606. General Rule: Exception to Hearsay. One of the basic common law rules of evidence is the rule against hearsay, which in general terms requires that persons giving evidence may only relate their own first hand accounts about matters in dispute and not statements made by someone else out of court about them. Cross states the rule in the following way:
The rule is hedged around by a large number of exceptions developed for a variety of reasons. The proliferation of exceptions has been such that the validity of the rule against hearsay is increasingly questioned, with alternative formulations put forward to regulate the admissibility of such evidence. This Report is not, of course, concerned with this fundamental issue. It is, however, necessary to discuss the specific exception relating to dying declarations, and the application of that exception to traditional Aborigines.
607. Development of the Rules Relating to Dying Declarations. Words uttered by dying persons will constitute a dying declaration and thus be admissible as evidence only in very limited circumstances:
The oral or written declaration of a deceased person is admissible evidence of the cause of the death at a trial for his murder or manslaughter provided he was under a settled hopeless expectation of death when the statement was made and provided he would have been a competent witness if called to give evidence at that time.
Other courts also adopted this approach. In 1909 Chief Justice Madden in the Victorian Supreme Court set out his view of the general principle for admitting dying declarations:
The general principle on which courts of justice act is that testimony should be given on oath and with all the solemnity that an oath suggests. In the case of a person who is actually dying, however, and who must be conscious of the cumulative responsibility which comes upon every human being of speaking the truth in the same Presence as if on oath administered in the box, it is thought highly probable that he will tell the truth. Such a person has no motive to tell a lie. All resentment and vindictiveness will probably have faded down, for before many moments that judgment must be faced which we are all taught to expect. It is thought that the sanction upon the conscience in such circumstances to tell the truth will be at least as great as taking the oath in the witness-box.
Such statements of the basis for admitting dying declarations have created difficulties in dealing with declarations made by persons thought to lack the requisite belief in a ‘Maker’, a ‘final judgment’ or a ‘life hereafter’. The problem has been consider ed by the courts in a number of contexts, including agnostics, non-Christian religions, and (most relevant for present purposes) Aborigines and natives of Papua New Guinea.
608. Dying Declarations of Traditional Aborigines. In R v Wadderwarri, Justice Kriewaldt sitting in the Northern Territory Supreme Court had to consider the dying declaration of a traditional Aborigine. He summed up to the jury in the following words:
If the accused had been a white person, and if the deceased had been a white person, it is almost certain that the evidence … of what the deceased had said when he was about to die would have been admitted, but because I have to apply the same rules to Aboriginals 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 the Aboriginals are concerned, we know that they have not that type of belief in the hereafter and therefore … I excluded any statement the deceased might have made shortly before his death.
It should be noted that Justice Kriewaldt did not hear any evidence to determine what were in fact the religious beliefs of the deceased, or of Aborigines generally. Rather he took judicial notice of (what he perceived to be) the absence of the requisite belief. Neate argues that Justice Kriewaldt was probably correct in his assessment of Aboriginal religious beliefs even though he did not determine them in the particular case. Even if it were the case that traditional Aboriginal religious beliefs would not pass the ‘religious test’ supposed to underlie the dying declarations rule, many Aborigines are sincere Christians; many combine Christianity with adherence to Aboriginal traditions and laws. If the ‘same rule’ that Justice Kriewaldt purported to apply required investigation of the beliefs of the particular deceased, then it was wrong not to investigate those beliefs in Wadderwarri. If it did not require such an individual investigation, then either the dying declaration should have been admitted, or the rule relating to the admissibility of Aboriginal dying declarations was different, and not ‘the same rule’ at all.
609. Application in Subsequent Cases. Despite its internal inconsistencies, the approach taken by Justice Kriewaldt was followed by the Papua and New Guinea Supreme Court. In R v Madobi Justice Ollerenshaw said:
It may well be that the principle would apply, also, in the case of members of other faiths, holding beliefs materially similar to those of Christianity. I imagine that it would be applicable to some natives of this Territory, particularly those who have been admitted, with understanding, into the Christian faith: but, what little I do know about the expectations for their illimitable future of the natives of this community here in Kiriwina does not lead me to think that they anticipate anything like a judgment upon their sins that would create a solemn sanction to speak truthfully upon the eve of such a judgment. I understand that their traditional belief was in some sort of existence, after this life, upon those uninhabited islands which may be seen from the wharf and its approaches.
However, more recent decisions cast doubt on whether Wadderwarri would still be followed in Australia. Certainly Madobi appears to have been overruled in Papua New Guinea. Two more recent decisions of the Papua New Guinea Supreme Court clearly indicate a change of approach. In R v Kipali-Ikarum Justice Clarkson had to determine whether a woman who had received some Christian teaching and attended Christian churches had acquired the requisite beliefs so that her dying declaration could be admissible. Despite finding that he was not satisfied that ‘the deceased had been admitted with understanding into the Christian faith’ Justice Clarkson determined that the declaration was admissible:
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 assumed that a sensible part of the community hold no religious beliefs and no belief in divine punishment … it is difficult to see on what basis such an examination should be undertaken in the Territory. The stage may well have been reached when this court should not embark on the necessary enquiries … This view was apparently followed in South Africa where I have already noted the common law rule was wholly adopted.
This statement does not however exclude, so much as side-step, the supposedly theological rationale for admissibility. In the later case of R v Peagui Ambimb, Justice Raine admitted the dying declaration of an indigenous person after refusing to accept any evidence relating to the deceased’s Christian beliefs. In doing so he clearly rejected any requirement of a belief in God or a ‘hereafter’:
References to considerations affecting the minds of religious people about to meet their God in earlier judgments delivered in times that were less scientific and 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 …. In my view it now matters not whether a dying declarant was a religionist or a secularist in his lifetime.
Chief Justice Burbury in a case before the Tasmanian Supreme Court continued the trend of admitting dying declarations regardless of the deceased’s religious views. The deceased had been seriously ill in hospital when she made her statement but had declined to swear on the Bible because she did not believe in it, although she agreed to swear ‘By Almighty God’. Chief Justice Burbury noted that Madobi had not been followed in Kipali Ikarum. He went further and held that Madobi had been wrongly decided. He said:
The notion that the court should embark on an enquiry into the religious beliefs of a declarant in the life hereafter before admitting a dying declaration should in my view be wholly rejected … If the proper inference from the evidence is that the girl was an agnostic or even an atheist I think her dying declaration is nevertheless admissible.
610. The Present Law. The trend of these cases is clear although not necessarily conclusive. There has been no decision of a higher court in Australia on this question, especially with respect to the dying declaration of an Aborigine. It follows from Chief Justice Burbury’s view in Savage that not only Madobi but also Wadderwarri (which was relied on in Madobi) were wrongly decided, unless, other grounds can be found for distinguishing the two cases. O’Regan has argued that the basis of Mr Justice Kriewaldt’s decision in Wadderwarri was not that theological belief was a condition of admissibility but rather that ‘a common law rule of evidence founded in England on the existence of a special kind of theological belief could not apply to the very different circumstances of the Northern Territory, in a case where the declarant was an Aborigine’ because in ‘the Northern Territory the common law was received only so far as applicable to local circumstances’. But Justice Kriewaldt did not hold that the dying declarations rule had no application in the Territory, only that it had no application to persons such as the deceased. The trend of later cases is to the effect that the rule applies to persons irrespective of their own personal belief in a supernatural judgment after death. If the rule was received at all, and if these cases represent the modern law, the rule must be taken to apply to all persons within the jurisdiction, irrespective of their personal beliefs or background. It would appear that more recent judicial statements in Australia and Papua New Guinea favour the view that theological belief is not a condition of admissibility of dying declarations. This is certainly the better approach. This means that the dying declaration of a traditional Aborigine would be admissible without any requirement for proof or investigation of any personal religious belief.
611. Proposals for Change. To exclude Aborigines (or traditionally oriented Aborigines) as a class from the scope of the dying declarations rule is indefensible. To presume lack of relevant religious beliefs on the part of a traditional Aborigine is indefensible. Moreover in many Aboriginal communities statements made by persons or the point of death have particular significance, especially made in the presence of appropriate relatives or family members. It is true that this area of law is unsatisfactory for other reasons. As Cross expresses it, ‘dying declarations are an anomalous exception to the hearsay rule, and there is something to be said in favour of strict conditions of admissibility’. It may be that reform of this area of the law of evidence will see the category ‘dying declarations’ disappear completely, with the result that problems which might arise with respect to the dying declarations of Aborigines would disappear. However, while the dying declarations rule continues, it is impossible to defend such categorical assumptions about Aboriginal religious belief as were made in cases such as Wadderwarri. In the absence of further clarification of the law, and for the avoidance of doubt, it should be declared that dying declarations made by Aborigines shall not, by reason of their adherence to traditional beliefs, be held inadmissible on grounds of any lack of belief in a religious sanction or supernatural judgment.