R v Buzzacott - [2010] SASC 234

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v BUZZACOTT
[2010] SASC 234
Reasons for Ruling of The Honourable Justice Vanstone
28 July 2010
CRIMINAL LAW - EVIDENCE - DYING DECLARATIONS
CRIMINAL LAW - EVIDENCE - DYING DECLARATIONS - DANGER AND EXPECTATION OF DEATH - PARTICULAR CASES
Accused charged with murder - application by defence for ruling that statements made by deceased shortly before his death as to the identity of his assailant were admissible - whether statements admissible as dying declarations - whether proved that deceased had a settled and hopeless expectation of death - whether such expectation need be proved to criminal standard or only on balance of probabilities.
Held: proof of preconditions beyond reasonable doubt not required. No proof on balance of probabilities that deceased had a settled and hopeless expectation of death. Statements inadmissible.
R v Rogers [1950] SASR 102, not followed.
R v Jenkins (1869) L.R. 1CCR 187; Wendo v The Queen (1963) 109 CLR 559; R v Donohoe (1963) 63 SR(NSW) 38; R v Savage [1970] Tas SR 137; R v Golightly (1997) 17 WAR 401; The State of Western Australia v Montani [2006] WASC 190, discussed.

R v BUZZACOTT
[2010] SASC 234
Criminal
Reasons for ruling on admissibility of evidence

VANSTONE J: The accused, Joshua Buzzacott, is charged with murder. It is alleged that on 2 October 2009 at Port Augusta, he murdered Alvin Clayton Austin. The issue for determination is whether statements made by the deceased shortly before his death tending to identify his killer are admissible as dying declarations.
The prosecution case is that in the early hours of 2 October 2009 the prosecution witness Jase Austin was drinking with his cousin, the deceased, in a park area near Shaw Street in Davenport, just out of Port Augusta. At some point in the night, three other men walked into the area. Jase Austin claims to have recognised one of those men as the accused. A fight took place between the men and, during it, the deceased was stabbed in the chest.
Notwithstanding having sustained that wound, the deceased was able to accompany Jase Austin back to the home of Alvin Austin’s uncle, Steven Austin, in Shaw Street. Steven Austin says this was about 2.30 in the morning. Other people present at that house included Steven Austin’s wife, Vicky Strangways, the deceased’s sisters, Nerida Austin, Glenys Austin, and Aaron Strangways.
When Steven Austin first saw his nephew Alvin Austin he had already entered the kitchen. Steven Austin saw that there was a lot of blood about Alvin Austin’s chest and throat. In his statement Steven Austin says that the deceased told him “Joshua Buzzacott has stabbed me in the throat”. Several witnesses heard and reported an utterance along those lines. In the ensuing minutes the deceased made another such statement while in Steven Austin’s bedroom. Reports of what was heard varied but in their statements, the various witnesses put the utterances as follows:
“Josh Buzzacott did this to me out there” (Jase Austin),
“Joshua had stabbed him” (Glenys Austin),
“Joshua had stabbed him” or words to that effect (Vicky Strangways),
“I need help” and “I got stabbed, Joshua stabbed me” (Tanya Smith),
“Joshua stabbed me” (Nerida Austin),
“They stabbed me” (Aaron Strangways).
I have had the benefit of hearing much of the evidence sought to be relied upon. There are some variations between the words attributed to the deceased in the witness statements compared with the evidence they gave before me. However, for my purposes, nothing turns on that. In addition to hearing the evidence, I have been much assisted by careful argument as to the question by Ms E F Telfer for the prosecution and Mr W P Boucaut for the accused.
The principle at stake, briefly expressed, is that a declaration made by the deceased concerning the event which led to death is admissible at a trial for the person’s murder or manslaughter provided the declarant had a settled and hopeless expectation of death at the time the statement was made and provided the declarant would have been a competent witness. I take that statement of principle from Cross on Evidence (7^th Aust Ed, LexisNexis, Butterworths, 2004) [33,260]. The rationale appears to be an acceptance that, when a person knows that death is imminent, any earthly motive to lie will fall away and there will be strong motivation to speak truly. Dying declarations are an exception to the hearsay rule and strict proof is required of each of these preconditions of admissibility.
One of the issues argued before me was whether the preconditions for admissibility of the declaration must be proved to my satisfaction beyond reasonable doubt, or merely on the balance of probabilities.
There is Full Court authority in this state, namely R v Rogers [1950] SASR 102, to the effect that the criminal standard applies. However, that decision has not been followed elsewhere. Rogers appealed against his conviction for murder of a woman with whom he had spent a period of time and who left his company having sustained serious injuries. Some hours later she died from the effects of a cerebral haemorrhage. In the meantime she had sought assistance and police had obtained a statement from her implicating the appellant. The main complaint on appeal was that the statement should not have been admitted as a dying declaration because, it was argued, it was not proved that the deceased had a settled and hopeless expectation of death. In the course of addressing that question the Court observed that the onus of proving that the deceased knew she was dying was upon the prosecution and that knowledge had to be proved beyond reasonable doubt.
The Court cited R v Jenkins (1869) L.R. 1 CCR 187 at 192. Jenkins had been convicted at the Bristol Assizes of the murder of one Fanny Reeves. The victim had been rescued from a river in a poor condition. The next day she expressed the view that she would not recover. That evening a magistrate’s clerk came, administered an oath and took a statement from her. He asked her “Is it with the fear of death before you, that you make these statements?” and added “Have you any present hope of your recovery?” The victim replied “None”. It seemed that the words “at present” had been inserted after the word “none” because the victim had suggested it when the statement had been read over to her. The woman died the next morning. The appellant argued that the addition of the word “present” qualifying “hope” undermined the proof that the victim believed she was facing death. The Court of Criminal Appeal quashed the conviction on the basis that it had not been shown that the deceased was without hope of life. The insertion of the word “present” was critical. The Court made the following observation, at 256:
Furthermore, it is a principle of law of evidence that the burden of proof as to the state of mind of the declarant is on the prosecution, says another learned Judge; and we must be perfectly satisfied beyond a reasonable doubt that the declaration in question was made by the deceased while under the belief that there was no hope of recovery.
Citations of Jenkins in relation to the observation about the onus of proof are all but non-existent, although the case is often cited for its discussion of the prerequisite relating to the deceased’s state of mind.
The learned author of Cross on Evidence expresses the view at [33,295] that, as a matter of principle, proof beyond reasonable doubt should not be required. He said:
The view that the standard of proof is the balance of probabilities accords with the general principle that proof beyond reasonable doubt is not required in criminal trials on preliminary facts which are conditions precedent to the admissibility of evidence.
In relation to the issue of principle Wendo v The Queen (1963) 109 CLR 559 is cited. In that case it was authoritatively laid down that on a voir dire hearing to determine the admissibility of confessional statements, the Crown need only prove the voluntariness of such statements on the balance of probabilities. The author of Cross on Evidence cites R v Donohoe (1963) 63 SR(NSW) 38 and R v Savage [1970] Tas SR 137 as cases which support a need for proof to the civil standard only in the context of dying declarations.
In Donohoe the victim was shot in the stomach. He was taken to hospital and there made statements to his mother about the identity of his assailant. He said he felt “very ill” and would not “get over it” (at 47). The issue was whether the statement satisfied the criteria laid down in s 408(1) Crimes Act 1900 (NSW). The legislative provision was silent as to the relevant standard of proof. The Court of Criminal Appeal held that neither express nor conclusive proof as to the victim’s sense of impending death was necessary. The Court said, at 47:
It is enough if it satisfactorily appears to the judge that the declaration was made under that sanction, whether it be proved directly by express language or be inferred from the declarant’s evident danger or the opinions of medical men stated to him or from his conduct or other circumstances of the case …
Donohoe was followed in Tasmania in Savage by Burbury CJ, sitting at first instance. The Chief Justice had before him a case in which the victim had died after an illegal abortion. The victim was admitted to hospital and a police officer came to the hospital and took a statement from her, which she signed. The Chief Justice referred to the common law principle that proof of the declarant’s knowledge of impending death must extend to certainty of death without any hope of survival. This could be proved from all the circumstances and without need of direct evidence that this was in fact the declarant’s belief (at 141). His Honour also found that the standard of proof was the civil standard and he adopted the reasoning of the New South Wales Court of Appeal in Donohoe: at 143.
The question has also been examined more recently in the Supreme Court of Western Australia, by two judges sitting at first instance.
In R v Golightly (1997) 17 WAR 401 the victim had been shot and died within a few minutes. The victim’s brother was nearby at the time of the shooting and heard the victim scream in pain within moments of the shots. He heard the victim say “John Golightly shot me”. Owen J surveyed the authorities I have mentioned and concluded that the civil standard of proof was to be applied to the preconditions of admissibility. He found that there being no express reference by the deceased to a belief that he was dying and notwithstanding that the wounds were obviously extremely serious, it was not clear that the deceased had turned his mind to his inevitable fate at the time the words were uttered. However, Owen J admitted the statements as part of the res gestae.
In The State of Western Australia v Montani [2006] WASC 190, Johnson J considered the admissibility of a statement by a security guard who had been shot in the stomach in the course of his employment while outside the Bayswater Waves Leisure Centre. Another security guard, Mr Throp, arrived at the premises soon afterwards and came upon the deceased lying on the floor and groaning. The deceased was saying “I’ve been shot”. A few minutes later the deceased said “I’m gone. I’m dying. They’ve got me.” He asked the deceased for his name and Mr Throp took him to say “Johnny Montoya”. Mr Throp transmitted that name to his base and was corrected to the effect “Montoyo”. Mr Throp then said to the deceased “Don’t go on me mate” and the deceased responded “I’ll do me best not to”. Shortly afterwards a police officer arrived and tried to elicit the assailant’s name from the deceased, but the deceased was no longer able to speak and died almost immediately.
Johnson J surveyed the authorities concerning the standard of proof to be applied to the conditions of admissibility. Relying on Donohoe, Savage and Golightly and drawing a direct analogy with Wendo’s case, her Honour determined not to follow Rogers and to apply the civil standard. The declaration by the deceased was admitted, despite the fact that there was no statement to the effect that he knew he was dying. That was inferred from all the circumstances.
It is clear that the preponderance of authority, together with the leading Australian text on evidence, favours the application of the civil onus. I consider that I am able to depart from the principle as stated in Rogers, because, first, the statement was based on limited authority and, more importantly, insofar as it requires proof beyond reasonable doubt of the preconditions, Rogers has been, impliedly, overruled by Wendo.
Accordingly, I propose to apply the civil onus to the preconditions of admissibility.
Notwithstanding that decision, I am unable to find on the balance that the deceased was aware of his impending death. He made no specific statement to that effect. There is nothing in the circumstances to indicate any urgency in the way in which he communicated the identity of his attacker, such as there was in Montani. Indeed, the statements made here are in the nature of narrative statements in answer to questions put to the deceased by his relatives and friends at the house. The statements do not have the flavour of being declarations at all. There was no sense of extremity, hopelessness or resign about them and still less, any sense of formality, such as is often seen in the older authorities, where a police officer or magistrate is brought in to receive the declaration.
In my opinion, the prosecution fails on the precondition requiring proof of a settled and hopeless expectation of death. In these circumstances it is unnecessary to go on to consider Mr Boucaut’s subsidiary argument that, due to his extreme drunkenness, the deceased would not have been a competent witness on the question of the identity of his attacker, had he survived.
I rule that each statement made by the deceased at the house of Steven Austin as to the identity of his assailant is inadmissible.