Topic 6: The Rule Against Hearsay

a) Hearsay Defined
Trail Judge has to look at language used and see if it is caught by the hearsay rule
○ It is a matter of admissibility, so
1. Step 1: Is there hearsay?
2. Step 2: is there an exception that excludes it?

Essentially, second hand evidence

- Our whole system is based on information gathered in the courtroom, first hand
● Not surprisingly the courts are sceptical

Most significant trend in hearsay is rights

- Rights of accused, witnesses, and parties
● Altered the perspective of the traditional doctrine
● Useful to think how a modern court would decide on older cases

→ DPP v Connorton [2023] IESC 19

★ Importance:
1. Discusses definition
2. Court applied the best known of the hearsay exceptions (Res Gestae)

‘a statement made by a person, other than one which is made by a witness while giving oral
evidence in proceedings, is inadmissible as evidence of any fact stated.’
- The probative purpose for which the statement is being tendered is CRUCIAL

Facts: Connorton is a case that involved a hostile witness and the application of section 16 CJA
2006
- The witness, placed an emergency 999 call, a love triangle case (the witness was a woman
who had been in a relationship with the accused, that relationship had broken down, and she
had started a new relationship with another person)
● Altercation in her apartment, the accused stabbed the new partner and the new
partner ultimately died

- The women, witness, made the emergency 999 call from the scene
● In that call she identified the protagonists and said the accused had stabbed the
victim

- She is then called as a witness for the prosecution, in the meantime some reconciliation
between her and accused, so is not longer willing to testify against him
● Crucial if her 999 call can be admitted into evidence

- Into testimony bring in a statement made outside the courtroom

● Paradigm case of hearsay – is the person who made the statement is NOT IN
the courtroom
 ○ Statement made by declarant, who is typically absent, so have to go off the
witness

- In Connorton, the declarant WAS the witness

● Unusual in hearsay

- Question: is there still a hearsay concern

Supreme Court: yes, the declarant can be a produced witness

Murray J: definition: “other than a statement by a witness on the stand”

- Does not refer to absent witnesses, wanted to include witnesses at trial

Defintion: following th defintion, the statement is inadmissible other than one made by the witness
● Hearsay rule only addresses
○ 999 call was excluded
- Court said it is hearsay, statement made by a witness outside of the courtroom
● Caught by hearsay rule
● Then is there any exception
○ Step 2, it does come within an exception RES GESTAE (the idea that a
statement that so SO caught up in the narrative, that is a part of the incident,
it forms part of res gestae and it is admissible, as it would be artificial to not
include it)
■ Type of res gestae in this case – is spontaneous res gestae

Purpose of the Statement

Has to be to prove the truth of what was stated
Not every statement made out of court is caught by the hearsay rule
- If trying to supplant the witness with a statement, then it is probably a case of hearsay

If can prove that that is not why they want to introduce, 09;23

How to spot…
1. An out-of-court statement.
● No opportunity to challenge statement
● Linkage to testimony and hearsay
2. Reported in court.
3. Presented for the purpose of proving the matter stated.

Exceptions to the Hearsay Rule

Even if an out-of-court statement constitutes hearsay, it may be admissible at trial under one or more
of numerous exceptions to the hearsay rule that exist at common law and by statute.

b) Rationales For the Rule

1. Hearsay lacks the safeguards of direct testimony.
● No benefits of the adversarial process
2. Where the declarant is absent, there is no opportunity for confrontation or cross-examination.
● Confrontation (especially in human rights) if the declarant has provided information
that can be used against the accused – important for accused to confront the
declarant
3. Hearsay may not be the best available evidence.
● Presentation
4. Rule encourages parties to use best efforts in evidence gathering.
5. Difficult for trier of fact to assess the weight of hearsay.
● Difficult to evaluate it; no benefit from seeing, hearing and being present for the
evidence
6. Hearsay may be fabricated.
● Relax the rule, supporters would contend that you can open the door to the
fabrication of evidence
● Could just be a spontaneous response, or cold calculated ploy to exaggerate
7. The admission of hearsay may complicate proceedings.
● Difficult for juries, and will lengthen proceedings, extensive voir deers

→ Teper v R [1952] AC 480

→ Cullen v Clarke [1963] IR 368
→ R v Blastland [1986] AC 41
→ Eastern HB v MK [1999] 2 IR 99
→ Al-Khawaja and Tahery v UK (2012) 54 EHRR 23

Reform of the Rule?

Do independent research

c) The Out-of-Court Statement

(i) Oral statements
(ii) Written statements
(iii) Automated processes
● deemed to be real evidence, not expressive evidence, no human input – they do not qualify
for hearsay
(iv) Conduct
(v) Implied Assertions
● Rattan case; victim said ‘get me the police’, what if the statement is not clear…can you
imply?
● Not covered in this course
(i) Oral Statements
→ Sparks v R [1964] AC 964, Cbk p.186
Bermuda, privy council
- Sparks was a caucasian man accused with the assault of a three-year old girl
● Court did not allow the mother to report in her testimony a statement the girl
had said to the mother
● ‘It was a coloured boy’ – could be significant since accused was a caucasian
man

Privy council endorsed TJ’s approach of not including the statement (as no witness
available)
- “Wiser and better that hearsay should be excluded SAVE IN EXCEPTIONAL
CIRCUMSTANCES”

Justice is best served with firsthand evidence

In today’s day?
- Today, it would be an interview with the child and even then, difficult to include
- Unusual fact of prosecution procuring evidence is favour of accused
● Rule to exonerate the accused rather than for the prosecution
● Why should defence be allowed to operate under a rule that is more relaxed? Is it
appropriate to treat the parties equally?
○ Burden on prosecution to make their case, so different standards already
applied, different resources for each party

→ Teper v R [1952] AC 480

Unidentified bystander
- Teper was accused of burning down his own shop, arson and fraud – to make a
claim on his insurance

Witness was a police officer

- Police officer heard an unidentified women at or near the scene and this woman was
pointing at a motorist who was seen driving away from the scene,
‘your place burning now and you going away from the fire’
- This evidence was allowed at trial even though about 20 minutes had elapsed from
the start of the fire and the woman pointing at the motorist

TJ allowed this evidence at trial and Teper was convicted

- Privy council overturned the conviction and the court said it was oral hearsay,
statement made outside of court
● Offered by the prosecution to identify the accused leaving the scene
- Privy council also though this evidence was DECISIVE, really important, at trial
● And did not come within an exception

Teper also raised from Res Gestae

 - 20 minutes too long to allow it to come within exception, held yes it was too long

→ Ratten v R [1972] AC 378

Older TRADITIONALcompanion case of Connorton Case

Rattan convicted of the murder of his wife by shooting her

- At trial he argued that the shotgun had gone off accidentally when he was cleaning it;
he said he did not have the mens rea for murder

WItness was a telephone operator

- Testified she received a phone call from rattan’s address, the caller was a woman in
the state of distress, she was sobbing and hysterical, and she said ‘get me the
police’, then gave her address and hung up

This is an out of court statement, and used in court to prove the truth
- Privy court worked around the hearsay rule to find it admissible
● SAID IT WAS USED TO PROVE THE FACT A TELEPHONE CALL WAS
MADE, just that the telephone call was made (as a composite act, a
laboured extension of the first point)

- Also used to prove Mrs Rattan’s STATE OF MIND

● Common alternative probative purpose

- Used to rebut ‘accidental death’

● Very close to saying it was used to prove the truth of was was said or implied

→ DPP v Harty [2022] IECA 118 (paras 10-17)

(ii) Written Statements

→ Myers v DPP [1965] AC 1001, Cbk p189
Criminal case based in England
- The offences related to a scam related to the theft of cars
● The scam involved selling stolen cars that were disguised using the
registration of old wrecked cars
● Meant the identity of the cars was CRUCIAL to the prosecution’s case

The prosecution called bookkeepers at the car manufacturers

- These book keepers produced records compiled during the manufacturing process
● Cylinder block numbers individual to each car, and the records have to match
that

Hearsay
 - The book keepers hadn’t actually compiled the records, so they had no first hand
knowledge of the things stated in the records
● Could just say what the records state, had no expertise on cylinder block
numbers at the time

Trial Judge
- Allowed them to give this evidence

HOL
- Overruled this
● The Myers case is cited as a HIGH WATER MARK in the application of the
hearsay rule
● Partly because there are two values that underpin the rule
○ For arguing for admissibility or the creation of an exception
1. Necessity – court needs this evidence, really no other way to
get it
2. Reliability – why wouldn’t we trust the bookkeepers and why
wouldn’t we put faith in the record keeping habits of the
records of car manufacturers
● They underpin a liberal approach to the rule or the recognition of an
exception
○ Myers pressaged the later introduction of a BUSINESS
RECORDS EXCEPTION
- The records and cylinder block records are all technically outside of court, but makes
sense to allow them in court

Declined the invitation to themselves to create the business records exception

- Early hearsay rules ARE JUDGE MADE
● If there is to be an exception, courts said parliament has to create it
● Now contemporary rule of parliament creating them

→ Patel v Comptroller of Customs [1966] AC 356, Cbk p.193

Concerned the importation of coriander seeds from Singapore to Fiji
- At issue was the place of origin of the seeds
● On the form with the product, the place of origin was indicated to be India,
and on labels attached, it was said to be Morocco
- Privy council said LABELS ARE HEARSAY, a written statement within the hearsay
rule
● The labels were not produced in court, so out of court

So out of court statements became much broader

→ DPP v O’Mahoney [2016] IECA 111

 Contemporary version; was a case that arose out of the banking crisis; lots of
documentation business records, banking documentation
- So all of those are technically hearsay as are to prove , but are exceptions

→ DPP v C [2021] IESC 74, [2021] 2 ILRM 305

Medical certificate; pertaining to the offence of causing serious harm; provision that allows
the introduction of a medical certificate that would speak to the injuries sustained by the
victim
- That is an exception to the hearsay rule, it allows the party to produce the certificate
without producing the doctor

Went to SC:
- Issue was whether it was enough that the person who signed the statement reviewed
the records of the case, or must it be the physician who examined the victim
● Said this was an exception

→ DPP v Bates [2021] IECA 45 paras 36-40

Exchanges over the internet or electronically, are also written statements for the purpose of this
analysis
- Documents and documents generated in technological advancements

(iii) Automated Processes

→ Statue of Liberty [1968] 1 WLR 739
→ Murphy [2005] 2 IR 125
→ Meehan [2006] 3 IR 468
→ DPP v A McD [2016] IESC 71, [2016] 3 IR 123

(iv) Conduct
Can say something through conduct; expressive conduct

→ Chandrasekera v R [1937] AC 220

Privy council case, fatally wounded and asked to identify their assailant and do this by nod of
head rather than saying yes
- It is an adequate statement recorded in court to prove the statement, just as much a
hearsay case

→ People (DPP) v Bishop (CCA 27 Jan 2005)

Discussion in this case ( do not read ); passing reference to hearsay
- Gardai searched house, and wanted to search a car in front of the house
● The expressive conduct was the handing over of the keys to the car
● Deemed to be consent to the search
ED: Probative Purpose
Original evidence → hearsay → real evidence (automated process)

Original; alternative probabitive purpose

- Not hearsay, it is original relevant to prove something

Hearsay; only second hand statements presented as proof of what a declarant said, wrote

Real evidence; 10:26

Other possible probative purposes

If dealing with hsotile witness, and examiniaiton in chief changed to hostile witnes procedure cpa
1865, allows council to cross examine the witness using the pervious inconsistent statmenrt

In cross examination generally prosecution is allowed to impeach the witness using previous
statements
- Show that thew witness has not been consistent

Prior relationship with people – tetxted each other or emailed each other – the fact of a statement of
exchange
- Rattan fact that telephone call made is relevant

State of mind of declarant

The stament explaining a person’s action

- Hearty Case
- Same time as connorton case

→ Hearty
Consideration of hearsay different to Connorton
- Involved charges of criminal damage and endangerment
● The appellant before the COA, the accused at trial, was convicted of driving
his car into the home of his wife (separate debut still some contact)
● In the night in question he had driven into the side and front of her house

- She made an emergency 999 call and relayed those facts to the Gardaí
● Then made more statements to the Gards

- Like connorton, this woman in the house the former wife, she was meant to be called
as a prosecution witness but was reluctant to testify
● Deemed a hostile witness and section 16 came into play
● Significance of pre trial statements were at the core

TJ in Hearty
- Said the 999 call WAS ADMISSIBLE as original evidence
 ● A contemporaneous report of an allegation made by the complainant
- Just the fact she made a report, the fact it was made was a relevant factor

COA
- Agreed with this
● And went on to say it was also admissible to prove the circumstances in
which and the reasons why the gardaí went to the scene

- The existence of the statement as evidence to prove why they went to the scene

Courts are looking at small details in looking at facts; significance of how it plays out
- If original then no separate analysis as required for hearsay
● Neat way for the court to work around the hearsay application

In Connorton before COA

- The court made the point that how we classify an out of court statement is CASE
SPECIFIC
● All hinges on the purpose to which the party is going to use it

- What the COA said about an emergency 999 call, it could be classify of anything
● If prosecution wanted to introduce a voice recording of the call
1. It could be admitted as REAL evidence if it demonstrated certain
characteristics of the recording
■ They might be
● The nature of the voice
● Background noises
○ Objective things related to the recording
rather than a subjective statement
■ “THE DISCERNABLE CHARACTERISTICS” that the
recording exhibits

2. Could be original evidence

○ Not trying to prove truth of what it was saying
○ Could be like connorton where they do want to introduce

Case Law on Probative Purpose

Scape device for circumventing the hearsay rule

→ Cullen v Clarke [1963] IR 368

Civil case around workplace accident
- Statements in question were statements that respective employers had made to the
claimant
● Partial disability and making a claim to make it into a more serious claim for more
relief
 ○ He wanted to bring in evidence what prospective employers had said to him
to prove the difficulty in dining work

- Court said not caught in hearsay

● Argument ? Fell through?

→ Ratten v R [1972] AC 378

→ Subramanian v Public Prosecutor [1956] 1 WLR 965

Privy council from malaya
- Civil strike in malay at the time
● Communist insurgency and the accused go caught up in all of this
● Convicted of firearms offences

Had been found by malay security forces (operating against the communist insurgencies)
- His defence at trial was that he was forced by these insurgents to join their cause
and he was operating under duress AT ALL TIMES
● Not a willing participant, feared for life, could not escape

Subramanian took the stand an testified and wanted to testify about statements that the
insurgents had made to HIM
- TJ ruled that the statements were inadmissible hearsay and unhelpfully suggested to
bring the insurgents in to testify

Privy council took different view

- The insurgents threats were not being admitted to prove the truth of what was stated
● But offered for their probative significance to PROVE THEY HAD BEEN
MADE
● So the defence are raising duress; so the relevance of the threat was that
SUBRAMANIAN FELT THREATENED
● His state of mine
○ Not was actually said or whether it was true or not

Not a testimonial purpose, an original purpose

→DPP v Morgan [2015] IECA 50

Murder conviction, 3 men charged very violent attack on victim who then died
- Witness who was known to one of the accused's who had been present at the scene
and in the aftermath of the incident

She testified about conversations that were had between the co-accuseds
- Significant was that one of the co-accused's said things that implicated (or would
have) the accused
 ● He did not react to that in any way – did not deny anything that was said

COA:
- This evidence was admissible because the fact the co-accused had made a
statement, and the conduct of the accused was also relevant in showing no reaction
to the statement
● Distinguish that from a hearsay
- Fact statement was made and the fact the respondent responded through conduct
through showing no reaction

→ DPP v Bates [2021] IECA 45 paras 36-40

→ DPP v Connorton [2021] IECA 275 paras 81-90

Law Reform Commission: general recommendations

Recommended business records exception
- Controversial recommendation

Implied assertions
365 evidence in criminal trials – footnote at bottom of the page 135
- Example of implied assertions idea
Meaning of words can be really significant and the implication of a statement can be quite important
- Miscarriage of justice – Bentley – joint enterprise – sentenced to death – bentley was
pardoned posthumously in 1988
● Shooting in warehouse

Recap:
Trier of fact has benefit of first hand impression – weigh the substance of what the declarant is
saying
- A Lot of hearsay debate is tied up in the absence of cross examination
● Associated with issues about common law protections

SC in Connorton Case
- Made the point that actually the hearsay rule applies more broadley than the absent witness
● Can also apply to a witness who is asked about or testifies about a mistake that they
themselves made OUTSIDE the courtroom
○ Can apply when witness and declarant are the same person
○ Concern of cross-examination is not here, but SC said yes still can apply

Most of debate about hearsay rule focuses on where parties and courts are trying to escape the
hearsay rule
- Preventing its application
● If it was applied really rigorously, lots of evidence would not be available
 ○ Not just oral – written and conduct

May be situations where it is the ONLY or BEST evidence available

- Reliability can sometimes be a reason to include – spontaneous impulse, written bank note

Two escape devices

1. THE PROBATIVE PURPOSE: Hearsay only applies where the party is using the out of court
statement to prove the truth of what was stated
● Prove the contents of what was said or expressed

If the party can explain it being used for an alternative probative purpose
- Then it is open to becoming ORIGINAL EVIDENCE

Exceptions to the rule

- Rigour could imply that the admissibility is assayed by these exceptions – but makes
Hearsay rule a much more complicated
● Is there a hearsay problem?
● Then is there an exception to open the door to except the evidence?

ED: Automated Processes and Real Evidence

Associate real evidence as being inanimate, a real object thing, tangible
- Can be introduced as evidence – but typically need a witness to contextualise it within the
proceedings

Automated processes
- Machines (other types of technology)
● How to marry hearsay and real evidence? Where do we plot that line?
○ Hearsay statements are broadly defined; includes written hearsay which are broadly
defined can include images, graphs, any information produced through a process;

Hearsay is associated with testimony, and prior to information technology, it was associated with
automated processes

Establishing the scope or reach of the hearsay rule has been complicated in light of technology in
the modern world
- The exclusionary rule ASSUMES THAT THE DECLARANT OF THE OUT-OF-COURT
STATEMENT IS HUMAN
● Was it purely automated and robotic or human?

Real Evidence
→ Statute of Liberty [1968] 1 WLR 739
Civil case, arose out of a collision of two ships
 - At issue in the case is the admissibility of a film of radar echoes, or recorded, in a film in a
radio station which was not manned (purely automated)
● A recording produced mechanically WITHOUT human intervention is NOT HEARSAY
○ It is admissible as real evidence

- Court sighted clocks, barometers and OTHER AUTOMATED PROCESSES

Overall:
For hearsay, talking about subjective human input
Real evidence is OBJECTIVE evidence

- In the law of evidence, if talking about evidence gathered in pretiral to be used against
accused,
There is adistinciton drawn between Subjective and objective evidence
● confession is subjective
● Fingerprints is objective

- Similarly if a process has human intervention then hearsay – if not intervened then
automated and not hearsay

Accepted in Ireland
→ DPP v Murphy, DPP v Meehan (telephone records)
- Murphy: involved charges out of the Oma bombing
- Meehan: charges arising out of journalist veronica geering

→ Murphy
- Telephone records, these records were generated in relation to CELL MAST ACTIVITY,
records show a pattern in communication – pattern of communication between the accused
and others and that information is recorded automatically through the telephone process
● In case of meehan, a print out of telephone traffic between the accused and others
○ If the purpose was to show communication, then no hearsay concern
■ Court said yes true but went further to apply statute of liberty
○ Courts also says that accepted it as real evidence

→ Curran

→ DPP v A MCD
Cctv is really ubiquitous, really important source of evidence from a practical POV
- Case where the TJ concluded that the prosecution did NOT have sufficient evidence and
directed the jury to QUIT
Appeal was brought by the prosecution – no the TJ got it wrong, they did have sufficient evidence
and trial
- Arose out of an incident in a car park in an apartment complex, alleged that the accused had
broken into the complex and had set fire to a car in the car park
- Charged ultimately brought – burglary, arson and ,endangerment
● Prosecution tendered to principle items of evidence
○ CCTV; taken from within the complex
○ Confession evidence
● TJ concluded that NEITHER of these principle sources of evidence were
SUFFICIENT

COA disagreed ON BOTH POINTS: As did the SC and trial was ordered

CCTV
- Court made a number of findings
● CCTV is REAL EVIDENCE rather than hearsay
○ Fits within the stream of case law from statute of liberty
- The principle difficulty TJ had, was the prosecution provided no evidence as to how
the CCTV worked
● SC took the view that CCTV does not require EXPERT EVIDENCE

→ McKechnie
- Material is only hearsay if the direct product of human intervention
● In the case of CCTV that is limited to functions like installation, programming
and setting up the recording which do not raise hearsay concerns

- He distinguished CCTV from print out

● Where the output could have been shaped by human input
● DISTINGUISHABLE FROM COMPUTER EVIDENCE

- Human intervention must go to the VERY CONTENT of the evidence itself

● Hard to see how CCTV could ever be equated to print out that relies on
human input
● The camera simply records WHATEVER is in its field of vision
○ It does not amount to a statement by some person giving some
critical influence on its outcome

Proving CCTV evidence

- Establish its provenance
- Confirm chain of custody (not been altered)
- Show the footage is intelligible and sufficient quality

- The weight of CCTV evidence, its value and credibility are matters for the jury
Future Developments
Distinction between hearsay and real evidence is relatively straightforward where the process is
clearly automated
- What about more complicated forms of information technology? Computers, smart phones?
Artificial intelligence

⇒ Optional extras folder

– Garda Siochana Devices Recording Bill
body worn cameras, bill provides also for recording devices on animals and also on mobile objects
(drones)
- More then just the body worn camera element

Suggestion by one minister that they would include face recognition technology
- Then strong pull back from NGO’s and other ministers

Facial Recognition Technology – in play at immigration context

- Concerns about its use in all different contexts

Not about rejectiving technology but LIMITING ITS USE to the CORRECT CONTEXTS
– body worn cameras, some safeguards that appear in the particular context, some sort of light that
it is obvious that the recording is being made
- Into someones home, must seek permission to use the camer
- Use of more than one camera, argument if it is proportionate

⇒ Section 44:
Admissibility of evidence; facilitate the use of recordings at trial
- Rebuttable presumption that a recording is accurate
● Easier for prosecution to bring evidence in

- Caveat linked to hearsay rule, admissibility of documents is subject to ‘any applicable rules
of evidence’
● The term documents is broadly defined to include recordings
● If the rule against hearsay is applicable, IF THE EVIDENCE CAN BE CLASSIFIED
AS HEARSAY rather than REAL EVIDENCE

If a party is only producing the recording to show the ‘discernable characteristics of the recording’
- Quality, background noise, speakers voice, or the speakers demeanour
● All classified as REAL evidence
If the party is relying on the recording to prove something OTHER THAN the TRUTH OF ITS
CONTENTS
- Then it is original evidence for that probative purpose category
→ Harty case flagged in ED probative purpose with 999 call – introduced to show the
FACT that an emergency call was made, explain why Gard came to the scene

If the witness identifies the accused and victim and says that the accused stabbed the victim
- Hearsay situation
● Connorton and SC concluded that it is the prosecution

⇒ AI
EU Parliament were debating AI, and milestone passed as first stage of bill of proposed legislation
- Time being to adapt traditional doctrine to include, but legislature will have to intervent
● Maybe in a piece meal way
- Also european legislation coming down the tracks

Reform of the Hearsay Rule

- Is there a need for reform
- If so, how should it be achieved. SLIDES

Advantages and Disadvantages

Advantage
- The rule excludes unreliable evidence
- Hearsay is usually not the best available evidence
- The statement was not made in the context of solemn public proceedings in-court
- The statement was not delivered on oath or by affirmation
- The declarant may have been unclear, inaccrutae, mistaken or lying
- An absent declarant cannot be cross examined

Disadvantages
- The rule can exclude relevant probative evidence
● May be the only available evidence or the BEST available
- Hearsay may be the only available evidence of the best evidence
- As applied in practice the rule does not consistently srve its underlying
- SLIDES
● Over strict
- The rule is ambiguous, overly broad, unnecessarily complicated and unduly technical
- The rule generates uncertainty and unpredictability
● Effects the integrity of the adjudication
● Undermine our confidence in the administrative of justice
● Public perception on the strengths of justice effected

ADD SLIDE 4
Difficulties with a system of rule and exceptions
Could we achieve the same objective in a different way?
● Are there particular difficulties in the way in which we do our law (it is embodied in an
exclusionary rule with exceptions)
● Where there is a common law rule and exceptions ⇒ and don’t allow for judicial
discretion ⇒ can be called a BLUNT INSTRUMENT
● Times where the courts have been asked to INJECT flexibility to the rule
● Our COURTS HAVE CONSISENTLY REJECTED THE IDEA THAT THEY HAVE THE
AUTHORITY TO DO A BALANCING EXERCISE in regards to hearsay
● “A rule and exceptions there to”

Need for exceptions have extended

- Long list of common law and statutory exceptions
- Collectively the outcomes of the rule have outgrown the rule
- Some exceptions are outdated or ill-defined or uncertain or duplicative

Rule and Exceptions

Further complicated by ED’s in relation to hearsay
- Still confusion of the scope of the rule

Paradigm of
1. absent delcrant (out of court so someone else called to declare their statement)
2. the declarant where they are themself a witness

Focus point of the SC discussion in CONNORTON

⇒ clarifies it insofar as the SC say YES both of these paradigms have HEARSAY
CONCERNS
● Is hearsay the best way to look at the issue?
● COnnortion not simplify the broader question of the law of evidence

Linked into
- The idea that hearsay is limited to a situation where the declarants out fo court statement is
being offered to porve the statement they are askin the court tot use the statement to probe
the turht of what is being stated
● It is to PROVE SOMETHING ELSE – alternative probative power
● Statement reflects state of mind, establish pre-existing relationship between certain
people
● A concern is that :
○ It invites a case-by-case analysis
○ What did the party intend – the probative purpose the party intended?
■ Case by case analysis is often cited as a DOWNSIDE where there is
a really discretionary approach to something
■ Can ensure justice is done in the particular case – much harder to
see ageneral pattern in the law
 ○ If the decision is dependent on what the parties are proposing as their
probative purpose
■ Then it is also a case-by-case analysis
○ On one hand – NO DISCRETIONARY APPROACH BUT STILL HAVE THE
DOWNSIDES ASSOCIATED WITH THAT APPROACH
■ Tie into this idea about the strengths and weaknesses of the rule may
be
■ Complex

Comparative COmmon Law Models

Most started with a system like ours but have moved

England and Wales – in criminal – closest to ours

- In 2003 – adopted consolidated legislation
- Codified the law to a significant extent also
● Still exlsuionary rule – onsetad of marrow pedantic exceptions
● They house them in border categories
● Category for dealing with documents, previosu statemennts of witnesses rather than
absent declarants
○ In each category they set out a serious of ABUSE CONDITIONS
○ Somethings the TJ must be satisfied abou for the TJ to allow it

More structured and ordered – more efficient and more effective in practice

If the other side objects, the court looks closely

- If no ibjection it is presumptively included

Canada
Rejected in Ireland – MIddle ground approach
Exclusaionary approach - it is prsumptovely excluded
- There is a flexible inclusionary judicial discretion
- The TJ may admit Hearsay if they are satisfied that there is a need for the hearsay evidence
in the case, and if they are staiusified that the evidence is reliable

SC hands down detailed judgements that are prescriptive to giev the TJ

- If the TJ is necessary to admit – it is against the backdrop of a series of judgements
- This approach is not limited to hearsay
- Really only works if everyone buys into the approach
- Then otherwise no consistently

South Africa
Historically has a more open exercise of discretion
- Interesting that a system could approach the evidence in a different way

Trust TJ’s to weight the advantages and disadvantages in each case

Reform of Hearsay
** Balance in the Criminal Law Review Group (2007) (mentioned in unconstitutionally obtained
evidence 2006)
- Perceived imbalance in criminal law in fvaour of suspects and accused persons (michal
o’doole appointed this review group to see if rebalancing was needed) (controversial project)
Did an extensive review of Hearsay
● cautious approach to reform
● Rule should no generally be relaxed
● Some statutory codification is desirable
● Rule should not be extended where this is necessary to achieve clarity

Some statutory codification was desirable

- Keep the rule but scope to tie up some of the exceptions

Conservative approach – important to bear in min d– only cirminal; – not civil cases
- Driving concern to say it should stay the same – is protecting the accused person’s from
hearsay introduced by the prosecution
- Cogent justification
● If you really open the door to hearsay – how do you protect accused persns
efefctibely?

Criminal Proceedings
Consultation Paper proposed retention of current exclusionary approach.

Report implicitly adopts this as its final recommendation (p118).

S46 Draft Evidence Bill: hearsay shall not be admissible in criminal proceedings unless provided for
by law (p405).

Rules should be the same for the prosecution and offence

- Heffernan– scope to think about that
- One thing to protetc the accused form second hand infoormation, then there may be
instanctes where the defence may want to bring in evidence thaty may exonerate the
accused
- Could point in the direction of exonerating someone – should there be a strict hearsay rule
there? Because it is that way for the prosecution
-

Civil Proceedings
Consultation Paper provisionally recommended an inclusionary approach in civil proceedings (ie that
hearsay should be generally admissible)
Report reversed its earlier position and recommended current exclusionary approach be retained
(pp51-56).
An inclusionary approach in civil proceedings - under that model hearsay is PrESUMPTIVELY
ADMISSIBLE
- nut certain safeguards
● Notice to the other side
● They have an opportunity to reject
● The court then ultimately decides whether the evidence should be admitted or not

Current exclusionary approach should be retained

- A new exception should be intorductd for business records in civil proceedings
- Before 2020 there was none
- Though orireachtas introduced one for ciriminal
- So in 2016 – LRC said need one for

They cited 4 things for the change in their position⇒

Why the change in the LRC’s position?
Parties have consitituinal rights to tfairnprocedures, protection to their name, privacy and so on.
- Some of the criminal proceedings caution – is present in civil

High stakes in some civil proceedings.

Uncertain effect of reform in other jurisdictions.

Same rule should apply in all proceedings, civil and criminal.

Proposals for civil proceedings

New exceptions:
● Business records (pp60-76)
- Should inculude a presumption of inclusion for busicess records

● Previous witness statements (pp91-97)

- Convictions in subsequent civil proceedings (pp100-108).

Existing exception for children’s hearsay evidence should be elevated to a presumption in favour of
admissibility in public and private law proceedings (pp45-47).

Thought there should ve a new exception

– looked at secion 16 CJA 2006 – hsotile witness – mechanism for allowing in their pretial witness as
substaonve evidence
● So they thoguh thtat should be available in civil proceedings aswell

Business Record Exception

Existing exception in criminal proceedings should be retained and a corresponding exception
enacted for civil proceedings.
Business records would be presumed to be admissible.
The term ‘business records’ should include records kept by any trade, profession or other occupation
carried on, for reward or otherwise, and should also encompass records kept by charitable
organisations.

THE PROCEDURE IS COMPLICATED – O’MAHONEY

WHite collar crime – hundreds of documents
- The legilation puts the onus on teh party to prove that the statutory conditions have been met
● And TJN has to be satisfied

Should also be applicable to charities

- Charity regulator has since been set up
They should also come within this exception

NOTE:
Since enacted bu hte Orieachtas
Business records should be admissible even where the records are from outside the State or the
business has ceased to exist.

Trial courts should have a discretion to refuse to admit business records in the interests of justice.

Allowing something for anothe rporbative purpose but not another

- Only allowed into independent evidence****** only for someone’s character
- To show consistency

Only safeguard here if the TJ instruction ot the jury – limited probative prose THJ has to be clear that
you can consider this evidence but it only possibly proves this
- If TJ thinks they wil give the instruction and it will weight too heavily on the jury – overly
prodjucuical – THE YYAVE TO EXCLUDE IT