevant if it is shown that he was present at the time of happening of the event and has witnessed the same

 In Kok Ho Leng v Public Prosecutor, a telephone message received on the premises during a raid under the Betting Enactment was admitted as res gestae. Murray-Aynsley J observed:

 "I personally am inclined that it is admissible under two sections, 6 and 7. Section 6, which is the section which deals with what are known as res gestae in England. I think that telephone message has some analogy to the shouting of the by-standers; further in view of the cutting of the wire, I think that the telephone message may be relevant under section7. It must be emphasized that if not for the doctrine of res gestae, this telephone call would be hearsay and would thus be excluded as evidence."

 It is said that section 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 section 6 which seems to have adopted the more liberal approach.

Put in a nutshell, the recent application of res gestae in Malaysia is 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 spontaneity made,
 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 a part of res gestae because of its relevance via spontaneity and contemporaneity where the “possibility of concoction can be disregarded”. Being relevant per se may not be sufficient to be admissible. Where there is conflict of res gestae and bad character evidence, the statement may be excluded as irrelevant, hearsay, opinion and tending merely to show bad disposition.