Res gestae - acts under section 6
Posted on Tuesday, November 13, 2012 by Esther Tan
KONG HONG LAI V PP
HIGH COURT, SHAH ALAMSU GEOK YIAM J
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This case best illustrate section 6 & 8 of the Evidence Act 1950.
Question of fact: Whether the victim had consented to sexual intercourse with the appellant?
Public Prosecutor:
There ought to have been 2 separate charges framed against the appellant for the two rapes alleged to have been committed by the appellant:
a) alleged rape on the victim allegedly committed by the appellant on the victim at 10.00 am in the morning in the hall located downstairs in the appellant's house; and
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First alleged rape - main hall
b) alleged rape committed by the appellant on the victim in a bed room located upstairs in the appellant's house at 11.00 am in the same morning.
Second alleged rape - bedroom
The difference of both acts that occurred above is only an hour.
Appellant:
Appeal to High Court. The evidence of the second alleged rape is irrelevant, that the learned trial judge seriously erred when she allowed the evidence of the second alleged rape to be admitted in evidence, when she did not maintain a distinction between the two incidents thereafter and that she failed to appreciate that the prosecution had failed to prove penetration during the first incident. Therefore, his conviction and sentence cannot stand and ought to be set aside on this ground alone.
Court:
This court is of the view that the evidence of the second incident of alleged rape was admissible and was adduced as part of the res gestae because it was relevant to the fact in issue in the amended charge ie, whether the transaction of sexual intercourse was against the consent and will of the victim and whether the two incidents may be said to form part of the same transaction. This is provided for in ss. 6 and 8 of the Evidence Act 1950 because the second incident was so closely connected with the first incident of alleged rape by proximity of time ie only one hour apart, unity or proximity of place ie at the same house, albeit in different parts of the house, continuity of action, ie he again performed sexual intercourse on the victim against her consent and will; and community of purpose or design ie his motive in pretending to send the victim to her place of work and in bringing the victim to his house was to rape the victim in the safe confines of his own home.
Therefore, the contention of the appellant that he was prejudiced by the wrongful admission of the evidence of the second incident which occasioned a miscarriage of justice to him is without merits and ought to be rejected by this court.
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Although the two incidents are separated, but it is facts so connected as to form the same transaction.
In order that different acts may constitute the same transaction, they must be connected:
i) by proximity of time - AN HOUR OF DIFFERENCE BETWEEN 1st & 2nd alleged rape
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ii) by proximity of place - OCCURRED IN THE SAME HOUSE ALTHOUGH DIFFERENT PARTS
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iii) continuity of action - performed sexual intercourse again against her consent & will
continuity of purpose or design - motive to bring her to his house although he was supposed to send her to work.
Thus, the learned judge was correct to find that evidence on second alleged rape was relevant and admissible under section 6 of Evidence Act 1950. Section 8 is also relevant to show motive of the appellant to bring the victim to his house to rape her although he was supposed to fetch her to work. This case is almost similar to Jaafar Hussin v PP where the accused was charged of 2 offence - carrying hand grenade and gun at same time & place. At trial, the judge directed that the accused be charged of carrying hand grenade only. This was objected on appeal but court held that the evidence of carrying gun was rightly admitted as both facts are so closely connected as to form the same transaction.
Appellant cannot be acquitted based on the ground that the evidence of the second alleged rape should not be admissible as it will be prejudicial to him.
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