THE RELATION OF RES GESTAE PRINCIPLE AND THE ADMISSIBILITY OF BYSTANDER EVIDENCE IN MALAYSIA
Introduction
Section 3 of the Evidence Act 1950 (“EA 1950”) defines evidence as-
“(a) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence;
(b) all documents produced for the inspection of the court: such documents are called documentary evidence.”
Section 3 of the EA 1950 clearly provides two types of evidence which are oral evidence and documentary evidence. Basically, oral evidence pertains to witness statements on factual matters while documentary evidence involves documents submitted for court inspection. However, Section 59 of EA 1950 states that-
“Proof of facts by oral evidence
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All facts, except the contents of documents, may be proved by oral evidence.”
Thus, all facts may be proved by oral evidence except the contents of documents. Further, Section 6 of EA 1950 states that-
“Relevancy of facts forming part of same transaction
- 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.”
In illustration (a) of Section 6 of the same Act, bystanders are clearly explained as follows:
“(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.”
Definition
Although the EA 1950 does not explicitly define bystander evidence, it is commonly associated with Section 6 of the EA 1950, which incorporates the res gestae principle from the Common Law. Res gestae serves as an exception to the hearsay rule, allowing certain statements that are naturally, spontaneously, and without any room for misunderstanding or misinterpretation upon hearing from someone else.
Res gestae is a latin term which brings the meaning of “things done”. The doctrine of res gestae applies to words or phrases that are so closely connected to an occurrence that they are regarded as a part of the event itself and, as a result, it does not contravene the hearsay rule. In Malaysia, Section 6 of the EA 1950 acknowledges facts as res gestae, encompassing spoken words within the transaction.
For a statement to be admissible as part of res gestae evidence, it must meet the criterion of relevance, as outlined in Section 6 of the EA 1950. Specifically, it should occur so closely to the transaction as to be an integral part of it in order for the same to be considered as a relevant fact. Any statement made after the conclusion of the transaction is deemed irrelevant.
According to Section 6 of the EA 1950, bystanders are individuals present either concurrently or at a different time and place during the transaction. Therefore, for a bystander’s statement to be admissible as evidence in court, it must align with the res gestae doctrine, requiring the statement to be made at the time of the transaction or so closely before or after as to be an integral part of it.
Section 6 Evidence Act 1950
Numerous cases in Malaysia have been discussing about the principle of bystander evidence, particularly in connection with Section 6 of the Evidence Act 1950. Based on Kanagesh Kumar a/l Mahendran v Sadiah bt Muhammad Taib [2022] MLJU 23 in the High Court of Johor Bahru, which was an appeal from the Sessions Court regarding a motorcycle accident involving the Plaintiff and the alleged Defendant. Judge Evrol Mariette Peters concluded that the Sessions Court judge had erred in dismissing the evidence of the Plaintiff’s uncle, who arrived at the accident scene 15 minutes later. The uncle presented under oath and adduced photographs of the Defendant’s motorcycle and bystanders’ statements indicating the Defendant’s involvement in the accident and her role in taking the Plaintiff to the hospital. Despite bystanders not being called as witnesses, their statements were considered as part of res gestae under Section 6 of the EA 1950, given the same could be corroborated and were made without the possibility of concoction or fabrication.
The Court, by referring to illustration (a) of Section 6 of the EA 1950, emphasized the connection between the Malaysian position under Section 6, the common law rule in Kok Ho Leng v Public Prosecutor [1941] 1 MLJ 143, and the Indian case of Chotka v State ILR (1959) 2 CAL 174. Additionally, the Court cited Raja Azlan Shah FCJ’s clarification in Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 that circumstantial evidence is as reliable as direct evidence if it collectively meets the threshold of proof. In this case, the bystanders’ statements were corroborated by the uncle’s photographs.
Malaysian case law indicates that bystander evidence obtained through a phone call may be admissible under the res gestae principle as laid under Section 6 of the EA 1950. The case of Kok Ho Leng v Public Prosecutor [1941] 1 MLJ 143 established the admissibility of a telephone message during a raid, akin to the shouting of bystanders. In Public Prosecutor v Manimaran a/l Mohana Sundram & Anor [2018] MLJU 1035, a witness’s statements regarding a phone call from the accused, including screams of the deceased, were considered under Section 6, but the Court deemed the same as inadmissible due to the potential for concoction and fabrication.
The case of Public Prosecutor v Mohd Zahari bin Embong [2013] 1 MLJ 201 highlighted the admissibility of statements made by an accused to neighbors or bystanders, considering them contemporaneous with the event under Section 6. The Court emphasized the importance of proximity to the incident and corroborating evidence.
Public Prosecutor v Sam Hong Choy [1995] 4 MLJ 121 indicated that a bystander, for the purpose of Section 6’s Illustration (a), need not have directly witnessed the event in question. The Court accepted the admissibility of words heard by a witness after a gunshot, as they were part of res gestae.
Moreover, Malaysian cases illustrated the admissibility of CCTV and VCD recordings under the res gestae principle. While not expressly categorized as bystander evidence, these recordings were considered similar in nature. Cases like Mohd Khayry bin Ismail v Public Prosecutor [2014] 4 MLJ 317 and Public Prosecutor v Poovarasan a/l Subramaniam & Ors [2017] MLJU 1614 admitted such recordings as long as they were relevant, in good condition, not tampered with, and authentic.
Section 9 Evidence Act 1950
Section 9 of EA 1950 outlines five distinct categories for accepting a fact as relevant under the same provision. The categories are as follows:
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Facts necessary to explain or introduce a fact in issue or relevant fact;
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Facts which support or rebut an inference suggested by a fact in issue;
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Facts which establish the identity of anything or person whose identity is relevant;
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Facts which fix the time or place at which any fact in issue or relevant fact happened;
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Facts which show the relation of parties by whom any such fact was transacted.
In essence, Section 9 of the EA 1950 addresses facts essential for explaining or introducing relevant details such as place, name, date, identity of parties, circumstances, and relations. The first aspect of Section 9 emphasizes facts necessary for explaining or introducing a fact in issue or relevant fact. Meanwhile, Section 8 of EA 1950 provides that any fact is relevant which shows or constitutes a motive or preparation or conduct of any party to any fact in issue or relevant fact. In the case of Ng Peng Seng v Public Prosecutor [2017] MLRAU 53, the accused’s explanation for fleeing upon the discovery of drugs in their car was deemed relevant under Section 8 of the EA 1950. Despite their conduct being considered a relevant fact, the Court, as per the Court of Appeal’s decision, set aside the previous ruling and substituted a lesser offense, emphasizing that the accused had adequately explained their conduct, thereby satisfying Section 9.
Similarly, the second aspect of Section 9 applies to facts that can be presented to support or rebut conduct previously admissible under Section 8. The subsequent aspects of Section 9—focusing on facts establishing identity, fixing time or place, and showing the relation of parties—are discussed collectively. Identification can be established through various means, including direct evidence from witnesses using their senses, or documentary evidence like photographs, video tapes, identification parades, voice recordings, and fingerprints. However, the Court must exercise vigilance and discretionary power, considering the circumstances of witness identification and scrutinizing documentary evidence to ensure its correctness and quality.
Relating the discussion of Section 9 of the EA 1950 to bystander evidence, the latter can be deemed admissible under Section 9 for its capacity to explain or introduce crucial facts in both criminal and civil cases. Bystander evidence, present at the scene, offers a comprehensive understanding of the facts relevant to the case. Beyond explanation or introduction of facts, bystander evidence can also counter inferences, establish identity, determine the time and place, and reveal relations between parties. Bystander evidence, extending beyond human witnesses to include devices like CCTV, aligns with the relevant criteria outlined in Section 9 of the EA 1950. In summary, bystander evidence is pertinent for submission in Court under Section 9 of EA 1950.
Analysis
In general, admissibility of evidence hinges on its relevance in proving the facts at issue. While not all relevant facts are admissible, the key criterion for admissibility is their relevance.
Regarding bystander evidence, the EA 1950 does not explicitly mention bystander evidence except for the term ‘bystander’ in Section 6, illustration (a). This section asserts that statements or acts by bystanders, closely connected to the fact in question within the same transaction, whether occurring at the same or different place and time, are deemed relevant. Based on previous cases, it is evident that bystander evidence encompasses both oral and documentary forms, such as statements, telephone messages, and first information reports.
Hearsay statements are often rejected by courts due to perceived irrelevance and inadmissibility. The prejudicial impact against the accused, coupled with the inability to verify such statements during cross-examination, raises concerns about potential concoction and fabrication. This raises the pivotal question of the relevancy and admissibility of bystander evidence.
However, Section 6 of the EA 1950 incorporates the res gestae principle as an exception to the hearsay rule, encompassing statements made by bystanders if tightly linked to the fact at issue. Bystander evidence extends beyond direct visual observations, including information perceived through other senses.
An unresolved query arises regarding whether CCTV footage qualifies as bystander evidence. While bystander evidence conventionally involves statements made by individuals, the definition may not be limited to persons alone. CCTV, capturing incidents along with the time and place, can be seen as a form of hearsay document. Although no explicit case categorizes CCTV as bystander evidence, instances like Mohd Khayry bin Ismail v Public Prosecutor and Public Prosecutor v Poovarasan a/l Subramaniam & Ors admitted CCTV recordings under the res gestae principle, even when made by absent individuals. Thus, proposing the inclusion of CCTV in the bystander definition seems justified.
Despite of this, the relevance of bystander evidence is contingent on its alignment with five specified purposes, including explaining relevant facts and supporting or rebutting inferences. The Court considers evidence cautiously under Section 9 of the EA 1950, especially when establishing identity. Although the res gestae principle doesn’t directly apply to the relevancy of bystander evidence under Section 9, the Court exercises diligence to ensure the evidence’s authenticity and integrity.
In conclusion, while the res gestae principle may not directly govern Section 9 of the EA 1950, the relevancy and admissibility of bystander evidence are upheld, provided it aligns with the stipulated criteria and the Court is satisfied with its importance and authenticity, free from the risk of concoction or fabrication.
Conclusion
The inclusion of bystander evidence in legal proceedings is outlined in Section 6 of the Evidence Act 1950. To be accepted and admissible in Court, there are specific criteria that must be met, primarily focusing on establishing that the probative value outweighs the potential harm to the accused. Bystander evidence, whether presented orally or in writing, gains relevance when it pertains to a significant fact, even though not all relevant facts are admissible. The absence of a defined concept of “bystander” in Section 9 of the EA 1950 is noted. Nevertheless, the Court considers bystander evidence pivotal when it serves to clarify or provide essential information. Hence, caution must be exercised by the Court in admitting such evidence to ensure its authenticity and integrity, preventing any potential fabrication, tampering, or alteration, ultimately contributing to a just decision in any legal proceedings.
Prepared by,
Muhammad Naif Amal Zulkiflie
Legal Associate
