Can a dying declaration be admitted into evidence?

28th Oct 2021

Imagine that a man has been shot and lies dying on the floor. He’s discovered by another person not involved in the shooting, who realises he’s still alive. The man makes a dying declaration, whispering the name of his killer to the other person.

Police arrest the man that the victim named as his killer. The person who found the victim tells the court that the victim told him ‘whodunnit’ with his dying breath.

But would this be acceptable in a real court? Keeping in mind that there is no evidence that the dying man named the right person, or even that he actually said that particular name.

Hearsay evidence normally inadmissible in court

A dying declaration is ‘hearsay evidence’. Under s59 of the Evidence Act 1995 (Cth), hearsay is deemed as a witness saying someone told them something that is relevant to a crime, but which they have no direct knowledge of.

It is hearsay when a witness did not see the crime themselves, but heard what happened from someone who was there.

Police may not be able to produce the prime eyewitness – they may have disappeared or passed away. In some circumstances, hearsay evidence may be the best or only evidence that police have, but for the most part hearsay evidence is not admissible in court.

Why a dying declaration may be accepted as evidence

Courts for many years have admitted dying declarations as evidence because it was assumed that someone who was about to die would tell the truth, believing it would help them pass into heaven.

This originates from the UK decision R v Osman (1881) 15 Cox CC 1: ‘A dying declaration is admitted in evidence because it is presumed that no person, who is inevitably going into the presence of his Maker, will do so with a lie on his lips.’

More recently, in the case of R v Golightly (1997) 17 WAR 401, the Court stated, inter alia, regarding the criteria of dying declarations as follows:

  1. The maker must be dead;
  2. The trial must be for the declarant’s murder or manslaughter;
  3. The statement must be related to the cause of the declarant’s death;
  4. It must be established that the declarant would have been a competent witness; and
  5. The declarant must have been under a settled, hopeless expectation of death.

In regard to the fourth point, there may be some difficulty in ascertaining whether the declarant would have been a competent witness. For example, the declarant may have been intoxicated, under the influence of prescribed or illicit drugs, or suffering from mental illness at the time of death.

Perhaps more pertinently, criteria set out in the case the DPP v Debs & Roberts [2002] VSC 405 would be a more appropriate basis for admitting such evidence. The principles are 'immediacy, spontaneity, holism and lack of opportunity for contrivance.' (at [13]).

What if a dying declaration is uttered by an atheist?

But what if the dying person did not believe in a final judgement or an afterlife?

In a report on Aboriginal Dying Declarations, the Australian Law Reform Commission (ALRC) found some Australian judges had ruled that a dying declaration can not be accepted if the declaring person does not believe in God.

The ALRC stated that a dying declaration is an anomalous exception to the hearsay rule, as it has a theological justification. However, this exception may disappear with future reform of the law of evidence.

This is an edited version of an article first published on Stacks Law.

Peter Schmidt practises principally in family law and criminal law at Stacks Law Firm in Tamworth. He enjoys the dynamic, spirited nature of criminal law and values the opportunity to help people navigate the legal process in criminal and family law matters.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Evidence