The State of Western Australia v McCOLL
[2016] WASC 186
•22 JUNE 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- McCOLL [2016] WASC 186
CORAM: HALL J
HEARD: 31 MAY 2016
DELIVERED : 31 MAY 2016
PUBLISHED : 22 JUNE 2016
FILE NO/S: INS 273 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DYLAN ANTHONY McCOLL
Defence
Catchwords:
Criminal law - Evidence - Dying declaration - Need for settled hopeless expectation of death at time of utterance - Whether conditions for admissibility met - Whether evidence otherwise admissible under res gestae exception
Legislation:
Nil
Result:
Evidence ruled inadmissible
Category: B
Representation:
Counsel:
Prosecution : Mr D L S Davidson & Mr J E Keogh
Defence: Mr I Macfarlane
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Ian MacFarlane
Case(s) referred to in judgment(s):
Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514
R v Jenkins (1869) LR1CCR 187
R v Morgan (1875) 14 Cox CC 337
Ratten v The Queen [1972] AC 378
The Queen v Golightly (1997) 17 WAR 401
The Queen v Hope [1909] VLR 149
The Queen v Woodcock (1789) 1 Leach 500
The State of Western Australia v Montani [2006] WASC 190
HALL J: This is a ruling on the admissibility of evidence of a statement made by Brent Barton shortly before his death. The accused is charged with the murder of Mr Barton. The State submits that the evidence is admissible either as a dying declaration or as part of the res gestae. The defence objects and submits that the evidence does not meet the requirements of either of those categories of evidence and is, therefore, inadmissible hearsay. On 31 May 2016 I ruled that the evidence was inadmissible and gave brief oral reasons. I said that more detailed written reasons would be published in due course.
The prosecution case
The prosecution case is that on the evening of 21 May 2015 the accused was present at a property in Eaton near Bunbury. The house was that of Sharrman Ynema and his partner Tia Offer. The accused was a friend of their son, Shilo Ynema. He had been staying at the house for a few weeks prior to 21 May 2015. There was a shed at the back of the house where Shilo and the accused would socialise with their friends.
On the evening of 21 May 2015 the accused, Shilo Ynema, the deceased and another friend, Shannon Smith, gathered at the shed to celebrate Shannon Smith's birthday. They drank alcohol and smoked cannabis together. Early in the evening the accused put on some boxing gloves and sparred with Shilo's younger brother, Jarkim Ynema. When that finished the accused wanted to spar and play wrestle with other people; play‑fighting was a common component of the friends' social gatherings. Eventually the deceased agreed to play wrestle with the accused. There were two such incidents, the second of which is the most significant. That play‑fight occurred sometime after 9.00 pm. After a short time the deceased got the accused into a headlock or 'choker hold'. The fight ended but the accused became upset and teary.
The accused had previously been employed as an abattoir worker. He had a set of knives, including a yellow‑handled boning knife which he kept in a pouch in a bag. That bag was in the shed that evening. After becoming upset following the play‑fight the accused sat on a stool by a workbench to the side of the shed. The bag containing his knives was located on that workbench.
The prosecution case is that the deceased made some efforts to placate the accused, by asking if he was okay and saying that he did not mean to hurt the accused. The deceased then began moving towards the accused with his arms held up and out as if to give the accused a hug. The accused is alleged to have told the deceased to 'fuck off' and then to have punched the deceased in the face. He is then alleged to have grabbed the yellow‑handled boning knife and stabbed the deceased with it to the chest. The deceased then turned away and was stabbed a second time to the back. The chest wound proved to be fatal.
The deceased walked from the shed to the house. He entered through the rear laundry door and collapsed in the hallway. He was seen by Shilo Ynema's younger sister who called out for help. Sharrman Ynema and Tia Offer were in their bedroom and came out almost immediately. Sharrman Ynema began assisting the deceased whilst Tia Offer made a call to emergency services.
The evidence in issue
Mr Sharrman Ynema has given two witness statements. The first statement was taken shortly after the events and contains no reference to the deceased stating who it was who had stabbed him. The second statement has been made very recently. It is in that statement that the evidence at issue appears.
According to Mr Ynema's second statement the seriousness of the injuries to the deceased were not immediately apparent. He looked at the wound and told the deceased that 'it did not look that bad'. Mr Ynema states that he then asked the deceased what had happened and that the deceased said 'Dylan has stabbed me'. Dylan being the first name of the accused.
Sharrman Ynema obtained towels and began pressing them to the deceased's wounds in an effort to staunch the bleeding. He was assisted in this by Shannon Smith. The prosecution case is that Shilo Ynema and Shannon Smith had remained in the shed for a short time after the deceased left and had tackled the accused. The accused was pushed onto a couch and punched. He was either forced to drop the knife or it was grabbed from his hand by Shannon Smith.
Whilst the deceased was being attended to in the hallway of the house both Shannon Smith and Tia Offer state that they heard him say words to the effect 'I am going to die'. However, Shannon Smith also states that at the same time the deceased also said 'don't let me die'. Sharrman Ynema makes no reference to the deceased saying anything of this sort in his statement.
The triple 000 emergency call lasted approximately 13 minutes. That call commenced soon after the deceased enters the house and finished on the arrival of the police. By that stage the deceased was still alive, though on all fours. He was conscious and talking but in a confused and incomprehensible way. An ambulance arrived soon after and the deceased was declared dead at the hospital. On this basis the alleged dying declaration was made at least 15 to 20 minutes before death and very soon after the deceased had walked from the shed to the house.
It is important to note the prosecution case that the accused stabbed the deceased depends critically on the evidence of Shannon Smith and Shilo Ynema. The accused in his interview to the police denies having stabbed the deceased. He says that although there was a play‑fight and that he punched the deceased, he was then set upon by all three of the others and fled the shed. He says that he did not obtain or use a knife and that the deceased was unharmed at the time he left. It is not disputed that the deceased was stabbed by someone and that this caused his death, rather what is in issue is whether it was the accused who stabbed the deceased. The alleged dying declaration is obviously directly relevant to this issue.
Relevant principles
A statement made out of court is hearsay and inadmissible unless it falls within one of the exceptions to that rule. One exception that has been recognised is dying declarations. In some circumstances, a declaration made in the expectation of death can be admissible. The rationale is that there are powerful considerations to speak the truth where a person is in extremity, every hope of continuing life has gone and motivations to falsehood have become irrelevant. The sanction upon the conscience of a person who believes he is dying has been said to be at least as great as taking the oath in the witness box: see The Queen v Woodcock (1789) 1 Leach 500; The Queen v Hope [1909] VLR 149; The State of Western Australia v Montani [2006] WASC 190; and The Queen v Golightly (1997) 17 WAR 401.
It is important however to bear in mind that where such evidence is admitted there is no opportunity to cross‑examine the declarant. The evidence may be given significant weight by the trier of fact, though the accused will have limited opportunity to test its meaning, reliability or accuracy. Accordingly, the circumstances in which a statement made by a deceased person will be admissible have been tightly confined.
In order to be admissible a number of conditions must be satisfied. Those conditions were referred to by Owen J in Golightly (408), and are as follows:
1.the maker of the statement must be dead;
2.the trial at which the statement is sought to be adduced must be for the maker's murder or manslaughter;
3.the statement must relate to the cause of death of the maker of that statement;
4.the maker of the statement must be a person who would, but for his death, have been a competent witness; and
5.the maker must have been under a settled hopeless expectation of his death.
As regards the last condition, it has been held that a declarant must not hold out any hope of recovery however slight: R v Jenkins (1869) LR1CCR 187. An express utterance indicating the necessary degree of hopelessness or resignation is not absolutely necessary. The required state of mind can be inferred from the circumstances, however the courts have generally been reluctant to draw such an inference unless the circumstances are compelling: see, for example, R v Morgan (1875) 14 Cox CC 337.
The onus of proving the conditions precedent to admissibility is on the prosecution. The standard is the balance of probabilities: Golightly (409 ‑ 410).
Application to this case
The only conditions which are seriously in dispute are numbers 3 and 5.
As to condition 3, the defence submit that at the time of the statement the deceased was complaining about his back wound. As has been previously noted, the deceased had two wounds, one to his chest which was fatal and one to his back which was not. It is submitted that the statement was a reference to the wound to the back and, therefore, not to the cause of death.
I do not accept that submission. The words 'Dylan has stabbed me' do not necessarily imply a single wound. They could contemplate both wounds. The fact that the deceased referred to his back does not mean that he was unaware of the wound to his chest. Indeed, the deceased is said to have moved to a sitting position and lifted his shirt to reveal the wound to his chest to Sharrman Ynema immediately after the statement. In these circumstances, I am satisfied that the statement referred to both wounds and, therefore, to the cause of death.
As to condition 5, the factual situation is considerably more unclear. Based on Sharrman Ynema's second statement the alleged declaration was made very soon after the deceased entered the house. As no one else claims to have heard it, it seems likely that this must have been before Shilo Ynema and Shannon Smith also entered the house. At this stage the seriousness of the injuries was not apparent to Sharrman Ynema. It was in this context that he told the deceased that his wounds did not look too bad. Shortly thereafter it becomes apparent that the wounds are indeed very serious and the deceased starts to bleed copiously. It is then he makes references to dying and to the hope that he will not die.
The State submits that the state of mind of the deceased is established by two things:
1.the circumstances, including the nature of the injuries, the type of knife that caused them (being a boning knife that, as the deceased would have known, was a sharp and dangerous weapon), the rapid and copious loss of blood and the response of the occupants; and
2.the statement made by the deceased to the effect that he was dying which was heard by Shannon Smith and Tia Offer.
It is important not to conflate all of the circumstances and merely assume that they, and an awareness of them, were present at the time that the declaration was allegedly made. The exception does not permit declarations made by all persons who die or even by persons who are in the process of dying. It only permits the admission of a statement if the deceased has a settled hopeless expectation of his death. That is, he must have known he was dying and been resigned to the inevitability of that fate at the time he made the statement.
There are several problems with the submissions advanced by the State:
1.The declaration was made very soon after the deceased was stabbed and some 20 minutes prior to his death. At this time the seriousness of his wounds was not apparent and much of the bleeding that occurred took place in the following 20 minutes.
2.The statements of the deceased regarding dying that were heard by Tia Offer and Shannon Smith occurred after the declaration, though exactly how long after is impossible to determine. Nonetheless it is apparent that the condition of the deceased rapidly deteriorated and these statements therefore do not necessarily reflect his state of mind at the time the alleged declaration was made.
3.Shannon Smith also heard the deceased say words to the effect 'don't let me die', those words are not consistent with a settled hopeless expectation of death. They are more consistent with a hope that the deceased will not die and can be saved. It is significant that these words occur after the alleged declaration.
The onus of establishing that this exception applies is on the State and the standard of proof to be established is the balance of probabilities. I am not satisfied that at the time the declaration was made the deceased had a settled hopeless expectation of death. In those circumstances the dying declaration exception does not apply.
As to the alternative proposed by the State, that is that the declaration formed part of a res gestae, I will deal with that briefly. A statement made by a deceased person which accompanies and explains actions and events because they are part of the same transaction can be admissible under the res gestae exception. There is a well‑recognised distinction between words that form part of the relevant events and a 'mere narrative' that explains an earlier event: Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514, 530 (Dixon J). In this case the declaration did not occur in the shed at the time of the stabbing, rather it is alleged to have occurred in the house a short time later and in response to a question put to the deceased by Sharrman Ynema. It does not have the quality of a spontaneous statement made almost reflexively in response to the events. It is quite different from statements in other cases that have been admitted under this exception: see, for example, Ratten v The Queen [1972] AC 378. It does not qualify as being part of the res gestae.
For those reasons the evidence of Sharrman Ynema of the alleged declaration made by the deceased is not admissible.
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