Hearsay Flashcards

Question

How are business records authenticated for the purposes of criminal proceedings?

Answer 1

Must be a certificate stating that the documents were compiled in the ordinary course of business - from a manager If the information is kept on a computer, it must be produced in the course of the normal operation of the computer.

Answer 2

Yes, in the interests of justice.

Answer 3

A hostel log document compiled in the course of business (and not created in contemplation of criminal proceedings) was not documentary hearsay

Answer 4

Copies of documents to be admissible

Answer 5

The rationale for allowing the admission of a self-incriminating statement (as an exception to the hearsay rule) is that “it is fairly presumed that no man would make such a confession against himself if the facts confessed were not true” (R v Lambe).

Answer 6

The appellant was convicted of rape in circumstances where the prosecution evidence included an admission made to another party in the house where the incident had occurred. The CoA rejected this and held that the proper course of action is for the jury to consider the competing versions of what had occurred. The court regarded the admission as going not only to the credibility of the accused, but also of his guilt.

Answer 7

Generally inadmissible because: 1. Breach of the Data Protection Act, 2018 2. A deliberate and conscious breach of the non-absolute constitutional right to privacy, without extraordinary excusing circumstances

Answer 8

The interception of such data is illegal, unless falling within an exceptional circumstance, whereby the interception is permissible

Answer 9

Upon an application to him for a warrant, the Minister for Justice may authorize such interception either for the purpose of the investigation of a crime or in the interests of State security.

Answer 10

The applicant had been convicted on foot of evidence obtained by the Garda Síochána from a telephone conversation on a mobile phone. The Gardaí had obtained a mobile phone from a suspect and had received information from a telephone call made to the mobile phone. Held by the Court of Criminal Appeal (Hardiman J) in allowing the appeal and quashing the conviction. There had been no agreement by the applicant to the listening by the Gardaí of the telephone conversation and this had amounted to an "interception". An interception which was unlawful could not become lawful on the basis of what was heard during it. The evidence of the phone call was therefore admitted in error and the conviction must be quashed.

Answer 11

This is evidence, e.g., from a telephone service provider, of a phone call from one number to another or of the location of the callers.

Answer 12

It has been used to show where suspects were at certain times and with whom they were in contact.

Answer 13

Since it is customer data, it cannot generally be accessed or retained without the customer’s consent, unless statute so permits or requires, having regard to data protection rights

Answer 14

One of the issues raised by Graham Dwyer was the legality of an Act of 2011 requiring telephone service providers to retain such data and disclose it to Gardai. The legislative scheme was deemed to be in breach of European Data Protection Law as now implemented by the Data Protection Act 2018. Consequently, it gave rise to the issue whether the use of such data at his criminal trial rendered his conviction flawed. The Supreme Court will rule definitively on this point soon.

Answer 15

The Telecommunications (Retention of Data) Act 2011 governs the retention of data by service providers and access to such data by national authorities in Ireland including to An Garda Síochána. During the murder trial of Dwyer, the data was used by the prosecution to show who Dwyer was contacting and where his phone was at crucial times around the time of the victim’s murder in August 2012. In April 2022 the ECJ ruled in favour of Dwyer, holding that Ireland’s system of retaining and accessing mobile phone metadata – which helped secure Dwyer’s conviction – breached European Union law.

Answer 16

At the trial of the accused for murder, evidence of Facebook records – messages sent by the accused in which he boasted of beating the victim to death - was admitted. This constituted one of his grounds of appeal. The Facebook data records were produced and were accompanied by a certificate from a Facebook employee certifying how the records were made. The records had been obtained from the U.S. under a mutual legal assistance treaty between the U.S. and Ireland and which provided that such records might be authenticated and admissible in evidence as automatically generated business records created by a reliable computer system and duly certified as such.

Answer 17

Charleton J endorsed the judgment of Re Article 26 and the Employment Equality Bill 1996 which noted that while proof by certificate is an interference with the viva voce trial, it can be admissible when proportionate to the ends to be achieved.