Supreme Court of Ireland Decisions

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Appeal No.:2022/000083

[2023] IESC 19

Charleton J

O’Malley J.

Woulfe J

Murray J.

Collins J.

 

 

BETWEEN/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

RESPONDENT

 

- AND -

 

KEITH CONNORTON

 

APPELLANT

 

 

 

Judgment of Mr. Justice Brian Murray delivered on the 28^th July 2023

           

 

1.      I agree with Woulfe J., Charleton J., and Collins J. when they conclude that the recording of the emergency call made by Ms. McGrath shortly after the incident that led to the death of Mr. McKeever was properly admitted as evidence of the truth of its contents.  It formed part of what is sometimes referred to as the res gestae.  That is a complex proposition which, for the purposes of this appeal at least, can be best understood as including a principle that allows the admission of an otherwise inadmissible hearsay statement to prove the truth of its contents because it presents a reliable and spontaneous account of an event given contemporaneously with, or shortly after, the incident in question.

 

2.      I will briefly explain later in this judgment why I have so concluded.  But at the level of principle, it seems to me to be important to clarify the basis on which there was even a dispute around the admissibility of this recording.  As explained in greater detail in the judgement of Woulfe J., the call was made by Ms. McGrath, a witness to the stabbing which resulted in Mr. McKeever’s death.  In the course of the recording, she described the circumstances in which the appellant was said, shortly before she made the call, to have stabbed the deceased victim. As matters developed, the attempt by the prosecution to have this recording admitted as evidence that the stabbing occurred in the manner recounted by Ms. McGrath in the course of the emergency call engaged, in different ways, four rules of law. 

 

3.      First, while the debate before the trial judge and indeed the argument before this Court revealed differing understandings of the precise definition of the rule against hearsay, it is at the very least clear that this prevents the admission into evidence of certain out of court statements where it is sought to rely upon the statements in question as evidence of the truth of their contents.   There are many exceptions to this rule, one of which arises where the statements form part of what is termed the res gestae.

 

4.      Second, also relevant is a further rule which is, at the very least, a close relative of the rule against hearsay [1]: this is often referred to as ‘the rule against narrative’, the ‘rule against self-corroboration’ or ‘the rule against previous consistent statements’. [2]  This rule prevents the corroboration of the evidence of a witness through proof of statements to the same effect previously made by him or her (R v. Coll (1889) 25 L.R.Ir. 522, 541 per Holmes LJ).  This rule is also sometimes framed in terms that previous statements of a testifying witness are inadmissible as evidence of the facts stated. [3]  The rule thus operates both to limit the admission of the previous statements of a witness while testifying and the ability of other witnesses to give evidence of such statements by another who is also witness.  The law recognises other limited purposes for which those statements can be admitted (including in the case of certain complaints in sexual cases, to rebut an allegation of fabrication and allow the refreshing by a witness of their memory).  It is clear that evidence of such statements can be given to prove the truth of their contents where they form part of the res gestae, but otherwise they cannot.

 

5.      Third, if a witness gives evidence inconsistent with an out of court statement made by that person, the Criminal Procedure Act 1865 (which applies also to civil proceedings) allows that statement to be put to the witness with a view to asking them if they made the statement, and if they deny doing so, to enable it to be proved by another witness.  In that situation the statement is only evidence of the facts stated therein if the person making the statement is a party to the proceedings and it can be categorised as an admission for the purposes of that exception to the rule against hearsay; otherwise, as I have observed, it merely goes to credit.  This is the procedure whereby a person is declared a ‘hostile witness’.

 

6.      Fourth, and finally, s. 16 of the Criminal Justice Act 2006 provides an independent procedure for the admission of out of court statements.  The section provides that it is without prejudice to the Criminal Procedure Act 1865 and, unlike that Act, allows the admission of such statements for the purpose of proving the truth of their contents.  The operation of the provision is explained in some detail in the judgment in The Director of Public Prosecutions v. DK and MK [2021] IECA 32.  In summary, the circumstances in which that power may be exercised are described in s. 16(1) as follows:

                        ‘Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness … may, with leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination:

(a)   refuses to give evidence,

(b)   denies making the statement, or

(c)   gives evidence which is materially inconsistent with it’

7.      If so admitted, the statement is evidence of any fact mentioned therein.  The power to admit such a statement may be exercised if the court is satisfied that direct oral evidence of the fact concerned would be admissible in the proceedings, that the statement was made voluntarily and that it is reliable.  If the statement was not given on oath or affirmation or does not contain a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, the court must be satisfied that when the statement was made the witness understood the requirement to tell the truth. In determining whether the statement is ‘reliable’, the court is enjoined to have regard to whether it was given on oath or affirmation or was video recorded, or (if not) whether by reason of the circumstances in which it was made or otherwise, there is other sufficient evidence in support of its reliability.  The court is required in determining whether to admit the statement to have regard to any explanation by the witness for refusing to give evidence or for giving evidence, which is inconsistent with the statement, or where the witness denies making the statement, any evidence given in relation to the denial.

 

8.      Section 16(4) directs that a statement shall not be admitted in evidence under the section if the court is of the opinion, having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or that its admission is unnecessary, having regard to other evidence given in the proceedings.  Subsection (5) provides:

‘In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.’

9.      It is to be noted that this Court in People (DPP) v. Gruchacz [2019] IESC 45, [2020] 1 ILRM 191 has found that the 1865 Act and s. 16 can be used in tandem: the hostile witness procedure, O’Malley J. explained, is aimed at ensuring that the jury understands that the evidence given at trial by the witness may be unreliable, but the process may also result in the witness confirming the truth of the prior inconsistent statement.  Section 16, on the other hand, is intended to give evidential status to the prior inconsistent statement, albeit in the course of a process that may also undermine the witness’ credibility.  The provision assumes that outside those circumstances in which the section is held to apply, the prior out of court statement of a witness is usually inadmissible to prove the truth of its contents.

*****

10.  The judgment of Woulfe J. contains a detailed account of the facts, which I gratefully adopt.  In summary, there was no question but that the appellant and the deceased, Mr. McKeever, had been involved in a dispute at an apartment occupied by Ms. McGrath, and leased by the appellant.  Ms. McGrath had been in a relationship with the appellant and had previously shared the apartment with him. At the time of the altercation, she was involved in a relationship with Mr. McKeever.  Mr. McKeever was stabbed in the course of that altercation, dying of his injuries.

 

11.  A number of calls were made from the apartment to the emergency services.  In the first (which was made at 04.30 hours on February 18 2017)  the appellant said that he had come home and that there had been a man there who had a blade and attacked him with it. He had taken the knife from the man and had stabbed him. Both the transcript and the tape of this call were admitted in evidence without objection.

 

12.  The second call took place a short while later (at 04.43).  When asked by the operator who the victim was, Ms. McGrath said: ‘He is a new partner I was seeing, my ex‑partner came into the house and picked up a knife and went for him with it and stabbed him with it and he is gone now, he broke my nose.’  She, also, made two subsequent statements to the Gardaí that were, broadly, consistent with this.  The first statement was given in a Garda patrol car on the night of the killing, and the second was made later that same day at her mother’s home.  She said that the appellant had come into the apartment when she and Mr. McKeever were in bed. She went to talk to the appellant in the kitchen/living area, the appellant picked up a knife, threatened her with it and pushed her so that she fell over onto the couch. Mr McKeever then came out from the bedroom and the two men fought.  She said that the appellant had hit Mr. McKeever several times before stabbing him.  She referred to her having managed to take the knife from the appellant, but he grabbed another knife with a serrated edge.  Mr. McKeever collapsed, and the appellant head-butted her before leaving. 

 

13.  A number of days following the incident, the appellant and Ms. McGrath re-established their relationship and he subsequently resumed residence with her at the apartment.

 

14.  Ms. McGrath was called as a witness by the prosecution.  The position adopted by her in her evidence in chief was that her relationship with the appellant had not, in fact, ended at the time of the killing of Mr. McKeever, but that she had at the same time also been conducting a relationship with Mr. McKeever.  In the account she gave in evidence of the events in her apartment the appellant arrived there, realised someone else was with her, and was in the course of cutting cannabis with a knife when Mr. McKeever emerged from the bedroom.  On this account, Mr. McKeever had attacked the appellant, the appellant - having been initially passive - raised his hand holding the knife and stabbed Mr. McKeever in self-defence. She saw only one stab. She then took the knife from the appellant.

 

15.  At an early stage in the course of Ms. McGrath’s evidence, counsel for the prosecution indicated to the trial judge that he wished to make an application pursuant to s. 16 of the Criminal Justice Act 2006 on the basis that the witness was giving evidence that was materially inconsistent with her statements.  It was agreed that the appropriate time to make the s. 16 application was after the witness had finished giving her account in front of the jury. The prosecution did not attempt to adduce in evidence the words used in the phone call during that phase of the trial.

 

16.  The trial judge then accepted that the necessary ground upon which to make the s. 16 application had been laid. He stated that what had happened was ‘a wholesale abandonment of the earlier version in favour of a new and different version, which happens as it so happens, would seem to favour a new side of the case’.  Accordingly, the next step was to put to the witness, in the absence of the jury, the various statements that she had made prior to the trial.

 

17.  Counsel went through the two statements Ms. McGrath made to the Gardaí with her in detail. In general, she agreed (with some exceptions) that she had said the words, and she said that she had not lied. However, she also claimed that some parts had not been said by her or were taken down wrongly by the Gardaí. She claimed that she had been very confused at the time of making the statements through the effects of various prescription medications, and other drugs, and did not remember saying some things in the first statement. She said she had no recollection at all of the second statement and that she had been attempting to minimise her own guilt for creating the situation by cheating on her partner. She said the stabbing was an act of self-defence, or an accident.  The words used by her in the phone call were put to her and she responded that it was ‘like a summary of what happened without going into detail’. She had been in a panic.

 

18.  When the evidence on the issue was concluded, the prosecution made two applications. One was pursuant to s. 16 of the 2006 Act, as had already been indicated to the court, while the other was under s. 3 of the Criminal Procedure Act 1865, to have the witness declared hostile.  The trial judge ruled that the prosecution could now proceed, in front of the jury, with the s. 3 procedure in relation to certain specific parts of the statements. He also ruled that certain parts of the statements were, in principle, admissible under s. 16. However, since one of the statutory requirements for that section is that the judge must be satisfied that admission of the original statement is ‘necessary’, he deferred his final ruling on the precise extent of the content of the statements covered by that ruling until after the conclusion of the s. 3 procedure. The point of doing this was that evidence consistent with the statements might yet be given by the witness after questioning in front of the jury.

 

19.  Counsel for the prosecution then went through the disputed parts of the statements before the jury. Part of his purpose, as he made clear, was so that he would not have to re-examine if the s. 16 procedure was held to be applicable. The witness accepted that she had made the statements though she said that she did not remember making, in particular the second one. She said, again, that certain parts of the statements were not right. Of particular relevance, she felt that the Gardaí had mixed up what she said about who was hitting whom - it had been Mr McKeever doing most of the punching while the appellant tried to block the blows, rather than the other way around. She agreed that she had not suggested before giving evidence in court that Mr. McKeever had had a knife but felt with the benefit of hindsight that although she had not seen it in his hand, he must have had the serrated knife because, she said, it did not belong to her.  It could be said that at this point the witness had to some extent come back to her original account but continued in certain significant respects to give quite a different one.

 

20.  At that stage the prosecution proved the taking of the first statement and played the recording of this being read over to her. Ms. McGrath was recalled and accepted that she had referred to the serrated knife in that statement. She further accepted that she had not seen a second knife used, that while the appellant had a cut on his hand, he did not have any stab wounds, and that he must have caused the stab injuries to Mr McKeever. However, she maintained that she had only seen one stab. When asked about her second statement, she insisted that she had no recollection of making it. She denied that the appellant had said to her that he would say that Mr. McKeever had broken in.

 

 

21.  Counsel then proposed to play in evidence the audio tape of the phone call to the emergency services. He submitted, primarily, that it was admissible as a prior inconsistent statement, saying that it was ‘the best possible evidence of what she did say because its recorded, and I’m entitled to put it to the witness in terms of it being a prior inconsistent evidence’.  He said also that it was ‘real evidence and the jury can receive it and make what they will of it, because it’s what is said at the time’ and that it was ‘effectively in the nature of res gestae because the incident is still in effect ongoing and it's contemporaneous’. In this case, the witness was present and available for cross-examination and in those circumstances, it was said, the concerns raised in the authorities about hearsay evidence did not arise.

 

22.  The trial judge commented that the presence of the witness in court did not, in his view, mean that the material was not hearsay. He also said that he saw the relevance of the words spoken as going to the reliability of part of the statements, for the purpose of the assessment of necessity under the s. 16 procedure. Counsel agreed that, ultimately, he would want it admitted under s. 16 but he was prepared to leave that issue over in the event that Ms. McGrath accepted that she had said the words and that they represented her state of mind at the time. If that happened, the evidence would cease to have the quality of material inconsistency that would allow it to be admitted under s. 16.

 

23.  In the course of his submissions, there was a discussion between counsel for the appellant and the judge as to whether the statements on the tape were hearsay.  Counsel submitted that nothing that Ms. McGrath had said was hearsay because she was present in court to give evidence.  Thus, he said, what the court was dealing with was the rule against narrative not the rule against hearsay.  The judge expressed the view that it was still hearsay even if the witness was before the court: if it was an out of court statement which is designed or has at its purpose the proof of the contents of the statement, it was hearsay.

 

24.  Counsel for the appellant continued: if the recording was to be treated as a prior inconsistent statement, then all that the process permitted was that it should be put to Ms. McGrath, and she should be asked whether she said it. Assuming that she would accept that she did, then her character was impeached for the purposes of the 1865 Act and that would be the end of the matter. In that situation, he submitted, the words used would not become evidence of the truth of what she said.

 

25.  Counsel for the appellant submitted that the res gestae rule was applicable in two situations. One was in respect of a hearsay statement and the other was where a statement might otherwise offend against the rule against narrative. He insisted that the court was not dealing with the res gestae exception to the rule against hearsay because the witness was in court (a proposition which the judge, again, questioned on the basis that the hearsay rule applied to any out of court statement sought to be admitted to prove the truth of its contents).  So, counsel insisted, the recording was not admissible unless either it was inconsistent (in which case he had submitted it was relevant only to credit) or it was consistent (in which case it offends the rule against narrative unless there is an exception such as res gestae, that exception only arising if the statement was consistent).  A prior inconsistent statement, on this basis, could not be admitted to prove the truth of its contents unless it came within s. 16.  And, he further argued, s. 16 could not be applied because, given that the statement was not accompanied by an oath, affirmation or statutory declaration, the court would have to be otherwise satisfied that when the statement was made the witness understood the ‘requirement to tell the truth.’ It could not be said that a person calling 999 was ‘required’ to tell the truth.

 

26.  In reply, counsel for the prosecution said that the res gestae argument would only arise if the witness was not ‘brought back on track’.  If she was, then he saw res gestae as the only heading under which he could have it admitted.  So, he said, he was not at that point ‘going down the res gestae route’.

 

*****

 

27.  The judge ruled that, since at that stage the court was dealing only with inconsistency, counsel should just put the words rather than play the recording. Accordingly, the jury heard the words read out and Ms. McGrath was asked about it. The following exchange took place.

 

Q.     Because this is the transcript of the call which records what was said by you and by the call taker, do you understand?  And I'm asking you, is this correct, is this true?

A.       I have no doubt that's what I said, yes, Sir, I've no doubt that's what I said.

Q.     All right.  Let me just read it to you again, ‘He is a new partner I was seeing.  My ex‑partner came into the house and picked up a knife and went for him with it and stabbed him with it and he is gone now, he broke my nose’?

A.     Yes, it's –  to me I can hear the panic in my own –  it's kind of a bit backwards, I suppose, but yes, it's –  it's a summary basically of the fact that my ex‑partner stabbed, at the time my ex‑partner stabbed the person I had staying in my house.

Q.     Yes?

A.     Because that's what happened, regardless of what else happened.

Q.     Yes.  That your ex‑partner came into the house, picked up a knife and went for Graham McKeever with it and stabbed him with it?

A.     Yes.  I have to say it sounds an awful lot more aggressive maybe than I could have, if I had elaborated the full story it mightn't sound so detrimental, but yes.

Q.     Well, it makes - it makes - it makes who sound more aggressive?

A.     I suppose Mr Connorton.

Q.     Yes?

A.     Because I can't escape from the fact that you know, me and Keith were engaged in an argument, so Keith was facing me when Graham came into the room.  So caught off guard would be the word I would use, because he didn't know he was there.

Q.     Right.  But just –?

A.     So ...

Q.      - but just so we're not at cross purposes - ?

A.     What I'm trying to say is my –  my description to the 911 operator is not accurate, it is what I said though.

Q.     But it is what you said?

A.     Yes, it is, yes.

Q.     But it's not accurate?

A.     No.

 

28.  However, when then taken line by line through the transcript Ms. McGrath agreed that everything she said to the operator was factually correct.

 

Q.      So when you said, ‘He is a new partner’, that is accurate?

A.      For the purpose of explaining who each person was…

Q.    Yes.  ‘He was a new partner I was seeing’?

A.      Yes, Sir.

Q.      That's accurate?

A.      Yes, Sir.

Q.      ‘My ex‑partner came into the house’, that's accurate?

A.      Yes, Sir.

Q.      ‘And picked up a knife’, that's accurate?

A.      Well, yes, to cut the hash he had to pick it up, so, yes.

Q.     ‘And went for him with it’?

A.      Well, he did stab him with it, so, yes.

Q.      ‘And stabbed him with it’?

A.      Yes, Sir.

 Q.     ‘And he's gone now’?

A.      He had left at that point, as far as I'm aware, yes, was this on Graham's phone?

Q.      Yes?

A.      Yes, Mr Connorton had left the premises.

Q.      ‘He broke my nose’?

A.      Well, I thought it was broken at the time, yes.

Q.      So everything you said now you now accept is in fact true?

A.      That I said it, yes.

 

29.  While this last answer might seem ambiguous, the Court was assured by counsel that this was a situation where everyone in the courtroom understood the witness to be confirming the truth of the transcript of the call. Of course, it happens on occasion that the transcript does not fully communicate the sense of evidence as it is understood by those present when it is given.

 

30.  The witness again said that her statements were ‘largely’ true but that there were parts that she did not remember. She described the picture she had painted in the statements as being unfair to the appellant and not accurately describing his character. She said that Mr. McKeever had hit the appellant, having ‘blindsided’ him from the door and that the appellant had fought back.  At this stage, therefore, the jury had heard what the witness had said on the phone call and had her sworn evidence that it was correct. That was the context in which, having regard to the purposes for which the transcript of the call was admitted, counsel for the respondent advised the judge that he could no longer claim that it was a previous inconsistent statement.

 

31.  When Ms. McGrath was cross-examined by counsel for the defence it was put it to her that neither the version in her statements nor the version given by her in court was correct. The defence, consistent with the statements made by the appellant to the Gardaí, was that he did not have a knife in his hand. Mr. McKeever had first assaulted him by punching him and had then taken a knife from the kitchen block. There had been a struggle, and the appellant had taken the knife from Mr. McKeever and stabbed him with it. He admitted having slapped Ms. McGrath in the face when he realised that there was someone there.

 

32.  Ms. McGrath expressed surprise at this but agreed with counsel that her memory was generally poor because of her drug use and occasional abuse of prescribed medication. She said that had no long-term memory and a poor short-term memory, with a tendency to get the sequence of events wrong. She said that many of the problems in the relationship were due to her and that she was the more volatile one and had suffered from some mental health issues. She had said from the start that she would be an unreliable witness. She stated that she wished to see the best possible outcome for the appellant but was being truthful when she said she could not remember the event clearly. That night, she had taken Zimovane, Xanax and alcohol. She had an image in her mind of the appellant with the knife in his hand cutting cannabis, but she would not be inclined to trust her memory and she did not expect the court to. Ms. McGrath further agreed that in her statements to Gardaí she had slanted her account in favour of Mr. McKeever and against the appellant because she was angry with the latter and did not want to say that she had been cheating. It was possible that the appellant’s version of events was more correct.

 

*****

 

33.  Counsel for the prosecution shortly thereafter applied to the judge to be permitted to play the call to the jury.  He said that it was in every sense of the word real evidence, and that the witness had acknowledged that it happened and that it was original evidence of that fact.  The prosecution had a piece of what Ms. McGrath did actually say, acknowledged by her as to what she did say, by way of a recording made within terms that would normally see it admitted under the ordinary res gestae rule.  It should be admitted, he urged, in fairness to the prosecution.  He also noted that while one of the objections that was formerly made to hearsay evidence was that the maker of an out of court statement was not present to be cross-examined, here the witness had acknowledged the statement in the witness box.  He stressed that when one looked at the reasons why hearsay evidence is permitted or not permitted, it all revolves around matters such as the ability to challenge the evidence, the ability to cross-examine in respect of it, it not being evidence on oath, and there being some question as to its reliability, but none of those applied to this evidence.

 

34.  In his ruling, Hunt J. expressed the view that the recording was hearsay as it was an out of court statement, saying that it did not cease to be hearsay because the witness was in court.  He found it admissible by reason of the res gestae exception to the hearsay rule.  He concluded his ruling as follows:

 

‘We have here a real fact which is something that the jury can pray in aid in making the difficult decisions they have … in this case.  I’m satisfied to hang my hat on it being admissible as part of the res gestae and therefore an exception to the … hearsay rule.  But in fact, if I had to go so far, I would happily say that this is a situation in which things have moved on and this is simply a real fact of life that is part of what happened in the essential transaction in issue in this case.’

 

35.  The Court of Appeal agreed with that analysis ([2021] IECA 275 at para. 84).  However, as the transcript as I have recited it shows, it might well be said that by that point the witness had accepted both the fact that she said the words on the recording, and that they were true, albeit that they did not give a fully accurate account.  In circumstances where the jury have been given two accounts by the same witness which are mutually contradictory but both of which qualify as evidence of the truth (i.e., in this case the sworn evidence and statements admitted under s. 16), it is at least arguable that a trial judge would be entitled to admit evidence of this nature even if it does not exactly fit within the traditional formulation of the res gestae rule, in order to assist the jury to assess the reliability of the accounts. However, it is to the issue of res gestae that this appeal was directed, and it can be resolved within that question.

 

*****

 

36.  That the transcript of the hearing before Hunt J. discloses some differences around the definition of the hearsay rule (and, perhaps, the rule against narrative) is a reflection on no-one involved in the courts below: ‘it is difficult to make any statement about the law of hearsay evidence which is entirely accurate’ (Myers v. DPP [1965] AC 1001 at p. 1019-1020 per Lord Reid).  Various judges and textbook writers have over the past century and a half used different formulations to describe the rule against hearsay, and to some extent these reflect distinct justifications for the rule - one rooted in the belief that is unfair to admit an out of court statement as evidence of the truth of its contents unless the maker is available for cross-examination, the other reflecting the view that hearsay evidence is not the best evidence, and that only evidence given on oath before the trier of fact should be admitted to prove contested fact.  Some of these definitions merged the rule against narrative with the rule against hearsay, while others operated on the basis that they were separate. 

 

37.  Aspects of the rule against hearsay and its exceptions are in some respects anomalous, and in others outdated.  It is undesirable that any trial should be rendered more complex by definitional disputes around an already over-complicated rule of evidence. Given the debate that occurred in the course of the trial here, it seems appropriate to take the opportunity now to clarify the parameters of the rule.  To do so it is necessary to understand how the differing definitions evolved.

 

38.  According to Lord Reid in the course of this judgment in Myers v. DPP (at pp. 1019-1020) the prohibition on the use of hearsay evidence crystalized only as a general rule in the early eighteenth century, the exceptions as we now know them being developed into the nineteenth century.  It thus evolved in a case-by-case fashion, with at first but limited definitive judicial examination of its scope, limits or for that matter the precise justification for many of the exceptions.  That may be a consequence of the fact that for experienced advocates and judges, the identification of hearsay evidence has always been more a matter of intuition than of law: whatever hearsay was, everyone who needed to identify it knew it when they saw it and that feature of the principle may, at least in part, be a product of its gradual emergence from the coalface of trial experience. [4]  But that had a consequence of importance to the development of the law, as it seems to have fallen to the textbook writers to produce some coherent analysis, and as the evolution of the definition of hearsay shows, their work has as a result been hugely influential.  And, because different writers have chosen to use different definitions for different features of the rule, there have for over a century been varying descriptions of the rule in circulation.  When placed alongside other rules of evidence, one would hope that the individual pieces of the resulting terminological puzzle add up to produce the same overall outcome, however the definitions are arranged.  But as the debate in this case shows, the prevalence of different formulations of the principle is conducive to neither clarity of thought, nor economy.

 

39.  Both versions of the rule against hearsay suggested before Hunt J. are supported by decisions of this Court.  The formulation presented by Kingsmill Moore J in Cullen v. Clarke [1963] IR 368 is consistent with the proposition that the rule against hearsay is limited to out of court statements made by persons who are not witnesses in the action:

 

                        ‘there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness.  There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath.  This is the rule known as the rule against hearsay.’

 

            (Emphasis added)

 

40.  This statement of the rule was described by Keane J. in Eastern Health Board v. MK [1999] 2 IR 99, at p. 123 as ‘the locus classicus of our law on the topic’, and indeed the other members of the Court in that case proceeded on the basis that the rule was one defined by the presence as a witness of the maker of the out of court statement in question.  Denham J. described the hearsay rule in terms that ‘[i]n general, assertions made by persons who are not called as witnesses are inadmissible to prove the truth of the matters stated therein’ (at p. 108).

 

41.  This account of the rule thus focusses on the identity of the person who made the out of court statement and depends on whether they were a witness.  I will refer to it here as ‘the narrow hearsay rule’. In this case, the person who made the statements - Ms. McGrath - was a witness in the case, so the recording was not within the rule as thus formulated.  This was the point made by counsel for the appellant in argument before Hunt J. and indeed the same point was taken up by the prosecution in the course of this appeal: as Woulfe J. notes in his judgment, it was suggested in argument that the hearsay rule was not engaged at all in respect of the statements made by Ms. McGrath on the recording in circumstances in which she was produced in court as a witness.  On this basis, the admissibility of the statement falls to be determined by reference to the rule against narrative and s. 16 of the Criminal Justice Act 2006.  And as the matter was argued, reliance on the rule against narrative presented its own complication: the prosecution wished to use the recording to prove the truth of its contents not by corroborating Ms. McGrath’s oral testimony, but to contradict it. As my summary of the submissions shows, counsel submitted that it was not possible for the prosecution to utilise the res gestae exception to the rule against narrative in circumstances in which the evidence given was inconsistent rather than consistent with the out of court statement.

 

42.  The version of the rule against hearsay recorded in Cullen v. Clarke has a long pedigree and is consistent with what is widely understood to be one rationale for this dusty corner of the laws of evidence.  Those judicial formulations of the rule that appear before the twentieth century suggest a principle driven by the entitlement of a party to cross-examine the maker of any statement relied upon to prove the truth of its contents and, of course and, by definition, an out of court statement by a person who is in fact called as a witness, can be the subject of such cross examination.  From the late nineteenth century until the early 1970s, the narrow hearsay rule reflected that adopted in many of the textbooks. The formulation suggested in the first edition of Phipson on Evidence proved particularly influential [5]:

 

 ‘statements made by persons not called as witnesses are not receivable to prove the truth of the matters stated except in the cases hereinafter mentioned’

 

43.  That being so it is unsurprising that this was the definition adopted in decisions of the courts at this time (Subramaniam v. Public Prosecutor [1956] 1 WLR 965, 970: Ratten v. R [1972] AC 378, 387).  A variation on this was suggested in Cross on Evidence, which directed itself not to whether the third party alleged to have made the statement was called as a witness, but upon whether it was sought to have a witness testify as to what was said to them by any third party, irrespective of whether they gave evidence :

 

‘oral or written assertions of persons other than the witness who is testifying are inadmissible as evidence of the truth of that which was asserted’ [6]

 

44.  This definition seemed to put to one side the position of the witness testifying as to their own previous statements, consigning that issue to be dealt with under the rubric of the rule against narrative.  This is also suggested by Barrington J. in Eastern Health Board v. MK (at p. 119) ‘[h]earsay evidence is evidence given in court of something the witness heard a third party say out of court’.

 

45.  However, some textbook writers chose to fuse the rule against hearsay properly so called, and the rule against narrative insofar as it prevented a witness from using their own out of court statements to prove the truth of the facts stated, into a single formulation:

 

‘A statement oral or written made otherwise than by a witness in giving evidence; and a statement contained or recorded in any book, document, or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated ...’ [7]

 

46.  This version of the rule - which I will refer to as ‘the fused rule’ – gives effect to a broader understanding the purpose of the hearsay rule, that is the view that hearsay is not the best evidence and that disputes of fact should be resolved by reference to evidence on oath before the trier of fact, and not otherwise (see in particular the explanation for the rule proffered by Lord. Normand in Teper v. The Queen [1952] AC 480, 486).  The fused rule was the subject of critical comment in some of the mainstream textbooks into the late 1960s. [8]   However, the Civil Evidence Act 1968 in the United Kingdom contained in s. 1(1) a statement of the circumstances in which evidence could be admitted in accordance with that Act which suggested a definition of the hearsay rule that married the narrow version of that rule with the rule against narrative. [9]  Although that Act did not purport to define the hearsay rule and, in any event, applied only to civil proceedings, it seems to have resulted in a fairly sudden recasting in the texts of the hearsay rule for all purposes.  Thus, in the fourth edition of Cross On Evidence (1974) the formulation of the rule changed, [10] it now being defined thus (at p. 401):

 

‘a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated.’ 

 

47.  The other English texts followed suit, [11] as did the courts in that jurisdiction. [12]  Today, all leading texts and commentaries there [13] frame the rule against hearsay so that any out of court statement is, unless captured by one of the exceptions to the rule, inadmissible if tendered in evidence for the purposes of proving the truth of its contents.

 

48.  It is hard not to think that at least some of these differences are the product of a loose use of language by individual judges, and it may be a mistake to overanalyse them.  Thus, notwithstanding the terms of Kingsmill Moore J.’s judgment in Cullen v. Clarke, the understanding of the hearsay rule suggested in the modern English textbooks and cases was reflected in the approach adopted by this court in Cooper-Flynn v. Raidió Teilifís Éireann [2004] IESC 27.  There the issue arose as to whether the trial judge in a defamation action heard before a jury had erred in allowing a witness to refer in the course of his evidence to a memorandum, he had prepared some years before the action in which he recorded a certain practice.  The Court determined the document not to have been inadmissible because the document was merely written confirmation of oral evidence given by the witness in evidence.  Keane C.J. described the rule against hearsay as rendering ‘inadmissible an out of court statement which is tendered as evidence of the truth of facts which the statement asserts’. Fennelly J. adopted the same approach (at p. 153):

 

‘A statement, whether oral or written, made on another occasion is hearsay and, unless one of the exceptions to the hearsay rule applies, it is inadmissible.  It is no answer to call the author of the written statement and ask him to verify it.  He is then being asked to give evidence of his own statement on an earlier occasion’. 

 

49.   That fusion of the rule against narrative and hearsay rule was similarly accepted in the Court of Appeal here (People (DPP) v. Murphy Unreported 8 July 2003 at p. 5 (per Hardiman J. giving the judgment of the court comprising also O’Sullivan and McKechnie JJ.), People (DPP) v. Gartland [2010] IECCA 100 at p. 4 (per Finnegan J. giving the judgment of the court comprising also Budd and O’Keefe JJ), and Feniton Property Finance DAC and Pepper Finance Company DAC v. McCool [2022] IECA 217, at para. 17 (per Murray J., with whom Woulfe and Haughton JJ. agreed)).  In giving the principal judgment of this Court in Ulster Bank Ireland Ltd. v. O’Brien [2015] IESC 96, [2015] 2 IR 656 Charleton J. (with whose judgment Laffoy and MacMenamin JJ. agreed)  adopted a similar formulation (at para. 9):

 

 ‘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 facts stated.  Hence, the witness cannot depose as evidence facts that are unknown to the witness but merely recounted by the witness from information from an absent individual.  A witness cannot bolster their own testimony by calling other witnesses to depose that they had been told the same facts to which they testify; the rule against self-corroboration, as it is called, but which is part of the hearsay rule.’

 

(Emphasis added)

 

50.  In none of the Irish cases to which I have referred was the scope of the rule against hearsay actually at issue in a way that is relevant to the distinction between the various formulations to which I have referred.  Given that fact, this Court is free to adopt the approach used in either strain of authority.  There are strong arguments in favour of both.  At first sight, the narrow rule is stricter, it is most closely tailored to fit the most commonly advanced rationale for the rule, and it is confirmed by statements of the highest authority in this jurisdiction.  Given that the rule against hearsay is in many respects anomalous, it might be thought prudent to adopt the strictest construction of it, allowing the rules governing the admission of out of court statements by a witness to be regulated by the rule against narrative and statute.  To this might be added the consideration that the change in the attitude of the English textbook writers - who for reasons I have earlier alluded to appear to have been extraordinarily influential - seems to have been the product of that understanding of the rule against hearsay suggested (but not imposed) by the Civil Evidence Act 1968 which, obviously, is of no relevance in this jurisdiction.

 

51.  In the third edition of Cross on Evidence the difference between what I have described as the narrow hearsay rule and the fused rule is stated, having regard to the rule against narrative, to be ‘purely verbal’.  Whether or not this is ultimately correct, the arguments presented before the trial judge in this case suggest that this may not always be clear.  The overlapping of the rule against narrative and some of the older definitions of the hearsay rule thus caused some confusion in this case, the suggestion being that if the maker of the statement was a witness, and if the issue arose from an asserted inconsistency between their evidence in court and an out of court statement they had made, the rule against narrative governed the matter entirely.  But that was not correct: on any proper view prima facie the production of an account by one witness of what was said out of court by another in order to prove the truth of the statement involves the adduction of inadmissible hearsay evidence, whether it is because the statement is said to be consistent, or because it is said to be inconsistent, with their testimony, and irrespective of whether the maker of the out of court statement was subsequently called as a witness.  Some versions of the law achieve that outcome through the hearsay rule properly so called, some from the rule against narrative, but whichever definition of these rules are adopted, they must combine to achieve that outcome.  What is determinative is (a) the fact the statement is made out of court and (b) the purpose for which the evidence is tendered, not its compatibility with the testimony of any particular witness.

 

52.  This is evident not merely from the understanding of how the 1865 Act works, as explained in People (AG) v Taylor [1974] IR 97, but from s. 16 of the Criminal Justice Act 2006.  Each reflects a legislative assumption that the hearsay rule is as Hunt J. said it to be.  Section 16 is predicated on the view that the prior statements of a witness were not, as a matter of common law, admissible as evidence of the truth of their contents. If the hearsay rule only excludes evidence of what was said by someone who is not available as a witness/available to be cross-examined, and at the same time the rule against narrative only applies to consistent statements it is hard to see why s. 16 was needed at all.  All of this shows the confusion that can arise when the principles are parsed as between the two rules.

 

53.  The desirability of formulating a single, clear rule reflects the view adopted in other common law jurisdictions.  The rule against hearsay as understood in Australia (Stone and Wells Evidence: its History and Policies (1991) is that ‘the evidence of a fact to be proved may never consist of an assertion concerning it made by any person otherwise than as a witness in the case’ (at p. 307).  This is now reflected in s. 59 of the Australian Evidence Act, 1995.  There is a good reason for this.  The fused rule operates not only to efficiently capture both the rule against hearsay and the rule against narrative, but it appears to me to present the formulation which, of the two, can be most easily applied by practitioners and judges.  Instead of grappling with two rules, admissibility for the purposes of proving the truth of an out of court statement is governed by one, joined by the twin features of the character of the evidence (a statement made out of court), and the use which is prohibited (proving the truth of its contents).  The rule against hearsay presents some anomalies, and where possible the courts should strive to streamline definitions.  This is achieved by courts operating on the basis that the general rule is as now stated in Cross on Evidence and reflected in the judgment of Charleton J. in Ulster Bank v. O’Brien.  His statement of the rule correctly encapsulates it and its relationship with the rule against narrative and should now be viewed as the authoritative formulation in this jurisdiction.  This addresses all out of court statements the admission of which is sought in order to prove the facts stated.  It does not, obviously, affect the common law rules governing the admissibility of complaints to prove consistency, recent fabrication, identification or res gestae.

 

54.  As Charleton J. observes in the course of his judgment in this appeal, what is needed is a working definition: criminal law and evidence should, as he says, be kept simple, or at least as simple as is consistent with basic fairness of procedure.  In circumstances where the commonly referenced English texts and decisions have been functioning with the fused rule for half a century, in which Irish decisions have adopted the same formula, in which that rule is grounded in textbook authority that is authoritative, and in which it is rooted in a justification for the rule it seems to me to be better to now accept the formulation of the rule as expressed in Cooper-Flynn v. Raidió Teilifís Éireann and  Ulster Bank v. O’Brien, reflecting in turn that in the latter editions of Cross and Phipson: subject to the diverse exceptions recognised in the case law and provided for in some circumstances by statute: ‘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 facts stated.’

*****

55.  Since its emergence in the early nineteenth century the amorphous phrase res gestae has long been the last refuge of counsel seeking to avoid the strictures of the rule against hearsay: indeed it has been observed that the strength of the exception lay in the obscurity of its meaning (Phipson On Evidence (20^th Ed. 2022 at para. 31-01).  However, insofar as this case is concerned it imports a rule of obvious common-sense: out of court statements, even if not absolutely contemporaneous with an action or event, but which are closely associated with it in time, place and circumstances that they are part of the thing being done are properly admitted as an exception to the hearsay rule (The People (Attorney General) v. Crosbie [1966] IR 490, 497 per Kenny J., together with Haugh and Teevan JJ.).  Closely related to this is the proposition that in respect of a statement made in circumstances of spontaneity or involvement in the event, the prospect of concoction can be disregarded: conversely, where a statement is made by way of narrative of a detached event so that the speaker was so disengaged from it as to be able to construct or adapt his account, it is appropriate to exclude it (The People (DPP) v. Lonergan  at para. 14 applying Ratten v. R. [1972] AC 378, 389).  Thus, it is said that the primary question the judge must ask is directed to whether the possibility of concoction or distortion could be disregarded (R v. Andrews [1987] AC 281) or, as it was put in Ratten v. R. (at p. 389) the possibility of concoction or fabrication is ‘probably the real test’.  As Charleton J. observes in the course of his judgment, the quest for reliability is the touchstone enabling an exception to the hearsay rule.  It is thus to be expected that in a wide range of cases, recordings of this kind have been admitted into evidence on this specific basis (see in particular Barnaby v. DPP [2015] EWHC 232, Morgan v. DPP [2016] EWHC 3414, R (Ibrahim) v. Crown Prosecution Service [2016] EWHC 1750) and this is particularly so where, as here, there was a close association in time, place and circumstances between the statement and the crucial events.  That being so, and given as observed by Woulfe J. that there was no suggestion of any motive for concocting or distorting the account to the emergency services call operator, the trial judge was correct to admit the call has he did. There is, in those circumstances, no reason to consider whether a broader exception should be carved out of the rule against hearsay to capture audio or video recordings of the kind in issue here.

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Result:     Dismiss Appeal