DPP v Debs & Roberts [2002] VSC 405

2 The three words objected to are "Get them cunts". In the statement of Senior Constable Thwaites, as appears at p.3800 being p.2 of his statement of 23 October 1998, he said "The injured member was talking in jumbled words. I heard him say, 'Get them cunts' ... Miller also said, 'I'm fucked, I'm fucked' and 'help me'. Miller repeated these phrases while I was with him". It is to the three words "Get them cunts" that objection is taken by Mr Dane on behalf of the first accused. Objection is taken by Mr Hill on behalf of the second accused to the receipt in evidence of the third word only, "cunts", on the ground of prejudice.

3 The prosecution seeks to lead that evidence as a dying declaration of the deceased officer and as part of the res gestae.

4 Counsel for first accused have submitted that the statements, that is "get them" or "get them cunts", are not properly declarations at all. Counsel submit that the words are prospective and not a declaration of retrospective events and thus fall outside the category of a dying declaration. No extrapolated submission has been made by the defence for either accused that the expression, one or other version of it, is not part of the res gestae, although issue is joined in a general sense that the words come within that category.

5 I shall deal first with the question of whether the statements are truly dying declarations.

6 The law has been helpfully summarised by Owen J in R v Golightly[3] particularly at 408-409. In that passage his Honour stated the criteria of dying declarations as follows:

"As well as the normal criteria on which any evidentiary question turns, there are five conditions that must be satisfied before a statement can be admitted into evidence as a dying declaration. First, the maker must be dead. Secondly, the trial must be for the declarant's murder or manslaughter. Thirdly, the statement must relate to the cause of the declarant's death. Fourthly, it must be established that the declarant would have been a competent witness. Finally, the declarant must have been under a settled hopeless expectation of death."

7 In a secular society as contemporary Australia, the rationale for admission in evidence of a dying declaration is now not divine sanction after death - see Eyre CB in R v Woodcock[4] and R v Savage[5] - but that in the face of death there is a motive to die with truth and not with untruth: R v Golightly[6].

8 There are numerous cases founding the five criteria, commencing with R v Bedingfield[7] (which I think would now not be decided that way: see R v Andrews[8] and Papakosmas v The Queen[9]), R v Hope[10], and latterly Arnott[11]. The principles are clearly established. If a dying declaration can include a statement "get them", plainly all the conditions of a dying declaration are here fulfilled. The statements were made by the dying officer in extremis and he died three hours later. The question is whether a statement which includes a prospective element falls within the concept or category of dying declaration.

9 There appears to be no authority which establishes that a partially prospective statement either is or is not capable of being a dying declaration. The authorities are all in the past tense - "Vin stabbed me", "Harry has done", et cetera - and to that extent this, so far as my researches go, is a novel question.

10 As with all novel questions, this falls to be determined according to basal principle and settled logic as evinced in the authorities.

11 Applying those criteria, I see no reason at all why these statements should not be admitted as dying declarations. They are in the clear context of an holistic expression by the dying witness as to what has immediately before occurred. Inherent and necessary in the statements "get them" and "get them cunts" is the implication that the "them" are the persons who caused the death and injury. Thus there is inherently and necessarily a retrospective element in the statements. Their form is imperative ("Get them, Get them cunts") and although the statements have a prospective intention they also have a clear retrospective and declaratory implication: get the persons who were responsible for the fatal shootings - that is, get the persons who did it.

12 Accordingly, I am satisfied that the statements are admissible as dying declarations.

13 To make assurance doubly sure, it is clear beyond argument that the two statements are also admissible under the general principle of res gestae. The authorities are well-known and I shall not recite them. The critical requirements are immediacy, spontaneity, holism and lack of opportunity for contrivance. The most relevant authorities are Ratten v R[12], R v Andrews[13] and Bull v R[14]. The statements as an element of res gestae satisfy the first category of Professor Stone, the legal philosopher, quoted in Bull v R[15] and satisfy the third category of the Board in Ratten v R[16]. Accordingly, the material is also admissible as part of the res gestae.

14 As to relevance, Mr Hill on behalf of the second accused stated to the jury in his s.13 response that the first issue was: were there two shooters[17]? There are two further considerations which make the material the more relevant. They are that yesterday, as appears at p.2762 in the cross-examination by Mr Hill of Senior Constable Clarke, it was suggested obliquely, if not directly, by Mr Hill that a process, unintended, of auto-suggestion had occurred wherein Senior Constable Pullin in the first instance had used the plural and the dying officer then had adopted that plurality. Thus it is plainly in issue whether the dying officer directed his mind clearly to the plural as distinct from received the plural by a process of auto-suggestion. Further, and finally, today at p.2797, line 25, Mr Dane in terms put to Senior Constable Gardner, "He didn't say 'offenders', 'suspects', 'crooks' ... " That, I think, inevitably renders the word "cunts" admissible as a retrospective description which demonstrates, so the Crown would say, an application of mind by the deceased officer to the causers of the death and injury as distinct from the recipients of it.

15 For those reasons I consider that the material is admissible.

16 I will not exclude the material on the ground of prejudice. The third word, unfortunate though it is, is not today such as would engender prejudice in the minds of the jury, in the context of this trial in particular. Nor do I consider that the words would have a tendency to transform the jury from judicial decision making entity into a law enforcement or vigilante entity. The imperative was directed by the dying officer to other officers - not to the jury.

17 Accordingly, the words are admitted, in their two word and three word form, as a dying declaration and as part of the res gestae.

[3] (1997) 17 WAR 401.

[4] [1789] EngR 2091; (1789) 1 Leach 500; 168 ER 352.

[5] (1970) Tas S.R. 137.

[7] (1879) 14 Cox.C.C. 341.

[8] (1987) AC 281 at 300.

[9] [1999] HCA 37; (1999) 196 CLR 297 at 307.

[10] [1909] VicLawRp 27; (1909) VLR 149.

[11] (1995) 79 A Crim R 275 particularly at 276-7 per Coldrey J.

[12] (1972) AC 378 at 383-392.

[13] (1987) AC 281.

[14] [2000] HCA 24; (2000) 201 CLR 443.

[15] At 475 per McHugh, Gummow and Hayne JJ.A.