The Rule Against Hearsay in Criminal and Civil Cases

Question 1

what is hearsay

Answer 1

Hearsay is a statement made otherwise than in court, which is offered as evidence of the truth of its contents.

A witness may not generally relay that which another person said on another occasion as evidence of the truth of what that person said.

Question 2

why is hearsay excluded?

Answer 2

The rule against hearsay is based primarily on the fact that hearsay evidence is unsworn and may not be challenged by cross-examination.

The opportunity to confront, challenge and cross-examine a witness is regarded as a powerful weapon in ascertaining the truth

Question 3

Implied statements

Answer 3

in R v Kearly HOL held that implied statements are also hearsay. Here the police searched a flat and 10 times they answered the door asking for drugs. The express statement implied that they had purchased drugs there before. For the police to testify as to what was said, in order to prove the truth of what was implied would breach the rule.

Question 4

confessions and admissions

Answer 4

A confession is clearly a non-testimonial statement made by the accused ti a person in authority which the accused inculpates himself. An admission is to someone else. They are reliable as they are not in the accused’s interest exception

Question 5

res gestae

Answer 5

This is where a statement is made contemporaneous with the event such that it has become part of the event itself. McGrath describes it as a statement concerning an event in issue, made in circumstances of such spontaneity or involvement in an event that the possibility of concoction, distortion or error can be disregarded.

Question 6

what are the 3 types of Res Gestae?

Answer 6

Made by participant or observer of an act

2. Spontaneous statements explaining an act
3. Spontaneous statements to prove state of mind
4. Spontaneous statements explaining physical sensation

Question 7

what was the test laid out in R v Andrews?

Answer 7

1. Primary question is can the possibility of concoction be disregarded
2. To assess the first, ask was the event so unusual or startling as to dominate the thoughts of the victim, so that his utterance was an immediate reaction
3. It must be so closely associated with the event that the mind was still dominated by it.
4. Special circumstances as to malice to consider whether it was fabricated.
5. Special circumstances giving rise to error - eyesight, difficult circumstances

Question 8

what was held in the case of DPP v Lonegan ?

Answer 8

The deceased said the bastard stabbed me etc. 10-15 minutes after the event. Irish ct adopted the approximate rule and examined fabrication. Held that where it is clear that no opportunity for fabrication arose, no point excluding it on arbitrary basis.

Question 9

what was held in the case of DPP v Murphy?

Answer 9

such a statement is admissible if having regard to the time it was given, it can be regarded as spontaneous and unrehearsed expression of contemporary feelings. Here the accused later admitted to the father that he told them he did it. Hardmian J said this did not form part of the event as he said it after the fire

Question 10

what did myers v DPP state about the form in which hearsay can take?

Answer 10

It can include oral or written but not generated by a machine

Question 11

Res gestae - witness/victim

Answer 11

Teper v R - the rule was traditionally very rigid - needed absolute contemporaneity

Ratten v R - HOL reduced it- approximate is fine but the real test is whether there is any real risk of fabrication

Question 12

what was held in the case of R v Carnell in regards to timing

Answer 12

A time of 30 minutes was acceptable - the situation dominated his thoughts si much that what he said was unaffected by ex post facto reasoning or fabrication

Question 13

Dying declarations

Answer 13

In the case of R v Woodcok

This is admitted where:
a. Concerned identity of the killer
b. Deceased was competent
c. Had a hopeless and settled expectation of death
Creates an obligation equal to death. 

In this case, she was told she was gravely ill, but not that she was dying –
not admitted.

Question 14

Against Pecuniary or proprietary interest

Answer 14

Lalor v. Lalor
Admissible where
i. Deceased had personal knowledge of the contents of the statement
ii. Knew the statement was against his interest.

R v. Rogers
Owing of a debt was admitted. Unlikely the deceased would make a statement against themselves where untrue.

Question 15

Made in course of duty - deceased

Answer 15

Harris v. Lambert
Solicitors notes were taken during interview and admitted.

R v. O’Mealy
Must be fact – not opinion. Related to performance of a deceased’s duty under a duty to record and recorded
contemporaneously with the event. He must have personal knowledge of the facts contained within.

Question 16

Content of a will - deceased

Answer 16

Sudgen v. Lord Saint Leonards

Where will is destroyed, evidence of a statement made before and after the will may be allowed to show contents.

Question 17

Public Documents

Answer 17

Sturla & ors v. Freccia & ors

A document that is made by a public officer for the purpose of public making use of it and to be able to refer to
it. Officer must have been under judicial/quasi-judicial duty to enquire, have personal knowledge of facts,
accessible to the public.

Question 18

Children’s Act 1997 - Hearsay

Answer 18

S.23(1)
An otherwise hearsay statement of a child is admissible where the court considers that
a. Child is unable to give evidence by reason of their age;
b. The giving of oral evidence by the child, either in person or via live link, would not be in the interest of
the child.
S.23(2) and (b)
Court has discretion to refuse evidence to eb admitted where it feels with regard to all circumstances it involves a
risk that the admission will result in unfairness to any party.
S.23(3)
Notice must be given that is reasonable and practical.
S.24(1)
Regard must be had to the circumstances of the evidence which any inference can be drawn as to accuracy or
otherwise.

Question 19

Testimony in other legal proceedings

Answer 19

a. Declarant unavailable
b. Previous proceedings between same parties
c. Issue must be substantially the same in both proceedings
d. Parties against whom it is given had the option to challenge it in previous proceedings.

Question 20

Social media

Answer 20

DPP v. Moran
Treaty between USA and Ireland meant that evidence could be adduced provided records were attested. Social
media texts were allowed in despite being hearsay as they were properly attested and were deemed to be auto
generated.

Question 21

Emails

Answer 21

presumably hearsay but can be admissible to show state of mind of the accused. Seen in DPP v.
O’Reilly to show state of mind concerning breakdown of marriage.

Question 22

Texts

Answer 22

presumably hearsay but in DPP v. Timmons they were evidence of conspiracy.

Question 23

CCTV

Answer 23

Real evidence per eastern Health Board v. MK

Question 24

Documents

Answer 24

May be real evidence or or original evidence, or may be hearsay depending on purpose. If
its adduced to show physical condition – its real. If used to show truth it contains, then hearsay.

Question 25

Criminal Evidence Act 1992

S.5(1) - documents in the ordinary course of business

Answer 25

For criminal trials, can admit documents created in the ordinary course of business. Notice must be given that is
reasonable and practical.
- Supplied by a person (whether or not he so compiled it and is identifiable) who had or may reasonably
be supposed to have had personal knowledge of the matters.
- Where illegible, has been reproduced to be legible in the course of operations of the reproduction system.

S.5(3) – exceptions:

• privileged information barred from disclosure
• information supplied by someone who is not compellable.

Question 26

Criminal Evidence Act 1992 S.8 - Admission and weight of documentary evidence.

Answer 26

Prosecution must weigh up whether it should be admitted in the interests of justice
- Reliable or accuracy
- Authenticity can be determined
- Whether it is possible to contradict the evidence so as to lead to unfairness to any accused.
S.30
Authenticated copies may be used.

Question 27

Cullen v Clarke

Answer 27

The rule against hearsay precludes out of court statements to prove the truth of the facts which they assert

SC permitted letter from employers who rejected him to prove the truth of what was stated - He suffered a previous injury. He had to show that he was trying to get jobs and the reason for refusal