1 JOHNSON J: The accused, Johnny Montani, is charged on indictment with one count of wilful murder, contrary to s 278 of the Criminal Code. The indictment also contains an alternative count of murder. The charges relate to the death of Kevin Ashley Woodhouse, also known as Michael McKrill, who was fatally shot outside the Bayswater Waves Leisure Centre ("the Centre") on 12 May 2004.

2 Two pre-trial applications have been brought on behalf of the accused. The first relates to the admissibility of the videotaped police interview of the accused. It is alleged that the failure of the interviewing officer to warn the accused that anything said by him may be used in evidence against him created unfairness justifying the exclusion of the record of interview. The second application relates to the admissibility of a statement made by the deceased just prior to his death which is said by the State to be a dying declaration and therefore admissible or, alternatively, is admissible as part of the res gestae.

3 Originally, the defence application concerning the videotaped record of interview alleged that the accused's participation was involuntary and therefore the record of interview was inadmissible. The alternative allegation was that the record of interview should be excluded from evidence in the exercise of the judicial discretion to ensure fairness to the accused. However, the allegation of involuntariness was withdrawn during the hearing and the only issue for determination is whether the evidence should be excluded in the exercise of the judicial discretion.

4 The test to be applied on an application of this type is whether any confessional admissions made voluntarily by the accused were made in circumstances that rendered it unfair or unjust to use the evidence against him: R v Lee [1950] HCA 25; (1950) 82 CLR 133 (at 153), Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 (at 5) per Gibbs CJ (with whom Wilson J agreed) and (at 18) per Deane J. The onus of persuading the Court, on the balance of probabilities, that the admission of the evidence would be unfair is borne by the accused: R v Lee (supra) (at 152 - 155) and Cleland v The Queen (supra) (at 19) per Deane J. These basic principles are not the subject of any dispute between the parties.

5 The State's position is that the absence of a proper caution does not render a video record of interview inadmissible: Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 (at 375 - 376) per Dixon CJ, Webb and Kitto JJ. Nor does it follow that it would be unfair to allow such a record of interview into evidence: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 (at 202 - 203) per Toohey, Gaudron and Gummow JJ citing with approval R v Azar (1991) 56 A Crim R 414. Further, despite the fact that police officers are required by the Police Commissioner's Guidelines to deliver a caution in the terms identified in those Guidelines, subject to minor deviations, the mere fact of non-compliance does not render any admissions and the record of interview unfair or unreliable. Nor does the failure to give the standard caution warrant exclusion of the evidence in the interests of public policy: Norton v The Queen (2001) 24 WAR 488 (at 532) per Roberts-Smith J. Indeed, as Gleeson CJ noted in R v Azar (supra) (at 420):

"There are numerous statements in the law reports to the effect that a confessional statement to a police officer is not inadmissible merely because no caution has been administered."

It has even been said a warning in terms that anything said by an accused will be given in evidence against him or her has been considered to be capable of having several adverse or prejudicial results: Bayly v Vaughan [1989] VicRp 33; [1989] VR 364. In that case Jay J observed (at 368 - 369):

"First, it might induce an innocent person to decline to answer questions which otherwise might clear him or her of complicity in the crime ... Secondly, it might be capable of being understood by the person interrogated as a threat thereby forming a proper basis for rejection of any confessional admission made by him ... Thirdly, a caution so expressed might cause a guilty person to decline to answer the interrogator's questions, thereby frustrating the police officer's lawful investigations. It is necessary to be mindful that it is perfectly proper, and indeed a purpose of police interrogation, to obtain from a person suspected of having committed a crime confessional admission. It follows that the form of caution should not be expressed in terms likely to induce a person to withhold information necessary for police investigations, including self-incriminating as well as self-exculpating statements."

6 Counsel for the accused submitted that the Court should decline to follow the decision in Bayly v Vaughan (supra). In my view, that decision does no more than emphasise that the omission of that aspect of the standard caution does not necessarily cause unfairness to the accused. I do not consider that the decision in Bayly v Vaughan (supra) is authority for the proposition that the omission of the warning that anything said by a suspect will be used against him cannot create unfairness because there might actually be an undesirable element of dissuasion of suspects to cooperate with police.

7 In my view, it remains the case that omitting all or part of the standard caution may create unfairness. It is a relevant factor but is not determinative. That proposition is valid even where the person being interviewed is unaware of his right to silence: R v Azar (supra) (at 421). In R v Azar (supra) Gleeson CJ (at 420) held that the appellant's evidence of his emotional state, and ignorance of his legal rights, were matters to be taken into account in the exercise of the discretion, but they did not require rejection of the evidence, following the conclusion that the statement was voluntary.

8 It will be necessary in every case to consider the surrounding circumstances, and any circumstances peculiar to the particular accused, before a judgment can be made whether the omission has in fact resulted in any unfairness. That is the approach I intend to take in this case.

9 The circumstances culminating in the police interview of the accused were referred to by the accused in his evidence on the voir dire. On 12 May 2004 at 2.20 pm the accused pulled into his driveway and a white van pulled up behind him. The accused looked out the driver's window and saw what he described as "a police commando" dressed all in black, running at his car. The police officer was one of a group of TRG officers who were executing a search warrant on the accused's house. The police officer was carrying a small rifle or sub-machine gun which he pointed at the accused's head and then yelled "Put your hands up", which the accused did. Almost immediately a TRG officer smashed the rear passenger window and the accused was surrounded by TRG officers shouting instructions. The driver's door was opened, the accused was grabbed and flung face first onto the ground and pinned down. The accused said that "a couple of heavy boots were put into my back and onto my head". His hands were handcuffed behind his back.

10 The accused stayed in that position on the ground for approximately 10 minutes. One of the TRG officers then introduced himself as the officer in charge. He asked the accused questions about his house including how many people were in it. Then a plain clothes officer, Detective Sergeant Wilde, came up and introduced himself. The accused was moved from the ground into a police car where he remained handcuffed. The accused said that he was not cautioned either when he was on the ground or in the police car. His handcuffs were not removed until shortly before the commencement of the record of interview, after the accused had been taken to the police station. When asked how he was feeling at the point where he was placed in the car, the accused said:

"I felt very shocked and I was very stunned at the ferocity of the raid - of the police's actions of coming to see me."

At another point in his evidence he said that he was scared by the events. According to the accused, there was no discussion in the car on the way to the police station. On arrival there he was placed in an interview room and remained there handcuffed until the interview commenced. Although the accused was not told he was under arrest, he admitted in his evidence that he was aware he was in custody.

11 At the commencement of the interview the accused was told that the purpose of the interview was that the police were investigating the death of Kevin Ashley Woodhouse who had died earlier that day at the Centre. The accused was then cautioned in the following terms:

"Okay, before we go any further I have to tell you that you're not obliged to say anything unless you want to but whatever you do say will be recorded on the video. Do you understand that?"

12 That was the extent of the caution given. It can be seen that this caution differs from the caution usually given by police officers, which I will refer to as the standard caution, in that it omits to mention that anything said by the accused and recorded may be used in evidence against him. It is this omission which is the basis of the allegation that it would be unfair to admit into evidence the content of the record of interview. On the evidence of Detective Sergeant Wilde the failure to include the final part of the caution was a mere oversight. Indeed, the defence does not suggest that the omission was intentional. However, the alleged unfairness is said to arise from the fact that, as a result of the omission, the accused was not aware that he was a suspect. The accused stated that he was never told he was a suspect and, because he had not been given the full caution, he was not aware that the police considered him a suspect. According to the accused, if he had been told at the start of the interview that anything he might say may be used in evidence against him that would have made him aware that the investigating officer thought he was a suspect. In cross-examination, the accused agreed the police asked him a number of questions about an argument he had with the deceased. Apparently, even those questions did not make him aware that the police saw him as a potential suspect.

13 The accused was asked what he would have done if he had been aware from the outset that he was being interviewed as a suspect. He said:

" ... I think I would've asked for a lawyer or alternatively refrain from answering any questions until I possibly had spoken to a lawyer."

Prior to the interview starting the accused had not asked for a lawyer. He said he did not think he had to because he was only providing information. Although the expressions used by the accused to describe what he would have done had he been properly cautioned lacked certainty, it was accepted that the assertion being made was that the accused would not have answered the questions put to him in that interview.

14 As the accused maintained he was not being interviewed as a suspect, he was asked on the voir dire to explain his understanding of the purpose of the interview. The accused stated that he believed the police were investigating the killing of his friend that had happened that morning and that he had been taken into the police station for questioning to see if he had any information about that event. He said:

"I was there because the police thought that I might've had information which was going to help them with their investigation with regards to the murder of Mick Woodhouse."

The accused stated that he wanted to be helpful to the police and was more than willing to answer their questions.

15 The accused's evidence is that it was not until he was told he was under surveillance that it suddenly dawned on him that he was a suspect. He said he was stunned into silence and remained silent from then on. It is certainly the case that from that point onwards the accused declined to answer any of the questions put to him. However, despite maintaining that he was happy to assist the police and answer their questions, the accused had lied to the police in the interview about his whereabouts that day. The accused denied going to a particular refuse centre that day. It was at that point that he was told he was under surveillance and declined to answer any further questions. Consequently, his decision not to answer any further questions is not only consistent with becoming aware that he was a suspect, but is also consistent with becoming aware that he could not lie with impunity about his whereabouts that day because he had been followed.

16 The explanation given by the accused for why, despite the surrounding circumstances, he did not think he was a suspect was because of some interviews with the police he had participated in about eight years before; one in late 1996 and one early in 1997. According to the accused, he had been interviewed by detectives about another matter on two separate occasions about three months apart. Despite the interviews being recorded on video he was never told he was a suspect and was not being interviewed as a suspect; he was simply helping the police with an investigation they were conducting into the bombing of the Ord Street Café. According to the accused, he was asked a lot of questions about who owned the café and the people around and involved with the owner. He said that he was not charged on either occasion. In cross-examination, the accused conceded that he was asked during the investigation where he was at the time of the bombing. Despite initially attempting to avoid the question, he ultimately agreed that this question did suggest he was a person of interest.

17 Accepting that the two previous interviews represented the accused's background and specific knowledge and involvement with police in being interviewed, if the circumstances surrounding the two previous interviews were significantly similar, it would be reasonable to rely on the previous interviews as indicators of his status during the interview now being considered. The difficulty confronting the accused is that, apart from the fact that the interviewing officers were detectives, were polite, and the caution was the same, there were no other aspects of similarity.

18 The accused was cross-examined about certain differences in the surrounding circumstances that might indicate that the position on the occasion now under consideration was somewhat different. Although the accused's business premises had been searched prior to the first in time of the previous interviews, he had driven himself to the police station on each occasion. As to the search of his home prior to the interview now being considered, the accused believed that was a fishing expedition by the police who were "looking for anything to do with any information that might help them with Mick or anything of the like". In fact, according to Detective Sergeant Wilde, the premises were entered and cleared to make sure there was no other person present, but it was not physically searched for evidence. That is consistent with the purpose of the exercise being to apprehend the accused rather than looking for information. Although the accused may not have known that such was the purpose, he was not present when the premises were searched and was not questioned about any item from the premises.

19 The accused maintained the view that his detention at gun point, being handcuffed and taken into custody and being taken in a police vehicle to police headquarters did not indicate to him that he was a suspect. He believed that the police would have approached anyone who was a friend of the deceased, or connected with him, with extreme caution. The accused said he thought he was taken into custody in that way to soften him up so that he would give the police information, being someone who was close to the deceased and might have knowledge. According to the accused, there was nothing in the detectives' manner which indicated that they thought he was a suspect. They were very polite and very similar to the way in which he had been dealt with in the previous interviews.

20 It is clear that, in making that statement, the accused was not taking into account the circumstances of his apprehension; the fact that he was taken into custody and that he was handcuffed at his home and remained handcuffed until immediately prior to the commencement of the interview with the police. The accused conceded that he knew he was in custody. However, counsel for the accused drew the distinction between knowing he was in custody, and knowing he was in custody as a suspect. I find the distinction curious. If a person in custody is not a suspect, the only alternative is that he must be a witness or person who has useful information. Yet, in my view, any reasonable person would consider it unusual that a person would be taken into custody for such a purpose.

21 The accused identified the following reason for the wide variation in the circumstances by which the accused came to be interviewed on this occasion as opposed to the two previous occasions:

"Well, I think there were two dramatically [different] events. One man had just been slain, just been murdered and I was close to this person. The other was a lesser event where no-one was hurt et cetera so the level of force that was used or the level of inquiry if you want to put it that way was stark, from one extreme to the other."

22 In my view, that explanation minimises the seriousness of a bombing of commercial premises. Accepting that wilful murder is one of the most serious offences in the Western Australian Criminal Code, bombings are rare in Perth and are viewed as being of particular seriousness because of the potential for substantial loss of life if commercial premises are open or staff members are present when an explosion occurs. There is also the potential for extensive damage to adjacent private and public property and for serious injury to passers-by. I do not accept that a police officer would consider a bombing to be anything other than criminality of the highest order. Further, I do not accept that the accused believed he was being treated in the way that he was, even though not a suspect, simply because the charge involved was one of murder. I did not find the accused's evidence on this point to be credible and I find the explanation highly implausible.

23 On the central question of the nature of the caution given to him on the two previous interviews, the accused said that he did not believe that the caution given to him on those interviews included the statement that what he said could be used against him. His recollection was that the caution given on those occasions was the same as occurred on this occasion. He was simply told that the interview was being conducted on video. In my view, the fact of the previous interviews would only be relevant to the accused's understanding of the later events if he had not been given a full caution. All the circumstances surrounding the later interview indicated that the accused was a suspect. It is only if, on the previous occasion when he was interviewed solely for the purpose of providing information, he was not given the full caution that he would be able to conclude that, because he was once again not being given the full caution, he was being interviewed only to provide information.

24 Of course, if he was given the full caution on the previous occasions but simply interviewed as a person who could provide the police with information, the fact that the full caution was not given on this occasion would be of no consequence; it would be the manner of treatment which would influence his understanding.

"Mr Montani, you tell us that if we find those videos there will not be a caution on there saying that the answers that you have could be used in evidence. Do you say that that will not be on the video if we find them? Well, I - I honestly have to tell you that my memory of the exact wording of the caution that the police gave me I can't reiterate that now or remember that now."

26 However, as I have indicated, the absence of the last part of the standard caution could only have led the accused to believe that he was being treated as a source of information rather than a suspect, if, on the previous occasion that he was not given the full caution, he was providing information and was not a suspect. I consider the response in which the accused equivocates about whether the videotapes would support his recollection of not being given the full caution was made with a view to protecting his position if the videotapes were located and were found to be inconsistent with his recollection. Indeed, one of the difficulties with the accused's evidence is the unlikelihood of remembering the wording of a caution so many years after the event.

27 When the hearing resumed for argument on the dying declaration issue, counsel for the State advised that the videotapes for the interviews to which the accused had referred in his evidence had been located. They were received as rebuttal evidence. I have taken the opportunity to view the videotapes of the two previous interviews, the circumstances of which are said to lead the accused to conclude that the police on the occasion under review were not interviewing him as a suspect but only questioning him in order to obtain information to further their investigation. In my view, the content of the videotapes of the two previous interviews do not support Mr Montani's account and do not provide any reasonable basis for concluding that on the later occasion the accused was only being interviewed to provide information.

28 The first of the two previous interviews was conducted on 5 September 1996 in the presence of the accused's solicitor. It is apparent from the content of the interview that the police had executed a search warrant on the accused's business premises on the previous day when the accused was absent but a caretaker was present. The police had returned on the day of the interview, spoken to the accused and provided him with a copy of the warrant endorsed with the items seized. A request was made for the accused to be interviewed but the accused said that, as he was waiting for his solicitor to attend his office, he would meet up with her and then come to the police station. The accused then went to the rear car park to wait for the solicitor. When his solicitor arrived the accused discussed matters with her and they then drove together to the police station. In the interview the accused stated that he came to the interview with his solicitor by arrangement. He confirmed that there had been no discussion prior to the interview.

29 Once discussion of the search warrant commenced in the interview the accused was cautioned. He was advised that that he did not need to say anything but anything he did say would be recorded and may be given in evidence. It can be seen that the accused was indeed given the full caution. The accused was asked about some cannabis material which he was shown and told had been located in his office. He said "No comment". He was shown and asked about a smoking implement and other material. He replied "No comment" to questions about whether the room in which it was found was his and whether the items were his. He replied "No comment" to every question he was asked in relation to these items. The accused was then advised that he would be charged with one count of possession of cannabis and one count of possessing a smoking implement. He indicated that he understood that he would be charged.

30 The accused was also questioned about some ammunition that the police had located. He replied "No comment" to those questions. He was then advised that under the Firearms Act 1973 (WA) he was obliged to answer certain questions. He then proceeded to answer the police questions. Amongst other things, he told the police that he was applying for a firearms licence but did not have one at the moment. He did say that he had a pistol that he kept at the pistol club. Ultimately, the accused was told that he would be charged with one count of possession of ammunition.

31 The police questions thereafter related to the police investigation of bombings at the Ord Street Café on 18 August 1996 and 29 September 1996. The accused was questioned on his whereabouts on those dates. Initially the accused responded "No comment" but then said to his lawyer that he did not mind telling the police. He identified his vehicle and what had happened to it and gave an account of his activities on those dates. The interviewing officers advised the accused that they would be making further inquiries and would speak to the people the accused said he was with on those nights.

32 It is clear from the accused's record that he was later convicted of the two drug related offences. There is no conviction for the offence of possessing ammunition. It is not clear whether the accused was ever charged with the offence, whether the charge was dropped or he was acquitted after trial.

33 It can be seen that the content of the interview falls into two parts. The first part deals with the search warrant and the items found in the search. The accused is clearly being interviewed as a suspect and he declines to answer any questions other than those which he is obliged to answer under the Firearms Act 1973. He is advised that he will be charged. The second part of the interview concerns the bombing of the Ord Street Café. Again, it is evident that the accused is being interviewed as a suspect; he is asked to account for his time on the relevant dates and is told that the police will follow up on the information he provided. The accused does provide information but only about his own whereabouts when the offences were committed; a question relevant only to a suspect.

34 The second video interview took place on 27 September 1996. He was advised that the interview would be tape recorded and that it may be used later on down the track if need be. As with the first of the previous interviews, the part of the caution which indicates that anything said by the accused may be used against him, is included in the caution given. The accused explained that he had come in of his own volition. He was told that the police wanted to ask him about the Ord Street Café bombing and about certain matters that he did not tell the police when his solicitor was present. The content of the interview is clearly linked to explanations given on the previous interview. The accused said that "he thought he would shed a little bit more light on the info he has had filtered through to him by other people". It is apparent that he was there to provide information rather than be interviewed about an offence.

35 It can be seen from the foregoing that there is no commonality in circumstances between the two previous interviews and the interview which is the subject of this application. On the first of the two previous interviews the accused was indeed a suspect and was actually charged. In the second of the previous interviews the accused had attended the police station of his own volition with the stated purpose of providing information to the police. He was not taken into custody or handcuffed. The most significant lack of commonality is that on both previous occasions the accused was given a full caution but on the most recent occasion he was not.

36 There are a few common circumstances between the two previous interviews and the one under review, but none of them are significant. One circumstance which is said by the accused to have contributed to his belief that he was being interviewed to supply information only was that the police were very polite as they were on the previous occasions on which, at least on the accused's evidence, he had been interviewed for the same purpose. It is apparent from watching all three of the interviews that the accused was treated politely on each occasion, including the occasion on which he was very clearly being questioned as a suspect and was charged with offences. On that basis, the demeanour of the detectives could not have indicated to the accused that he was not being seen as a suspect. The second of the interviews is the only one that is consistent with the accused's account of being interviewed to provide information rather than being interviewed as a suspect. However, even in those circumstances the full caution was given, consistent with the view that, irrespective of the surrounding circumstances, if a person says anything to the police in a recorded interview that is relevant to an offence, the content of that interview will be used as evidence against that person. There is, in my view, nothing in the accused's previous experience which, in the circumstances of the more recent interview, would reasonably allow of a conclusion that the accused was merely being interviewed as a supplier of information about an offence committed by someone else.

37 It is also interesting to note that, during the course of his evidence on the voir dire, the accused maintained that, in his dealings with the police on the day of the interview, he felt intimidated, humiliated, helpless, scared and overwhelmed to the point of not asking to go to the toilet because he did not believe he would be allowed to. These assertions were made at a time when the accused was maintaining that the confessional material was involuntary and should be excluded. Although that claim was subsequently withdrawn, those assertions remain part of the evidence on which I am entitled to rely in considering the application to exclude the record of interview as being unfair to the accused. Although the feelings described by the accused are perhaps consistent with the manner of his apprehension and detention prior to the interview, I consider them to be entirely inconsistent with the allegation that the accused believed he was not a suspect, was simply providing information to the investigation, and was more than willing to answer their questions.

38 On behalf of the accused it is said that the only matter to be considered on the application is fairness to the accused. The inadvertent omission from the caution of the part that advises him that anything he says may be used against him, together with the similarity of his experience during the two previous interviews, caused the accused to believe that he was only there to provide information to assist the investigation and he was not a suspect. It is on that basis, it is said, he participated in the interview. If he had known that he was a suspect and the information would be used against him, he would have declined to comment and requested a lawyer. The accused's explanation for why he was taken into custody at gun point and handcuffed before being escorted in a police vehicle to the police station for interview, unlike the previous occasion where he simply drove himself, is the more serious nature of a murder investigation and that the police were softening him up so that he would give them the information they were after. As the accused was effectively, although unintentionally, misled to his detriment, it is submitted that it would be unfair to use his evidence against him.

39 Counsel for the State correctly identified the factual determination confronting the Court; whether the accused's account of what he understood by the version of the caution given to him, and what he would have done if the correct position were known to him, is truthful. The position taken by the State is that the accused's evidence is simply not persuasive and nothing put before the Court is sufficient to allow a conclusion that it would be unfair to use the confessional material against him.

40 The accused was warned that he was not obliged to say anything unless he wanted to but whatever he did say would be recorded on the video. It was submitted on behalf of the State that, as long as the accused was aware that he did not have to answer the questions put to him, he was aware of what is said to be the central component of the caution. He was then in a position to make the choice about whether or not he wished to do so. Some support for the State's view can be found in Bayly v Vaughan (supra) where Kay J stated (at 368):

"By cautioning that he or she is not obliged to answer questions, the person interrogated is made aware of his or her right to remain silent."

Adding anything further was considered to be unnecessary and potentially prejudicial: (at 369). In that case it was also held that there was no obligation to warn the person being interviewed that he was a suspect. The obligation to warn the person being interviewed that he does not have to answer questions put to him was held not to extend to warning him that he has a right not to make self-incriminating admission of fact: (at 369).

41 Counsel for the accused disputed that any part of the caution was more significant than another. I do not accept that proposition to be true in all circumstances. The accused's right to silence is often described as a fundamental tenet of the criminal justice system. However, a person may be unaware of that right or may be concerned about exercising it in the circumstances of a police interview. Both those issues are overcome when the interviewing officer gives the warning that the person is not obliged to answer the questions, but if he does, everything he says will be recorded. Both issues are overcome because the use of those words not only advises of the right, but also acknowledge it. When that form of words is used the accused person becomes aware of his right to silence which the caution is intended to preserve and is in a position to determine whether it is in his interests to answer the questions. The warning that there will be an independent record of what he said protects him from speaking, believing that he can later dispute that he had spoken or dispute what he said.

42 Once a person being interviewed is warned of the right to silence and the fact that the interview is being recorded, it is difficult to imagine any circumstance in which it could reasonably be concluded that anything that person said in the interview would not be used against him if it implicated him in an offence. A specific undertaking to that effect might justify such a conclusion but it is likely to be viewed with some caution in view of the role of the police officer. The component of the caution relating to the use to which the record will be put is, to my mind, important for completeness but to a large extent states the obvious. It is difficult to identify any purpose to recording the interview if that record is not to be used in some way. Indeed, if it is not used, the recording of it is fairly pointless. On the accused's evidence, it was the purpose of the use of which he was unaware. He knew the record of the interview would be used as part of the investigation; he maintains he did not know if would be used against him. I have great difficulty in accepting that explanation. One of the primary roles of a police officer is to investigate the commission of offences, to obtain prima facie evidence and to charge the person the evidence identifies as being responsible. That role is well established and well known. I doubt whether any reasonable person would suggest that simply keeping records of any evidence obtained, without more, is the aim of the exercise.

43 In his evidence on the voir dire, the accused conceded that he understood he was a person of interest to the police because his home had been searched. However, he drew a distinction between a person of interest and a suspect. For myself, I cannot see the distinction in the context of a police interview. At best it is a matter of degree rather than substance. It is also a matter of fact, the resolution of which is influenced by the credibility of the accused. On behalf of the accused it is said that, as a result of his experience with the two previous interviews, being interviewed did not, of itself, mean that he was a suspect. Emphasis is placed on the fact that this happened not only once but on two separate occasions which sets it apart from a one-off example. On the accused's evidence his previous experience on being interviewed by the police was that he was not charged and the record of the interview was not used against him. From that he drew the conclusion that the purpose of the interview was simply for the police to obtain information. Even if that were the case, it is a significant leap to believe that every time the accused is interviewed, in the absence of being advised to the contrary, the record of that interview will not be used against him should he say something which implicates him in an offence. Further, for the conclusion to be valid it must be the case that, on neither of the previous occasions was the last part of the caution given. That is because there must be a situation where the accused has come to believe that, if he is not told that the content of the interview might be used against him, he is only being treated as a witness rather than a suspect.

44 It can be seen that each of the factual issues for resolution are influenced by the credibility of the accused. Unfortunately, I did not find the accused to be a particularly credible witness. Not only was his demeanour unconvincing but, most importantly, I found his explanations to be inherently implausible. I do not accept that there is a distinction between a person of interest and a suspect, at least not one that is in any way relevant to this case. In either case, the purpose of the police in interviewing the person is to obtain information which will evidence that person's involvement in the offence or which will indicate that the person is not implicated in the offence. In the first situation, the record of that evidence will provide the basis for laying a charge and will be used as part of the evidence against the person. In the latter situation, no further action will be taken or the police will continue their investigation to see if there exists any other evidence justifying a charge against that person. Either way, the record of that interview will be preserved in case it is required at some future time. Either way, it is the content of the information supplied which determines whether it will be used against the person, not the status of the person as a person of interest or a suspect. In any event, I do not accept that the accused held a genuine belief that there was a distinction between a person of interest and a suspect or that he was merely a person of interest to the interviewing police.

45 Even if I were to accept the accused's account of the previous interviews, I am not persuaded that any reasonable person would consider that, in the vastly different circumstances that applied in this case, the accused was simply being interviewed to obtain information to further the investigation. Further, I do not accept that the accused held such a view. Neither am I persuaded by the explanation that the more serious nature of the murder explains the startling disparity in circumstances. I have already averted to the seriousness of the bombing offence and the lack of any sufficient difference in seriousness to justify the vastly different approaches. The proposition that the purpose of having the accused arrested by the TRG and brought to the police station in handcuffs was to "soften him up" so that he would provide the information sought is, in my view, inherently implausible and unconvincing. I consider it would be more likely to have the opposite effect. Further, if it were simply information the detectives were after, one would question the need to caution the accused and record the interview on video. It is not every witness or informant who is questioned in the manner of a formal record of interview.

46 However, by far the most compelling factor in the conclusions I have drawn concerning the accused's credibility and the impact on him of the failure to provide the full caution is that the accused's account of the two previous interviews is not supported by the record of those interviews. Not only was the accused given a full caution in each case but in the first interview he was cautioned, questioned and charged. It is only in the second interview that he was assisting police with information but, again, the facts of that interview do not provide any reasonable basis for comparison with the interview which is sought to be excluded. Having previously been made aware of the focus of the police investigation, the accused arranged to meet with the police to provide information, drove himself to the police station and participated in the interview which largely consisted of him speaking about what he knew rather than being questioned and which included a full caution.

47 In this case and on his own evidence, the accused was dragged out of his car at gunpoint by the TRG, flung to the ground with boots pressed into his back and head, arrested, handcuffed, left to lie on the ground while further activities were carried out by the police, put in the back of a police vehicle while still handcuffed, taken by detectives to the police station, was advised that the detectives would not talk about anything in the vehicle but wanted to talk to him officially back at the police station, put in an interview room with the handcuffs still on and which remained on until just prior to the commencement of the interview. I consider it impossible to reconcile that dramatically different conduct with a desire simply to obtain information from the accused that may assist the police in their investigation of the offence. Again, I find it inherently improbable that in those circumstances an accused could have thought he was only being asked to assist the police by providing information. I am unable to accept that the accused was there for any purpose other than as a suspect in a murder or that he believed that what he said would not be used against him just because the police did not tell him that it would.

48 The terms of the caution are something with which most people are familiar, more usually from exposure to television shows and movies. The caution to which the public are exposed on television invariably includes the fact that what is said may be used against the person. In this case, the accused has a criminal record from which it is apparent that he would have been cautioned on a number of occasions and would be familiar with the wording of the caution. Counsel for the accused submits that this factor supports the accused's position. Being aware of the usual terms of the caution, he considered that the absence of a part of that caution must have had some significance; in this case the significance which he attributed to it in his evidence. There may be a situation where that proposition holds true. It is not, in my view, this situation. Detective Sergeant Wilde was unaware that he had failed to give the caution in its entirety. Obviously the other detective did not notice either, or one would expect him to have completed the caution or brought the omission to Detective Sergeant Wilde's attention. Having reached the conclusion that the accused did not in fact believe, in the absence of the full caution, that he was being interviewed only to provide information and the record of interview would not be used against him, I consider the more likely explanation to be that the accused did not notice the omission either.

49 In those circumstances, I am unpersuaded that because of the failure to warn of the use to which the record would be put, there is any element of unfairness which would militate against admission of the record of interview. However, it does not follow that every record of interview where an accused is not given a full caution will be admissible. There may well be circumstances relevant to a particular accused which are such as to require the full caution in order to achieve fairness to an accused. This is not such a case.

50 The application for exclusion of the videotaped record of interview will be dismissed.

51 The evidence of what is said to be a dying declaration and part of the res gestae comes primarily from the security guard, Ian Frederick Throp, who was to work at the Centre on the day that the deceased was killed. He arrived at the Centre at 4.51 am and parked in a parking bay outside the entrance. He noticed the right hand door of the building was open when it was supposed to be closed at that time. He was then approached by a person who asked him if he had heard the gunshots. He then heard a male voice from inside the building yelling "Shot, Shot" and groaning. He went into the building and saw the deceased lying on the floor. The deceased was saying "I've been shot". Mr Throp approached the deceased and told him to be calm. He then called on his radio for police and ambulance to attend. He went outside to his car for a moment to locate a first aid kit but was unable to do so. He went back inside when he heard more groaning. The deceased was sitting up and moving about a lot. According to Mr Throp, the deceased was saying things like "I'm gone", "I'm dying", "They've got me".

52 It was at this point that Mr Throp's base called him on his radio and asked for the deceased's name. The following exchange took place:

"I asked the male for his name and he said 'Johnny Montoyo'.

I told my base Johnny Montoya and the male corrected me Montoyo.

After I completed the call the male started to look like he would pass out.

I said, 'Don't go on me mate'.

He said, 'I'll do me best not to'.

He layed back down."

Mr Throp was provided with some towels which he placed on and around the deceased's wounds, including one over the hole in his stomach. He then applied pressure to the wounds. At this point the police arrived.

53 At the conclusion of his statement the security officer makes the following assertion:

"While I was with the male he didn't say anything about who had shot him or any description of them."

54 Constable Marcus Ashley Scott arrived at the scene at approximately 5.00 am. He was directed inside by a staff member. He ran up a small flight of steps and observed the deceased lying on the ground. He placed on some gloves and attended to the deceased who was conscious but experiencing difficulty breathing. Constable Scott knelt down and tried to reassure him. He held his hand and told him to clench it if he could understand him but the deceased's hand did not move. Constable Scott asked the deceased who did this to him, who shot him but he did not reply. According to Constable Scott, "it seemed as though he was trying to answer but couldn't talk due to his injuries. He was only making a gargling sound". Mr Woodhouse then appeared to stop breathing. The Constable made some other observations which were consistent with that conclusion. The deceased was then resuscitated. The other Constable accompanying Constable Scott, Troy Marc Baker, confirmed that the deceased did not reply to the question of who shot him, although he seemed to be trying to answer. Constable Baker also expressed the opinion that the deceased could not talk due to his injuries.

55 In a supplementary statement, Mr Throp said this:

"When I asked him for his name and he said 'Johnny Montoyo' quickly and loudly."

He also said that he noticed that a staff member who was speaking to Mr Woodhouse was calling him "Kev". Mr Throp said to that person, "That's not the name he gave me mate".

56 That additional material sheds no greater light on the subject except to confirm that Mr Throp believed that the name he was given was that of the deceased. However, the fact that the deceased said the name "quickly and loudly" provides some support for the proposition that the deceased wanted to get the name out and ensure it was heard.

57 The timing of the events is relevant to the legal issues which arise on the applications. There was a timed security video camera at the Centre from which it is apparent that the shooting occurred at 4.38.35 am. Mr Throp enters the Centre for the first time at 4.40.53 am (two and a half minutes later). Mr Throp exits the Centre to retrieve the first aid kit from his car at 4.41 am and re-enters the Centre at 4.42.40 am. It is after the second entry that the statement, the name given by the deceased, is made. The time between the shooting and the making of the statement is approximately four minutes five seconds.

58 The statement of the deceased is to be led from Mr Throp. As it is being led as to the truth of what was said, it is hearsay and would not normally be admissible. However, in this case, the State relies upon three bases for the admission of the statement. The first basis of admission is as a dying declaration which is as an exception to the rule against hearsay. The second basis is the doctrine of res gestae which sanctions the admission into evidence of statements which accompany and explain actions and events because they are said to be part of the transaction. The third basis is that the statement will be led, not as evidence of the truth of the statement, but as evidence of the fact that it was said, thereby explaining subsequent events in the investigation.

59 The third basis, although raised, was not really pressed by the State and can readily be resolved. Where there is no opportunity to cross-examine on the statement, I consider the prejudicial effect of the statement so totally outweighs its limited probative value as evidence merely explaining subsequent conduct, that allowing it into evidence cannot be justified.

60 I will deal with the legal principles relevant to each of the two remaining issues in turn.

61 A dying declaration is a statement made by a person who is the victim of a murder or manslaughter, and made prior to the death of that person, which relates to the cause of the person's death. The rationale behind admitting dying declarations is that the sanction upon the conscience of a person, believing he is in a dying state, to tell the truth will be at least as great as taking the oath in the witness box: R v Hope [1909] VicLawRp 27; [1909] VLR 149 (at 157) per Madden J. A more recent statement of the rationale is that, in the face of certain death, a person has no worldly motive to serve by telling an untruth: R v Golightly (1997) 17 WAR 401 (at 408) per Owen J. However, because there is no ability to cross-examine the deceased, strict conditions are placed upon the admissibility of a dying declaration. In R v Golightly (supra) Owen J identified the follow conditions that must be satisfied before a statement can be admitted into evidence as a dying declaration (at 408 - 409):

(b) The trial must be for the declarant's murder or manslaughter;

(d) It must be established that the declarant would have been a competent witness;

(e) The declarant must have been under a settled hopeless expectation of death.

62 The correct approach to take in considering the admissibility of a dying declaration was addressed in R v Hope (supra) where Madden CJ said (at 162):

"There is no rule of law as to how precisely the Judge shall arrive at the conclusion whether the person fulfils the conditions which are demanded before the declaration shall be admitted. He is to look at all the circumstances and form his opinions as best he can, always bearing in mind the essential things to which I have alluded."

63 The purpose of the rule has also received judicial attention. In R v Hope (supra) Madden CJ described its purpose in the following terms (at 157):

"It seems to me the principle upon which these dying declarations are admissible in evidence against persons charged with murder or manslaughter is that it is eminently important in the administration of justice that the truth shall be found, in order that those guilty of committing such crimes shall not escape."

64 There is no dispute between the parties that these are the legal criteria which apply to dying declarations. However, the parties have divergent views on the standard of proof required in determining the admissibility of such a statement. The burden is on the State to establish that the statement is admissible as a dying declaration: R v Jenkins (1869) LR 1 CCR 187 (at 192). The standard of proof required to determine admissibility of a dying declaration has been the subject of different approaches in the authorities. In these authorities the standard of proof is usually described in the context of the particular criteria in issue.

65 In R v Jenkins (supra) Kelly CB, delivering the decision of the Court, stated (at 192):

"We, as judges, must be perfectly satisfied beyond any reasonable doubt that there was no hope of avoiding death. No authority is provided for that proposition."

The decision in R v Jenkins (supra) was applied without comment by Napier CJ in R v Rogers (1950) SASR 102 (at 108). In R v Golightly (supra) Owen J canvassed the authorities on this issue, including R v Rogers (supra), before concluding that he proposed to adopt the civil standard: (at 410). In that analysis Owen J referred to the decision in R v Donohoe (1962) 63 SR (NSW) 38 where the Court questioned whether it was necessary to satisfy the Judge beyond reasonable doubt in order to render a dying declaration admissible: (at 44). The Court noted that, with the exception of R v Jenkins (supra), earlier cases on the subject did not refer to the test of beyond reasonable doubt. In fact, those cases spoke of the matters appearing "to the satisfaction of the judge": (at 45). This is consistent with the test referred to in Gillies P, "The Law of Evidence in Australia" (2nd ed), as noted by Owen J in R v Golightly (supra) (at 410) who observed that this test "does not import even the civil standard". In R v Donohoe (supra) the Court noted that there was little authority in modern times to support the proposition that these matters should be proved beyond reasonable doubt, as that rule is applied to a jury's finding of guilt of an accused person: (at 45). Ultimately, the Court in R v Donohoe (supra) noted that the question was academic and did not require a final decision in that case. However, although the Court left the question open for further consideration if and when it should arise directly, a comparison was made with the test to be applied in determining the admissibility of voluntary out of court statements made by an accused: (at 45 - 46). In R v Golightly (supra) Owen J noted that R v Donohoe (supra) was decided under a statutory scheme but expressed doubt as to whether that should have an effect on the standard of proof. For myself, I can see no basis for concluding that the statutory framework in that case affected the standard of proof. Owen J's analysis also makes reference to R v Savage [1970] TAS SR 137 where Burbury CJ concluded that the standard of proof in considering the admissibility of a dying declaration under a statutory scheme was not the criminal standard of proof beyond reasonable doubt but the civil standard on the balance of probabilities: (at 143). As with R v Donohoe (supra), I consider there is no basis to distinguish the case as being relevant only to admissibility under a specific statutory provision. In deciding to apply the civil standard, Burbury CJ relied on the High Court authorities on the admissibility of voluntary confessional statements and noted (at 143):

"I see no distinction in principle where a trial judge has to determine the existence of facts as conditions precedent to the admissibility of a dying declaration."

In determining to adopt the same approach (at 410) Owen J also made reference to the burden of proof on the admissibility of confessional evidence. He said (at 409):

"As the authors of Cross on Evidence remark at par 33295, the view that something less than the criminal standard is required is preferable. It also accords with the remarks in Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 that proof beyond reasonable doubt is not required in criminal trials on preliminary facts that are a condition precedent to admissibility of evidence."

66 In Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 Dixon CJ expressed his view on the standard of proof to be applied on the admissibility of evidence in the following terms (at 562):

"The second matter I wish to refer to is the view that in order to render a confessional statement admissible in evidence it must be established beyond reasonable doubt that it was made voluntarily. I am not prepared to say what are the limits of the application of the general propositions laid down in Woolmington v DPP [1935] UKHL 1; [1935] AC 462, but I think that it is a mistake to transfer from its application to the issues before the jury to incidental matters of fact which the judge must decide."

67 I share the opinion of Owen J that the preponderance of authority supports the view that the balance of probabilities is the correct standard to apply in determining the admissibility of a dying declaration. That is the standard of proof which I will apply in this case.

68 The standard of proof to be applied is of particular significance because of the requirement that the statement must relate to the cause of death and the fact that the statement in this case consists only of a name. On behalf of the accused it is said that, because the relevance or purpose of the name spoken is not specifically identified, the statement is equivocal and the absence of certainty requires exclusion of the statement. However, it seems to me that this proposition runs counter to the requirement for the connection with the cause of death being more probable than not. I will return to this issue later in these reasons.

69 Of the five conditions precedent to admissibility of the statement, only two are in issue; the requirement that the statement must relate to the cause of the deceased's death and the requirement that the deceased must have been under a settled hopeless expectation of death. I will deal with each of the contentious conditions in turn.

(i) Relationship of the statement to the cause of death

70 Counsel for the accused describes this condition as the cornerstone of a dying declaration. It is certainly the case that a statement which relates to the cause of the deceased's death is the only statement made by a deceased person which may be admitted into evidence as proof of its contents through the evidence of another, other than where the doctrine of res gestae applies. However, the standard of proof is the same as the remainder of the conditions and each condition must be proved in order for the statement to go into evidence. This particular condition has no special status.

71 It is apparent from the evidence of Mr Throp that the name given by the deceased, although it followed a request for the deceased's name, was neither the accused's name nor his own. It was, however, similar to the accused's name. It had the identical first name and a variation of the surname. The first syllable of the surname given is consistent with the accused's surname. The last two syllables are not. It is the variation in the surname, and the fact that it is said to be incomplete, or at least equivocal, which the defence relies upon in asserting that the evidence cannot properly be described as a dying declaration and should therefore be excluded from evidence as inadmissible hearsay. The defence submits that evidence of the mere mention of a name, a name which is not given in response to a question asking the deceased to identify his attacker, cannot meet the conditions precedent to the admission of that statement as a dying declaration. One basis of that submission is that the statement is incomplete because it is not expressly or even impliedly related to the cause of the deceased's death.

72 The defence rely on the decision of the Privy Council in Waugh v The King [1950] AC 203 where Lord Oakley, delivering the reasons for the Council's report, concluded that the dying declaration was inadmissible because on its face it was incomplete and "no one can tell what the deceased was about to add". The facts in that case were that the deceased made a statement to the police when his condition became grave. He provided a rather lengthy account of the surrounding circumstances including the fact that "a man approach with a gun and he shoot me innocently". The deceased described how he came to be shot, without naming or otherwise identifying the accused, after which he said: "The man has an old grudge for me simply because ... ". At that point the deceased fell into a coma from which he never recovered. It can be seen that, on the facts in Waugh v The King (supra), the deceased was effectively cut off mid-sentence by falling into a coma. He had not named the accused. The facts of Waugh v The King (supra) highlight the importance of a person who is near death actually naming his attacker whilst still capable of speaking. The facts of this case are consistent with the deceased doing exactly that.

73 I accept that Waugh v The King (supra) is authority for the proposition that a declaration which is incomplete, in the sense that it did not include all that the deceased wished to say, is not admissible. I also accept that, as Waugh v The King (supra) is a decision of the Privy Council, it is highly persuasive authority.

74 However, as I have said, the facts in Waugh v The King (supra) are not the facts of this case. In Waugh v The King (supra), the deceased had not named his attacker and clearly intended to say more. I am advised that counsel were unable to identify any authority dealing with a statement consisting only of a name which was not made in response to a question about the identity of the attacker. I have been similarly unable to identify a case with those facts.

75 I am not persuaded that a statement which consists only of a name, and which is not responsive to a question about the deceased's attacker, is necessarily incomplete and cannot be a statement relating to the cause of death.

76 Whether a name given in the circumstances here described is incomplete then becomes a question of fact dependent on the surrounding circumstances. On the facts of this case it is open to conclude that the name that the deceased gave was all he intended to say at that point. I believe that conclusion is open from the fact that there is no suggestion that there was something else the deceased wished to say at that time. Indeed, when the accused spoke again it was to correct the spelling of the surname. The only other words he spoke related to his condition. For these reasons I am persuaded that the statement made by the accused naming "Johnny Montoyo" was a complete statement.

77 Counsel for the accused also put to the Court the concern that a name alone, particularly where it is not responsive to the question which elicited it, is equivocal and therefore it cannot be said that it identifies the cause of death. According to counsel for the accused, descriptive words must be added so that the statement is "Johnny Montoyo shot me" or "I was shot by Johnny Montoyo" or some other form of words which indicates why the name is being given. The defence submits that, in the absence of words of that type, the deceased could as easily be trying to say that they should "ask Johnny Montoyo" or "see or ring Johnny Montoyo". However, the defence does not identify any evidence which would suggest that there was any likelihood of the accused making such statements in the circumstances in which he spoke. The fact that it is possible to come up with different interpretations of what was said or why a name other than that of the attacker's was given does not, in my view, preclude a finding that one interpretation was more probable than the others or that the name stated was most probably that of the attacker. Indeed, in some circumstances it may be possible to conclude that there was only one reasonable interpretation of what was said, or that the only reasonable explanation for giving a particular name was because it was the name of the attacker. Admissibility is not determined by how many creative or imaginative options can be identified.

78 The defence response is that, because of the inability to cross-examine, it is essential that the statement leaves no room for ambiguity. Reliance is placed on the decision in R v Ashton (1837) 2 Lew CC 147 where Alderson B described, in the following terms, the approach to be taken on an application to admit a dying declaration (at 147):

"When a party comes to the conviction that he is about to die, he is in the same practical state as if called on in a court of justice under the sanction of an oath and his declarations as to the cause of his death are considered equal to an oath, but they are nevertheless open to observation. For though the sanction is the same, the opportunity of investigating the truth is very different, and therefore the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of more full investigation by the means of cross-examination."

79 I accept without reservation that the inability to test the evidence which is admitted as a dying declaration disadvantages the accused, particularly where the statement consists only of a name. That is the reason why there are criteria to be met before the statement is admitted into evidence. I have considered whether some descriptive words should be added before a name can be said to relate to the cause of death and therefore be admissible if all other criteria are met. By imposing such a requirement the impact on the accused of not being able to cross-examine the deceased would be reduced. There is probably an even greater justification for that approach in circumstances where the name given is not responsive to the question asked. But to require the descriptive words to which I have referred has the effect of removing any doubt that the statement relates to the cause of death. That approach, in my view, elevates the standard of proving the criteria, and hence the admissibility of the statement, beyond the balance of probabilities. As I have indicated, no higher standard applies in applications of this type.

80 In my view, the fact that the statement, although complete, may be subject to different interpretations does not require the Court to do more than be satisfied on the balance of probabilities of each of the criteria and does not preclude its admissibility. As Owen J noted in R v Golightly (supra) (at 410):

"It is for the judge to decide whether the conditions for admissibility exist. This is a question of law. It is then for the jury to assess what weight ought to be given to the declaration."

81 It is necessary then to consider all the surrounding circumstances in order to determine whether it has been established on the balance of probabilities that the name "Johnny Montoyo", following a question to state the deceased's name, and not being the deceased's name or identical to the accused's name, was a statement relating to the cause of the declarant's death.

82 On the facts of this case, in the time between being shot and his death, the deceased was able to speak. I accept for the purposes of this application that the words "Shot, Shot", and the groaning noises were made by the deceased. The deceased also spoke of his condition in these terms: "I'm gone", "I'm dying", "They've got me". In response to Mr Throp's entreaty not to die, he said, "I'll do me best not to". I have found, for reasons to which I will later refer, that the accused knew he was dying. The only other words he spoke before his death was the name "Johnny Montoyo", which was not his name or the name of anyone around him. That the deceased was naming, or attempting to name his attacker is, in my view, the explanation for those words which readily comes to mind.

83 The defence submits that the name cannot be evidence of the accused's guilt because, where the statement consists of a name without any accompanying descriptive words, it is impossible to know the purpose of mentioning the name. It is said that the jury would be invited to speculate on the use of the name and no direction to the jury could cure the prejudicial effect. Another factor raised on behalf of the accused is that the name was not said in a context where the deceased was identifying his attacker. It is submitted that there is no suggestion that the deceased did not understand the question or was not responding to it. The defence also relies on the fact that Mr Throp, the only person who heard the words, expresses the view in his statement that the deceased "didn't say anything about who had shot him or any description of them". The final point raised by the defence in this context is that the deceased was actually able to correct the name and it still was not that of the accused.

84 It is obviously relevant to consider that the name is not an accurate response to the question being asked. It is related to the question only in the timing. To my mind, there are a number of reasonable explanations why the response is not accurate, the most obvious of which is that it should not be assumed that the words spoken by the deceased were in answer to that question. The deceased knew he was dying. He could simply have taken that opportunity to name his killer before he did. The fact that the deceased states the name within a matter of minutes of being shot and a matter of minutes before his death supports that view. It is also the case that the deceased wished to make sure that Mr Throp had the exact name. As it was not the deceased's name, it is difficult to understand why he would waste his dying breath on correcting a name given for any other purpose. However, if a victim of a shooting is dying and trying to get across the name of the person who shot him, there would be a great incentive to ensure the name was correct. It can also be said that being asked to identify himself rather than his attacker was most probably not the question he was expecting in that situation.

85 It was submitted by the defence that there is nothing in the evidence to suggest that the deceased did not understand the question. In my view, the answer is the best indication that he did not understand the question. In any event, the situation of someone who is about to die from gunshot wounds being asked questions by someone unknown to them is not a scenario about which inferences can easily be drawn. Medical evidence may shed some light on the impact of the deceased's injuries on his capacities, such as his hearing and comprehension, but, in the absence of expert evidence, such assumptions must be made with caution. As yet, the existence of matters affecting Mr Throp's ability to hear and understand have not been investigated.

86 Counsel for the accused also submits that, in answering the question, the deceased may have given a false name. Support for that proposition is said to come from the fact that the current indictment gives two names for the deceased. Of course, the deceased did not give either of those names. Further, an affidavit of the deceased produced under subpoena indicates that the purpose of changing his name was to protect himself from harm. As he had been shot and was dying, there was obviously no longer a purpose behind such a ploy. If the deceased was so concerned to protect himself from harm, it is surprising that, according to the Centre's staff, he attended the Centre every morning at the same time when it was relatively deserted.

87 The defence also relies on the deceased's criminal record which reveals that he is a person who has on two occasions given a false name to the police, has two convictions for wilfully misleading police, one conviction for failing to answer questions and one conviction for attempting to pervert the course of justice. The deceased's criminal record also reveals that he used aliases. It is further suggested that, because of the deceased's connection with outlaw motor cycle groups ("OMCG") he may have adopted the code of conduct of a bikie gang which is not to cooperate with the police. It is also said that the deceased worked in the security industry and knew that other members of the OMCG worked in that industry. The first observation which can be made is that the deceased was not speaking to the police. The second observation is that there is no evidence before the Court of the deceased's employment, of the code of conduct of OMCG members, or the industries in which they work, that would allow me to accept these propositions.

88 However, even if the deceased considered Mr Throp to fall into the same category as police, the purpose behind giving a false name to police is usually because the person has no desire for the police to know who he is or what he has done and does not wish to be held responsible for his actions. When death is imminent such conduct becomes so pointless. I believe the factors to which I have referred make it highly improbable that the deceased would give a false name in these circumstances. Further, where the name given is false and death is approaching, there would be no purpose in ensuring that Mr Throp understood the name by repeating it. It must also be considered that the deceased was well known at the Centre and giving a false name at the Centre would also be a fairly pointless exercise. Indeed, Mr Throp was almost immediately made aware that the name given by the deceased was not his name.

89 I do not accept that any of the matters raised by the accused provide a plausible reason for giving a false name in the circumstances where the deceased found himself; particularly where his death was imminent and the person he was misleading was trying to help him.

90 Counsel for the accused also raises the possibility that the deceased may have falsely nominated the accused as his attacker and submits that this issue should be determined before the evidence is presented at trial. Implicit in the proposition that the deceased falsely implicated the accused is that the statement made by him was a statement identifying his attacker. All other criteria being satisfied, it would be a dying declaration and admissible. The allegation that the statement was false would be for the triers of fact to resolve. Of course, if there were evidence making it obvious that the statement was false, then no doubt it would be excluded on the basis that it had no probative value but was highly prejudicial. It is necessary then to consider the evidence on which the defence relies. It is said that there is evidence of a fight between the two which would provide the motive for making the false allegation. The deceased is said to have been preoccupied for a period of a couple of weeks before the shooting with the breakdown of his friendship with the accused. However, the evidence of a disagreement between the deceased and the accused is a two-edged sword. It is part of the State's case that the accused and the deceased were at odds. This provides the motive, although on the State's case one that is attributed to the accused, for the murder of the deceased. Devising a plan to cause problems for a person with whom you have had a disagreement is an entirely more likely prospect than, having been fatally shot, thinking to use that event as a way of getting back at a person with whom you have had a disagreement and using your dying breathe to name that person. The latter scenario is not only less likely, in my view, it is far fetched. I consider this issue to be a jury question to be resolved on the whole of the evidence, tested under cross-examination, including the evidence of the accused. The surrounding evidence will assist the jury in determining which of the competing explanations it accepts.

91 The defence also relies on the final statement made by the security officer that while he was with the deceased he did not say anything about who had shot him. In my view, that is no more than an expression of opinion. Mr Throp's statement contains none of the reasoning that allowed him to reach such a conclusion. It is interpretive of the information available to him and is dependent on whether it is accepted that the name "Johnny Montoyo" was given in response to being asked what the deceased's name was. In other words, the validity of Mr Throp's opinion depends on whether it is established that the statement "Johnny Montoyo" is an identification of the deceased's attacker. It is the case that Mr Throp was made aware shortly after the name was given, and well prior to making his statement, that the name given was not that of the deceased. This simply reinforces the fact that Mr Throp cannot see beyond the relationship between the name and the question. Even when he is aware that it is not the deceased's name, he still considers the response in terms of the question. In my view, Mr Throp's observation does not add weight to the proposition that the answer was a response to the question.

92 With respect to the additional statement of Mr Throp, it is said on behalf of the accused that, the fact that the deceased was able to speak loudly and quickly defeats any argument that the deceased had difficulty speaking. That may be one construction. The State's construction is that it indicated it was particularly significant to him that he got the words out, and that they were heard, because he might not be able to say anything further. It is trite to observe that any difficulties he may have had did not prevent him from saying that name loudly and clearly. In my view, the leap to the conclusion that this ability indicates that he could have provided more detail if he wished is not justified on the facts. In fact, the evidence of Mr Throp is that, after the deceased corrected the name, he looked like he would pass out. Further, within very few minutes he had difficulty breathing and was unable to speak in response to the questions of the police officers despite what appeared to them to be considerable effort. He could only make a gargling noise. Ultimately, he said nothing further. There is nothing in this body of evidence which indicates that the deceased was capable of saying more than he actually did. In my view, the evidence is to the contrary. The absence of any further statement or information is also consistent with the deceased believing that he had said everything he needed to.

93 It is also said that the statements of Mr Throp indicate that the deceased was aware of what was going on around him and indicate that he was able to have a coherent conversation. Again, the implication of both these assertions is that the deceased could have made a full statement of the purpose of mentioning the name "Johnny Montoyo". Counsel for the accused did not identify the portion of the statement that is said to indicate that the deceased was aware of his surroundings. For myself I was unable to identify any evidence consistent with the accused's position on this issue. I do not suggest that the deceased condition made him totally incoherent but it is consistent with a person who was experiencing difficulties and doing his best to say what he could while he was able.

94 Reference is also made by counsel for the accused to the fact that, when specifically asked by police who was it that shot him, the deceased did not answer. That proposition also needs to be considered in context. The evidence reveals that the accused's use of words in the period between being shot and his death was measured. The sentence "I'll do me best not to" was the greatest amount of words used by him. Much of what he said was two or three word phrases and there were few of them. Further, the observation of both the police officers who attended the deceased prior to his death was that the deceased was having difficulty breathing and "it seemed as though he was trying to answer but couldn't talk due to his injuries". Apparently he was making a gargling sound. He then stopped breathing. In my view, no conclusion can be drawn from the fact that the accused did not answer when asked by the police who shot him. At least no conclusion other than that he was physically incapable of answering because he was near death.

95 Finally, it is necessary to consider that, on the evidence of Mr Throp, the name given by the deceased was not the accused's name. The accused's name is Johnny Montani. I am told by his counsel that he has never used the name Montoyo or Montoya. The deceased had known the accused for several years and they had worked together. The deceased did know the accused's name. There may be many reasons why the name heard by Mr Throp is not that of the accused. It may have been the way it was said. It may have been misheard by Mr Throp in the stressful circumstances in which it was said. Although the deceased may know the name, he may not be able to pronounce it. It may be the way it was said by someone who had been shot through the lung. No doubt the deceased and Mr Throp were preoccupied with the surrounding circumstances; the shooting, the deceased's injuries, his condition and impending death, and the arrival of assistance and such matters. There are so many different and unusual circumstances surrounding a fatally injured person that may affect what was said and how it was interpreted. Technically, it matters not whether the name was the name of the accused, similar to it or not his name at all. If it fits the criteria, it is still a dying declaration and admissible. If it is similar to that of the accused, it is for the jury to resolve whether they accept it as evidence of the accused's involvement in the offence. If it is not the accused's name, it would be even more important for the name to go into evidence because it would indicate that someone other than the accused was the attacker. In those circumstances the evidence would serve an exculpatory purpose.

96 On behalf of the State it is said that it should be considered that more of the name is consistent than is inconsistent. The first name and the first of the three syllables of the surname. Further, while John is a fairly common name, the use of the diminutive "Johnny" by an adult is less so. As I have indicated, I consider those matters to be jury questions.

97 Having considered all the issues raised on behalf of the accused, I am of the view that they do not preclude the conclusion that the statement relates to the cause of death. I am satisfied on the balance of probabilities on the evidence before me that the statement of the deceased, "Johnny Montoyo", is a statement identifying the person who shot him.

98 Counsel for the State noted that the evidence is not admitted in isolation. There will inevitably be appropriate directions including the need to consider the weight to be given to the statement in circumstances where the person making it cannot be cross-examined. The jury will also be directed to take into account before reaching its conclusion the matters raised by counsel for the accused to which I have just referred as, to my mind, resolution of those matters is properly a matter for the jury.

(ii) The Requirement of a settled hopeless expectation of death

99 Historically, this criteria was considered to be established if death did indeed occur and within a relatively short period. However, later authorities emphasised that it was the deceased's belief that he was dying, rather than the timing of his death, which was essential in establishing the criteria. The other factor which has been the subject of contention is the nature of that belief and whether the deceased must be without hope of recovering.

100 The rationale behind admitting dying declarations underlines the importance of establishing that the deceased had accepted that he would not recover. In R v Woodcock [1789] EngR 2091; (1789) 1 Leach 500, Eyre CB expressed the rationale in these terms (at 502):

"Now the general 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 the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice."

See also R v Ashton (supra); per Alderson B; R v Hope (supra) per Madden CJ (at 161).

101 Clearly, if there was no appreciation that death was to ensue, the "powerful considerations to speak the truth" would not be operating on the deceased's mind. Therefore, the motivation to speak the truth may be affected if the deceased retains a hope that he may recover. This proposition has been part of the common law since very early times. In Errington & Ors Case (1838) 2 Lew CC 217 Patteson J observed (at 149):

" ... I have always considered, that, in order to [sic] a statement being received as a dying declaration, it must be shewn, that at the time the deceased made it, not merely that he considered himself in danger, but that he was without hopes of recovery."

As the statement of the deceased in that case was "I think myself in great danger" it was held that these words did not necessarily exclude all hope and, therefore, that they were not admissible as a dying declaration.

102 In R v Rogers (supra) the Court expressed the strength of the belief required in the following terms (at 108):

"For this purpose it was not sufficient to prove that the deceased thought that she might or would die. What is required is proof that she had abandoned all hope of living - that she had a 'firm unqualified belief that death was near, and a clear apprehension that she would not recover from her illness then present - the belief must be unqualified by any real hope or expectation of recovery: ... The fact to be proved is the state of mind at the time when the declaration was made ... , but the conduct and expressions of the deceased before and after that time cannot be ignored. The question of fact falls to be determined upon a consideration of all the circumstances in evidence ... '"

The requirement has also been expressed in terms of "a full expectation" of death: R v Hope (supra) (at 158).

103 This line of authority was followed by Owen J R v Golightly (supra) when he said (at 410):

"Where, in determining the issue of law, the question of the deceased's belief in impending death is an issue the fact to be proved is the state of mind at the time when the declaration was made ... "

104 Because it is the belief of the deceased which is the relevant issue, the fact that the deceased does not die immediately or within a short time frame is of no significance, unless that fact has an impact on the existence of the belief that death would ensue. In R v Hope (supra) Madden CJ refuted the proposition that the deceased must hold a hopeless expectation of immediate death. His Honour stated (at 159):

"In truth, the question does not depend upon the length of interval between the death and the declaration, but on the state of the man's mind at the time of making the declaration, and his belief then that he is in a dying state."

It can be seen that the fact that death does not occur for some time after the declaration is made does not render it inadmissible, it will depend on the circumstances.

105 The issue then is the nature of the evidence required to satisfy the requirement that the deceased believed he was dying. In R v Golightly (supra) Owen J considered (at 409) that it was not absolutely necessary that the deceased should say anything indicating the presence of the requisite degree of hopelessness or resignation. The proposition that the deceased must manifest his or her expectation of death by overt words was refuted by Madden CJ in R v Hope (supra) as follows (at 160):

"I think that is the real position - that the whole surroundings at the critical time must be regarded by the Judge, and he must consider this question of remoteness of death and the importance of the knowledge which the patient had at the time as well as her saying or doing anything to arrive at the question whether he is or is not satisfied that she was in the distinct and full expectation of death."

106 In R v Woodcock (supra) Eyre CB rejected the need for a clear statement from the deceased in the following terms:

"Upon the whole of this difficulty, however, my judgment is that, inasmuch as she was mortally wounded, and was in a condition which rendered almost immediate death inevitable, as she was thought by every person about her to be dying, though it was difficult to get from her particular explanations as to what she thought of herself and her situation, her declarations made under these circumstances ought to be considered by a jury as being made under the impression of her approaching dissolution, for, resigned as she appeared to be, she must have felt the hand of death and must have considered herself as a dying woman."

107 In R v Golightly (supra) Owen J noted (at 409) that, in the absence of an express indication of the deceased's hopeless expectation of death, the courts have been reluctant to infer a state of mind from the surrounding circumstances. However, he also noted that in R v Donohoe (supra) and R v Savage (supra) the deceased had not given any express indication as to the state of mind about impending death but in both cases the Court held that this was no bar to admissibility. Owen J noted with approval (at 410) the following statement in R v Donohoe (supra) (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, all of which may be resorted to in order to ascertain the state of the declarant's mind."

108 The State's position is that the Court can be satisfied on the balance of probabilities that the deceased was dying when he made the relevant statement. Further, it is said that the words the deceased used are consistent only with his belief that he was dying. The fact of death support's that State's position although, as I have noted, it is not determinative of whether the deceased had a settled expectation of death. The evidence on which the State relies to satisfy the criteria are the following words of the deceased: "I'm gone", "I'm dying", "They've got me". Without more, these statements provide an unequivocal statement of the deceased's belief that he was about to die. However, as with the cases where there was no overt statement, it is necessary to take the wider approach identified in the authorities and consider all the evidence relevant to this issue to see if there is any other evidence which might colour the interpretation of the deceased's words.

109 The defence relies on the fact that, after Mr Throp says "Don't go on me, mate", the deceased says "I'll do me best not to" to question that the deceased held a settled hopeless expectation of death. Counsel for the accused submits that the statement is evidence that did not actually believe he was dying. He at least conceded a possibility that he might not. The State's submission is that this statement can be seen as giving reassurance to the person making the request, who was obviously concerned that the deceased was going to die. The deceased had already made clear his own views on the subject and there had been no treatment or other circumstances which could have made him review his opinion of his condition. It could also be the case that the statement was an automatic response to that sort of question. It is also significant to note that the statement "I'll do me best, mate" was said after the deceased had already spoken the name. It is the deceased's state of mind about his condition at the time the statement said to be a dying declaration is made that is relevant to this criteria. A subsequent statement may impact on the earlier statement of belief but it does not automatically follow that the statement of belief was not actually held. I have formed the view that, irrespective of whether there was a later change of mind (although I am not persuaded that there was), the deceased held a settled and hopeless expectation of death as evidenced by the three comments to which I have referred. As that is the relevant time, I am satisfied to the requisite standard that the deceased's firmly held belief as to his condition at the time he made the three comments was that he would soon die from his injuries.

110 Counsel for the accused also places emphasis on the time lapse between the deceased's stated belief that he was dying and providing the name "Johnny Montoyo". It is said that there is no basis to assume that the break was very short. There is no evidence presently available about the length of time that elapsed between the two events. Mr Throp's evidence of what immediately followed the deceased's statement that he was dying was this:

"My base called me on the radio to get details for the Ambulance. They asked for the name of the male.

I asked the male for his name and he said 'Johnny Montoyo'."

111 It is apparent that both Mr Throp and the radio operator were aware that their involvement was with a person who was so seriously injured he required an ambulance. In those circumstances it is difficult to accept that the conversation was other than as quick and concise as possible. I do not believe that either person was engaging in idle chatter. Further, Mr Throp's account does not support a conclusion that the conversation on the radio was other than a request for details including a request for the injured person's name. In the circumstances, I am not persuaded that the conversation took more than seconds. On the evidence, there is no other event which could have amplified the time lapse. In my view, there is no evidentiary basis from which to draw the inference that there was an appreciable gap between the deceased expressing his belief that he was dying and naming "Johnny Montoyo".

112 I am therefore satisfied on the balance of probabilities that, at the time the deceased made the statement "Johnny Montoyo", he held a hopeless expectation of death.

113 As no other criteria are in dispute, I am persuaded that the statement is admissible as a dying declaration and the application should be dismissed.

114 In view of the determination I have made on the admissibility of the dying declaration it is strictly unnecessary for me to address the doctrine of re gestae as a basis for admission. However, I propose to provide my views on this issue.

115 In R v Golightly (supra) Owen J described the doctrine as follows (at 411):

"The doctrine of res gestae sanctions the admission into evidence of statements which accompany and explain actions and events because they are said to be part of the transaction."

The transaction in this case is the shooting of the deceased.

116 The doctrine also operates to allow hearsay evidence to be admitted providing the relevant conditions required under the res gestae doctrine are met: per Lord Wilberforce in Ratten v The Queen [1972] AC 378 (at 389 - 391).

117 In R v Golightly (supra) Owen J considered the content of the doctrine and concluded (at 413) that the law in Australia now follows the guiding principles enunciated by Lord Wilberforce in Ratten v the Queen (supra) (at 389 - 391). Those principles are that the statement must be so clearly made in the circumstances of spontaneity or involvement in the event that the possibility of concoction or distortion can be disregarded. If the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account then the evidence would not fit within the doctrine.

118 The issue of contemporaneity as opposed to detached narrative was also addressed in Teper v The Queen [1952] AC 480 (at 487) which was referred to in R v Golightly (supra) (at 411) as follows:

"Their Lordships proffered the opinion (at 487) that if such statements were to be admitted it was 'essential that the words sought to be proved ... should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.'"

Bayly v Vaughan

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (220 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- MONTANI [2006] WASC 190 (29 August 2006)

(i) Relationship of the statement to the cause of death

(ii) The Requirement of a settled hopeless expectation of death

Parties

Cases Cited (11)