[1971-72] PNGLR 258

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

AMBIMP

Laiagam
Raine J

19-20 July 1971

CRIMINAL LAW - Evidence - Dying declaration - Common law rule - Supplemented by statute - Relevance of religious beliefs of declarant - Examinability of beliefs - Criminal Procedure Ordinance of 1889 (Papua, adopted), s. 32.[ccciv]1

It is not a condition of admissibility of a dying declaration that the declarant had a belief in Christianity or in some faith laying down stern rules of behaviour and a belief in the hereafter. R. v. Madobi Madogai, [1963] P. & N.G.L.R. 252, R. v. Wadderwarri (Unreported. Supreme Court of N.T., 20th March, 1958) and R. v. Kipali-Ikarum, [1967-68] P. & N.G.L.R. 119 considered.

Before ruling on the admissibility of a dying declaration there should be no examination of the personal religious belief or degree of belief held by the declarant. R. v. Kipali-Ikarum, [1967-68] P. & N.G.L.R. 119 considered.

Such belief, non-belief, or even disbelief is not significant, except possibly as to the weight to be given to the dying declaration, where the declarant is a normal citizen of sound mind, and a member of a community where people have some appreciation of what is right and what is wrong. R. v. Woodcock (1789), 1 Leach 500, at p. 502; 168 E.R. 352, at p. 353, R. v. Pike (1829), 3 Car. & P. 598; 172 E.R. 562, at p. 563, R. v. Perkins (1840), 9 Car. & P. 395; 173 E.R. 884, at p. 885, R. v. Forrester (1866), 10 Cox C.C. 368, R. v. Osman (1881), 15 Cox C.C. 1, at p. 3, R. v. Perry, [1909] 2 K.B. 697, at p. 701 and R. v. Donohoe (1962), 79 W.N. (N.S.W.) 693, at p. 698 referred to.

Section 32 of the Criminal Procedure Ordinance of 1889 (Papua, adopted) merely supplements the common law rule on admissibility of dying declarations by adding a further category of declarations which, the court in its discretion may admit. R. v. Kipali-Ikarum, [1967-68] PNGLR. 119, at pp. 122, 123 and 124 followed on this point.

Criminal Trial

Peagui Ambimp was charged with the wilful murder of one Aepend. In the course of the trial the Crown sought to elicit from a witness evidence that the deceased had been a sincere practising Christian. In the Crown’s view such evidence was necessary to make admissible the deceased’s dying declaration. The report relates only to his Honour’s ruling on the admissibility of the evidence for this purpose.

Counsel:

Harrison, for the Crown.
O’Meally, for the accused.

20 July 1971

RAINE J:  In this trial the accused has pleaded not guilty to a charge of wilful murder.

At this point I have heard evidence from one who alleges he was an eye-witness of the affair leading to the death of the deceased man Aepend, who is alleged to have died as the result of an arrow entering the left side of his chest just below the armpit.

At the present moment there is a witness in the box named Samuel Airayari. He is an employee of a local hospital. He knew the deceased, who was brought to the hospital on the day he was shot, dying there the following day.

So far he has given but little evidence, what evidence he has given, when amplified, will probably assist the Crown case in one small respect, namely as to the correct name of the deceased. At the moment some confusion has arisen to this. However, this is probably not a very important matter in the long run. Samuel has been asked by the Crown Prosecutor “How long have you known Aepend?” This was objected to. Before hearing argument I told Mr O’Meally of Counsel for the accused that I was minded to admit the question if it went to the weight to be attached to Samuel’s knowledge of the correct name of the deceased. Obviously, old acquaintances are, on the highest of probabilities, to be expected to have a knowledge of the proper name or the reputed name of an old friend or acquaintance. Mr. O’Meally withdrew his objection, but in doing so qualified his withdrawal by observing that he had no objection to the question and the answer, if this was all that the question went to.

Mr. Harrison, the Crown Prosecutor, then indicated that the question was not framed for this reason alone. He informed me that he proposed to use Samuel, whom I assume can say he knew the deceased well, and for a long time, to say that the deceased was not only a Christian but also a sincere and practising one. Mr. Harrison submits that the deceased, blessed with this advantage, was therefore the better placed, as a matter of law, to make a dying declaration. The deceased was an indigenous person. Mr. Harrison’s argument really assumes that a dying declarant must have a belief in Christianity or in some faith laying down stern rules of behaviour and also has a belief in the hereafter.

As a matter of convenience it was decided to argue this question of belief and degree of belief immediately. If I come to a conclusion generally favourable to the Crown it will be appreciated that this will not have a decisive effect until I hear evidence that indicates that there was a dying declaration, that it related to the cause of Aepend’s death, that Aepend had a “settled hope less expectation of death”, and that Aepend, had he lived, would have been a competent witness if called as a witness at the time.

I might add that I do not know whether a situation under s. 32 of the Criminal Procedure Ordinance 1899 (Papua, adopted) is likely to arise. It might assist if I indicate that I respectfully agree with what Clarkson J. had to say about s. 32 and as to s. 16 of the Laws Repeal and Adopting Ordinance 1921 in R. v. Kipali-Ikarum[cccv]2. Mr. O’Meally also urges me, were I against him on the law, to exercise my discretion against receiving the declaration in evidence, the declarant being a native person. However in R. v. Kipali-Ikarum[cccvi]3 Clarkson J. said:

“I see s. 32 as merely supplementing the common law rule which was made applicable in the Territory by the Laws Repeal and Adopting Ordinance.

At common law, providing a dying declaration satisfied certain conditions, it was admissible and its admissibility did not depend in addition on the exercise of a discretion in the court to admit or reject.

To the category of declarations which, if they satisfy the required conditions, the court is bound to admit has been added a further category of declarations which the court in its discretion may admit. The two categories do not overlap since no declaration which is admissible only by reason of s. 32 could be admitted at common law.”
The problems counsel leave with me are the extent to which I should pay regard to the extent that Christian, or at any rate, religious beliefs of the deceased should be taken into account and the extent to which there should be an examination and inquiry into them. In R. v. Madobi-Madogai[cccvii]4 Ollerenshaw J. said:

“It is generally assumed that such a sanction exists (His Honour was referring to an oath to tell the truth administered in a court) where the deceased was a civilised member of a Christian community and such an assumption is made in the application of the principle in Australia, but, I have not had occasion to consider its application to the dying declaration of a member of a native community in this Territory. However, I apprehend that it is based upon the Christian belief in a hereafter and that the ‘most powerful considerations to speak the truth’ are those which exercise the mind of a Christian about to meet his Maker. This exception to the hearsay rule evolved under a strong sense of punishment for falsehood and other sins.”

His Honour went on to refer to an unreported decision in R. v. Wadderwarri[cccviii]5 where Kriewaldt J. excluded the dying declaration of an Australian Aborigine.

Kriewaldt J. applied rather similar tests to those applied by Ollerenshaw J. and went as far as saying, addressing the jury, “but because I have to apply the same rules to aborigines and whites I did not admit that evidence on the basis that the reason for admitting the evidence in the case of a white person is that he has a belief that God will punish him if he tells a lie just as he is about to die. So far as aborigines are concerned, we know that they have not that type of belief in the hereafter and therefore, applying the same rule to aborigines as I do to whites, I excluded any statement the deceased might have made shortly before his death.”

For my own part I cannot believe that in this day and age “whites”, as a whole, believe that God will punish them for telling lies, and that the task of making a good account with one’s Maker will be made the easier by telling the truth. I have no doubt that millions of believers in religion accept this, but I also have no doubt that millions of decent people do not, and I venture to suggest that a large proportion in the latter group would regard the proposition as nonsense.

Although Ollerenshaw J. approaches the question on a broader basis in R. v. Madobi-Madogai[cccix]6, speaking of “a civilised member of a Christian community”, and “members of other faiths, holding beliefs materially similar to those of Christianity” rather than “whites”, His Honour says,[cccx]7”This decision of that judge (Kriewaldt J.) fortifies me in ruling that the evidence proposed to be led is not admissible under this exception to the rule.”
I have received further considerable assistance from the judgment of Clarkson J. in R. v. Kipali-Ikarum[cccxi]8. Clarkson J., so it seems to me, treats the observations to the jury by Kriewaldt J. and the judgment of Ollerenshaw J. with some reserve, and His Honour points out[cccxii]9 that “both the learned judges are able to draw on their wide experience”, as indeed they did. Clarkson J. was sitting at Laiagam, as I am, and said that he did not have the benefit of a knowledge of what beliefs were held by the people here as to “punishment after death and if so for what sins”. I am in the same situation.

Clarkson J. said[cccxiii]10

“If, as appears to be the case, the personal beliefs of a declarant are not examined in England or Australia, where it can safely be said that a sensible part of the community holds no religious beliefs and no belief in divine punishment (see figures quoted by Mr. Brazil, (1960) 34 Australian Law Journal) it is difficult to see on what basis such an examination should be undertaken in the Territory.”

(The italics are mine. It is now over three and a half years since the case of R. v. Kipali-Ikarum, I would respectfully adopt what Clarkson J. says, and for my part I would insert before the part italicised the words “a very large proportion of and”.)

References to considerations affecting the minds of religious people about to meet their God in earlier judgments delivered in times that were less scientific, when the influence of the Churches was truly significant, must surely now be treated with reserve. It seems to me that there is now no distinction, in the case of a person who appreciates that death is near, between the man who wants to make his peace with the world and the Christian who wants to make peace with his God. If I may say so with respect I am much attracted by the way the matter is put in R. v. Forrester[cccxiv]11. The report reads:

“Byles J. said it was necessary to prove that the deceased knew that she was actually passing out of this world, and that all terrestrial considerations had lost their weight with her, in order that her statement might be received in the same manner as if it had been made under sanction of an oath.”

(The italic is mine. I would suggest that one could, 105 years later, conclude the quotation with the words “the sanction of an oath or affirmation”.)

In Kipali-Ikarum’s case[cccxv]12 Clarkson J. took some background matters concerning the deceased into account. However, he did not “embark on inquiry as to the personal religious beliefs of (the) declarant to determine admissibility as opposed to weight”.

I reject questions going to the state of mind of the deceased and to the extent of his beliefs, but I will allow general background material to be given, and at a later stage will decide what weight should be given to it. In other words I will not reject evidence of the age of the deceased, his schooling or the fact that he had some religious background but I will reject any evidence seeking to show that he was devout or that, for instance, he looked forward to heavenly rewards when he died.

Notwithstanding the fact that the deceased was essentially a native villager and notwithstanding my doubts as to the real effect of religious teachings on a man in this area, leading a traditional, rather than a European style of life, I will not reject the dying declaration, if the other requisites are proved, because of Aepend’s native background.

Clarkson J. reviews the authorities in the case of R. v. Kipali-Ikarum[cccxvi]13. It is true that in R. v. Pike[cccxvii]14, Park J. referred to and relied on the effect of “the deep impression” on one who “was soon to render an account to his Maker”. And eleven years later, in R. v. Perkins[cccxviii]15, no reasons are given, and the arguments of counsel and the observations of the Court are mainly taken up with the capacity of the deceased, a boy of ten, had he been examined on oath. During argument Baron Alderson said: “The deceased says he expects to be punished hereafter, if he does not tell the truth”, but that was merely a comment on the evidence given by a surgeon at the trial.

The words of Eyre C.B. in R. v. Woodcock[cccxix]16, which are so often quoted, contain no reference to the effect approaching death might be expected to have on a declarant who believed in a God. For instance, the words quoted in R. v. Kipali-Ikarum[cccxx]17, The King v. Perry[cccxxi]18, and R. v. Donohoen[cccxxii]19, and in Cross on Evidence, 2nd ed., at pp. 419, 420 and Archbold, 37th ed., at p. 1081, are as follows:

“The principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.”

In fact the Chief Baron went on to say:

“But a difficulty also arises with respect to these declarations; for it has not appeared, and it seems impossible to find out, whether the deceased herself apprehended that she was in such a state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions.”

In 1882 in R. v. Osman[cccxxiii]20 Lush L.J. said:

“A dying declaration is admitted in evidence because it is presumed that no person, who is immediately going into the presence of his Maker, will do so with a lie on his lip.”

In my opinion this style of language is understandable in the 18th and 19th centuries. One still sees traces of its survival today, for instance, in death notices one observes tributes such as “Gone to her reward” or “Departed into Glory”.

But it is too late now to say that a dying declaration is inadmissible because the declarant was not a believer. Thus, while agreeing with Clarkson J. that there should be no examination of the personal belief or degree of belief held by dying declarants, and I have already ruled on this, I admit the evidence at the present stage because I do not think that in the year 1971 belief, non-belief or even disbelief, is significant, except possibly as to weight, where the declarant is a normal citizen of sound mind, and a member of a community where people have some appreciation of what is right and what is wrong. Such an appreciation so often flows from religious precepts, but in my view it now matters not whether a dying declarant was a religionist or a secularist in his lifetime.

[His Honour, having heard all the evidence, later rejected the dying declaration for reasons that do not bear upon the above judgment.]

Ruled accordingly.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[ccciv]Section 32 of the Criminal Procedure Ordinance of 1889 (Papua, adopted) provides:

“The declaration of a deceased person whether it be made in the presence of the accused person or not may if the Chief Magistrate shall see fit be given in evidence if the deceased person at the time of making such declaration believed himself to be in danger of approaching death but yet had hopes of recovery.”

[cccv][1967-68] PNGLR. 119, at pp. 122, 123 and 124.
[cccvi][1967-68] PNGLR. 119 at p. 123.
[cccvii][1963] PNGLR. 252, at 253; (1959-1965) 6 FLR. 1.
[cccviii]See P. Brazil, “A Matter of Theology” (1960), 34 A.L.J. 195.
[cccix][1963] PNGLR 252, at p. 252.
[cccx][1963] PNGLR 252, at p. 254.
[cccxi][1967-68] PNGLR 119, at pp. 129, 130, 131.
[cccxii][1967-68] PNGLR 119, at p. 129.
[cccxiii][1967-68] PNGLR 119, at p. 130.
[cccxiv](1866) 10 Cox C.C. 368.
[cccxv][1967-68] PNGLR 119, at pp. 129, 131.
[cccxvi][1967-68] PNGLR 119.
[cccxvii](1829) 3 Car. & P. 598, at p. 598; 172 ER. 562, at p. 563.
[cccxviii](1840) 9 Car. & P. 395; 173 ER. 884, at p. 885.
[cccxix](1789) 1 Leach, 500, at p. 502; 168 ER. 352, at p. 353.
[cccxx][1967-68] PNGLR 119, at p. 125.
[cccxxi][1909] 2 K.B. 697, at p. 701.
[cccxxii](1962) 79 WN. (N.S.W.) 693, at p. 698.
[cccxxiii](1881) 15 Cox C.C. 1, at p. 3.