Section 6 deals with relevancy of facts. They describe the various ways in which facts though not in issue are so related to each other as to form part components of the principal fact. There are facts which are related to each other as to form components of the principal fact. There are facts which are so closely or inseparately connected with the facts in issue they may be said to form part of the same transaction. Although the word gestae is not stated in section 6, the courts in Malaysia have applied this term and principle in our local cases. 

            In PP v Ahmad bin Ibrahim 2011 MLJU 921, it held that a transaction may constitute a single incident occupying a few moments or it may be spread over a variety of acts, declarations, occupying a much longer time and occurring on different occasions. They may also occur at the same place or different places. All these constituent incidents which though not strictly constituting a fact in issue, accompany and tend to explain and qualify the fact in issue. They form a chain as it were encircling the fact in issue. All the these facts are relevant to the fact in issue and therefore admissible in evidence. They are evidentially facts which render the existence or non-existence of a fact in issue highly probable.

            It is important to bear in mind that what is admissible under section 6 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.

            The rule formulated in section 6 is expounded and illustrated in section 7, section 8 and section 9 of the Evidence Act 1950 and they should be read together. Relevancy has been described and Stephen says section 6 until section 11 are by far the most important and original part of the Act as they affirm positively what facts may be proved, where English Law assumes this to be known, and merely declares negatively that certain facts shall not proved. In testifying to the matters in issue, therefore witnesses must state them not in their barest possible form, but with a reasonable fitness of details and circumstances. These constituents or accompanying incidents are said to be admissible and forming part of the res gestae.

Prepared by Kang Khai Lun

12/13/2012 03:18:47 pm

Basically, I have a different point of view pertaining to the way we interpret 'a part of transaction' under s6 of Evidence Act. Different acts happened in different place or time might have the possibility as well in forming part of transaction committed by offender. This is the distinction that could be distinguished between s6 with common law principle of res gastae. The element of contemporaneous or spontaneity is not fortified under s6 of Evidence act 1950. From the illustration (b) of S 6 itself is a good reflective mirror in showing that place and time would not be the only significance factors in identifying relevant fact forming part of the transaction. I do not deny that to certain extent, the factors of place and time should be considered and have their own significance in showing relevancy of fact. However, I would like to suggest that those factors are not the absolute factors that could be relied on the exclusion of certain eminent relevant fact while inferring the weight of Fact in issue. Fact that not closely connected in term of time and place might be referable in making accurate deduction on the fact in issue of charge framed towards accused. S 6 is more lenient compared to common law principle of res gastae. S6 seem like two face of coin that could be applied in favour of PP and even accused. Accused is allowed to rely on s6 to prove certain irrelevant fact (that might not be connected in time or place) to be relevant and forming part of the alleged transaction.

Andy Lim
12/13/2012 03:53:23 pm

im interested to know what exactly the different of section 6 and res gestae..if the malaysia law codified it in our law then would'nt it be the same..sory im not a legal person but im interested in criminal law..

12/13/2012 08:00:57 pm

Malaysia Law basically derived from the English Common Law. However, even if our source is from England, the way we apply the law shouldn't be the same. It is mostly depend our incorporated law stated in particular regulation.

Eric Kang
12/14/2012 05:38:03 pm

Hi Andy,

Thank you for the response. The most notable difference is the time and place elements. Res Gestae in the common law requires the proximity of time and place, i.e it must be closely associated with it in time, place and circumstances as to be part of the thing done. However, section 6 of the Evidence Act does not impose such requirement as explained above in the Paragraph Two.

For the second part of your question, our Penal Code derived from the India Penal Code which derived from the Common Law. Thus, some might say our criminal law similar to Common Law. However, for practical purpose, always remember that principle in the common law only applicable where such principle has codified in our law or there is a lacuna in our law. Otherwise, if there is a conflict between our law and common law principle, our law will prevail and applicable.

I hope I answer your question. Thank you.


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