Hearsay

Question 1

What is Hearsay?

Answer 1

A hearsay statement is one which is made out of court, that is offered as evidence in court to prove the truth of something.

Question 2

Is a hearsay statement generally admissible?

Answer 2

No

Question 3

Why does the prohibition on hearsay exist?

Answer 3

1. The court prefers direct evidence as it carries penalties for perjury and can be tested by cross-examination (Teper v R)
2. Juries may also inadvertently give hearsay evidence more weight than it deserves where the credibility of the evidence cannot be tested.

Question 4

Is oral evidence excluded as hearsay?

Answer 4

Yes

Question 5

What happened in R v Gibson?

Answer 5

A statement by a woman that “the person that you are looking for went in there” fell foul of the hearsay rule and the accused’s conviction was quashed.

Question 6

Are documents generally hearsay?

Answer 6

Yes (unless business documents permitted by statute)

Question 7

What happened in People (DPP) v Lynch?

Answer 7

The CoA quashed a conviction for armed robbery on the grounds that the prosecution had led evidence from the PULSE database asserting that the motorcycle driving away from the crime scene belonged to the accused as the Garda who wrote it was not called to give evidence.

Question 8

What does s.16 of the Criminal Justice Act permit?

Answer 8

Allows witness statements to be admitted into evidence.

Question 9

Why was s.16 of the CJA introduced?

Answer 9

To deal with the problem of witness intimidation in the aftermath of serious gangland crime.

Question 10

Where can a s.16 statement be admitted?

Answer 10

Trials on indictment, where necessary.

Question 11

Must a witness be available for cross-examination where s.16 is invoked?

Answer 11

Yes

Question 12

What was decided in DPP v Murphy?

Answer 12

The trial judge retains a discretion not to admit a statement even if it complies with s.16

Question 13

Does s.16 only apply to gangland crime?

Answer 13

No (DPP v Murphy)

Question 14

What is the Res Gestae exception?

Answer 14

An exception that applies where statements are so closely connected with the events in issue that they form part of what is happening

Question 15

What does the Res Gestae exception allow?

Answer 15

Allows what is said and done during an incident to be given as evidence, even if the person who said it is unknown.

Question 16

What cases are authority for the Res Gestae exception?

Answer 16

R v Bond; People (Attorney General) v Joyce and Walsh

Question 17

What types of statements may be made as Res Gestae? [1-4]

Answer 17

1. Spontaneous declarations by someone at the event (People (AG) v Crosbie)
2. Declarations explaining the performance of an act (Cullen v Clarke)
3. Declarations as to the contemporaneous state of mind
   - DPP v Murphy: Set fire to a house killing his elderly sisters. “I don’t remember what I did, something in the back of my head tells me I did it”
   - DPP v Heffernan: Text messages were found to form part of the res gestae and could be admitted as evidence of the state of mind of the deceased
4. Declarations as to the contemporaneous physical state (Aveson v Lord Kinnaird)

Question 18

What does section 21 of the Criminal Justice Act 1984 state?

Answer 18

Allows for witness statements to be read in court and taken as if the evidence had been given in court.

Question 19

When can section 21 be invoked?

Answer 19

Where the defence does not object and where the evidence in question is not in controversy.

Question 20

What happened in Donohoe v Killeen?

Answer 20

Held that a hearsay statement would be allowed in evidence to show that the person who made it was able to make a statement.

Question 21

Would does Section 17 of the Criminal Justice Act provide?

Answer 21

Allows a witness statement to be made to a Garda, where the witness makes a statutory declaration that the statement is true. The Garda may also administer an oath or affirmation.

Question 22

What does section 18 of the Criminal Justice Act 2006 permit?

Answer 22

Allows for a witness to make a statutory declaration hat his or her other statement is true to a competent person (a person employed by a public authority).

Question 23

What does section 5 of the Criminal Evidence Act 1992 allow?

Answer 23

Allows business records to be admissible.

Question 24

What business records may be admissible?

Answer 24

A document compiled in the ordinary course of business may be tendered in criminal proceedings by a witness.

Question 25

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

Answer 25

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.

Question 26

Can the court refuse to allow a business document to be tendered as evidence?

Answer 26

Yes, in the interests of justice.

Question 27

Who may challenge the reliability of the document evidence, and the weight attached to it?

Answer 27

Any party

Question 28

What happened in DPP v Bissett?

Answer 28

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

Question 29

What does section 30 of the 1992 Act allow?

Answer 29

Copies of documents to be admissible

Question 30

Are admissions and confessions considered to be hearsay?

Answer 30

No.

Question 31

Why are admissions and confessions an exception to hearsay?

Answer 31

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).

Question 32

What happened in DPP v PO’D?

Answer 32

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.

Question 33

Is evidence of intercepted telephone conversations and text messages admissible?

Answer 33

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

Question 34

What does s.98(1) of the Postal and Telecommunication Services Act 1983 state?

Answer 34

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

Question 35

What does section 2(1), Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 state?

Answer 35

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.

Question 36

What happened in DPP v Dillon?

Answer 36

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.

Question 37

What is telephone metadata?

Answer 37

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.

Question 38

What is telephone data used for?

Answer 38

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

Question 39

Why can’t telephone metadata be easily accessed?

Answer 39

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

Question 40

What telephone metadata issue was raised in the Dwyer case?

Answer 40

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.

Question 41

What happened in the Dwyer case?

Answer 41

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.

Question 42

What happened in DPP v Moran?

Answer 42

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.

Question 43

What was endorsed in DPP v AC (2021)?

Answer 43

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.