DYING DECLARATIONS.

 

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON DYING DECLARATIONS.

Duncan Abeynayaka – LLB, Attorney At Law

 

EVIDENCE ORDINANCE

SEC 32.Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases :—

(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question.

DECIDED JUDGEMENTS

01. The earlier theory of the common law has been stated by Eyre C. B. —Rex v. Woodcock (1789) I Leach 500  to be that,

"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."

 

02. Alisandri vs. The King - 38 NlR 257  

Where a nod of assent was given by a person, who was unable to speak, to a question whether it was the accused that cut her neck,—

Held, that there was sufficient evidence of a verbal statement by the deceased within the meaning of section 32 (1) of the Evidence Ordinance.

Held, further, that evidence as to signs' made in answer to questions put to the deceased was admissible but statements of witnesses as to what interpretation they put upon the signs were inadmissible.

 

03. The King vs. Mudalihamy - 47 NlR 139

The statement admissible under section 32 (1) of the Evidence Ordinance may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed.

It was held that the said statement made by the deceased that he was going to the place where the accused lived could be admitted in evidence as it was clearly a statement as to some of the circumstances of the transaction which resulted in his death.

 

04. The Queen vs. Anthony Pillai 69 NLR 34

The failure on the part of the learned Trial judge to caution the jury as to the risk of acting upon a dying declaration, being the statement of a person who is not a witness at the trial, and as to the need to consider with special care the question whether the statement could be accepted as true and accurate had resulted in a miscarriage of justice.

 

05. Sigera VS. Attorney General [2011] 1 SRI L.R 201

Under our law a dying declaration can be admitted in evidence under Section 32 of the Evidence Ordinance. One of the salient features discernible in this section is that the declaration may be written or oral. Even a sign made by a person who is unable to speak is caught up in this phrase.

The principle on which this kind of evidence is admitted in certain cases is that they are declarations made in the extremity when the party is at the point of death; when every hope of this world has gone; when every motive to falsehood is silenced; and the mind is induced by the most powerful considerations to speak the truth.

Under our law a dying declaration can be admitted in evidence under section 32 of the Evidence Ordinance. The said section states: statements written or verbal of relevant facts made by a person who is dead… are themselves relevant facts in the following cases. When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes into question.

The section above referred to states that, such statements are relevant whether the person who made them was or was not at the time when they were made, under expectation of death, and whatever may be the nature of proceeding in which the cause of his death comes into question.

Section 32 (1) is illustrated in the following manner:

The question is whether A was murdered by B; or whether A died of injuries received in a transaction in the course of which she was ravished. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape …. under consideration, are relevant facts.

First of all this court has to decide whether the dying declaration in question was a true and accurate one. It is only then the learned High Court judge could be justifed in treating the dying declaration as substantive evidence against the Appellant, which is an exception to the hearsay Rule.

Therefore it is seen that first and foremost a judge must apply his mind and decide whether the dying declaration is a true and accurate statement. In doing so he must be mindful of the fact that the statement of the deceased was not one made under oath (Weerappan Vs the Queen 76 NlR 169), that the statement of the deceased person has not been tested in cross examination (King Vs Asirivadan Nadar 51 NlR 322) and (Justinapala Vs The Queen 66 NlR 409) and that the person who made the dying declaration is not a witness at the trial.

In view of the inherent weaknesses in the dying declaration, enumerated above, the trial judge or the jury as the case may be must be satisfied beyond reasonable doubt on the following matters;

a)      whether the deceased in fact made such a statement,

b)      whether the deceased was able to speak at the time the alleged statement was made,

c)      whether the deceased was able to identify the assailant,

d)      whether the statement made by the deceased was true and accurate,

e)      whether the statement made by the deceased person could be accepted beyond reasonable doubt,

f)       whether the evidence of the witness who testifies about the dying declaration can be accepted as credible.

A dying deposition of a deceased person is not an inferior kind of evidence which must not be acted on unless corroborated like any other relevant fact, it must be considered by the judge having due regard to the circumstances in which the statement was made. It is wrong to give the statement of a deceased person an inferior status as it is also equally wrong to give an added sanctity. It would be a misdirection to hold that the statement of a deceased person as to the cause of his death which is admissible under section 32 of the Evidence Ordinance as a relevant fact is diminished in weight by the absence of cross examination or that it is an inferior kind of evidence which must not be acted upon unless corroborated.

 

06. Dharmawansa Silva and Another vs. The Republic of Sri Lanka 1981 - 2 Sri LR 439

It was held that “When a dying statement is produced, three questions arise for the court.

Firstly, whether it is authentic.

Secondly, if it is authentic whether it is admissible in whole or in part.

Thirdly, the value of the whole or part that is admitted.”