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.
__LetHimHaveIt(teaser)1.jpg)
Derek William Bentley (30 June
1933 – 28 January 1953) was a British teenager hanged for the murder of a
police officer, committed in the course of a burglary attempt. The murder of
the police officer was committed by a friend and accomplice of Bentley's,
Christopher Craig, then aged 16. Bentley was convicted as a party to the
murder, by the English law principle of common criminal purpose "joint
enterprise". The judge in court sentenced Bentley to death based on an
interpretation of the phrase "Let him have it" (Bentley's alleged
instruction to Craig), describing Bentley as "mentally aiding the murder
of Police Constable Sidney Miles".
‘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.
