Res Gestae - Section 6 of Evidence Act

Res Gestae which literally means ‘thing done’ is another exception to the rule against hearsay. This rule is governed by Section 6 of Malaysian Evidence Act.

The section reads:

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 time and place.

Although nowhere in this particular provision the term ‘Res Gestae’ was mentioned, it nevertheless embodies the exception. One case which treated Section 6 similar to the rule of Res Gestae is the case of Kok Hong Leng .Technically, Res Gestae denotes part of transaction, particularly surrounding and accompanying circumstances which could not be separated in order to see a case in totality.The term ‘transaction’ was defined in the case of Thavanathan a/l Subramaniam v PP, as per Chong Siew Fai CJ who referred to the definition given by Sir James Stephen 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’Regarding the application of Section 6, the wording of the provision per se denotes a liberal and flexible approach whereby the requirement for the facts to fall within the ambit of Res Gestae is not limited to similarity in time and place as the facts can occur separately. Over the years, several developments focusing on the length of the transaction was seen to be adopted by Malaysian court.

The earlier case of Tan Geok Kwang v Public Prosecutor (1949) 15 MLJ showed a short time span where the facts occurred to be regarded as a same transaction. In this case the appellant was charged with possession of a revolver. During the trial, the evidence adduced to show that first, a hand grenade had been thrown from a bushes where the appellant was found, secondly the revolver found had been fired a few days previously at Sungai Bakap and thirdly to show the content of the documents found in possession of the appellant. Accordingly the court rejected the second evidence based on its prejudicial effect to rely on the facts which happened three days before the arrest and the third one upon its facet of bad character evidence. The first evidence pertaining to the hand-grenade was accepted under the notion of Res Gestae for the existence of a direct connection between the wounded chinese who entered the blukar, throwing of the hand-grenade and the arrest of the wounded appellant in the blukar.

As per William C.J ,

‘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’.Comparing this case whereby the arrest took place in one night, a longer time span was seen to be accepted in the case of Hamsa Kunju where Singapore Court took a liberal interpretation by accepting facts in transaction which occurred within a period of six hours from morning to evening. In this case there was a quarrel on a building site which involves the appellant. He then started a fight and quarreling with Simpson and they was interfered by Samsudin who asked them to bring the matter to Union of Workers. In the evening, the appellant picked a fight with both Simpson and Samsudin thus was charged with fighting. The court in this case held that the evidence from morning to evening was relevant as part of one transaction which is a longer time period.

The latter case of Leong Hong Khie v PP [1986] 2 MLJ emphasize on the principle that the rule must be applied strictly to prevent concoction and fabrication due to interval in time. In this case the appellant was charged with trafficking in a dangerous drug. The principal evidence adduced by the prosecution was given by a Senior Custom Officer who stated that he acted on information from informers whom were not call to testify. The Federal Court in this case was not willing to open the case to span over the period of several days. The court stated that in order for the evidence to be admissible within the exception, it must be spontaneous or at least of approximate contemporaneity. The attempt of the prosecution to rely on the case ofSubramaniam v PP [1956] MLJ was unsuccessful as it failed to satisfy the test whereby for the exception to apply, the statement must be directly relevant in considering the state of mind of the witness to whom it has been made. Since the issue of witness’s state of mind is not an issue in this case, the statement by the Senior Custom Officer was held to be inadmissible as it was caught by the rule against hearsay. Both appellant in this case were discharged and acquitted.

Nonetheless, the court in Singapore has a flexible approach in term of time interval through the decision in the case of Don Propohinit v PP (1994) 5 SLR. The court allows a longer period of time whereby in this case the drug trafficking transaction took 3 months. The evidence adduced regarding a series of negotiation were so connected as part of the same transaction thus admissible under Section 6.

The Malaysian case which seems to follow this flexibility is the case ofThavanathan a/l Balasubramaniam v Public Prosecutor (1997) 2 MLJ. In this case the appellant who was a magistrate was charged for corruptly accepting himself a sum of RM 15,000 under s 4(a) of the Prevention of Corruption Act 1961.The fact shows that on September the appellant told his court interpreter to negotiate a deal to discharge the complainant from a case under Common Gaming Houses Act 1953 if the latter agree to pay him RM15,000.The court interpreter and the complainant’s representative met and negotiate on October at a hotel with the presence of the appellant. However, the negotiation to reduce the amount failed thus the complainant report the matter to the witness from Anti-Corruption Agency. On November, the appellant was arrested by two ACA officers where the money was in his chamber. The Federal Court held that all the facts form the same transaction by virtue of Section 6, 7 (occasion, cause, effect), 9 (facts necessary to introduce facts in issue), including Section 8 on the conduct of the appellant during the negotiation as he was seen smiling and nodding when his name was mentioned. Even though the court seems to be expanding the length of time by accepting the facts which occur from September to November as part of the same transaction, nevertheless some requirements must be complied with namely such facts must be connected by factors depending on the circumstances which consist of proximity of time, proximity or unity of place, continuity of action, and community of purpose or design. On this basis, the court affirmed the order of conviction.

In conclusion, Malaysian court in applying Section 6 has moved from strict interpretation which limit the aspect of length of time to flexible approach that allows expansion of time for a transaction provided that certain requirements are followed in order to avoid fabrication and concoction upon the evidence adduced.