Res gestae

Res gestae describes a common-law doctrine governing testimony. Under the Hearsay rule, a court normally refuses to admit as evidence statements that a witness says he or she heard another person say. The doctrine of res gestae provided an exception to this rule. 

In Malaysia there are actually some people confuse about S6 Evidence Act 1950 with the Res Gestae. Some cases do actually show that S6 has incorporated the principle of Res Gestae. However from the illustration of S6 of evidence act do show that S6 is much more wider than the principle res gestae. This is because to apply the principle of res gestae, there must be actions can be constituted as a transaction. In the case of Amrita Lal Hasra, in order to consider what is included in a transaction, 4 criterias must be taken into consideration, they are: (a) proximity of place, (b) proximity of time (c) continuation of action (d) communication of purpose and design. It is very clear that S6 of evidence act does not depend on these 4 criterias. 

Difference between S6 and Res Gestae

Bear in mind that S6 does not include hearsay evidence but Res Gestae does. So in order to render the hearsay evidence admissible under the evidence law, the principle of res gestae apply. Normally, the court refuse to render hearsay evidence admissible this is because the maker of the statement must be called to the court to give their statements. To render a hearsay evidence admissible under res gestae, the case of R v Andrew must be referred. In that case, the court held that to admit a hearsay evidence, there must be no error, the person (who give the statement) must be dominated by the event happen. 

Res Gestae and S32

S32 of evidence act 1950 is talking about the dying declaration. Dying declaration is a hearsay evidence. For example, A before dying tell B that C has killed A. Then B bring this statement to court. This evidence is admissible under the principle of res gestae provided the criterias in the case of R v Andrew are fulfilled. S32 is also an exception to hearsay evidence.

Best Evidence Rule In Malaysia

Best evidence rule means that if there are two ways of proving a matter and one method is more cogent than the other the more cogent method must be adopted. Circumstantial evidence is not to be adduced if there is direct evidence available. Evidence to show that a party consented to a particular matter should not be given by others if the party himself can be called as a witness.

Does Malaysia apply best evidence rule? Before knowing the answer let we see a brief history of best evidence rule. Its beginnings manifested itself around the years 1699-1700 when Holt CJ in Ford v. Hopkins in allowing a goldsmith’s note as evidence against a stranger of the fact that the goldsmith had received money, said that the Court must take notice of the usage of the trade; that "the best proof that the nature of the thing, will afford is only required". Of course we can't ignore a famous landmark case named Omnychund v Barker, the Judges and sages of the law have laid it down that there is but one general rule of evidence; the best that the nature of the case will allow.

Some how later, in the case of  Garton v. Hunter Lord Denning MR said that:

That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in one’s hand, one must produce it. One cannot give secondary evidence by producing a copy. Nowadays we cannot confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. It changes the best evidence rule. It brings out a scenario that if one have the original copy of evidence, one must produce it but not a photocopy of it. However, if one only have the photocopy of the evidence, the court still render it as admissible but the weight of the evidence will be decided by the court.

In Kajala v. Noble the defendant was charged with using threatening behaviour likely to cause a breach of the peace, in a serious disturbance in a public street during which a large group of mainly Asian youths hurled missiles at the police. A prosecution witness had identified the defendant as one of those youths. He had recognised him on a BBC news item about the incident. The prosecution had relied on a video cassette recording, which the Court was satisfied was an authentic copy of the original. On appeal against his conviction on the ground inter alia that only the copy of the video film was produced when the original film which existed should have been produced, and that the prosecution were not entitled to rely upon a copy, since it was secondary evidence, the production of which could not be justified under those circumstances, Ackner LJ said:

We cannot agree. The old rule that the party must produce the best evidence that the nature of the case will allow and that any less good evidence is to be excluded, had gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hands one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. The old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films.

How about position of Best Evidence rule in Malaysia?

In Malaysia How Chien v. PP was one of the earliest cases in which the best evidence rule was invoked. In that case Mills J in quashing the appellant’s conviction for smuggling forty packets of cigarettes, for want of the evidence of the smuggled objects themselves stated "I rule that ordinarily prosecuting officers should produce before the Court such real evidence as circumstances reasonably permit; if it is not reasonably practicable to produce the material thing itself they should produce a portion of it, or a sample of it or a photograph, or a sketch or some other evidence which may supply the Court with the best evidence reasonably obtained under the circumstances." To support his decision he cited the ruling of an English Judge that "it is clear to everybody that if justice is to be administered, the greatest precautions must be taken to see that the best evidence available is presented to the Court.

It is clearly shows that Malaysia has applied the Best evidence rule. Look at S65 of Evidence Act 1950. 

In conclusion, Malaysia has applied the principle of best evidence rule but if best evidence is not available, the courts still admit all relevant evidence then only decide the weight.

S15 Evidence Act 1950 Similar fact evidence

The similar fact evidence

For similar fact evidence, we shall refer to the landmark case Makin v. Attorney General for New South Wales [1894] AC 57. The brief fact of this case is A husband and wife were charged with murdering a child they were fostering and burying it in their backyard. During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence. The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence. Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.'It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other'. In short, evidence of similar fact only could be admitted when it is not merely relevant and probative, In R v Smith, 1915, (11 Cr App R, 229), the ‘brides in the bath’ case, the defendant was accused of one murder but evidence was offered of two more. The admission of this evidence followed similarly from the improbability that three different women with whom he had gone through a form of marriage, and who had made financial arrangements from which he would benefit, had all drowned in the bath by accident shortly afterwards.

Although the leading cases in which the similar fact principle was established concerned the crime of murder and the admission of similar facts which were not disputed, from the beginning of the twentieth century onwards there was growing pressure on the judiciary to lower the threshold for the admission of such evidence in order to obtain convictions in sexual cases. This pressure was particularly strong in relation to cases involving allegations of homosexuality. Later in the case of In the case of R v Sims, (1946, 31 Cr App R 158) the Court considered an appeal which turned on whether allegations of buggery made by three different men against the accused could be admitted within the same trial in support of one another. However, In the judgment drafted by Denning J, the Court ruled that the principle applied to strikingly similar facts in such cases as Makin and Smith should be extended and applied to similar allegations. The judgment failed to present any sound rationale for changing the law in this manner.

Some how later,  in the case of DPP v Boardman (1975), which concerned allegations made by three adolescent boys against their male teacher, the House of Lords lent its own authority to the judgment in Sims, while rejecting its view of homosexuality. At the same time that it did this, however, it drew attention to the grave dangers which might follow from this change in the law. Lord Cross pointed out that that there was a marked difference between cases which involved allegations and the cases (such as Makin and Smith) which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was, said Lord Cross, ‘no question of any witness for the prosecution telling lies’. ( the witness for case In AG v Makin is a deceased and the case of R v Smith the deceased is the wife, so deceased in fact unable to tell lies). Lord Wilberforce underlined this view and warned against the danger that, as a result of the extension of the similar fact principle, innocent defendants might find themselves facing a series of grave allegations, all of which were false.

The general test prescribed by DPP V Boardman was a cautious one. In deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial effect. If the similar fact evidence was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it should be excluded. In their judgment their Lordships reinforced the caution embodied in this test by placing particular stress on the need for there to be ‘striking similarities’ between allegations before the possibility of their being admissible could even be considered.

Later about year 1990 onwards, the principle of  DPP v Boardman seems have been replaced by few cases. In the case of DPP v P, Lord Mackay went on to reject the requirement that allegations, in order to be admissible, should be ‘strikingly similar’. In doing so he wrongly claimed that this requirement applied only to cases where identification was at issue. Bear in mind that , the judgment will let the defendant or accused suffered more from false allegations. 1995, in R v H, the second safeguard which had been put in place by Boardman was also removed. Lord Mackay, who once again gave judgment, made explicit what had already been implicit in his earlier judgment and held that, in ruling on the admissibility of a series of similar allegations, the judge should generally assume that the allegations in question were true. ( My own opinion= this clearly not practicable because the judge in the end has to access whether the probative value is higher than prejudicial effect, if the judge has to assume the allegations in questions were true then all the evidence sure admissible.)

In short, the principle of innocence until proven guilty or the presumption of innocence of the accused has been seriously affected. Because these decisions have permitted, and indeed encouraged, the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false..

However bear in mind that the principle laid down in te case R v H is not applicable in Malaysia as it is clearly shown in the case of PP V Veeran Kutty. Malaysia has clearly adopted the principle in the case of DPP V Boardman which means in order to render a similar fact evidence admissible it must show the probative value overcomes the prejudicial effect.

S32 Evidence Act 1950

Preliminary requirements of S32 of Evidence Act 1950

There are fourth categories of people are under governed of S32 of Evidence Act 1950. They are (a) who is dead (b) who cannot be found (c) who become incapable of giving evidence (d) whose attendance cannot be procured without an amount of delay or expense under the circumstances of the case appears to the court unreasonable. This must be fulfilled before can invoke the section 32 of the Evidence Act 1950.

In the case of ALLIEDBANK (MALAYSIA) BHD v YAU JIOK HUA, Augustine Paul JC held that ‘Section 32 which creates a considerable alteration to the law of evidence should, so far at least as its opening portion is concerned, be construed strictly which means that there must be strict proof to explain the non-availability of the maker as a witness (see Mohamed Ghouse v R (1910) 11 SSLR 31). Then the circumstances that would bring a statement within any of the provisions enumerated in the section must be established (see PP v Leong Heo Cheong [1990] 2 CLJ 818; DA Duncan v PP [1980] 2 MLJ 195; Sim Tiew Bee v PP [1973] 2 MLJ 200). The burden of proving such circumstances is on the party desiring to lead the evidence (see The Queen v Oorloff (1900) 1 Browne R 328; Emperor v A Bandulchi (1944) 45 Cr LJ 71; Abdul Ghani v R AIR 1943 Cal 465; ILR 29 Cal 412).

In the case of  PP V LAM PENG HOE, Kang Hwee Gee J held that ‘The learned authors of Sarkar's Law of Evidence(14th Ed) at p 649 state (relying on Indian authorities) that where no diligent search and reasonable exertion were made to procure the witness, the court could not come to a finding that the witness could not be found and therefore his statement could not be admitted under the section. Mere ignorance of the whereabouts of the witness is not sufficient to invoke the section’

(a)  Statement of a person who is dead

The best is have a dead certificate but oral evidence regarding the death is admissible. In the case of PUBLIC PROSECUTOR v. LEONG HEO CHEONG, Edgar Joseph J held that ‘I am satisfied that the prosecution had established the fact of Sidek’s death even without the aid of any death certificate, having regard to the testimony of DPC Mathuveran (PW1), Sgt. Major Majid (PW2), and Woman Constable Aini (PW3), all of whom were colleagues of the accused, and who testified, without challenge, that Sidek had died before the trial commenced. Indeed, Sgt. Major Majid, who was the immediate superior of Sidek, had testified that the latter had died on 14 June 1989. The pre-requisite requirement of proof of death under s. 32 was therefore satisfied by the prosecution’

(b) Statement of a person who cannot be found.

A proper search must be made to find the person. In the case of PUBLIC PROSECUTOR v. LIM BONG KAT & ANOR,person could not be found include person could not be know. A sufficient effort must be given to search the person. In the case of DA DUNCAN v PUBLIC PROSECUTOR, ‘part of the evidence consisted of a deposition at the Preliminary Enquiry of a witness who could now not be traced. The deposition was admitted over the protest of counsel for the appellant. We are however fully satisfied that sufficient evidence was adduced to justify the court's admission of the deposition under section 32 of the Evidence Act.’

In the case of Public Prosecutor v Lee Jun Ho & Ors,  Apandi Ali J held that ‘Section 32 of the Evidence Act 1950 is an exception to the general rule that hearsay evidence is inadmissible. Under s 32(1) of the Act, one of the circumstances under which such a statement becomes admissible is where the person who made the statement 'cannot be found'. This was the basis upon which the prosecution tried to invoke when they attempted to produce and tender ID66 and ID67. For a witness to be clothed as 'who cannot be found' within the meaning of s 32(1) of the Evidence Act 1950, such determination is a finding of fact, of which the onus is upon the prosecution to prove.

From facts adduced, I find that the police has failed to take all reasonably practicable steps to trace the witnesses. In fact there was not a single proactive effort by the police to procure the attendance of such material, relevant and important eye-witnesses.

There was no attempt to fully utilise the prevailing and available provisions of the Criminal Procedure Code, in order to secure the attendance of the witnesses. The police failed to invoke the provisions of Criminal Procedure Code; which empowers the court to issue a warrant in lieu of or in addition to summon a witness and to require that person to execute a bond for his appearance in court. The police also failed to invoke the provisions of s 118(1) of the Criminal Procedure Code whereby the police officer who desires any person, who is acquainted with the circumstances of a case, to be present in court, shall require that person to execute a bond to appear at the trial court. The prosecution also failed to utilise the provisions of s 396 of the Criminal Procedure Code whereby the public prosecutor may apply to court for any witness of any sizeable offence that intends to leave Malaysia and that witness's presence at the trial to give evidence is fatal for the trial, to be committed to the civil prison until trial or until he shall give satisfactory security that he will give evidence at the trial.

I recalled, as a deputy public prosecutor for the states of Kelantan/Trengganu in the late 1970s, at the height of the Vietnam War, when there was an influx of refugees from Vietnam into Malaysia, there were many serious sizeable offences committed by the refugees. Important witnesses for such offences also involved Vietnamese refugees. On my advise, the police then, did not hesitate to seek recourse to the provisions of s 396 of the Criminal Procedure Code, in order to ensure the attendance of such witnesses at the criminal trials. The law is the same today. These legal provisions are available, to be utilised in such circumstances as in this case.

[17] In view of the above circumstances especially of the omissions by the police to take all reasonably practicable steps in tracing the witnesses, and guided by the following cases (on s 32(1) of the Evidence Act):

(i) Public Prosecutor v Mohamed Said [1984] 1 MLJ 50;

(ii)  Public Prosecutor v Mohd Jamil bin Yahya & Anor [1993] 3 MLJ 702; [1994] 1 CLJ 200;

(iii)  Public Prosecutor v Gan Kwong [1997] MLJU 144; [1997] 2 CLJ Supp 433;

(iv)  Public Prosecutor v Chow Kam Meng [2001] MLJU 386; [2001] 7 CLJ 387;

(v)  Public Prosecutor v Mogan Ayavoo [2004] 3 CLJ 623; and

(vi)  Public Prosecutor v Norfaizal bin Mat (No 2) [2008] 7 MLJ 792.

I hold that the prosecution has failed to meet the requirements and the prerequisites of s 32(1) of the Evidence Act 1950. I accordingly ruled that the’

(c) Statement of a person who has become incapable of giving evidence

This maybe due to old age or mental incapacity. This must be proved with sufficient evidence. It does not mean it must have a medical person in every case. In the case of Chainchal Singh v Emperor AIR 1946 PC 1 at p 2 evidence given by a witness in a judicial proceeding was to be used under section 33 of the Indian Evidence Act in a subsequent judicial proceeding on the ground that the witness was incapable of giving evidence. It was held by Lord Goddard that: "Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence."

 (d) whose attendance cannot be procured without an amount of delay or expense under the circumstances of the case appears to the court unreasonable

(i) evidence of delay and expense is required

Sufficient evidence must be adduced. In the case  SAW TIM BEE V PP ‘But the manifest is a statement made by a person in the course of the business of the shipping company. It is therefore admissible in evidence provided it is proved that the maker is dead, cannot be found, or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. (Section 32(b) of the Evidence Act.)

The learned judge, however, held that it was admissible. He said:

"For myself I think it is unreasonable to ask either the master or the agent of the vessel to testify to Exhibit P14 when undue delay or expense would be incurred."

This finding is not supported by evidence. The condition precedent to the reception of the document should be independent evidence that it would involve such delay and expense as would seem unreasonable.

In the case of Chainchal Singh v Emperor AIR 1946 PC 1 at p 2 evidence given by a witness in a judicial proceeding was to be used under section 33 of the Indian Evidence Act in a subsequent judicial proceeding on the ground that the witness was incapable of giving evidence. It was held by Lord Goddard that:

"Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence."

In the case of Bal Gangadhar Tilak and others v Shrinivas Pandit and others AIR 1915 PC 7 at p 11, Lord Shaw said:

"Under section 33 of the Indian Evidence Act, 1872, evidence given by a witness in a judicial proceeding in a criminal trial is relevant for the purpose of proving in a subsequent proceeding the truth of the fact which it states, but it is only, as the section proceeds:–

'when the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way etc.'

Not one of these circumstances was proved in the present case, and the depositions could not have been used with propriety even to support the evidence of the plaintiffs…."

(ii) The reasonableness of the amount of the delay or expense

This is mainly depend on the fact of the case. In the case of Allied Bank(M) Bhd v YAO JIOK HUA, Augustine Paul JC ruled that : ‘The question of the reasonableness of the amount of delay or expense should be considered with reference to the circumstances of each case. It is essentially a matter for the court to determine whether the attendance of a witness cannot be procured without any unnecessary amount of delay and expense (see Jati Mali v Emperor (1929) 31 Cr LJ 857; Annavi Muthiriyan v Emperor (1915) 16 Cr LJ 294). In R v Case (1991) Crim LR 192, where on a trial for theft from a tourist, the judge admitted in evidence the out of court statements made by the tourist and his companion. It was held that the judge had wrongly admitted the statements since there was no evidence to show that they were outside England or that it was not practicable to call them except at high expense and delay. In Borneo Co (M) Sdn Bhd v Penang Port Commission [1975] 2 MLJ 204, it was held that it would be unreasonable to expect a witness to be brought from England to give merely formal evidence when the expenses of bringing him down would exceed the subject matter of the claim. As ERSR Coomaraswamy said in his book entitled The Law of Evidence (Vol 1) p 462:

On the other hand, if the matter involves a very large sum of money, such as a few millions of rupees, the court may not consider it an unnecessary amount of delay and expense to procure the personal attendance of a material witness, who is absent beyond the seas. As Mr Thavarajah is outside the jurisdiction of this court, the plaintiffs may rely on s 32(1)(b) to tender in evidence the notices, if prepared by him, as they were made in the discharge of his professional duties subject to proof of the required conditions. As I said earlier, the onus is on them to establish that his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. The first observation to be made is that Mr Thavarajah is a very material witness as the plaintiffs' claim depends on his evidence to prove service of the notices of demand allegedly issued by him, the receipt of which has been denied by the defendant in para 6 of the defence. The plaintiffs ought to have been aware of the importance of this witness way back in 1991 when the statement of claim and the defence were filed. It is illogical to come to court in 1997 and say that there would be delay in producing this witness in court when the plaintiffs had all the time from 1991 to secure his attendance. If the plaintiffs had made efforts to trace him earlier, then the question of delay would not arise. PW2's evidence that it would not be cost effective to bring the witness to court for the hearing is unacceptable, bearing in mind the size of the subject matter of the claim. In my opinion, the cost of bringing the witness from Australia bears no comparison to the amount involved in the claim. In any event, 2's evidence on the witness being beyond the seas is hearsay and is therefore inadmissible. His evidence is based on what others, including one Mr Kenneth Gomes, had told him. Those persons ought to have been called to testify on the whereabouts of Mr Thavarajah which the plaintiffs had failed to do. PW2 also said that the plaintiffs were satisfied that all reasonable steps had been taken to locate Mr Thavarajah without condescending to give any particulars. In being so satisfied, plaintiffs had taken over the role of the court which alone is empowered to decide on this issue upon cogent evidence being adduced. The plaintiffs had, therefore, failed to establish that Mr Thavarajah is beyond the seas and that his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable.’

In the determine the reasonableness of the expense no absolute standard this can be referring to the case of LIM PENG KOI v REX, In particular two things are of importance; the seriousness of the charge and the character of the evidence. On the first point, in particular, it should be regarded as a very serious matter to allow evidence given on another occasion to be read when a person is charged with an offence for which he is likely to be sentenced to imprisonment. On the second it may be that the evidence given is not challenged by the defence and it may be evidence of a purely formal character.

(iii) Person who are outside the jurisdiction

In the case of NG YIU KWOK AND ORS v PUBLIC PROSECUTOR, the court held that  ‘In a situation like this where the documents were prepared in the course of business and the makers were outside the jurisdiction who refused or were unwilling to come to this country, all the court should need to satisfy the requirement of 32(b) of the Evidence Act was that there was some evidence to show that the makers' attendance could not be procured without delay or expense which the court considered unreasonable under the circumstances.’

However bear in mind that mere residence out of the jurisdiction could not be sufficient to invoke this section, For example, a trial in johore and the witness stayed in Selangor.

Conclusion

These are preliminary requirement which must be fulfilled in order to invoke S32 of the Evidence Act 1950.