What is res gestae under section 6?

Section 6 relates to the rule of evidence commonly referred to as res gestae. What is res gestae? Res gestae is a Latin word mean things done or things transacted. It is a common law doctrine governing testimony. Further it defines as the events, circumstances, remarks and so forth, which relate to a particular case, especially as constituting admissible evidence in a court of law.

Section 6 of Evidence Act 1950 provides that:

Relevancy of facts forming part of same transactions

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.

Following to provision given, this section indicates that facts though not in issue but are so connected to a fact in issue as to form part of the same transaction are admitted because they form part of res gestae. The rationale of the rule is that it admits in evidence a fact which is not in issue because it is so connected with the fact in issue that its admission helps to show the character of the fact. What happen if the rule is exclude or not accepted from being part of the evidence? Exclusion of it would tend to render evidence as to other facts unintelligible.

Section 6 applies to both criminal and civil proceedings. Where the statement sought to be admitted does not satisfy the requirements of the section it is rejected as hearsay. Take note that hearsay is inadmissible in evidence per se but section 6 is an exception to the rule.

Bear in mind too what is admissible in this section are facts which are connected with the fact in issue as “part of transaction” under investigation. In order that different acts may constitute the same transaction, they must be connected by proximity of time, place, continuity of action and community of purpose and design. Whether the connection is sufficient to make a fact/facts part of the transaction or is too remote must always depend on the circumstances of the case.

When section 6 is use, it must be read together with Section 7, 8 and 9.  Why? Because these section deal with facts and conduct which are specifically connected with facts in issue. In the book of The Indian Evidence Act by Sir James Stephen, regarding on this, he wrote that they have been described as intended ‘to enumerate specifically the different instances of the connection between cause and effect which occur most frequently in judicial proceedings’.

In the case of Chhotka v State of AIR, per Mookerjee J:

Section 6 of the Evidence Act and the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. Acts or declarations accompanying or explaining the transaction or the facts in issue are treated as part of the res gestae and admitted as evidence. They are, roughly speaking, exceptions to the hearsay rule.

The obvious ground of admission of such evidence as is referred to in section 6 is the spontaneity and immediacy of the act or declaration in question. The facts deposed to must form part of the transaction. The requirement is that the statement sought to be admitted must have been made contemporaneously with the act or immediately after it and not such an interval of time from it as to allow fabrication or to reduce the statement to a mere narrative of past events.

Application of section 6 and the doctrine of res gestae in Malaysia position, it is seen now we have already moved from strict interpretation as how in the case of Tan Geok Kwang v Public Prosecutor, which limit the aspect of length of time to flexible approach that allows expansion of time such in the case of Thavanathan a/l Balasubramaniam v Public Prosecutor, for a transaction. Take note that it is provided that certain requirements are followed in order to avoid fabrication and concoction upon the evidence adduced.

Old position in Tan Geok Kwang v Public Prosecutor, it was held that a short time span where the facts occurred is regarded as a same transaction. In this case the appellant was charged with possession of a revolver. During the trial, the evidence adduced was that, first, a hand grenade had been thrown from a bushes where the appellant was found, second, the revolver found had been fired a few days previously at Sungai Bakap and third, 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 belukar, throwing of the hand-grenade and the arrest of the wounded appellant in the belukar.

Whilst in Thavanathan a/l Balasubramaniam v Public Prosecutor, 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 before it is admits in court. It is 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, section 6 of Malaysian Evidence Act can be said as Res Gestae but the application of it is differed from the common law context and it shall change from time to time according to the circumstances of the facts of the case the court will face in the future.

Written By
Norida