Papua New Guinea Law Reports - 1963
[1963] PNGLR 252
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
MADOBI-MADOGAI
Losuia
Ollerenshaw J
4 May 1963
6-8 May 1963
CRIMINAL LAW - Evidence - Dying declaration - Res gesta.
On the trial of M. for the wilful murder of T. a village native, the Crown sought to lead evidence of a conversation which occurred between T. and his brother, G. shortly after M. inflicted the mortal wound, after G. questioned T. and not long before T. died. T. believed that he was about to die.
Held:
that:
(i)       The principle upon which a dying declaration is admissible is that a sense of impending death creates a sanction equal to the obligation of an oath. This sanction is based upon the Christian belief in a hereafter, and cannot be assumed to exist where the dying declarant is a member of a native community.
R. v. Woodcock, Ileach, 500, 504, R. v. Wadderwarri, (unreported) cited in 34 A.L.J. at 195, referred to.
(ii)      On the facts, what was said was not a sufficiently integral part of the event between M. and T. to form pars rei gestae.
The argument of counsel appears sufficiently in the judgment.
Counsel:
Miles, for the Crown.
O’Regan, for the Accused.
OLLERENSHAW J:  In this trial of Madobi for the wilful murder of Topuludou there is evidence that the deceased victim’s brother, Giorogawa, the witness now in the box, spoke to him shortly after he received his mortal spear wound and not long before he died.
For the purpose of identifying Topuludou’s assailant Mr. Miles proposes to lead evidence of the conversation between the two brothers. There is evidence that the witness asked his brother a question four times before he answered.
Mr. Miles has now put this question: “When you went up to your brother and you took him by the hand what did you say to him?”, and Mr. O’Regan has objected on the ground that the admission of the answer would constitute a breach of the hearsay rule.
Mr. Miles presses the allowance of the question and submits that the conversation is admissible upon two grounds: firstly, that it falls within the exception to the hearsay rule in favour of dying declarations in cases of homicide, and, secondly, that it formed part of the res gesta.
In relation to the first ground Mr. O’Regan submits that the evidence does not justify a finding that Topuludou believed that he was about to die and that, in any event, there is no evidence to qualify this village native as a declarant within the exception.
Both counsel have cited from Phipson on Evidence (9th Ed), Chapter XXVIII: “Dying Declarations in Cases of Homicide”.
The admissibility of what was said by the victim in homicide depends upon the declarant having spoken under a sense of impending death and the principle upon which it is then admissible is that a sense of impending death creates a sanction equal to the obligation of the oath.
I have no doubt, upon the evidence, that when he answered his brother, Topuludou believed that he was about to die from the wound, which he had received in this encounter, and was without hope of recovery.
However, I have nothing before me to show that such a belief would create a sanction enjoining him to speak the truth.
In R. v. Woodcock[cccxxxix]1, Eyre C.B., as cited in Phipson at page 331, remarked:
“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”.
It is generally assumed that such a sanction exists where the deceased was a civilized member of a Christian community and such an assumption is made in the application of the principle in Australia, but, I have not had occasion to consider its application to the dying declaration of a member of a native community in this Territory. However, I apprehend that it is based upon the Christian belief in a hereafter and that the “most powerful considerations to speak the truth” are those which exercise the mind of a Christian about to meet his Maker. This exception to the hearsay rule evolved under a strong sense of punishment for falsehood and other sins.
It may very well be that the principle would apply, also, in the case of members of other faiths, holding beliefs materially similar to those of Christianity. I imagine that it would be applicable to some natives of this Territory, particularly those who have been admitted, with understanding, into the Christian faith; but, what little I do know about the expectations for their illimitable future of the natives of this community here in Kiriwina does not lead me to think that they anticipate anything like a judgment upon their sins that would create a solemn sanction to speak truthfully upon the eve of such a judgment. I understand that their traditional belief was in some sort of existence, after this life, upon those uninhabited islands which may be seen from the wharf and its approaches.
I am indebted to Mr. O’Regan in that he has read me part of an unreported decision of Kriewaldt J. given at Darwin on the 20th March, 1958, in a case of R. v. Wadderwarri, which he extracted from an article by Mr. P. Brazil, appearing at page 195 in Volume 34 of The Australian Law Journal. This was a judgment delivered in a trial in the Supreme Court of the Northern Territory in which Kriewaldt J. rejected the dying declaration of an aborigine of Australia. This decision of that judge fortifies me in ruling that the evidence proposed to be led is not admissible under this exception to the rule.
Coming to the other exception in favour of statements that are part of the res gesta it is established, at this stage, that the young men of Okupukopu went armed into the village of Kaituvi and attacked the men of Obalaku, who were guests there to watch an afternoon performance of a dance. After being driven from the village, itself, the men of Obalaku rallied about a road where it led from the village through a grassy triangle at its perimeter and then through the bush to their own village.
Topuludou was in the front line of the aggressors and held his position on its extreme right, when it was held at the base of the grassy triangle. His brother, the witness, was in another group, apparently in the rear and to the left of the vanguard, somewhere else, but not far away in the village. Topuludou was speared by someone who threw from the bush at the right side of the triangle, ran out of the bush, extracted his spear from Topuludou’s chest and made off through the bush again. This may have been a turning point in the encounter: the evidence is not clear as to just how the fortunes of the hour wavered. Before the aggressors eventually were driven from the field someone in his group drew this witness’s attention to his being called. He heard Similakela call out: “Come over and see your brother.” He seems to have lost no time in going to his brother although he says he was hit in the leg in the course of this errand.
Similakela was in the front line of some three or four men, immediately to the left of, and about fifteen feet from Topuludou. No evidence has been led from him as to either the fact of his calling, or when it was that he called to Giorogawa. My impression is that it was probably quite soon after Topuludou was wounded, although I have to remember that Similakela himself was heavily engaged at this time. Similakela also says that Topuludou fell on to his back when the spear hit him and remained like that while his assailant withdrew the spear and until he died. Giorogawa says that Topuludou was walking crookedly when he got to him and sank to the ground while he was questioning him.
Both counsel have referred to Phipson, Chapter VI: “The Fact or Transactions in Issue: Res Gesta,” particularly at pages 67 and 68: “Declarations accompanying Acts” and the notes of cases thereunder at pages 76 et seq.
Declarations of the victim relating to acts of an assailant, and his identity, are said to be admissible if they constitute an integral part of the occurrence and are substantially contemporaneous with it. Where they follow the event there must not be such an interval of time “from it as to allow of fabrication, or to reduce them to the mere narrative of a past event”.
Mr. O’Regan has also read an extract from the advice of the Privy Council in Lejzor Teper v. Regina[cccxl]2 per Lord Normand, who delivered the reasons, at page 486:
“Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gesta. The rules controlling this exception are common to the jurisprudence of British Guiana, England and Scotland. It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay 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 real evidence and not merely a reported statement.”
The cases noted in Phipson illustrate the application of the principle and seem to point to differences in judicial opinion as to its application to particular circumstances. It seems to me, with respect, that judges may have gone to extremes, both in admitting and in excluding evidence, to which I would not care to follow them. However, only the short notes of these cases are available here.
I cannot conclude upon the evidence, with any feeling of mental satisfaction, that what Topuludou said was an integral part of the event between himself and his assailant in which he was left wounded. There is, in particular, the uncertain interval of time and Giorogawa’s questioning. I do not take into account this questioning exactly for the reason for which questioning is taken into account to avoid the voluntariness and so the admissibility of complaints in sexual offences. It does seem to me, however, that it robs Topuludou’s utterance of that spontaneity which would tend to include it as par rei gestae. I disallow the question.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[cccxxxix]Ileach 500, 504.
[cccxl](1952) A.C. 480.