1) Section 6 of the Evidence Act 1957 incorporates the common law doctrine of res gestae. It allows facts that form part of the same transaction to be admitted as evidence, even if they occurred at different times and places. 2) For a fact to be considered part of the same transaction under Section 6, there must be (i) proximity of time, (ii) unity/proximity of place, and (iii) continuity of action/purpose. The time gap can be expanded to accept facts occurring over several days or months as long as these criteria are met. 3) Both acts and statements can be considered res gestae and admitted under Section 6. Statements of those present like bystanders

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Section 6
(Relevancy of facts forming part of same transaction)
I. ACTUAL PROVISION
“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.”
Note: The word “so connected” takde dalam seksyen lain & menunjukkan degree of
connection is hugh
II. SEC 6 IS THE INCORPORATION OF RES GASTAE IN EA 1957
A. THE CONCEPT OF RES GASTAE
1. The term res gestae
a) Literally means ‘things done’/ ‘part of the story’ / ‘pnumbra of
events surrounding the key facts in issue’.
b) It covers words or phrases so closely associated with an
occurrence that the words are considered part of the occurrence and as
such their report does not violate the hearsay rule.
B. THE POSITION OF RES GESTAE IN COMMON LAW
1. The common law position of res gestae is narrower and stricter.
2. Res gestae under common law allows only evidence that
a) absolutely contemporaneous with the facts in issue; or
b) closely associated with it in time, place and circumstances as
to be part of the thing done.

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C. THE POSITION OF RES GESTAE IN MALAYSIA
1. Although the Evidence Act does not mention the word res gestae, the
courts in Malaysia have applied this term and principle to our local cases.
2. The Common Law doctrine of res gestae is indirectly codified in
Section 6, 7, 8, 9, 14.
3. S. 6 admit those facts as res gestae, i.e. things done (including words
spoken) in the transaction.
D. COMPARISON BETWEEN THE POSITION OF RES GESTAE IN MALAYSIA AND
COMMON LAW
1. Occurrence of the facts
a) Under common law, before a fact is made admissible, it must
be shown that there must be elements of spontaneity or proximity or
contemporaneity. Unlike section 6, the fact need not prove those
elements but rather contemplates the possibility of the acts happening
at different times and places being connected with the fact in issue, so
as to form part of the same transaction.
b) To illustrate, under common law, in Ratten v The Queen,
Facts a women's voice was heard on the telephone 'Get me the police please' and gave the
address 59 Mitchell Street. Before the operator could make the connection to the
police the caller hung up. Shortly afterwards the caller was shot dead by her husband
who asserted that his gun went off accidentally while he was cleaning it.
Held the words were admissible as part of the res gestae. One of the basis allowing the
evidence to admitted was the statement made by the victim was made in spontaneity
and in close proximity to the crime, therefore no possibility for concoction and
fabrication.
c) However, in Hamsa Kunju v R (Malaysian Case)
Facts the appellant was convicted on three charges of causing hurt and grievous hurt. It was

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argued that the appellant that a threat made by him in the morning should not be made
admissible to prove the offence which occurred at night as evidence as it was alleged
to be prejudicial to the fair trial of the appellant.
Held
 If under the position of common law, this very evidence would likely to be
held inadmissible as there is a gap of time in between the making of the threat
and the occurrence of the offence, which would likely to diminish the element
of spontaneity nor proximity nor contemporaneity.
 Nonetheless, the court ruled that the threat in the morning formed part of the
same transaction as to the events at night hence admissible.
2. Rigidity
a) Doctrine of res gestae is governed under strict surveillance in
common law to uphold the originality of the evidence - preventing
concoction and fabrication. Differ with section 6, whereby which is
more wider in its wording and application.
b) In R v Mead (common law case)
it is said that the proof of dying declaration as these is confined to
homicide cases only; and the subject of the dying declaration must be
in the immediate circumstances of the cause of death. It can be seen
that the English Law is very reluctant to allow hearsay evidence to be
proved and those evidences must fulfilled the governing criteria.
c) In comparison to section 6 which is more flexible, in Jaffar
bin Hussain v PP,
Facts the appellant was charged with two offences, firstly with carrying a shot gun and
second, being a hand-grenade. At the trial, the learned trial judge directed that the
trial should proceed won the second charge only. During the trial on the second
charge, evidence given was based on the fact that the appellant was carrying a gun.
The appellant was convicted. On appeal, it was argued that the evidence regards to
appellant carrying a gun should not have been admitted, because the second charge

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was relating to hand-grenade
Held However the court stated that the evidence was rightly admitted in this case as the
facts of carrying arm and ammunition is so connected together as to form one
transaction, hence the evidence must be stayed admissible.
3. Refer illustrations:
Illus. Content
(a) A is accused of waging war against the Yang di-Pertuan Agong by taking part in an
armed insurrection in which property is destroyed, troops are attacked and gaols are
broken open. The occurrence of these facts is relevant as forming part of the general
transaction, though A may not have been present at all of them.
(b) illustrates that the accused was not even present at the time or place when the
events occurred. It only requires that the events are so connected as to form part of
the same transaction. There is no necessity that the same transaction is based on
proximity of time, unity or place. Perhaps the only similarity is the requirement of
the community of purpose or design. Under s. 6, unity of time or place is of no
importance.
4. Simpler comparison
Factor Common Law Evidence Act
Time/ Place Same Same/ different
Kejadian fakta Sebelum & semasa Shortly before, semasa, shorty after
Jenis keterangan Tindakan (act) Tindakan & kenyataan (act & statement)

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III. HOW TO BE RELEVANT UNDER S. 6?
A. 3 CONJUNCTIVE ELEMENETS AS HELD IN THE CASE OF AMRITA LAL HAZRA
V EMPEROR1
1. Proximity of time (kedekatan masa)
a) There are several views regarding proximity of time.
b) View 1 : Hamsa Kunju v R
Facts there was a fight between the accused and one Simpson. The complainant called
out that it was not right for the accused to hit Simpson. The accused then
challenged the complainant for a fight. The complainant refused, saying that he
came only to work. He said he would report the matter to his superior. Later at
night the complainant was attacked.
Held the events in the morning being the motive for the attack late in the evening, and
that it was admitted as evidence as part of res gestae
c) View 2 : Tan and Leong v PP
Facts evidence which spans a period of 4 days cannot be admitted as part of res
gestae. In this case, the foundation was based on the oral evidence of PW1 on
statements allegedly made by informers of there separate days.
Held The Federal Court looked at the conclusion of the lower court judge on the
informers statements which the judge stated to form part of the transaction
leading to the act of trafficking in dangerous drugs. Seah FJ stated that there is
no authority to admit evidence that spanned over a period of several days to be
admitted as res gestae.
He relied on Lord Wilberforce statement in Ratten v R:
Conversely, if he (trial judge) considers that the statement was made by way of
narrative of a detached prior event so that the speaker was so disengaged from
it as to be able to construct or adapt his account, he should exclude it. And the
same must in principle be of statements made before the event.
1 Federal Court of Malaysia in the case of Thavanathan a/l Balasuubramaniam v PP approved that we follow
Amrita’s case

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d) Tan Geok Kwang v PP [1949] follow view 2 (refer no. 2):
Facts The appellant was charged with being possession of a revolver. At the trial,
evidence was led (semua evidence ni keputusannya lain2
Held Evidence Admissibility
1. To show that a hand grenade has been
thrown from a belukar into which the
appellant had run and in which no
other person was found by the police
admitted under section 6 as res
gastae because the group of facts
forming this transaction was so
connected that the exclusion of this
evidence would render other facts
become unintelligible.
2. A revolver was found on the place
where the appellant was found lying
earlier. It was admitted as evidence
that it was the same revolver that was
fired 3 days earlier, 4 miles away
from the place of arrest.
Not admitted as it that the
appellant was guilty of another
offence, namely, the possession
and using the same revolver 3
days previously
3. To show the content of documents
found in the possession of the
appellant
not admitted as it tended to show
that the appellant has a bad
character and to show that he had
been guilty of other criminal
offences not contained in the charge
Note The charge was being in possession of a revolver and the evidence of a hand
grenade arguably may not be relevant as to the charge but the court admitted
the evidence under section 6
e) Current position in Malaaysia : Thavanathan a/l
Balasubramaniam v PP
(1) 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.

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(2) Nevertheless, some requirements must be complied
with before it is admits in court. It is such ; 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.
2. Unity / proximity of place
3. Continuity2 of action and purpose @ same transaction
a) In PP v Ahmad bin Ibrahim 2011: a transaction may
constitute
(1) a single incident occupying a few moments or
(2) it may be spread over a variety of acts, declarations,
occupying a much longer time and occurring on different
occasions.
b) case : Ratten v the queen [1971]
Facts Isteri mati – suami ditangkap lepas polis terima panggilan daripada operator
yang menerima panggilan daripada seorang wanita mengatakan “get me
police” dengan nada suara yang tergesa-gesa, panik dan ketakutan- panggilan
terputus- suami (the accused) kata dia tertembak isteri masa dia sedang
membersihkan senapang
Prosecution’s
case
Call the operator as a witness, the operator’s statement is hearsay evidence
sbb dia dengar nada suara perempuan tu masa buat panggilan tu
Held Mahkamah terima the operator’s statement under principle of res gastae sbb
fakta nada suara perempuan tu sangat berkaitan dan forming the same
transaction yang menyumbang kepada kejadian bunuh tu
2 kesinambungan

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B. FORM OF EVIDENCE THAT CAN BE CONSIDERED AS RES GASTEAN &
RELEVANT UNDER SEC 6
1. Act as res gastae
2. Statement as res gastae
C. ACT AS RES GASTAE
1. Example : Jaafar Hussain v PP (follow kes Amrita)
Facts  The accused was charged of two offences, carrying a gun and a hand-grenade at
the same time and place.
 At the trial the judge directed that the accused be charged of carrying a hand--
grenade only.
 Evidence that the accused was carrying a gun was admitted during the trial.
This was objected on appeal.
Held  the evidence was rightly admitted as both the facts are so closely connected
together so as to form on transaction.
 If one act forms a part of the same transaction with another act that is in issue,
then the former is admissible even if it discloses that the accused is guilty of
another offence.
2. In Tan Geok Kwang v PP, it reflects that the common law doctrine of
res gestae has influence in the application of s. 6.
Facts police acting on went to a squatter areas - they saw a Chinese man running
away and refused to stop when ordered to – he was fired onto and he was
wounded and he hid in the blukar. The blukar was surrounded. Suddenly a hand
grenade was thrown to the police from the blukar but it did not explode. After
conducting a search the police found the accused lying wounded in a ditch and
nothing incriminating was found on him (at that moment). The prosecution
tendered evidence to show that the accused threw the grenade; and this was
objected by his counsel.
Held The court accepted the throwing of the grenade as admissible evidence as it is

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res gestae and it forms part of the transaction the exclusion of the evidence
would render the whole evidence meaningless.
William CJ:
The group of facts forming this transaction are so connected that the exclusion of
the evidence relating to the hand-grenade would tend to render the evidence as to
the other facts unintelligible.
D. STATEMENT AS RES GASTAE
1. Concept: Statement made out in court when tendered in evidence is
usually caught in the hearsay rule. By applying res gestae, it allows for
admission in evidence of otherwise inadmissible evidence.
2. Teper v Reginam [1952] , court held that :
a) hearsay evidence (keterangan dengar cakap) not the best
evidence and not delivered on oath so kalau nak terima masuk hearsay
evidence ni mmg kena careful
b) The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross examination,
and the light which his demeanor would throw on his testimony is lost.
c) Nevertheless, the rule admits of certain carefully safeguarded
and limited exceptions, one of which is that words may be proved
when they form part of the res gestae.
3. Ratten v Regina [1971], court held that :
a) hearsay evidence may be admitted if the statement providing it
is made in such conditions (always being those of approximate but not
exact contemporaneity) of involvement or pressure as to exclude the
possibility of concoction or distortion to the advantage of the maker or
the disadvantage of the accused

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4. Illustration (a): “A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the bystanders at the beating or so
shortly before or after it as to form part of the transaction is a relevant fact.”
a) The statement in above illustration is relevant only if it is from
the person who has seen the actual occurrence and who uttered it
simultaneously with the incident or so soon thereafter as to make it
reasonably certain that the speaker is still under the stress of the
excitement caused by his having seen the incident.
b) This is similar to the common law position where there is
contemporeneity and spontaneous statement relevant to the sate of
mind and emotion.
5. The word bystander in illustration a)
a) In the case of Nasir Din v Emperor, the court held
“bystander” means the persons who are present at the time of the
beating and not the persons who gather on the spot after the beating
b) BUT this case was criticized because in Section 6, it was stated
“at the time same/ different time/ place” and in illustration (a) stated
“ shortly before/after” , so it means, bystander shall be defined wider
instead of confining to who are present at the time sahaja.
c) The remark made by the persons other than the eye-witnesses
would only be hearsay, because they must have picked up the news
from others.
d) In order to make the statement of a bystander admissible in
evidence as a part of res gestae it must have been made as
contemplated by s. 6 and illus. a) to it at the time the transaction was
taking place or so shortly before or after it as to form part of the
transaction. If the transaction has ended and then the statement is
made, the statement is irrelevant.

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6. Malaysian Cases
Sawaldas v
The State
of Bihar
a husband, his father and mother were prosecuted for the murder of his wife.
The facts showed that the wife cried out for help as soon as she was pushed
into the room. He children who were playing outside in the verandah
exclaimed at the same time that their mother was being killed. The
exclamation of the children were received through the evidence of persons
who heard them.
Kok Ho
Leng v PP
The court even went further to liberalize res gestae as in this case, where a
telephone message to the premises during the raid was admissible in
evidence. Murray-Ansly linked it to the shouting by the bystander.
IV. CURRENT ISSUE
A. WHETHER OR NOT CCTV/ TAPE RECORDING CAN BE ADMITTED AS EVIDENCE
AS PART OF RES GASTAE?
1. Concept : CCTV and tape recording records everything so by right, it
should be admitted as it so closely connected with the other facts
2. Landmark case : Mohd Khairy bin Ismail v PP (2013)
Facts Defence counsel argued no certificate tendered under Section 90A of EA to make
the CCTV admissible
Held Although the CCTV is not certified but it stil admissible because:
 Admissible based on res gastae principles as truth of its contents although
they may be hearsay or even self serving statement
 Based on jurisprudence relating to its (cctv) admissibility, document under
Section 3 includes any matter expressed by any means that intended to be
used for the purpose of recording that matter
B. BUT ONE ISSUE PREVAILS, CAN CCTY ACCEPTED AS BYSTANDER ?
1. Dr rama: CCTV is documentary evidence not human so by right c leh
terima under s. 6 sbb s. 6 hanya terima act and statement