Common Law's Res Gestae & Section 6 of Evidence Act 1950

*read the previous post for more information regarding doctrine of res gestae

Although it is not explicitly mentioned in the Evidence Act 1950, it said that the principles of res gestae is incorporated into our Evidence Act 1950.  Section 6 of Evidence Act 1950 stated that '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 place'. Hence, this section admits facts, which technically comes under the expression of res gestate, i.e., a group of facts so connected together as to be referred to by a single legal name as a crime, a contract, a wrong (Thavanathan v PP).

So, the question is what is the difference between common law perspective of res gestae & section 6 of Evidence Act 1950 ?

1. Occurrence of the Fact.

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. 

To illustrate, under common law, in Ratten v The Queen, 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. The Privy Council held that 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. 

However, in Hamsa Kunju v R, the appellant was convicted on three charges of causing hurt and grievous hurt. It was 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. 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

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.

In R v Mead,  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. 

In comparison to section 6 which is more flexible, in Jaffar bin Hussain v PP, 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 was relating to hand-grenade. 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.

In a nutshell, the wording of section 6 allows a wider interpretation and application of doctrine of res gestae as to common law's position which is must strict and rigid.