CONSULTATION PAPER

HEARSAY IN

CIVIL AND CRIMINAL CASES

 

 

 

 

(LRC CP 60 - 2010)

 

© Copyright

Law Reform Commission

 

FIRST PUBLISHED

March 2010

 

ISSN 1393-3140 

 


THE LAW REFORM COMMISSION’S ROLE

The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 150 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation.

 

The Commission’s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission’s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory.

 

Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly.

 


Membership

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners.

 

The Commissioners at present are:

 

President:

The Hon Mrs Justice Catherine McGuinness

Former Judge of the Supreme Court

 

Full-time Commissioner:

Patricia T. Rickard-Clarke, Solicitor

 

Part-time Commissioner:

Professor Finbarr McAuley

 

Part-time Commissioner:

Marian Shanley, Solicitor

 

Part-time Commissioner:

Mr Justice Donal O’Donnell, Judge of the Supreme Court

 


Law Reform Research Staff

Director of Research:

Raymond Byrne BCL, LLM (NUI), Barrister-at-Law

 

Legal Researchers:

John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law

 Chris Campbell B Corp Law, LLB Diop Sa Gh (NUI)

Siobhan Drislane BCL, LLM (NUI)

Gemma Ní Chaoimh BCL, LLM (NUI)

Bríd Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh (NUI)

Jane O‘Grady BCL, LLB (NUI), LPC (College of Law)

Gerard Sadlier BCL (NUI)

Joseph Spooner BCL (Law with French Law) (NUI), BCL (Oxon)     Dip. Fr and Eur Law (Paris II)

Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)

 

 

Statute Law Restatement

Project Manager for Restatement:

Alma Clissmann BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor

 

Legal Researchers:

Catriona Moloney BCL (NUI), LLM (Public Law)

 

Legislation Directory

Project Manager for Legislation Directory:

Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law

 

Legal Researchers:

Rachel Kemp BCL (Law and German), LLM (NUI)


Administration Staff

 

Executive Officers:

Deirdre Bell

Simon Fallon

Darina Moran

Peter Trainor

 

Legal Information Manager:

Conor Kennedy BA, H Dip LIS

 

Cataloguer:

Eithne Boland BA (Hons), HDip Ed, HDip LIS

 

Clerical Officers:

Ann Browne

Ann Byrne

Liam Dargan

Sabrina Kelly

 

Principal legal researcher for this CONSULTATION PAPER

Jane O'Grady BCL, LLB (NUI), LPC (College of Law)


CONTACT DETAILS

Further information can be obtained from:

 

Law Reform Commission

35-39 Shelbourne Road

Ballsbridge

Dublin 4

 

Telephone:

+353 1 637 7600

 

Fax:

+353 1 637 7601

 

Email:

info@lawreform.ie

 

Website:

www.lawreform.ie

 


ACKNOWLEDGEMENTS

 

The Commission would like to thank the following people who provided valuable assistance, many of whom attended the Commission’s roundtable discussions on the projects on hearsay and documentary evidence on 3 and 4 March 2009:

 

Mr Jevon Alcock, Chief State Solicitor’s Office

Mr Senan Allen, Senior Counsel

Mr Gerry Blake, Detective Superintendent, Crime Policy and Administration, An Garda Síochána

Mr Paul Coffey, Senior Counsel           

Ms Caroline Costello, Barrister-at-Law

Mr Donogh Crowley, Arthur Cox Solicitors

Ms Valerie Fallon, Dept of Justice, Equality and Law Reform

Mr Remy Farrell, Barrister-at-Law

Mr Michael Finucane, Michael Finucane Solicitors

Ms Mary Rose Gearty, Senior Counsel

Mr James Hamilton, Director of Public Prosecutions

Ms Áine Hynes, St John Solicitors

Mr Paul Landers, Sergeant, Crime Policy and Administration, An Garda Síochána 

Ms Claire Loftus, Chief Prosecution Solicitor, Office of the Director of Public Prosecutions

Mr Dominic McGinn, Barrister-at-Law

Mr James McMahon, St John Solicitors

Mr Michael McNamara, Sergeant, Crime Policy and Administration, An Garda Síochána

Commissioner Fachtna Murphy, Garda Commissioner

Mr Kerida Naidoo, Barrister-at-Law

Mr Lúan O’Braonáin, Senior Counsel

Mr Anthony Sammon, Senior Counsel

 

Full responsibility for this publication lies, however, with the Commission.


 

 

 

 

 


TABLE OF CONTENTS

Table of Legislation                                                                                                            xiii

Table of Cases                                                                                                                      xv

Introduction   1

A     Background to the Project  1

B     The Hearsay Rule and Key Principles in the Law of Evidence   1

C     The Commission’s Previous Work on the Hearsay
Rule, Recent Statutory Reform and Approach to the Current Project  4

D     Outline of the Consultation Paper  6

CHAPTER 1          historical Development of the hearsay
rule  11

A     Introduction   11

B     Early Development of the Exclusionary Hearsay
Rule   11

C     Developments in the 19th Century  15

(1)  Reasons for the development of the hearsay rule   16

D     Conclusion   25

CHAPTER 2          overview of the hearsay rule IN CURRENT
IRISH LAW     27

A     Introduction   27

B     Defining hearsay, and the distinction between
original evidence and hearsay  27

C     Scope of the Hearsay Rule   32

(1)  Oral Hearsay  32

(2)  Written and Documentary Hearsay  32

(3)  Statements by conduct  38

(4)  Intention to Assert  38

(5)  Implied Assertions  40

D     General Principles of Evidence and the Hearsay
Rule   46

(1)  The Best Evidence Rule   47

(2)  Relevance and exclusionary rules of evidence   50

(3)  Fair Procedures under the Constitution of Ireland
and European Convention on Human Rights  53

(4)  Conclusions and provisional recommendations
on  the right to fair procedures and the hearsay
 rule   75

CHAPTER 3          the INCLUSIONARY Exceptions To The
Hearsay Rule  79

A     Introduction   79

B     Overview of the Inclusionary Exceptions to the
Hearsay Rule   79

(1)  The main inclusionary exceptions  80

(2)  Suggested approach based on exclusion of
reliable evidence   81

(3)  Forensic techniques used to avoid the Hearsay
Rule   83

C     Inclusionary Exceptions to the Hearsay Rule   84

(1)  Admissions and confessions  85

(2)  Spontaneous statements connected with the
subject matter of the case (the res gestae rule)  85

(3)  Dying Declarations  91

(4)  Certain statements of persons now deceased   94

(5)  Public documents  94

(6)  Testimony in Former Proceedings  95

(7)  Inclusionary exceptions based on the reliability
of the hearsay  96

(8)  Conclusions  98

D     Judicial Reform of the Hearsay Rule   99

(1)  Ireland   100

(2)  England   101

(3)  Scotland   102

(4)  Canada  104

(5)  United States  106

(6)  Australia  106

(7)  New Zealand   107

(8)  Conclusions  108

CHAPTER 4          REFORM OF the hearsay rule in civil
CASES  109

A     Introduction   109

B     Overview of the Current Law in Ireland   109

(1)  Hearsay in general in civil proceedings  110

(2)  Statutory reform of the hearsay rule in civil proceedings  113

(3)  Documentary Hearsay Evidence   114

(4)  E-Commerce and Hearsay  115

C     The Commission’s 1988 Report on the Rule Against Hearsay in Civil Cases  116

D     Comparative review of reform of the hearsay rule in
civil proceedings  118

(1)  The General Trend   118

(2)  Reforms proposed or adopted in other
jurisdictions  120

E     Reform Options  139

(1)  Why introduce hearsay in civil cases?  139

(2)  Consultation with practitioners on reform of the hearsay rule in civil proceedings  140

(3)  Maintain the current position on the hearsay rule
but clarify by legislation   141

(4)  Wide Judicial Discretion to admit hearsay
evidence   141

(5)  Admission of hearsay evidence in civil
proceedings subject to safeguards  142

(6)  Judicial discretion to evaluate weight to be
attached to hearsay and to exclude hearsay  147

(7)  Provisional recommendations for reform    147

CHAPTER 5          REFORM OF the hearsay rule in criminal proceedings  151

A     Introduction   151

B     Statutory amendments to the hearsay rule   152

(1)  Business records admissible under Part II of
the Criminal Evidence Act 1992  152

(2)  Further statutory reform to the hearsay rule in
criminal proceedings  156

C     Reform of the Hearsay Rule in Criminal
Proceedings  159

(1)  Option 1:  Preserving the current application
of the hearsay rule   160

(2)  Option 2: Wide exceptions with a narrow
discretion to admit  160

(3)  Option 3: Judicial discretion based on necessity
and reliability  163

D     Special Issues  164

(1)  Previous statements of witnesses  164

(2)  Hearsay and Sentencing  166

E     Conclusions and recommendations  168

CHAPTER 6                   Summary of ProvisIonal Recommendations  169

A     General Scope of the Hearsay Rule and Guiding Principles  169

B     Inclusionary Exceptions to the Hearsay Rule   169

C     Reform of the Hearsay Rule in Civil Cases  170

D     Reform of the Hearsay Rule in Criminal Cases  171

 

TABLE OF LEGISLATION

Bamkers' Books Evidence Act 1879

42 & 43 Vict c.11

Eng

Child Care Act 1991

No 17/1991

Irl

Children Act 1989

1989 c.41

Eng

Children Act 1997

No 40/1997

Irl

Children Act 1997

No 40/1997

Irl

Civil Evidence (Scotland) Act 1988

1988 c.32

Scot

Civil Evidence Act 1968

1968 c. 64

Eng

Civil Evidence Act 1972

1972 c.30

Eng

Civil Evidence Act 1995

1995 c. 33

Eng

Company Directors Disqualification Act 1986

1986 c. 46

Eng

Courts Act 1988

No 14/1988

Irl

Criminal Assets Bureau Act 1996

No 31/1996

Irl

Criminal Evidence Act 1965

1965 c.20

Eng

Criminal Evidence Act 1992

No 12/1992

Irl

Criminal Justice (Amendment) Act 2009

No 32/2009

Irl

Criminal Justice (Miscellaneous Provisions) Act 1997

No 4/1997

Irl

Criminal Justice Act 1984

No 22/1984

Irl

Criminal Justice Act 1988

1988 c. 33

Eng

Criminal Justice Act 2003

2003 c. 44

Eng

Criminal Justice Act 2006

No 26/2006

Irl

Criminal Procedure Act 1865

1865 c.18 28 &29 Vict

Eng

Criminal Procedure Act 1967

No 12/1967

Irl

Documentary Evidence Act 1925

No 24/1925

Irl

European Convention on Human Rights Act 2003

No 20/2003

Irl

Evidence (Amendment) Ordinance

Ord 25 of 1969

HK

Evidence (Amendment) Ordinance 1999

Ord No.2 of 1999

HK

Evidence Act 1997

Cap. 97,1997

Sg

Evidence Act 1938

1938 c.28

Eng

Evidence Act 1995

No 58/1995

Aust

Evidence Act 2006

2006 No 69

NZ

Evidence Amendment Act (No 2) 1980

1980 No 27

NZ

Federal Rules of Evidence

 

US

Law of Evidence Amendment Act 1988

No 45 of 1988

SA

Medical Practitioners Act 1978

No 4/1978

Irl

Police and Criminal Evidence Act 1984

1984 c.60

Eng

Proceeds of Crime Act 1996

No 30/1996

Irl

Social Welfare (Occupational Injuries) Act 1966

No 24/1966

Irl

Social Welfare Consolidation Act 2005

No 26/2005

Irl

Workmen's Compensation Act 1934

No 9/1934

Irl

 

 

TABLE OF CASES

Al-Khawaja and Tahery v United Kingdom

[2009] ECHR 26766/05 and 22228/06

ECHR

Asch v Austria

(1993) 15 EHRR 597

ECHR

Borges v Medicial Council

[2004] IESC 9; [2004] 1 IR 103

Irl

Button v R

[2002] WASCA 35

Aust

Crawford v Washington

541 US 36 (2004)

US

Criminal Assets Bureau v Hunt

[2003] 2 IR 168

Irl

Cullen v Clarke

[1963] IR 368

Irl

Donnelly v Ireland

[1998] 1 IR 321

Irl

Eastern Health Board v MK

[1999] 2 IR 99

Irl

Eastern Health Board v Mooney

High Court 28 March 1998

Irl

Flanagan v University College Dublin

[1988] IR 724

Irl

Ford v Lewis

[1971] 1 WLR 623

Eng

Fullam v Independent Newspapers Ltd.

[1955-56] Ir Jur Rep 45

Eng

Garza v Delta Tau Delta Fraternity National

So.2d1019

US

General Medical Council v Spackman

[1943] AC 627

Eng

Glinski v McIver

[1962] AC 726

Eng

Goodman International v Hamilton (No 1)

[1992] 2 IR 542

Irl

Gresham Hotel Co. (Ltd.) v Manning

(1867) Ir. R. 1 C.L. 125

Irl

Higham v Ridgway

(1808) 10 East 109

Eng

Holmes v Newman

[1931] 2 Ch 112

Eng

Hughes v Staunton

High Court 16 February 1990

Irl

J & E Davy v Financial Services Ombudsman

[2008] IEHC 256

Irl

JB O'C v PCD

[1985] IR 265

Irl

JO'C v DPP

[2000] 3 IR 478

Irl

Kiely v Minister for Social Welfare (No.2)

[1977] IR 267

Irl

Kostovski v Netherlands

(1990) 12 EHRR 434

ECHR

Kuruma v R

[1955] AC 197

Eng

Lenaghan v Ayrshire

1994 SC 365

Scot

Lord Advocate's Reference (No 1 of 1992)

[1992] SCCR 724

Scot

Luca v Italy

(2003) 36 EHRR 46

ECHR

Manase v R

[2000] NZCA 322

NZ

Moloney v Jury's Hotel  plc

Supreme Court 12 November 1999

Irl

Muldoon v Herron

(1970) JC 30

Scot

Murphy v GM

[2001] 4 IR 113

Irl

Myers v DPP

[1965] AC 1001

Eng

O'Callaghan v. Mahon

[2006] 2 IR 32

Irl

Ohio v Roberts

448 US 56 (1980)

US

Papakosmas v R

(1999) 164 ALR 548

Aust

People (DPP) v Byrne

[2001] 2 ILRM 134

Irl

People (DPP) v Lonergan

[2009] IECCA 52

Irl

People (DPP) v Marley

[1985] ILRM 17

Irl

People (DPP) v Prunty

[1986] ILRM 716

Irl

Pollitt v R

(1992) 174 CLR 558

Aust

Price v Lord Torrington

1 Salk 285

Eng

R v Baltzer

(1974) CCC (2d) 118

Can

R v Blastland

[1986] AC 41

Eng

R v Chapman

[1969] 2 QB 436

Eng

R v Collins

(1938) 26 Cr App R 177

Eng

R v D(D)

[1994] CCL 5873

Can

R v Deputy Industrial Injuries Commissioner ex parte Moore

[1965] 1 QB 456

Eng

R v Gibson

(1887) 18 QBD 537

Eng

R v Horncastle and Others

[2009] UKSC 14 (9 December 2009)

Eng

R v Kearley

[1992] 2 AC 228

Eng

R v Khan

[1990] 2 SCR 531

Can

R v Lambe

(1791) 2 Leach 552

Eng

R v Manase

[2007] 2 NZLR 197

NZ

R v Marquis

(1951) 35 Cr App R 33

Eng

R v O'Brien

[1978] 1 SCR 591

Can

R v Osman

(1881) 15 Cox CC 1

Eng

R v Paine

(1696) 5 Mod 163

Eng

R v Ratten

[1972] AC 378

Eng

R v S&H

[2007] NZCA 37

NZ

R v Singh

[2006] EWCA 660

Eng

R v Smith

[1992] 2 SCR 915

Can

R v Starr

[2000] SCR 144

Can

R v Woodcock

(1789) 168 ER 352

Eng

R v Y

[2008] 1 WLR 1683

Eng

Randfontein Transitional Local Council v Absa Bank Ltd

2000 (2) SA 1040 (W)

SA

Re a solicitor

[1992] 2 WLR 552

Eng

Re Haughey

[1971] IR 217

Irl

S v Mpofu

1993 (3) SA 864 (N)

SA

S v Ndhlovu

2002 (2) SACR 325

SA

Secretary of State for Trade and Industry v. Ashcroft

[1997] 3 All ER 86

Eng

Shelley-Morris v Bus Átha Cliath

[2003] 1 IR 232

Irl

Smith v HMA

(1986) SCCR 135

Scot

State (Healy) v Donoghue

[1976] IR 325

Irl

State (Stanbridge) v. Mahon

[1979] IR 214

Irl

State (Quinn) v Ryan

[1965] IR 110

Irl

Sturla v Freccia

(1880) 5 App Cas 623

Eng

Subramaniam v Public Prosecutor

[1956] 1 WLR 965

Eng

Sunley v Gowland

[2003] EWCA Civ 240

Eng

T v T

2001 SC 337

Scot

Teper v R

[1952] AC 480

Eng

Turner v Louisiana

379 US 466 (1965)

US

United States v Zenni

492 F.Supp.464(1980)

US

Unterpertinger v Austria

(1991) 13 EHRR 175

ECHR

Van Mechelen v Netherlands

(1998) 25 EHRR 647

ECHR

Walton v R

(1989) 166 CLR 283

Aust

Windisch v Austria

(1991) 13 EHRR 281

ECHR

Wright v Doe d. Tatham

(1838) 7 Eng Rep 559

Eng

 

 

 

 

 

Introduction

A                  Background to the Project

1.                          This Consultation Paper on the hearsay rule forms part of the Commission’s Third Programme of Law Reform 2008-2014[1] and is one of three projects concerning aspects of the law of evidence. In 2008, the Commission published a Consultation Paper on Expert Evidence[2] and, in 2009, a Consultation Paper on Documentary and Electronic Evidence.[3] Following its usual consultation process on these topics, the Commission intends to publish a composite Report which will deal with each of these three important aspects of the law of evidence in Ireland. The work on these related aspects of the law of evidence continues long-standing aspirations to move eventually towards a complete legislative framework or code on the law of evidence.[4]

B                  The Hearsay Rule and Key Principles in the Law of Evidence

2.                          One of the longest established principles of the law of evidence[5] is that, in order to be admissible, any proposed evidence must be relevant to the issues being determined in a civil or criminal case; in other words, it must have what is called probative value, because the purpose of evidence is to build up the necessary basis on which to provide proof of the issues in dispute in a civil or criminal case.[6] Another key principle is that, in general, evidence should be capable of being tested in court under oath, notably through cross-examination; so that if a specific piece of evidence is not capable of being tested in this way, it is likely to be deemed inadmissible, even if it appears to be relevant, that is, has probative value. In some respects the hearsay rule involves the competing application of these two principles. The leading decision of the Supreme Court on the hearsay rule, Cullen v Clarke,[7] summarises the position as follows. The hearsay rule is a general rule, subject to many exceptions, that testimony given by a witness concerning words spoken, statements made or documents generated by a person who is not produced in court as a witness is inadmissible if the testimony is presented to prove the truth of the facts which they assert. The two main reasons given for this generally exclusionary approach are: the out-of-court statements cannot be tested by cross-examination and they are not made under oath. As the Supreme Court noted there are, however, a number of inclusionary exceptions to the hearsay rule, so that in some instances evidence may be admitted even where it is not subjected to cross-examination. The Supreme Court also emphasised that there is no general rule preventing a witness from testifying as to such out-of-court words, statements or documents if the testimony is not being presented to prove the truth of their content.

3.                          An example of the application of the hearsay rule would be where a person wishes to testify in a criminal trial about a statement he overheard being made by an untraceable person to the effect that the untraceable person said that she saw the accused fleeing the scene of the crime. If this testimony is being presented to prove that the statement by the untraceable person is true, the hearsay rule states that this is inadmissible as evidence.[8]

4.                          In addition to this example of the application of the rule to testimony about verbal out-of-court statements, the hearsay rule also applies to written out-of-court statements, such as letters or other types of documentary records (for example, a car manufacturer’s record of chassis numbers entered by its car assembly workers[9]) where the originator of the document is not available to testify in court as to its authenticity.

5.                          The general exclusionary approach of the hearsay rule is clear, but this is subject (as the Supreme Court noted in Cullen v Clarke) to many inclusionary exceptions, most of which were developed through judicial decisions, while others are set out in legislation. These exceptions to the hearsay rule have the effect that certain out-of-court statements are deemed admissible. A long-established common law example would be testimony given in court of an out-of-court “dying declaration”, but this inclusionary exception only applies in murder and manslaughter cases, and does not apply in any civil cases.[10] An example of a statutory exception would be that, under the Documentary Evidence Act 1925,[11] public documents and records are deemed admissible, and this inclusionary exception applies to both civil and criminal proceedings. These inclusionary exceptions to the hearsay rule were developed on the basis that the statements or documents, even though they cannot be tested by cross-examination, are regarded as trustworthy and do not need to be tested because of the circumstances in which they were made or generated. While the Commission accepts that this approach can easily be applied to public documents, the Consultation Paper discusses to what extent other inclusionary exceptions, such as the “dying declarations” exception, retain their validity, whether in their current narrow sphere or in a wider setting.

6.                          In addition to the complexity arising from the existence of the inclusionary exceptions to the hearsay rule, the current law also gives rise to difficulties concerning, for example, whether certain evidence is to be regarded as original evidence or hearsay. Aspects of this problem are also discussed by the Commission in its Consultation Paper on Documentary and Electronic Evidence.[12]

C                  The Commission’s Previous Work on the Hearsay Rule, Recent Statutory Reform and Approach to the Current Project

7.                          The Commission previously examined the hearsay rule under its First Programme of Law Reform.[13] In 1980, the Commission published a Working Paper on the Rule Against Hearsay[14] which considered the application of the rule in both civil and criminal proceedings, but made recommendations for reform only as the rule applied in civil cases. This was followed by the Commission’s 1988 Report on the Rule Against Hearsay in Civil Cases[15] and, as is clear from its title, the 1988 Report was also confined to proposing reform in the context of civil proceedings only. The key recommendation in the 1988 Report was that, in civil cases, the hearsay rule should move from a, broadly, exclusionary approach to a, broadly, inclusionary approach.

8.                          The Commission acknowledged in the 1988 Report that reform of the rule was also required in criminal proceedings, but considered that it should proceed with proposals for civil cases as these had not given rise to any particular objections and that separate consideration was required before proceeding to reform the rule in criminal proceedings.[16] In one important respect, however, the Commission had, in its 1987 Report on Receiving Stolen Property[17] recommended reform of the hearsay rule in criminal proceedings. The background to this was that, in a 3-2 majority decision of the UK House of Lords in Myers v DPP,[18] that Court had decided that business records were inadmissible in criminal cases under the hearsay rule as it applied in English law. While the Commission queried whether the Myers decision would have been followed in Ireland,[19] it recommended that there should be statutory reform to provide for the admissibility of business records in such cases.

9.                          The Commission’s general recommendations in the 1988 Report for reform of the hearsay rule in civil proceedings have not yet been implemented by the Oireachtas,[20] but a specific recommendation concerning evidence by children was implemented in the Children Act 1997.[21] In addition, the Commission’s 1987 recommendation that business records be admissible in criminal proceedings was implemented in Part II of the Criminal Evidence Act 1992.[22] The limited scope of these legislative reforms contributed to the inclusion of this project on the hearsay rule in the Commission’s Third Programme of Law Reform 2008-2014 (which was approved by Government in December 2007), and which commits the Commission to build on its previous work and to examine the hearsay rule as it applies in both civil and criminal proceedings.

10.                      In approaching the hearsay rule in this Consultation Paper, the Commission has considered separately its application in civil cases and criminal cases. As the Commission noted in its 1988 Report, while the principles underlying the exclusionary nature of the hearsay rule (notably, the inability to test such out-of-court statements by cross-examination) apply equally to both civil and criminal proceedings, proposed changes towards an inclusionary approach to the hearsay rule in civil proceedings would seem to be largely uncontroversial – indeed, they probably largely reflect current practice. By contrast, any comparable proposals for criminal trials must consider two overriding matters, as required by the Constitution and under international law: the need to give society the assurance that full confidence can continue to be placed on the reliability of criminal trial verdicts (in particular because of the potential loss of liberty that can often follow from a guilty verdict), and that the defendant continues to receive a trial in accordance with fundamental constitutional principles, in particular a trial in due course of law under Article 38.1 of the Constitution.[23]

11.                      The Commission has also examined other constitutional requirements – and international human rights aspects – against which the hearsay rule, originally developed in a pre-constitutional setting, must now be considered. In particular, the Commission has considered the effect on the hearsay rule of the right to fair procedures under Article 40.3 of the Constitution.[24] In this respect, the Supreme Court has emphasised in a number of cases, including Borges v Medical Council,[25] that the use of hearsay may in some instances fail to comply with the constitutional right to fair procedures. The Court also noted in the Borges case, however, that it would not ignore the need “to ensure that the rule against hearsay is not so rigidly applied in every case as to result in injustice.”[26] This constitutional perspective on the hearsay rule indicates the need to avoid proposing a move towards a completely inclusionary approach to hearsay, while at the same time recognising that the Constitution does not require a rigid exclusionary approach. In reality, this constitutional perspective reflects the long history of the hearsay rule as an exclusionary rule with, as the Supreme Court noted in Cullen v Clarke,[27] “many inclusionary exceptions.” The Commission now turns to provide a brief overview of the Consultation Paper.

D                  Outline of the Consultation Paper

12.                      In Chapter 1 the Commission examines the historical evolution of the hearsay rule as, primarily, an exclusionary rule of evidence with, ultimately, many inclusionary exceptions. This includes an analysis of the original justifications developed at common law for this approach, which included the view that jurors could not be relied on to evaluate hearsay properly. This reason gradually became less frequently mentioned, so that by the 19th century, when the hearsay rule had developed to a point that remains recognisable in the early 21st century, two main reasons were mentioned. These were: the inability to cross-examine the original makers of hearsay statements, and that the statements were not made under oath.

13.                      In Chapter 2 the Commission examines the, broadly, exclusionary nature of the hearsay rule as it currently applies in Ireland, including the analysis of the rule in the leading decision of the Supreme Court, Cullen v Clarke.[28] As already noted, this is based on the important point that the testimony involved is aimed at proving the truth of the facts contained in the out-of-court statement. The Commission then discusses the distinction between original evidence and hearsay, which also focuses on the purpose for which evidence is presented in court. The Commission then discusses the scope of the out-of-court statements that may constitute hearsay, including oral statements, documentary evidence, statements by conduct and implied assertions.

14.                      The Commission also examines in Chapter 2 two general principles of the law of evidence against which the hearsay rule is to be considered, notably the best evidence rule and the principle of relevance. The Commission then examines in detail how the concept of fair procedures under the Constitution of Ireland and the European Convention on Human Rights (and the related right to confront in criminal cases under the Constitution) has affected recent analysis of the hearsay rule. As already indicated, the constitutional perspective on the hearsay rule indicates the need to avoid proposing a move towards a completely inclusionary approach to hearsay, while at the same time recognising that the Constitution does not require a rigid exclusionary approach. On this basis, the Commission concludes in Chapter 2 that while a movement towards an inclusionary approach in civil cases may be appropriate, a more cautious approach in criminal cases ought to be taken.

15.                      In Chapter 3 the Commission examines the development of the inclusionary exceptions to the hearsay rule. The Commission discusses the emergence of the common law inclusionary exceptions to the hearsay rule, and some criticisms about the absence of any underlying basis for them. The Commission examines six inclusionary exceptions to the hearsay rule, most of which were developed judicially in court decisions. These are: admissions and confessions; spontaneous statements connected with the subject matter of the case (the res gestae rule); dying declarations (admissible only in a murder and manslaughter case); certain statements of persons since deceased (including statements by testators concerning the contents of their wills); public documents; and certain statements made in previous proceedings. The Commission provisionally recommends that these inclusionary exceptions be retained in the proposed legislative framework.

16.                      In Chapter 3, the Commission then discusses whether, assuming further statutory reform of the rule, there should be a continued role for judicial development of the rule, in particular the inclusionary exceptions. In some States, judicial decisions have expanded existing inclusionary exceptions and even the creation of entirely new ones. Irish courts have, in general, indicated a reluctance to engage in any wide-ranging reform and have tended to suggest this is a matter for statutory development, but the Commission considers that a continuing judicial role, based on a discretion to include or exclude evidence, may be appropriate.

17.                      Having analysed the hearsay rule, including the inclusionary exceptions developed to date, the Commission then turns to examine proposed reforms. As already indicated, the Commission has given separate consideration to reform proposals as they apply to civil and criminal proceedings.

18.                      In Chapter 4 the Commission examines the current state of the hearsay rule in civil proceedings in Ireland and, in making provisional recommendations for reform, builds on the analysis and recommendations made in the 1988 Report on the Rule Against Hearsay in Civil Cases.[29] As already noted, the 1988 Report recommended that, in civil proceedings, the exclusionary rule of hearsay should be replaced with a, broadly, inclusionary approach. Chapter 4 also contains a comparative analysis of the law in other jurisdictions, where, in general, an inclusionary approach has also been taken (this had been the case before 1988, and has continued since then). The Commission notes that there are many different aspects of civil procedure which, by contrast with criminal procedure, have militated in favour of an inclusionary approach: these include the lower burden of proof (proof on the balance of probabilities, as opposed to proof beyond reasonable doubt), the availability of discovery of documents in civil proceedings, the diversity of the forms of civil proceedings, the variety of forms of relief being claimed and the virtual absence of juries in civil trials in Ireland. The Commission concludes the chapter with its provisional recommendations for reform, based on a move towards a general inclusionary approach to hearsay in civil proceedings.

19.                      In Chapter 5, the Commission considers the operation of the hearsay rule in criminal proceedings. As already noted, in Part II of the Criminal Evidence Act 1992, the Oireachtas has legislated for an inclusionary approach to business records as documentary hearsay, subject to specific procedural safeguards (implementing the recommendation to that effect in the Commission’s 1987 Report on Receiving Stolen Property).[30] In Chapter 5, the Commission assesses whether more wide-ranging reform is required. As in the case of the analysis of the hearsay rule in civil proceedings, the Commission conducts a comparative analysis of reform in other jurisdictions, where a move towards an inclusionary approach has occurred in some States. The Commission notes, however, that special aspects of criminal proceedings merit a cautious approach to reform. Two aspects in particular are notable: the higher standard of proof that applies (proof beyond a reasonable doubt, as opposed to proof on the balance of probabilities), which ensures that society can have full confidence in the reliability of criminal trial verdicts; and the potential loss of liberty for an accused arising from a criminal conviction. This reinforces the importance of the general right to test evidence by cross-examination. For these reasons in particular the Commission concludes that, in criminal proceedings, the hearsay rule should continue to operate on an exclusionary basis, subject to existing inclusionary exceptions (common law and statutory) which should be placed within a coherent legislative framework.

20.                      Chapter 6 is a summary of the Commission’s provisional recommendations.

21.                      This Consultation Paper is intended to form the basis of discussion and therefore all the recommendations are provisional in nature. The Commission will make its final recommendations on the subject of the hearsay rule in civil and criminal cases following further consideration of the issues and consultation. As already mentioned, the Commission intends to publish a composite Report which will deal with hearsay as well as the other two aspects of the law of evidence, expert evidence and documentary evidence, on which it has recently published Consultation Papers. Submissions on the provisional recommendations included in this Consultation Paper are welcome. To enable the Commission to proceed with the preparation of the Report, those who wish to do so are requested to make their submissions in writing to the Commission or by email to info@lawreform.ie by 31 May 2010.

 

 

1            

CHAPTER 1            historical Development of the hearsay rule

A                  Introduction

1.01                   In this Chapter the Commission examines the historical development of the hearsay rule as, primarily, an exclusionary rule of evidence, to which were ultimately attached a number of inclusionary exceptions. In Part B the Commission discusses the early historical background to the rule to the end of the 18th century, including the key reasons advanced for the rule during that period. In Part C, the Commission focuses on how the rule developed in the 19th century, when the key common law inclusionary exceptions were developed. This historical analysis also contains some precursors to the right-based approach which came to feature in the analysis of the hearsay rule during the 20th century, which the Commission discusses in detail in Chapter 3.

B                  Early Development of the Exclusionary Hearsay Rule

1.02                        As noted in the Introduction to this Consultation Paper, the hearsay rule generally operates to prohibit a witness from reporting a statement made by another person where the truth of any fact asserted in that statement is incapable of being tested in court. It has been said that, next to trial by jury, there is, perhaps, nothing more well-established in the Anglo-American law of evidence than the hearsay rule and that the rule prohibiting the use of hearsay is intimately associated with an adversarial approach to litigation.[31] The origins of this approach may be traced back to the early 13th Century where the need to exclude hearsay was first recognised.[32] The rule evolved as the courts came to regard oral testimony by witnesses, who could be cross-examined on their testimony, as essential to a fair trial. Statements were proffered as evidence of the truth asserted within them, but where this truth could not be tested in the course of the trial they came to be regarded as inadmissible and were excluded on the basis of being hearsay. The emerging view of the courts was that the witness must be available in court to be subjected to cross-examination. Courts grew more reluctant to be content with “second best” evidence as judges were aware of the danger that evidence retold by a secondary source may have become garbled, so that possible error, especially in a criminal trial, might arise.[33] 

1.03                        The reasons given for excluding hearsay evidence from a trial were varied, but three can be noted.[34] First the maker of the hearsay statement could not be cross-examined and the decider of fact did not have an opportunity to observe the demeanour of the person making the statement at the time it was made. Secondly, the evidence was not regarded as relevant to a substantive issue or a credibility issue. Thirdly, hearsay evidence was not admitted as to do so would compromise the fairness of the trial.

1.04                        While it may be suggested that the hearsay rule can be explained on the basis that it excludes presumptively unreliable evidence,[35]  there is no conclusive view as to the predominant rationale for the rule. As Tapper observes:

"No aspect of the hearsay rule seems free from doubt and controversy, least of all its history. Legal historians are divided between those who ascribe the development of the rule predominantly to distrust of the capacity of the jury to evaluate it, and those who ascribe it predominantly to the unfairness of depriving a party of the opportunity to cross-examine the witness."[36]

1.05                        Legal historians such as Maine and Thayer were of the opinion that all the exclusionary rules of evidence owed their origin to the presence of the jury. The practice of using a jury (originally a jury of 24 men) started to appear in England around the year 1122 under the reign of Henry I, where the accusatorial system was based on trial by jury of a citizen's complaint.[37] The members of the jury would be the residents of the neighbourhood with which the case was concerned, and were expected to supplement their local knowledge of the case by making further inquiries and conducting informal investigations of those with special knowledge of the facts. Verdicts could be (and were) based on the jury’s special knowledge. Much of the evidence that juries relied on would have been hearsay evidence and there was no rule to prohibit the use of such evidence.[38] 

1.06                        Witnesses, as understood in the modern trial process, were largely unknown until the 16th century. It was around this time that verdicts began to be based on the evidence given orally in court during the course of the trial rather than being based on the jury's own knowledge or their own inquiries. This fact was recognised by the statute 5 Eliz I, c 9, of 1562-63 which provided a compulsory process for witnesses[39] and the notion of the hearsay rule as a distinct concept also began in the 16th century. By that time testimony of witnesses had become the principal source of proof.[40] Persons called as witnesses were often pre-appointed and would confer in private with the jury, in effect comprising one body, and the witnesses did not regularly testify in open court.[41] Therefore the ordinary witness as we today conceive him or her, giving evidence in open court and publicly informing the jury, was a rare occurrence.[42]

1.07                        The second phase in the development of the rule excluding hearsay ranged from the mid 16th century to the end of the 17th century.  While hearsay evidence was still admissible, concern about its admission at trial grew. In the trial of Sir Walter Raleigh in 1603 for conspiracy to commit treason, the basis of his conviction included two pieces of hearsay evidence including an out-of-court statement of Lord Cobham, his alleged co-conspirator.[43] In time, an exclusionary rule developed to control the circumstances in which hearsay was admitted because hearsay came to be considered inherently unreliable.  Before the end of the 17th century there had been a number of English court decisions rejecting hearsay. In 1688 a hearsay statement made under oath was rejected because “the other party could not cross-examine the party sworn, which is the common course”[44] and in R v Paine[45] the Court of King's Bench excluded sworn depositions of a witness since deceased. Thus by the latter half of the 17th century hearsay evidence was only received after direct evidence had been given, and merely to corroborate it, and was not admissible of itself.[46] Inevitably, attention began to be paid to the nature of evidence and objection made to hearsay, but it was not until the second half of the 17th century that the rule came to be conceded.[47]

1.08                        In spite of the growing trend to exclude hearsay evidence from the trial process, an examination by Landsman of records describing criminal proceedings in London’s Old Bailey (the Central Criminal Court) from 1717-1793 demonstrates that, in the early part of this period, hearsay evidence was admitted regularly with both verbal and written materials used with little restraint. The changes that commenced from the 1730s were gradual and the treatment by the court, even within a single case of hearsay evidence, may be at odds, with one sort of hearsay being excluded while another sort was admitted without question.[48] Sometimes, instead of disapproving hearsay, the court was content merely to establish that the testimony was based upon hearsay.[49] The trial judge would establish the hearsay character of the evidence, by which to allow its weakness and affect its credit in the eyes of the jury, rather than to exclude it from the jury as one would expect under the modern hearsay rule. Langbein noted that:

“Old Bailey judges knew that there was something wrong with  hearsay, but even as late as the 1730s they do not appear to have made the choice between a system of exclusion or one of admissibility with diminished credit. Even when they disapproved of hearsay, calling it ‘no evidence,’ the judges did not give cautionary instructions to the jury to disregard the hearsay as we would require today. Nor was the jury sent from the courtroom in the modern fashion while the judge previewed evidence in order to decide whether to admit it”.[50]

1.09                        The 18th century has been described as the “century of consolidation”[51] and although commentators writing in the early years of the century expressed a degree of caution on the status of the hearsay rule, by mid-century the courts treated the hearsay rule as an established part of the law. In the early years of the 18th century, hearsay evidence appeared to be admitted regularly[52] and the move to exclude hearsay evidence from trials was gradual.[53] Landsman’s research shows that at the close of the 18th century a more sophisticated rule was being applied in an ever-increasing range of cases.[54]

C                     Developments in the 19th Century

1.10                        By the 19th century the hearsay rule had become well established and the emphasis was to move to the creation of exceptions to counteract the inflexibility of the original rule. The emerging exceptions would create a further difficulty in interpreting the rule because, rather than attempting to effect a wholesale rationalisation of the rule in a principled manner, the courts appeared to be preoccupied with the need to formulate exceptions out of convenience and to ameliorate the rule’s perceived harshness.

(1)                Reasons for the development of the hearsay rule

1.11                        The generally accepted view is that the hearsay rule had taken root by the end of the 17th century, two centuries after the materialisation of the modern trial of proof by witness testimony.[55] The reason why the rule became entrenched is a matter for speculation and although many reasons for the rule have been put forward it is difficult to identify with precision which of them directly influenced the judges who established and moulded the rule. The American writer Wigmore attributed the development of the hearsay rule to a gathering mistrust of the jury’s ability to evaluate hearsay evidence.[56] Morgan attributed it to the perceived need to test assertions by effective cross-examination.[57] The English legal writer Holdsworth proposed that two factors may be directly responsible. The first was Coke’s strong condemnation of “the strange conceit… that one may be an accuser by hearsay”.[58] The second factor affecting the establishment of the rule, according to Holdsworth, was the desire to provide some protection to compensate for the failure of the law in England to develop a system of proof of the same kind as the requirement of two witnesses in many of the Civil Law legal systems of Continental Europe.[59] A further reason for the consolidation of the hearsay rule was the emerging importance placed on evidence being given on oath.

(a)                Distrust of the jury’s ability to evaluate hearsay evidence

1.12                        One of the reasons advanced for preserving the hearsay rule was that jury members as non-lawyers were not familiar with sifting evidence and a danger remained that a jury might give untested hearsay evidence the same probative force as direct evidence. Originally it was believed that certain forms of evidence had a particular propensity to confuse and mislead jurors and for that reason hearsay statements were excluded; to include them would divert jurors from their proper task. It was generally believed that juries could not be expected properly to weigh up the reliability of hearsay on a case by case basis, and it was deemed preferable that a blanket ban on such evidence should be maintained[60].

1.13                        During the 19th century the concern was particularly prevalent about the ability of juries to handle hearsay evidence and its influence on hearsay doctrine is still evident in criminal proceedings in the 21st century. Choo notes that in jurisdictions where the mode of trial is the same in civil and criminal proceedings, the hearsay rule is largely the same but, in the Civil Law legal systems of Continental Europe, where very little reliance is placed on jury trial, the hearsay rule is not as significant.[61] On the other hand Williams was dismissive of the traditional distrust and paternalism towards juries.[62] He pointed out the absurdity of, on the one hand, entrusting to a jury the substantial task of following a trial where its members are credited with following technical and subtle directions to dismiss evidence from consideration and yet, on the other hand, are regarded as incapable, even with the assistance of the judge’s directions, of attaching the necessary degree of importance to hearsay. Studies differ as to whether juries fully understand the directions as to the law which they are given and there are precedent directions on hearsay in some jurisdictions to avoid the potential difficulty.[63] While juries may use hearsay intelligently in ordinary life, it has been argued that a trial is “a proceeding in which finding the truth may require an understanding of institutional practices with which they have little or no dealings”.[64]

(b)               The emergence of oral testimony at trial

1.14                   A characteristic feature of court proceedings in Ireland, as a common law State, is that much evidence is delivered orally by witnesses with relevant firsthand knowledge of the matters in issue. A common justification for the system of giving evidence by oral testimony, including the hearsay rule, is that seeing the demeanour and hearing the evidence of a witness in the witness box is the best means of getting at the truth. Whilst today oral witness testimony is often supplemented by documentary, physical or scientific evidence, it still remains a definitive part of the trial process. In the UK Privy Council decision Teper v R[65] Lord Normand stated that, without the witness being present in court to give an account of his evidence, “the light which his demeanour would throw on his testimony is lost”.[66] In the earlier English case R v Collins[67] Humphreys J referred to “the one great advantage to which those who uphold the system of trial by jury always point - of the opportunity of not only seeing the witnesses who give evidence and hearing what they have to say, but also of observing their demeanour in the witness-box”.[68]

1.15                   In spite of this praise for the tradition of giving evidence by live oral testimony, there is much judicial, academic and psychological scepticism about the weight that even seasoned observers of witnesses should attach to the impressions they form of them in the witness box.[69] In 1924, in the English case Société d'Avances Commerciales (Sociéte Anonyme Egyptienne) v Merchants Marine Insurance Co (The Palitana)[70] Atkin LJ stated:

“As I have said on previous occasions, the existence of a lynx-eyed Judge who is capable at a glance of ascertaining whether a witness is telling the truth or not is more common in works of fiction than in fact on the Bench, and, for my part, I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

1.16                   In Ireland, these comments by Atkin LJ have been cited with approval by Hardiman J in two Supreme Court decisions, J O’C v Director of Public Prosecutions[71] and O’Callaghan v Mahon.[72]

1.17                   Psychological research tends to show that this sceptical attitude is correct – one consideration should be that the witness is a stranger to the judge and jury and hence there is less likelihood of the witness being detected as a liar; and judges and jurors are capable of being “taken in”. The English Law Commission, in its 1995 Consultation Paper on Evidence in Criminal Proceedings, found it difficult to come to a provisional conclusion in answer to the contention that a major shortcoming of hearsay evidence is that a trier of fact (whether a judge or jury) is deprived of the opportunity to observe a witness’s demeanour. Its provisional conclusion was that it was not so significant a factor in itself as to justify the exclusion of hearsay evidence. Warnings to the jury could draw jurors’ attention to the fact that they had not seen the witness give evidence, or how he or she would have stood up to cross-examination. This provisional conclusion became a recommendation in the Law Commission’s subsequent 1997 Report on Evidence in Criminal Proceedings,[73] whose main recommendations were implemented in the English Criminal Justice Act 2003. The Law Commission in its 1997 Report noted that a minority of consultees disagreed with its provisional finding and believed it to have underestimated the importance of a witness’s demeanour. The Law Commission was not persuaded to change its provisional recommendation but stated that it was a matter that merited a warning from the judge.[74]

1.18                        In his 2001 Review of the Criminal Courts of England and Wales Lord Justice Auld concluded that he agreed with the Law Commission that oral testimony and seeing the demeanour of the witness on its own is not so significant as to justify the exclusion of hearsay. He stated that he would “join... a growing band of... distinguished jurists who, on the whole, doubt the demeanour of a witness as a reliable pointer to his honesty”.[75]

1.19                        The value of live oral testimony may be overemphasised and it can no longer be assumed that oral testimony is the most significant source of information for the fact-finder in every case.[76] It nonetheless remains a significant part of the trial process. Wellborn, in a review of psychological literature on the accuracy of oral testimony, concluded that accuracy is an important factor in accepability, but it is only one factor, and he stated that ‘live testimony may be essential to the perception of fairenss, regardless of the real relationship between live testimony and the accuracy of outcomes.’[77]

(c)                The need to test evidence through cross-examination

1.20                        Cross-examination has been described as “the most effective method for testing a witness’s evidence”.[78] It is considered to lie at the heart of the distinction between testimonial and hearsay evidence[79] and it has been suggested that it is the objection to hearsay most strongly pressed today.

1.21                        Indeed, this was a key reason given in the leading Supreme Court decision on the hearsay, Cullen v Clarke.[80] This was echoed by the Commission in the 1980 Working Paper on the Rule Against Hearsay, where it was noted that the lack of a mechanism to examine the credibility of a witness is one of the main objections to the reception of out-of-court statements.[81]

1.22                        This principle originated in ancient Rome[82] but in the Civil Law legal systems of Continental Europe it was greatly attenuated in early mediaeval times and the procedure of the Inquisition depended heavily on evidence given secretly by anonymous witnesses whom the suspect was denied the opportunity to confront. As already noted, in England, there was a period of departure from the common law rule of confrontation notably in the Court of Star Chamber and in common law trials for treason, such as in the 1603 trial of Sir Walter Raleigh.[83] The Court of Star Chamber was abolished in 1641, and steps were taken to bring the procedure of treason trials into line with that required at common law.

1.23                        The right of the accused in a criminal trial to cross-examine witnesses is, today, an internationally recognised fundamental right. It is also referred to as the right of confrontation and was enshrined as the Sixth Amendment to the Constitution of the United States. In Chapter 2, the Commission discusses the case law on the Sixth Amendment, and comparable Irish case law on the right to confront under the Constitution of Ireland and the European Convention on Human Rights.[84]

1.24                        The argument advanced that cross-examination is the best method to test the veracity of evidence is arguably not as significant today as it was at a time when the modern jury trial was in its infancy, where the role of the juror and the witness was conflated and needed to be separated. Today, especially in civil proceedings in Ireland, the vast majority of cases are conducted without a jury and a more literate and technologically advanced society provides, and depends on, more reliable methods of keeping track of what has happened than can possibly be provided by the unassisted recollection of witnesses, even if their account of events is exposed to the rigour of cross-examination.[85] There are undoubtedly some cases in which cross-examination provides a means of arriving at a sound evidential basis for establishing proof in a specific setting. The Commission acknowledges, however, that cross-examination has its limits and that, in this respect, the absence of the ability to cross-examine a witness cannot in all cases justify the exclusion of all hearsay – if this was the case, there would, of course, be no exceptions to the exclusionary hearsay rule (and, as is clear from the discussion in Chapter 2, below, the case for such inclusionary exceptions has been acknowledged in the case law which has taken account of the right to confront in the US Constitution, the right to fair procedures in the Constitution of Ireland and the comparable provisions in the European Convention on Human Rights).

1.25                        In conclusion, bearing in mind these comments and reservations, it is sufficient that the Commission notes that the right to cross-examine is one of the foundations for the hearsay rule and that the right of confrontation forms an important component of the criminal trial under the Irish Constitution and at common law.

(d)               Historical reliance on the oath

1.26                        One of the reasons advanced as to why a statement that is hearsay is deemed to be unreliable is because it is not made on oath in court. The oath historically had a central place in a system of justice; it stood for allegiance to the authority of the church and state and it was based on the belief that God would punish a liar. For that reason the idea persisted that oaths were an effective way to make witnesses tell the truth or face eternal damnation; thus it was viewed as a powerful disincentive to perjury. The religious character of the oath therefore meant that it embodied the “highest possible security which men in general can give for the truth of their statements”.[86]  In time, the idea of divine retribution was supplanted by the idea that the effect the oath would have on the conscience of the witness was the law’s best mechanism to ensure the witness spoke the truth.[87] It is accepted that “for many modern persons, devoutly religious though they may be, the decline of belief in hell or divine punishment makes the… traditional basis of the oath inapplicable”.[88] Nonetheless the taking of an oath or affirmation may at least have the effect of making witnesses more cautious when giving their testimony than they may otherwise be.

1.27                        McGrath notes that the oath as a factor in the development of the hearsay rule can hardly have been decisive because it was decided at an early point that hearsay statements were to be excluded even if they were sworn.[89]

1.28                        A general consideration of the oath falls outside the scope of this Consultation Paper. The Commission considered this in detail in its 1990 Report on Oaths and Affirmations[90] and in this Consultation Paper the Commission intends to confine its discussion of the oath to an overview of the effect it had on the development of the hearsay rule.

(e)                The emergence of the exceptions to the hearsay rule

1.29                        By the beginning of the 19th century, the hearsay rule had become well established and the emphasis shifted to definition of its range and the creation of exceptions to the rule.[91] Landsman comments that, in their consideration of the range of the rule, the English courts appeared to adopt a more expansive test that treated a broader range of conduct as hearsay. This broader rule was expressed in Wright v Doe d. Tatham[92] where the act of letter writing offered to show the sanity of the writer's state of mind was held to be hearsay. In this case, an heir at law sought to set aside the testator's will on the ground that the testator was mentally incompetent at the time he made the will. The beneficiary attempted to prove the testator's competency by offering several letters written to the testator. The case turned on the admissibility of three letters to the testator long before his death in order to prove that he had been mentally competent when making his will and a codicil to the will several years later. The decision in Wright v. Doe d. Tatham to exclude this as hearsay was followed in Ireland in 1867 in Gresham Hotel Co. (Ltd.) v Manning.[93] This was also a civil case, concerning whether an obstruction of light was caused by the construction by the plaintiff company of what remains a landmark hotel in Dublin. The court excluded complaints by potential customers as hearsay testimony.

1.30                        During this phase of the development of the hearsay rule, two alternative approaches of how hearsay evidence should be treated were advanced: one was that all hearsay should be excluded, subject to inclusionary exceptions; while the other was that relevant evidence should be admitted, subject to exclusionary exceptions.[94] The primarily exclusionary approach prevailed, but the 19th century also saw the introduction of many inclusionary exceptions through judicial developments and these had become well established by the end of the century.[95] The Commission discusses the inclusionary exceptions to the hearsay rule in greater detail in Chapter 3, but it is sufficient to note here that it is evident that, as the rule developed, its strict exclusionary approach posed difficulties for the courts in individual cases and, as a consequence, the inclusionary exceptions were developed, admittedly in a gradual and piecemeal manner. It equally appears clear that there was no overarching principle or justification to determine why certain exceptions were created. Instead, courts appeared to take a pragmatic case-by-case approach (a common phenomenon during the 19th century, in England in particular) in which a decision was made that a specific piece of hearsay evidence was sufficiently cogent to merit its admission in the case at hand. Over time, these individual decisions became inclusionary exceptions. These judicially developed inclusionary exceptions were supplemented by, equally piecemeal, statutory exceptions to the rule. Thus, a number of Evidence Acts, including the Evidence Act 1851, were enacted to provide that certain public documents were to be regarded as admissible.[96]


 

D                  Conclusion

1.31                        It is apparent from this brief historical survey that it is not possible to set out a single overarching rationale for the exclusionary nature of the hearsay rule or, indeed, for the development of the inclusionary exceptions developed in the 19th century. Nonetheless, two reasons continue to be given in Ireland as important foundations for the rule: the absence of cross-examination and that the statements were not made under oath.[97] In Ireland the hearsay rule stands largely unchanged from its historical common law heritage, although as already noted a number of specific statutory changes have reformed the rule in an inclusionary direction. It is important that the approach which underlay these important changes should be analysed in detail before proceeding to make proposals for reform, if any. The Commission turns, therefore, in Chapters 2 and 3, to describe the current law in Ireland (including the constitutional rights-based dimension to the rule) with a view to providing a clear overview of its content. In Chapters 4 and 5, the Commission then sets out its proposals for reform in civil cases and criminal cases, respectively.

 

2            

CHAPTER 2            overview of the hearsay rule IN CURRENT IRISH LAW

A                  Introduction

2.01                        This Chapter examines the general scope of the hearsay rule as it currently operates in Ireland (in Chapter 3, the Commission examines the inclusionary exceptions to the rule). In Part B, the Commission discusses the definition of hearsay in Irish law, with particular emphasis on the fact that the testimony involved is aimed at proving the truth of the facts contained in the out-of-court statement. The Commission discusses the distinction between original evidence and hearsay, which also focuses on the purpose for which evidence is presented in court. In Part C, the Commission discusses the types of out-of-court statements that may constitute hearsay, including oral statements, documentary evidence, statements by conduct and implied assertions.

2.02                        In Part D, the Commission examines the general principles of the law of evidence against which the hearsay rule is to be considered. These include the best evidence rule, which was of particular importance in the early development of the rule, whereas the principles of relevance and materiality have attracted greater judicial comment since the second half of the 20th century. The Commission also examines how the concept of fair procedures under the Constitution of Ireland and the European Convention on Human Rights (and the related right to confront in criminal cases under the Constitution) has affected recent analysis of the hearsay rule.

B                  Defining hearsay, and the distinction between original evidence and hearsay

2.03                        In this Part, the Commission examines the definition of hearsay in Irish law. As already mentioned, the hearsay rule is an exception to the general principle in the law of evidence that all relevant evidence is admissible, and it applies to testimony given by a witness concerning statements spoken or made by a person who is not produced in court as a witness if the testimony is presented to prove the truth of the facts which they assert.[98] The exclusionary hearsay rule, in its pure form, refuses to be content with secondary evidence as this eliminates the danger that evidence retold by a secondary source may have become garbled and so possible error in the trial may ensue.[99] 

2.04                        In Cullen v Clarke,[100] the leading decision of the Supreme Court on the hearsay rule in Ireland, Kingsmill Moore J summarised the position as follows:[101]

“[I]t is necessary to emphasise that 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,[102] 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.”

2.05                        In the Cullen case, the applicant had obtained a partial disability benefit under the Workmen's Compensation Act 1934 (since replaced by comparable provisions in the Social Welfare Consolidation Act 2005) and he then applied to have this treated as a full disability. In support of this claim, which at that time involved an application to the Circuit Court (these are now dealt with by assessment officers in the Department of Social and Family Affairs under the 2005 Act), he attempted to use statements made by potential employers as to why they had refused to employ him, but did not call them as witnesses. The Supreme Court (affirming the decision of the Circuit Court) held that these out-of-court statements were inadmissible under the hearsay rule because it was clear that the applicant was attempting to rely on the truth of what was contained in the statements to support his claim for a full disability benefit.

2.06                        The judgment of Kingsmill Moore J in Cullen makes it clear that the hearsay rule is a general rule (subject to many exceptions) to the effect that testimony given by a witness concerning words spoken, statements made or documents generated by a person who is not produced in court as a witness is inadmissible if the testimony is presented to prove the truth of the facts which they assert. The judgment equally makes clear that there is no general rule preventing a witness from testifying as to such words, statements or documents if the testimony is not being presented to prove the truth of the facts.

2.07                        Indeed, McGrath[103] underlines this distinction by noting that the judgment serves to emphasise “a cardinal and, at times misunderstood aspect of the rule against hearsay” – that is that the rule does not exclude all out-of-court statements, but rather only those that are offered to prove the truth of their contents. A witness will, therefore, not be prevented from giving evidence about an out-of-court statement if it is being introduced into proceedings merely to confirm that the statement was made or if its making is relevant to an issue in the proceedings. For example, as the Commission noted in its 1980 Working Paper on the Rule Against Hearsay,[104] if the issue in a case is whether an assault by Ben upon Adam was provoked, the fact that, prior to the assault, Ben had verbally insulted Adam or had made an insulting gesture would be admissible in evidence as relevant to the issue of provocation. Similarly, in Fullam v Independent Newspapers Ltd[105], a defamation claim, the plaintiff, a professional footballer, claimed that he had been defamed by an article which repeated certain terrace chants and jeers about him (that he could only shoot with one foot and, by implication, was not entitled to be paid as a professional footballer). He was allowed to introduce evidence describing the terrace chanting as this was solely for the purpose of identifying him as the subject of the newspaper article.

2.08                        In spite of this, it is not always easy to draw a distinction between statements that fall within the ambit of the rule and those that fall outside it. This is especially so in the context of the distinction between original evidence and hearsay. It is a long-established rule in the law of evidence that original evidence of a statement is admissible not to prove that the statement is true but to prove that it was made.[106] A statement may be admissible as original evidence because it is itself a fact in issue[107] or the statement is relevant to a fact in issue in the proceedings. If the evidence is adduced for either purpose, the fact that a statement is made out of court does not render it hearsay. The leading American writer Wigmore emphasised the importance of identifying the purpose for which a statement is tendered in order to see whether it is a hearsay statement. He stated:

“The prohibition of the Hearsay rule, then, does not apply to all words or utterances... The Hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely as assertions to evidence the truth of the matter asserted.[108]

2.09                        A clear application of this important distinction is the decision of the UK Judicial Committee of the Privy Council in Subramaniam v Public Prosecutor,[109] in which the defendant was charged with possession of ammunition for the purpose of helping a terrorist enemy, which carried a sentence of death. He pleaded the defence of duress,[110] claiming that he had no choice as the terrorists, who had captured him, had threatened to kill him if he did not follow through with their requests. As part of the defence he wished to testify about conversations he had had with the terrorists. At his trial, these conversations were found to be hearsay and excluded. On appeal to the Privy Council, that decision was overturned and the evidence was admitted on the basis that the conversations would be hearsay only if the purpose of submitting the evidence was to prove the truth of the contents of the statements. The Privy Council held that evidence of what had been said to the defendant by the terrorists was relevant to whether he had been acting under duress, regardless of the truth or otherwise of what was said:[111]

“In the case before their Lordships statements could have been made to the appellant by the terrorists which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.

2.10                        Similarly, in the Canadian case R v Baltzer[112] the defendant had been charged with murder. To support a defence of insanity the defendant sought to call two women to testify that he had said “weird” things. The Supreme Court of Nova Scotia held that the evidence was admissible to show the accused’s state of mind and did not constitute hearsay. MacDonald JA stated:[113]  

"If, therefore, the relevance of the statement lies in the fact that it was made, it is the making of the statement that is the evidence -- the truth or falsity of the statement is of no consequence if the relevance of the statement lies in the fact that it contains an assertion which is, itself, a relevant fact, then it is the truth or falsity of the statement that is in issue. The former is not hearsay, the latter is."

2.11                        At common law, therefore, the distinction between original evidence and hearsay may be relatively clear as the Subramaniam and Baltzer cases indicate. Indeed, as pointed out by Kingsmill Moore J in Cullen v Clarke,[114] “[t]he actual question put and the object for which it was put in each case has to be considered,” which also reflects Wigmore’s analysis referred to above. Nonetheless, the development of inclusionary exceptions to the exclusionary hearsay rule (both by common law and by legislation) has resulted in situations where the line between hearsay and non-hearsay evidence has become difficult to distinguish with precision.

2.12                        Despite the difficulty at times in drawing the distinction between original evidence and hearsay evidence, it is important that the Commission sets out a clear definition that would form part of the statutory framework which the Commission ultimately recommends on foot of its proposals for reform. In this respect, it is clear that the judgment of Kingsmill Moore J in Cullen v Clarke[115] provides a clearly-stated reference point for such a definition. Accordingly, the Commission provisionally recommends that hearsay should be defined in legislation as any statement, whether a verbal statement, written document or conduct,[116] which is made, generated or which occurred out of court involving a person who is not produced in court as a witness, and where the statement is presented as testimony to prove the truth of the facts which they assert.

2.13                        The Commission provisionally recommends that hearsay should be defined in legislation as any statement, whether a verbal statement, written document or conduct, which is made, generated or which occurred out of court involving a person who is not produced in court as a witness, and where the statement is presented as testimony to prove the truth of the facts which they assert.

C                  Scope of the Hearsay Rule

2.14                   Statements covered by the hearsay rule may take many forms, and the Commission turns in this Part to explore this aspect of the scope of the hearsay rule. In terms of its development at common law, the rule applies to oral statements, written (documentary) statements and statements by conduct.

(1)                Oral Hearsay

2.15                        Spoken words as well as written statements may constitute hearsay depending on the purpose for which they are adduced in evidence. In the English case R v Gibson,[117] the accused had been charged with malicious wounding, the allegation being that he had thrown a stone at the victim. The victim testified at the trial that he had not seen the accused throw the stone but also testified that, immediately after he had been hit by the stone, an unidentified woman had pointed to the door of the accused’s home and said: “The person that you are looking for went in there”. The accused was convicted but, on appeal, the conviction was quashed on the basis that the victim’s testimony concerning the unidentified woman was inadmissible under the hearsay rule. In the UK Privy Council decision Teper v R,[118] the accused was charged with arson of his own shop. A prosecution witness gave evidence that he heard an unidentifiable woman shouting at the driver of a car who resembled the accused: “Your place is burning and you going away from the fire.” The Privy Council held that this testimony was inadmissible hearsay.

2.16                        The Supreme Court has taken a similar approach to the hearsay rule in Ireland. As already discussed above, in Cullen v Clarke[119] the Supreme Court held that out-of-court oral statements made by persons who had not been called as witnesses were inadmissible hearsay where these statements were being presented to prove the truth of their contents.

(2)                Written and Documentary Hearsay

2.17                        It is well-established that the hearsay rule applies not merely to oral statements but also to written and documentary statements. This clearly covers an exceptionally wide range of important documents, including letters, medical records, business records and public records such as birth and death certificates. Thus, in Hughes v Staunton,[120] a medical negligence claim, it was accepted that a large number of medical records connected with the issues in dispute would have been deemed inadmissible because the persons who had originally created the documents were not available to be cross-examined in court. In the High Court, the parties had agreed that the records should be admitted, and Lynch J agreed to this, noting however that it would be preferable if the inclusionary-oriented reforms proposed for the hearsay rule in civil claims in the Commission’s 1988 Report on the Rule Against Hearsay in Civil Cases[121] were implemented in legislative form.

2.18                        In the absence of agreement, documentary records are, in general, inadmissible if introduced to prove their contents. Thus, in The People (Attorney General) v O’Brien[122] the defendant had been charged with, and convicted of, manslaughter. He claimed to suffer from epilepsy and his defence of self-defence was, he asserted, supported by certain hospital records that referred to him as “epileptic.” The records did, indeed, state this, but the medical staff who had created these records were not available in court to be examined on them. The trial judge ruled the records inadmissible hearsay and, on appeal, the Court of Criminal Appeal upheld this decision. The Court rejected the argument that a different approach to the hearsay rule should apply to the defence by contrast with where the prosecution wished to introduce hearsay. The Court stated:[123]

“In a criminal trial, the administration of justice according to law means justice for the People and for the accused, and the admission in evidence of matters which either side wishes to produce must be decided by the same principles of law.”

2.19                        This particular issue of the admissibility of documentary business records has since been dealt with by Part II of the Criminal Evidence Act 1992, which provides that documentary records compiled in the course of business are now admissible.[124] Indeed, the issue of the admissibility of such documentary records in criminal cases – and arguably, the discussion of reform of the hearsay rule in general in many countries – could be traced to the reaction to the outcome of the 3-2 majority decision of the 1965 UK House of Lords decision in Myers v DPP[125] that such documents were inadmissible hearsay, and that the Court was not willing to create a new inclusionary exception to the hearsay rule for such documents. As discussed below, the UK Parliament almost immediately provided in the Criminal Evidence Act 1965 that documentary records prepared in the course of business were to be admissible. From one perspective, the decision of the majority in Myers has been widely criticised for holding inadmissible what appeared to be quite reliable documentary evidence, and many commentators praised the two judges in the minority for advocating a new inclusionary exception to the hearsay rule. From another perspective, since the 3-judge majority in the Myers case acknowledged that the hearsay rule was badly in need of reform, the decision could be regarded as the pearl-like instigator of the legislative reforms that have followed in many countries in the intervening years.

2.20                        Because of the subsequent impact of the Myers case, it is important to discuss it here in some detail. In Myers the defendants had been charged with a number of offences, including conspiracy to receive stolen cars, conspiracy to defraud the purchasers of the stolen cars and resolving (breaking up) five cars knowing them to have been stolen. The prosecution sought to establish that, in the case of each of 22 cars, an identical wrecked car had been purchased by the defendants, and that the stolen cars had been sold by them after each one had been given the registration number and other identification numbers of the wrecked car. The owner of each stolen car was asked to identify it. The defendants admitted purchasing 12 of the wrecked cars and selling 12 cars bearing the same registration numbers as the 12 wrecked cars, but contended that the wrecked cars had been repaired and rebuilt, and that they were not the stolen cars. They also argued that, in rebuilding the wrecked cars, they had innocently removed the identification marks and plates and had replaced them on the rebuilt cars, so that the numbers registered in respect of those cars corresponded.

2.21                        In order to establish that the cars admittedly sold by the defendants were the stolen cars in disguise, the prosecution called employees of the manufacturers of the cars. These witnesses produced records compiled by various employees as the cars were made which showed the engine, chassis, and cylinder block numbers which had been recorded on a card by the employees as the car was originally made. Of those numbers, the cylinder block number alone was moulded into a secret part of the block and could not be obliterated or removed. The witnesses called were persons who maintained these records but had not actually compiled them. The defence objected to this evidence on the ground that it was hearsay, and that the manufacturer’s records could not be tendered as proof of the truth of the facts stated in them.

2.22                        The trial judge admitted the evidence and the defendants were convicted. On appeal, by a 3-2 majority the UK House of Lords (since 2009, replaced by the UK Supreme Court) held that the evidence was inadmissible and overturned the convictions. The Court unanimously held that, as a general rule, hearsay evidence was not admissible, and that to justify its admission would require that the example came within some exception to the rule. The majority of the Court decided that no new exceptions to the rule should be created by the courts as this would amount to judicial legislation. The majority held that the records in this case could not be brought within the exception relating to public documents open to inspection by the public or any other established exception. Nor were they admissible as evidence to corroborate other evidence unless they could stand on their own feet. The majority also rejected the suggestion that a trial judge has a discretion to admit a record in a particular case if satisfied that it was trustworthy and that justice required its admission, because that would also involve an innovation in the then-existing law, which decided admissibility by categories and not by apparent trustworthiness. Accordingly, the Court concluded, this evidence ought not to have been admitted at the defendants’ trial.

2.23                        Lord Reid, one of the majority judges in Myers, stated:

“[T]here are limits to what we [as a Court] can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of other parts of the existing law of hearsay susceptible of similar treatment, and we shall probably have a series of appeals in cases where the existing technical limitations produce an unjust result. If we are to give a wide interpretation to our judicial functions questions of policy cannot be wholly excluded, and it seems to me to be against public policy to produce uncertainty. The only satisfactory solution is by legislation following on a wide survey of the whole field, and I think that such a survey is overdue. A policy of make do and mend is no longer adequate.”[126]

2.24                        The majority view was that the categories of admissible documentary hearsay were limited to those already established at that time, at least as far as the judicial development of the hearsay rule was concerned. Lord Reid clearly considered that the policy matters that required analysis in terms of any new inclusionary exceptions were a matter for the UK Parliament and, as the passage quoted indicated, he considered that a complete review of the hearsay rule was “long overdue.” The Myers decision was given just before the establishment of the Law Commission for England and Wales, and the subsequent legislative amendments to the hearsay rule in the UK (such as those in the UK Criminal Justice Act 2003 and the equivalent provisions in Part III of the Criminal Justice (Evidence)(Northern Ireland) Order 2004) have largely arisen from the implementation of Law Commission recommendations.[127]

2.25                        The two judges in the minority in the UK House of Lords in Myers, Lord Pearce and Lord Donovan, considered that the evidence in question was fair, clear, reliable and sensible and that the trial judge had correctly admitted it. Lord Pearce agreed with the majority that the general exclusion of hearsay evidence, subject to exceptions permitted where common sense and the pursuit of truth demanded it, was an important and valuable principle; but that it was a disservice to that general principle if the courts limited the necessary exceptions so rigidly that the general rule created a frequent and unnecessary injustice. Lord Pearce discussed the superiority of the documentary hearsay in the Myers case to that of the hypothetical oral testimony of an untraceable employee witness:[128]

“In the present case, if the anonymous workman who copied down the number could be proved to be dead, the records would be admissible as declarations in the course of duty. Since we do not know whether he is dead or not, the court, it is argued, cannot inform itself from the records; but in this case the fact that he is not on oath and is not subject to cross-examination has no practical importance whatever. It would be no advantage, if he could have been identified, to put him on oath and cross-examine him about one out of many hundreds of repetitious and routine entries made three years before. He could say that to the best of his belief the number was correct; but everybody already knows that. If he pretends to any memory in the matter, he is untruthful; but, even if he is, that in no way reflects on whether he copied down a number correctly in the day's work three years before. Nor is it of any importance how he answers the routine question in cross-examination: ‘You may have made a mistake?’ Everybody knows that he may have made a mistake. The jury knew it without being told, the judge told them so at least once and both counsel told them so, probably more than once.

   The only questions that could helpfully be asked on the matter were whether the particular system of recording was good and whether in practice it had been found prone to error. These questions could not be answered by the individual workman but they could be dealt with by [the witness who maintained the manufacturer’s records] if the defence wished to probe into the matter. He and not the workmen would know how efficient the system had been found in practice and how often, if at all, it had been shown subsequently that mis-recordings must have occurred. The evidence produced is therefore as good as evidence on this point can be; it is the best evidence, though it is of course subject, like every other man-made record, to the admitted universal human frailty of occasional clerical error. The fact that the engine and chassis numbers which emanated from precisely the same source are admissible because they have been embodied in a public document, namely the log-book, shows up the absurdity of excluding these records”.

2.26                        The approach taken by the two judges in the minority in Myers has generally been more favourably received than the majority, largely because the outcome in the particular case meant that ordinary persons thought the result was not appropriate. As already discussed above, while some courts - for example, the Supreme Court of Canada - have taken the view that the hearsay rule can still be developed by judicial decision, the courts in Ireland have resisted this approach, so that reform appears to be exclusively a matter for the Oireachtas.

2.27                        As mentioned, the actual outcome in the decision in Myers was widely criticised, and the UK Parliament virtually immediately reversed the approach taken by the majority (in effect, talking up Lord Reid’s invitation of reform by legislative means) by enacting the Criminal Evidence Act 1965, which made admissible first hand documentary statements and records created in the course of business, precisely the type of documents held inadmissible in Myers. The provisions of the 1965 Act have since been consolidated into the UK Criminal Justice Act 2003. In Ireland, Part II of the Criminal Evidence Act 1992 has followed the same approach by providing that documentary records compiled in the course of business are admissible.[129]  


 

(3)                Statements by conduct

2.28                        The exclusionary hearsay rule is also applicable to signs, gestures, drawings, charts and photographs. Each of these “statements” is identifiable as being hearsay in nature. However, there is much less certainty as to whether the hearsay rule applies or should apply to statements or non-verbal conduct which are not intended by their maker to assert that they are tendered to prove.  Lederman and Bryant suggest that the more prevalent view is that an individual’s conduct which is intended to be assertive “falls within the mischief of the hearsay rule and is therefore inadmissible”.[130]

2.29                        It is generally accepted that conduct falls within the scope of hearsay where it is intended to be “communicative”.[131] In many common law countries, the hearsay rule is restricted to conduct that is intended by the declarant to be an assertion.[132] The courts in England broadened the hearsay rule in the 19th century to include conduct which is tendered to prove a fact or belief that may be implied from the act as coming within the exclusionary hearsay rule. This approach was applied in Wright v. Doe d. Tatham[133] where the act of letter writing offered to show the sanity of the writer's state of mind was held to be hearsay.

(4)                Intention to Assert

2.30                        In England, the Law Commission had initially taken the view[134] that if it is known that a person spoke or acted in such a way as to cause someone else to infer the truth of a particular proposition, two inferences may be drawn: first that that person at that time believed that proposition to be true, and second that that belief was correct. Neither inference is inevitable: the person may have been seeking to mislead, or may have been mistaken. The English Commission commented that the hearsay rule recognises that if both these risks are present then, in the absence of an opportunity to cross examine the person in question, there is good reason to exclude evidence of his words or conduct. If the risk of deliberate fabrication can be discounted, the possibility of a mistake is not necessarily sufficient reason to exclude evidence of the words or conduct. Where there is a substantial risk that an out-of-court assertion may have been deliberately fabricated the assertion should fall within the hearsay rule, whether it is express or implied. Where that risk is not present – in other words, where the person from whose conduct a fact is to be inferred can safely be assumed to have believed that fact to be true – the Law Commission stated that it did not think a court should be precluded from inferring that fact merely because that person may have been mistaken in believing it. It took the view that a person’s words or conduct should not be regarded as asserting a fact, and therefore should not be caught by the hearsay rule if adduced as evidence of that fact, unless that person intends to assert that fact.[135]

2.31                        Ultimately, the English Law Commission modified this approach in coming to its final view on this issue. It noted that the idea of an “intention to assert” was ambiguous and the danger remains that the person making the statement intended to mislead or was aware that the statement may be construed in a misleading manner, although that is not the intent of the statement maker. The Law Commission illustrated the difficulty associated with the idea of “intention to assert” by reference to the UK Privy Council decision in Teper v R.[136] As already mentioned, in that case the defendant had been charged with arson of his own shop. A woman had been heard to shout to a passing motorist “Your place burning and you going away from the fire”. The English Law Commission stated that if the woman’s intention had been to draw the attention of bystanders to the fact that the defendant was leaving the scene, her words would be hearsay, since she might have been trying to mislead the bystanders. If, however, she was intending only to indicate to the motorist that she knew the defendant, she could not be seeking to mislead anyone about who he was. “If he was Teper, he knew he was; and if he was not, she could not hope to convince him that he was. She might still be asserting that he was Teper, but she would not be intending to persuade anyone of this.”[137]

2.32                        Having regard to the difficulties and dangers associated with allowing the test for admission to rest on an “intention to assert” the Law Commission went on to consider whether the appropriate basis for admitting a statement is “whether he or she intended to act in a manner to cause another person to believe that fact”. The difficulty with this approach is that it would close off statements that ought to be captured by the hearsay rule if, for example, that statement had been fabricated and the person it was relayed to had no cause to believe it was fabricated.[138] The English Commission gave the following example. If it is sought to prove that A working for company X travelled to a particular destination on a specified date by adducing her claim form as evidence, that claim form whether processed by another person in company X or processed by an automated machine, should be captured by the hearsay rule as there is a risk the information may be false and the standard of “intending to act in a manner to cause another person to believe that fact” is not scrupulous enough. The Law Commission in its revised analysis of the concept of intent believed that it was a more defensible position to invoke a ‘purpose’ element into the consideration of whether a statement ought to be admitted in criminal proceedings or excluded as hearsay.

(5)                Implied Assertions

2.33                        An implied assertion is a statement by conduct that is not tendered to prove the truth of its contents but is taken to allow an inference to be drawn from it. Where a statement by conduct is intended to assert the truth of a fact, it is clear that this is, in general, inadmissible under the hearsay rule. However, a more difficult issue is whether, and to what extent, the hearsay rule applies to statements by conduct where they are not tendered to prove the truth of the contents but are tendered for the purpose of allowing the judge or jury to draw an inference from the contents of the statement. The courts in Ireland have never considered in detail whether such conduct statements may be admitted in evidence or whether they are inadmissible hearsay. The comments of Kingsmill Moore J in the leading Supreme Court decision Cullen v Clarke[139] suggest they are not hearsay and would be admissible as the rule is confined to assertions of fact.[140]

2.34                        In the UK, the Civil Evidence Act 1968 considerably relaxed the strict rule of exclusion, and the abolition of the hearsay rule in civil cases was completed by the Civil Evidence Act 1995.[141]

2.35                        Until the enactment of the UK Criminal Justice Act 2003 the issue of implied assertions in criminal proceedings had not been fully resolved. The leading case until then in England was Wright v Doe d. Tatham.[142] In Wright a potential heir applied to set aside a will on the ground that the testator was mentally incompetent at the time he made the will. At the trial the will’s beneficiary attempted to prove the testator's competency by offering several letters written to the testator. The correspondence was adduced in evidence as being relevant to the issue of whether the deceased had been competent to make a valid will. All of the letters were on subjects, and expressed in language, relevant to a person of reasonable intelligence. The authors of the letters had died prior to the trial. They were tendered as evidence that the deceased was of sound mind because it was inconceivable that the writers, who were men of intelligence, would have written to the deceased in such a manner if they believed him to be mentally incompetent. The UK House of Lords held that the correspondence ought to be excluded because the writing of the letters constituted implied assertions of a hearsay nature by the letter writers concerning the deceased’s testamentary capacity.

2.36                        The decision in Wright v Doe d. Tatham was approved by the UK House of Lords in R v Kearley.[143] In Kearley the defendant was convicted of drug trafficking. One of the central pieces of prosecution evidence was that large numbers of people had telephoned the defendant's house asking for drugs. On appeal, the defence argued that this evidence was inadmissible hearsay as the police were reporting statements made by persons unknown, who could not themselves be called as witnesses.

2.37                        The English Court of Appeal rejected this argument, on the grounds that the police reports were evidence of the callers’ beliefs about the defendant, not of the truth of the allegation that the defendant was a drug dealer. On further appeal, the UK House of Lords, by a 3-2 majority, quashed the defendant’s conviction because the prospective customers’ requests allegedly contained an implied assertion that he was a drug-dealer. The majority view was that, if evidence of the callers’ states of mind was not excluded as hearsay, it was still inadmissible, because it was logically irrelevant. There are, it was suggested, many innocent ways to explain the state of mind of the callers. The majority view was that, if the reports of the phone calls had been tendered as evidence of the defendant's being a drug dealer, rather than as evidence of the callers’ states of mind, it would have been inadmissible hearsay.  The majority argued that one should not be allowed to get around the hearsay rule simply because words implied, rather than expressly stated, a particular fact. By contrast, the two judges in the minority considered that the telephone evidence should not have been excluded by the hearsay rule, as it flew in the face of common sense and that it was difficult to think of more convincing evidence that went to show that a pattern of behaviour was associated with the defendant. On this view it was not the callers’ statements that were evidence of the matters stated, but their behaviour was evidence of their state of mind.

2.38                        Duff agrees that the majority in Kearley was of the view that this would be extremely dangerous and would make a nonsense of the hearsay rule:

“It would allow the prosecution, or the defence for that matter, to smuggle in all sorts of second hand evidence as long as the assertion was not express but comprised a hint or a ‘nod and a wink’.”[144]

2.39                        The minority view of the House of Lords in Kearley was that, although the callers’ behaviour was technically hearsay if put as evidence of the fact that the defendant was a drug dealer, it was admissible hearsay, because it contained only an implied assertion. Lord Griffiths took the view that the police evidence was not hearsay, because the callers were not actually asserting that the appellant was a drug dealer. He considered that the police evidence was direct evidence of the fact that lots of people had tried to contact him to buy drugs, from which ‘‘the obvious inference” could be drawn that the defendant was a drug dealer.[145] Lord Browne-Wilkinson stated that the police testimony was “circumstantial evidence” from which the jury could draw the inference that the defendant sold drugs.[146] The minority view in Kearley was cited with approval in a Scottish case, Lord Advocate's Reference (No 1 of 1992)[147] heard shortly after the Kearley decision and, in Scotland, implied assertion are not regarded as hearsay.

2.40                        Roberts and Zuckerman claim that the decision in Kearley is “deeply flawed and quickly collapses into a reductio ad absurdum”, whereby virtually all evidence could be argued to be hearsay thus rendering nonsensical the exclusionary hearsay rule.[148] They assert that the mistake made by the UK House of Lords was to confuse a “genuine” implied assertion with the “unspoken assumption” of the prospective purchasers that the defendant was going to sell them drugs, on the basis of which the majority of the court were imputing an assertion to these callers.[149] As an example of a genuine implied assertion, Roberts and Zuckerman cite the UK Privy Council decision in Teper v R,[150] where, as already discussed, at the accused’s trial for arson, police evidence was led that an unidentified witness at the scene had said “Your place burning and you going away from the fire”. In their view, this evidence was quite correctly ruled inadmissible as a ‘true’ implied assertion because the speaker’s intention clearly was to assert, albeit indirectly, that the accused’s behaviour was somewhat suspicious. This was different from the situation in Kearley where the intention of the callers was simply to buy drugs and not to make any statements or accusation about the defendant’s person. Therefore the question of an implied assertion did not arise and the evidence should have been admitted.[151]

2.41                        The minority in R v Kearley argued that implied assertions of the kind in that case were more reliable than oral reports. The Law Commission in England agreed with them[152] and this is now reflected in the English Criminal Justice Act 2003.[153] This was confirmed in R v Singh[154] where the English Court of Appeal held that sections 114 and 118 of the Criminal Justice Act 2003 had abolished the common law rule against implied assertions. In Singh the defendant had been charged with conspiracy to kidnap, and an important part of the evidence against him consisted of records from the memory of mobile phones showing that he had been regularly in contact with the other people allegedly involved in the conspiracy. The English Court of Appeal held that, under section 115(3) of the 2003 Act,[155] such evidence did not amount to hearsay, and it was admissible on the simple basis that it was relevant. Section 115(3) of the 2003 Act thus significantly limited the effect of the majority decision in R v Kearley. The hearsay rule, as set out in the UK 2003 Act, now only catches intentional assertions and the rule would not make inadmissible evidence of the kind presented in Kearley.

2.42                        Duff states[156] that while the provisions in the UK Criminal Justice Act 2003 reduce the potential scale of the difficulties created by Kearley they do not solve the problem entirely, and the difficulty of drawing a boundary between admissible and inadmissible evidence remains. In an article written before the 2003 Act, Guest argued that to make best sense of the rule a line should be drawn so that the hearsay rule excludes only statements in which there is a “propositional content” made in the out-of-court statement and intended to be used to prove their truth.[157] Guest maintained that this conclusion would, firstly, find whether an out-of-court statement was made and second, find whether that statement was being offered as proof of its truth. In adopting this approach, he argued that the problem cases such as Wright v. Doe d. Tatham,[158]  where no statements are made, would be avoided.[159].

2.43                        In Walton v R[160] and Pollitt v R[161] the High Court of Australia twice attempted to resolve the question of how implied assertions should be characterised but were unable to reach a consensus on this. In the Walton case, Mason CJ was in favour of applying the hearsay rule flexibly especially in regard to implied assertions made in the course of a social telephone conversation. Wilson, Toohey and Dawson JJ took the view that, as most conduct would contain an implied assertion of some sort and it would seriously deplete the stock of evidence if such evidence should be excluded, evidence of conduct is admissible provided the conduct is a relevant fact, notwithstanding it contains an implied assertion of some sort. In the Pollitt case, four out of seven members of the High Court of Australia held that evidence of an implied assertion is admissible to prove the identity of the maker of a phone call.

2.44                        Since the enactment of the Australian Evidence Act 1995, unintended “implied assertions” are no longer excluded by the hearsay rule. Section 59(1) of the 1995 Act provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by representation.

2.45                        The US Federal Rules of Evidence classify a hearsay statement as an “assertive statement.”[162] In United States v Zenni[163] evidence of telephone calls by government agents (while conducting a legal search for evidence of bookmaking activities on the premises of the defendant) where the caller stated directions for the placing of bets on various sporting events was sought to be adduced as evidence by the prosecution and was objected to by the defence on the grounds that it was hearsay. A US federal District Court noted that the common law treatment of implied assertions was that they are subject to the hearsay rule. It noted that this was criticised and that, when the Federal Rules of Evidence were drafted, implied assertions was removed from its scope for two main reasons. Firstly, when a person acts in a way consistent with a belief but without intending by his act to communicate that belief, one of the principal reasons for the hearsay rule to exclude declarations whose veracity cannot be tested by cross-examination does not apply. Second, because the declarant's sincerity is not then involved the underlying belief is in some cases self-verifying. The Court noted that the Federal Rules of Evidence do not define what is meant by assertion but that it has the connotation of a forceful or positive declaration. The Court also noted that the Advisory Committee on the Federal Rules of Evidence had stated that: “The effect of the definition of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.” The Court pointed out that the Federal Rules of Evidence expressly exclude implied assertions from the ambit of the hearsay rule. It therefore concluded that “the calls were admitted as non-assertive verbal conduct, offered as relevant for an implied assertion to be inferred from them, namely that bets could be placed at the premises being telephoned. The language is not an assertion on its face, and it is obvious these persons did not intend to make an assertion about the fact sought to be proved or anything else.”

2.46                        In light of this discussion, it is evident to the Commission that the issue of implied assertions has proved problematic, and that different solutions have been put in place in a number of different countries to address this. The Commission has come to the view that this is a matter worthy of further deliberation in the context of the preparation of its final recommendations on the scope of the hearsay rule. The Commission accordingly invites submissions as to whether implied assertions ought to be included in, or excluded from, the scope of the hearsay rule.

2.47                   The Commission invites submissions as to whether implied assertions ought to be included in, or excluded from, the scope of the hearsay rule.

D                  General Principles of Evidence and the Hearsay Rule

2.48                        In this Part, the Commission examines the general principles of the law of evidence against which the hearsay rule is to be considered. At a fundamental level, the rules of evidence have the function of identifying and defining the evidence a court may receive in order to arrive at the truth of the matter or issue in dispute, whether in a civil or criminal case. The rules of evidence that have affected the development of the hearsay rule include the best evidence rule, which was of particular importance in the early development of the rule, whereas the principles of relevance and materiality have attracted greater judicial comment since the second half of the 20th century. The Commission also examines in this Part how the concept of fair procedures under the Constitution of Ireland and the European Convention on Human Rights has affected recent analysis of the hearsay rule.

2.49                        The purpose of civil and criminal court proceedings is the resolution of disputes. Civil proceedings, by contrast with criminal proceedings, do not generally involve the potential removal of a person’s liberty. A second fundamental difference is that, in civil proceedings in Ireland, court hearings involving a jury are now a rarity, confined, for example, to High Court defamation claims.[164] Thus, in virtually all civil cases the judge determines what evidence is admissible, hears that evidence, as a result then decides what the “facts of the case” are (the judge is the “trier of fact”) and then applies the relevant law to determine the outcome. The same applies in summary criminal proceedings in the District Court, where the trial involves a hearing and determination by a judge alone: this form of criminal trial comprises the overwhelming majority of contested criminal trials (about 60,000 annually) conducted every year in the State. By contrast, in non-minor criminal cases tried on indictment (and which involve major criminal charges such as murder, rape and robbery, running to about 6,000 annually), Article 38.5 of the Constitution of Ireland generally[165] requires that the trial involves a judge and jury. In such cases, the trial judge determines what evidence is admissible, directs the jury on the relevant law (for example, what constitutes murder, how to assess certain admissible evidence, what defences are available) and then the jury assesses the weight to be attached to the evidence and determines whether the defendant is guilty or not guilty (the jury is the “trier of fact”).

2.50                        As already indicated, while no single principle can be said to be the only foundation for the development of the exclusionary hearsay rule, a number of general principles have been influential. In this Part, the Commission examines the influence of the best evidence rule and the concept of legal relevance. It is clear, however, that as the Supreme Court identified in Cullen v Clarke,[166] the absence of the ability to test hearsay evidence by cross-examination in court continues to be regarded as a clear basis for the hearsay rule. This has also been a factor in the more recent analysis of the rule in the context of the concept of fair procedures under the Constitution of Ireland and the European Convention on Human Rights, which completes the Commission’s discussion in this Part.

(1)                The Best Evidence Rule

2.51                        A central concern of the law of evidence has been to ensure that unreliable categories of evidence are not used to resolve disputes and that the evidence adduced must be the best evidence available. As already indicated in Chapter 1, while early Anglo-Norman courts allowed decisions to be based on the personal knowledge of people gained from their general experience and local knowledge, by the 18th century the “best evidence” rule often translated simply as requiring that evidence be presented orally in court by persons having direct knowledge of the facts in issue.

2.52                        In general, of course, the insistence on the production of the “best evidence” is a way of preventing the danger of weaker proofs being substituted for stronger ones. The best evidence rule was one of the original foundations for the exclusionary hearsay rule, although the two rules are now quite distinct. As the UK House of Lords decided in R v Blastland[167] hearsay evidence is now, in general, excluded because its accuracy cannot be tested in cross-examination and therefore there is a danger that the fact finder, particularly a jury, might give such evidence undue weight. The law takes the view that truth is best ascertained by the unrehearsed answers, on oath or affirmation, of witnesses who have actually perceived the relevant events and who are in the presence of the court. Thus it is desirable to have a person present in court where his evidence can be tested by cross-examination and where his demeanour can be observed by the trier of fact. A second reason underlying the best evidence rule is to avoid the danger of the risk of error in evidence, that evidence which is relayed by a secondary source will become garbled.[168]  

2.53                        Not all secondary evidence, however, is necessarily unreliable and there are a number of qualifications and exceptions to the best evidence rule where secondary evidence will suffice, for example where the original is lost or has been destroyed. Thus, a series of Acts were passed, beginning in the 19th century, such as the Evidence Act 1851, the Bankers’ Books Evidence Act 1879 and the Documentary Evidence Act 1925, which provide that public records and certain financial records should be covered by an inclusionary approach. The Commission has considered these Acts in detail in its Consultation Paper on Documentary and Electronic Evidence[169] and returns to consider later in this Consultation Paper whether they should be set within the context of a more coherent legislative framework on the hearsay rule.

2.54                        The best evidence rule may, at one time, have become conflated with the hearsay rule but it is clear to the Commission that this should be avoided. Hearsay may be the “best evidence” in the sense of the best that is available, for example, if the choice is between hearsay evidence and none at all, such as may be the case where the original source of the information is deceased or cannot be located. But this is quite different from the meaning of the best evidence rule in the law of evidence.

2.55                        Indeed, as the English Law Commission noted in its 1997 Report on Hearsay and Related Topics,[170] in some instances hearsay may be “plainly superior to oral testimony.” The English Law Commission stated this was clearly so in the case of the business records at issue in the UK House of Lords case Myers v DPP.[171] Indeed, in Myers it was accepted that, by the time the case came to trial, the business records were clearly the “best evidence” (in the ordinary sense, rather than the legal sense) of what was known about the vehicles. But because there was no existing exception at the time to the hearsay rule under which the records could be admitted, and because the majority was not prepared to recognise a new inclusionary exception (though they called for a thorough review of the rule by the UK Parliament) they were deemed inadmissible, even though such evidence would have been more reliable than the oral recollection of the workers of what they had seen three years after the events, even if it had been possible to trace the workers and have them give sworn evidence in court and be tested by cross-examination.

2.56                        Lord Reid, on the majority judges in Myers, recognised this:

“The whole development of the exceptions to the hearsay rule is based on the determination of certain classes of evidence as admissible and not on the apparent credibility of particular evidence tendered. No matter how cogent particular evidence may seem to be, unless it comes within a class which is admissible, it is excluded. Half a dozen witnesses may offer to prove that they heard two men of high character who cannot now be found discuss in detail the fact now in issue and agree on a credible account of it, but that evidence would not be admitted although it might be by far the best evidence available”.[172]

2.57                        The Commission notes here (and discusses in detail elsewhere[173]) that the actual outcome in the Myers case has been widely criticised and that legislative changes to allow for the admissibility of such business records have been enacted in virtually every common law State (in England, as the judges in Myers had actually invited, virtually immediately in the Criminal Evidence Act 1965). This has occurred even where (as in Ireland) it has been doubted whether the actual outcome in Myers would have been followed. For present purposes it is sufficient to note that the Myers case indicates that the best evidence rule is distinct from the hearsay rule, a point on which there is widespread agreement. The Commission also notes here that it has addressed the best evidence rule separately in the Commission’s Consultation Paper on Documentary and Electronic Evidence,[174] in which the Commission has provisionally recommended that the best evidence rule ought to be replaced as it applies to documentary and electronic evidence.

(2)                Relevance and exclusionary rules of evidence

2.58                        Relevance is a second, and perhaps even more significant, principle used to test admissibility in the law of evidence. Thus, the American writer Thayer stated:

“There is a principle not so much a rule of evidence as a proposition – involved in the very conception of a rational system of evidence… which forbids receiving anything irrelevant, not logically probative”.[175]

2.59                        It has also been said that relevant and reliable evidence must always be admissible irrespective of its origin, because the object of a trial is to ascertain the facts in issue and the evidence tendered assists in the ascertainment of the facts.[176] This general proposition must, however, be tempered because as Thayer also noted relevance is not an absolute concept and it must take account of general experience.[177]

2.60                        In addition, despite Thayer’s apparent assertion that the test for relevance can be based on ordinary everyday processes of inquiry, inference and fact-finding, most writers agree that the issue of relevance as it pertains to the question of admissibility is more complex than determining whether a particular piece of evidence should be admitted into the trial provided it is “relevant” in a general sense. Thus, a piece of evidence may be relevant but may not be admitted as evidence because it does not attain the minimum threshold of cogency which the law of evidence requires.[178] This is a question of law for a court (a judge or judges) and the decision is usually made both on determining whether the evidence is relevant and whether it is subject to any applicable exclusionary rule. Thus, if the evidence cannot be admitted because of an exclusionary rule, the issue of relevance is of little consequence as it will not satisfy the condition of legal admissibility.[179]

2.61                        In summary, in order to be admissible the evidence must be legally relevant and not be subject to an exclusionary rule. The American writer Wigmore argued that legal relevance as a legal concept extended beyond the ordinary meaning of logical common sense relevance. He proposed two hurdles for admissibility on the basis of relevance. First, the court must be satisfied that the evidence bears a logical relationship to an issue in the case and, secondly, that in light of the other evidence in the case, it justifies the time and cost of its reception. In other words, the evidence must have a probative value related to the facts at issue. The requirement that the probative value of the evidence must relate to an issue before the court is sometimes referred to as the requirement of “materiality”.

2.62                        In England, Zuckerman has argued that “materiality” is an unnecessary concept; whether or not a certain fact can affect a legal result is not a question of evidence but of interpreting the substantive law.[180] On the other hand, McEwan suggested that the concept of materiality does exist independent of the effect of the substantive law; it is a creature of the adversarial nature of judicial proceedings. He stated that “[o]bjective facts and operation of law are far from being the only influences on the conduct and outcome of trials; choices made by individuals have an important part to play too.”[181]

2.63                        A simple articulation of legal relevance may be that relevance denotes a fact which is so connected directly or indirectly with a fact in issue in a case that it tends to prove or disprove the fact in issue. In other words, a relevant fact is a fact from which the existence or non-existence of a fact in issue may be inferred. The English writer Keane has stated that if the only facts which were open to proof or disproof were facts in issue, many claims and defences would fail.[182] It is not easy in all cases to readily draw the line of legal relevance; for instance the logical relevance of the evidence must also be balanced against competing considerations affecting the efficiency and integrity of the judicial system, but confining the evidence to what is pertinent to the issue is of great importance, not only as regards the individual case but also with reference to the expediency of the trial and keeping the focus of the trial on the issues to be considered.

2.64                        Wigmore’s use of the term “legal relevance” has been used by judges in a number of States to filter out from cases superfluous information and in doing so promote accurate fact finding. Roberts and Zuckerman[183] have criticised it because the rejected evidence is then sometimes referred to simply as ‘irrelevant’, which is often an inaccurate description. They cite as an example the English case R v Blastland[184] where the defendant was charged with and convicted of the buggery and murder of a 12 year old boy. The defendant claimed that he had had consensual intercourse with the boy, and that the boy was unharmed when he left him. As to the murder charge, he wished to give evidence at his trial that the boy had been murdered by another named man, and also to testify that this other man had described to a woman that he was living with that ‘a young boy had been murdered’ before it was publicly known. At his trial, the judge ruled that this was inadmissible evidence, and this ruling was upheld by the UK House of Lords, where it was held that the exclusion was justified on the basis that it lacked ‘direct and immediate relevance.’ It has been argued that it is manifestly unjust to label this evidence as irrelevant (even if it was properly excluded[185]) as it does not lend itself to a transparent and principled discussion of what may be categorised as ‘relevant’. Instead it may be preferable to focus on examining the admissibility of evidence on a scale of its probative value. Thus, instead of continuing to retain a common sense, intuitive, approach to relevance it would be better to determine the issue of admissibility on the basis of whether it is ‘substantially probative’, that is, excluding evidence because its nuisance value outweighs its merit, rather than encapsulating all excluded evidence under the umbrella of irrelevance.

2.65                        In its assessment of relevance the South African Law Reform Commission stated that legal relevance requires that the probative value of the evidence outweigh any prejudice that may accrue as a result of its admission. Prejudice in this context does not refer to the possibility of a finding of fact being made against a particular party; it refers to unfair prejudice which includes not only procedural prejudice but also prejudice that arises out of the possibility of the fact finder being misled or unduly swayed by a particular item of evidence.[186]

(3)                Fair Procedures under the Constitution of Ireland and European Convention on Human Rights

2.66                        While the courts at one time may have been less concerned with the circumstances in which evidence was obtained,[187] the concept of a fair trial, and by extension that fair procedures are adhered to, form the cornerstone of the modern civil and criminal process. The concept of fairness has become central in relation to the power of a court to exclude evidence, but it remains a contentious and elusive notion and there have been sharp disagreements in a number of countries over what fairness requires and how much weight it should carry in answering questions of admissibility.[188] In Ireland the concept of fair procedures is viewed, when being applied to the law of evidence and rules of procedure, as representing an evolving value dependent on the development of the notion of fairness.[189]

(a)                Constitutional right to fair procedures and hearsay

2.67                        In Re Haughey[190] the Supreme Court held that the right to fair procedures is an unenumerated[191] constitutional right under Article 40.3.1º of the Constitution. Article 40.3.1º provides that:

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizens.”

2.68                   In the Haughey case the Supreme Court held that this right to fair procedures applies not only in judicial proceedings but also, as in the case itself, in the context of an Oireachtas (parliamentary) inquiry involving the applicant. The Supreme Court also held that where such an inquiry attempted to rely on evidence which might alter or affect an individual’s rights, he or she was entitled to have that evidence tested directly, including by the use of cross-examination. This constitutional concept of fair procedures builds on the well-established common law concept of “natural justice,” which requires that an adjudicative body, whether a court or other similar entity, must not be biased[192] and must allow both sides in a dispute an equal opportunity to present their side of the case.[193]

2.69                        The decision in Haughey involves three important elements in the context of this Consultation Paper. First, the right to confront or to cross-examination was specifically mentioned as a component of the right to fair procedures. Secondly, perhaps even more significantly, by deciding that the right to fair procedures was a constitutional right, the Court held that legislation which attempted to prevent the ability to confront, including the legislation involved in the case itself, could be constitutionally open to doubt. Thirdly, the decision in Haughey was not limited to civil or criminal court proceedings but specifically involved any adjudicative processes where a person’s rights are at issue. In subsequent cases, the Irish courts have addressed the precise manner in which the right to fair procedures impacts on the hearsay rule. The Commission discusses below four decisions of the Supreme Court that have a direct bearing on this, beginning with Kiely v Minister for Social Welfare (No.2)[194] and culminating most recently in Borges v Medical Council.[195]

2.70                        The key elements in the Haughey case were reinforced in Kiely v Minister for Social Welfare (No.2)[196] where the constitutional dimension to the hearsay rule was at issue. In this case, the plaintiff had applied to the Department of Social Welfare (now the Department of Social and Family Affairs) for a death benefit under the Social Welfare (Occupational Injuries) Act 1966.[197] At an oral hearing before a social welfare appeals officer, the appeals officer decided that the medical witnesses for the plaintiff were required to give evidence on oath and to submit themselves to cross-examination, while he received other medical evidence which came to an adverse conclusion on her claim in the form of a letter, and denied the plaintiff’s legal adviser an opportunity of cross-examining that medical evidence. The appeals officer dismissed the plaintiff’s claim on the grounds set out in the written opinion which had not been available for cross-examination. The Supreme Court held that the decision-making process was in breach of the right to fair procedures under Article 40.3 of the Constitution. In a passage that has been quoted many times since then,[198] Henchy J stated:[199]

“This Court has held, in cases such as In re Haughey [1971] IR 217, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or a fair result...

   Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content. Any lawyer of experience could readily recall cases where injustice would certainly have been done if a party or a witness who had committed his evidence to writing had been allowed to stay away from the hearing, and the opposing party had been confined to controverting him simply by adducing his own evidence. In such cases it would be cold comfort to the party who had been thus unjustly vanquished to be told that the tribunal’s conduct was beyond review because it had acted on logically probative evidence and had not stooped to the level of spinning a coin or consulting an astrologer.[200] Where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, therefore, effectively unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing. It is contrary to natural justice.”

2.71                   The decision in the Kiely case is of great significance to the analysis of the hearsay rule from a constitutional perspective. It clearly establishes that adjudicative procedures which involve an “oral v written” imbalance in terms of how evidence is assessed are not constitutionally permissible. It also establishes that oral hearings must involve both parties having an opportunity to confront and cross-examine each other’s evidence, or at the least not to involve an imbalance where one side, but not the other, is given this opportunity. Nonetheless, Henchy J also points out in the Kiely case that adjudicative bodies such as social welfare appeals officers are permitted “to act on hearsay... but... not... in such a way as to imperil a fair hearing or a fair result.” In that respect, it can be said that Henchy J acknowledges that the use of hearsay does not, in itself, imperil a fair hearing: the objection to its use in the Kiely case was the imbalanced manner of its use.

2.72                   The next decision of the Supreme Court of importance in this context is Murphy v GM.[201] In this case, the Supreme Court upheld the constitutionality of the provisions of the Proceeds of Crime Act 1996 which provide for the forfeiture of the proceeds of crime on foot of court orders made by the High Court after applications to the court by the Criminal Assets Bureau.[202] In finding the 1996 Act constitutionally valid, the Supreme Court accepted that the procedures involved in the 1996 Act were civil in nature, not criminal. The Court stated:[203]  

“It is almost beyond argument that, if the procedures under... the 1996 Act constituted in substance, albeit not in form, the trial of persons on criminal charges, they would be invalid having regard to the provisions of the Constitution. The virtual absence of the presumption of innocence, the provision that the standard of proof is to be on the balance of probabilities and the admissibility of hearsay evidence taken together are inconsistent with the requirement in Article 38.1 of the Constitution that “no person shall be tried on any criminal charge save in due course of law.”

2.73                        As in the Kiely case, while this passage does not state that the admissibility of hearsay evidence would, on its own, render a criminal trial unconstitutional, it provides a clear warning that any significant change to the hearsay rule in criminal cases would raise at least a yellow flag in constitutional terms. Indeed, other case law demonstrates that the right to fair procedures under Article 40.3, which has also been referred to as “constitutional justice” is of high importance in the criminal trial process. As Walsh notes[204] this is clearly reflected in the judgment of O’Higgins CJ in the Supreme Court decision The State (Healy) v Donoghue[205] where he stated that the concept of justice derived under the Constitution “must import not only fairness and fair procedures, but also [have] regard to the dignity of the individual”.[206]

2.74                        The fundamental concepts of justice as set out by O’Higgins CJ in Healy confirm that rules and procedures will not avoid constitutional challenge simply because they are authorised by a statutory enactment or by a common law rule.[207] In Goodman International v Hamilton (No.1)[208] the applicant, who had been called as a witness by a tribunal of inquiry having the powers conferred by the Tribunals of Inquiry (Evidence) Act 1921 (as amended), argued that the tribunal could not investigate allegations of criminal conduct. He argued that, to do so, would infringe the guarantee of fair procedures under Article 40.3, would involve the tribunal carrying out the “administration of justice” (which only courts may do under Article 34.1), and would amount to conducting a criminal trial, contrary to Article 38. Each of these grounds were, in fact, rejected by the Supreme Court, which held that the functions of a tribunal under the 1921 Act were, essentially, ones of “fact finding” and could not, therefore, be regarded as constituting the “administration of justice” under Article 34 or conducting a criminal trial under Article 38.[209] 

2.75                        The applicant had also argued that all the rules of evidence which apply to court proceedings should apply to the proceedings of a tribunal under the 1921 Act.[210] In the High Court, Costello J stated that there was no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable in a court of law. He added:[211]

“The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures and should, for example, a question arises as to the receipt of hearsay evidence, the Tribunal might be required to hear persons affected on the point.”

2.76                        On appeal, the Supreme Court held that, while a tribunal of inquiry was not required to apply all the rules of evidence, it recognised that the constitutional right to fair procedures required adherence to many of the rules of evidence, including the right to confront and cross-examination. As with the previous Supreme Court decisions discussed above, it is clear that the Goodman case placed a special premium on the hearsay rule, though without suggesting that it must be applied with the same rigour as might be required in court proceedings (Costello J noting that “the Tribunal might be required to hear persons affected” where hearsay was being received in evidence).

2.77                        The final Supreme Court decision to which the Commission draws attention is Borges v Medical Council.[212] In this case, the applicant applied to the High Court for judicial review of the manner in which an inquiry into his fitness to practise as a medical practitioner was being conducted by the Fitness to Practice Committee of the Medical Council. The applicant had been served by the Registrar of the Medical Council with a notice of intention to hold an inquiry under the Medical Practitioners Act 1978 (since replaced by the Medical Practitioners Act 2007) in relation to allegations made by two complainants, whom it had initially been intended would be called as witnesses. The complainants, who were both Scottish women, had previously made allegations to the UK General Medical Council of professional misconduct against the applicant concerning his work as a doctor in Scotland. These allegations had been investigated by the Professional Conduct Committee of the UK General Medical Council in an oral hearing in which the applicant had challenged the two women’s evidence and had argued that he had at all times behaved in a professional manner. The Professional Conduct Committee of the UK General Medical Council had concluded that the allegations were true and had constituted professional misconduct under the relevant legislation in the UK. On appeal by the applicant to the UK Judicial Committee of the Privy Council, this decision had been upheld.[213]

2.78                        Before the hearing began in Ireland against the applicant under the 1978 Act, the Registrar of the Medical Council applied to the Fitness to Practice Committee of the Medical Council to allow the hearing proceed without calling the complainants as witnesses. Instead, the Registrar proposed to introduce in evidence a transcript of the proceedings before the Professional Conduct Committee of the UK General Medical Council, the report of the decision of the Professional Conduct Committee and the judgment on appeal of the UK Judicial Committee of the Privy Council upholding the committee's findings of professional misconduct. This appears to have been because the two women were not compellable witnesses and may have been unwilling to travel from Scotland to testify. The Fitness to Practice Committee had decided to proceed with the inquiry under the 1978 Act on that basis, and at that stage the applicant applied for judicial review to prevent the hearing going ahead on the basis proposed by the Registrar. The High Court and, on appeal, the Supreme Court accepted the arguments made by him and made orders prohibiting the hearing if it proceeded on the basis proposed by the Registrar.

2.79                        The Fitness to Practice Committee had argued that it was not in the same position as a court and was entitled to admit evidence which might otherwise be excluded under the hearsay rule. It also argued that the evidence of the complainants, although given before another tribunal, was properly admissible under the inclusionary exceptions to the hearsay rule, in particular the exceptions that had been developed in recent case law in other jurisdictions, notably by the Supreme Court of Canada.[214] It was argued that these cases demonstrated that hearsay evidence of the kind involved in the present case was admissible provided it met two requirements of “necessity” and “reliability.” In the present case, it was argued that both requirements had been met; the reliability requirement being satisfied because the statements had been made in circumstances which provided sufficient guarantees of their trustworthiness; and that the High Court judge who had dealt with the case had erred in not considering whether they should be admitted by invoking the test of necessity, it being clear that the Medical Council could not compel the attendance of the witnesses concerned.[215]

2.80                        In response, the applicant argued that the Canadian cases relied on by the Medical Council were not applicable because those cases had involved witnesses who were unavailable to give evidence because they were dead or otherwise unable to give evidence because of limited mental capacity. They could not be relied on in a case such as the present where the witnesses were simply unwilling to give evidence. In addition, this, unlike some of the authorities relied on, was not a case in which there was any evidence other than that of the complainants. To permit the Fitness to Practice Committee to proceed in those circumstances on the basis of the transcripts would have the result not merely of admitting hearsay evidence in circumstances which came within none of the established exceptions but of negating the constitutional right of the applicant to cross-examine his accusers.[216]

2.81                        Delivering the main judgment in the Supreme Court, Keane CJ stated that it was not in dispute that the applicant had an entitlement to have the hearing conducted in accordance with fair procedures and natural justice. He noted that since the decision in Kiely v Minister for Social Welfare (No.2)[217] it was clear that (as Henchy J emphasised in his judgment in Kiely, quoted above) while inquiries of this nature are not subject to the same rigours of following the rules of evidence as a court is, in that they may act on the basis of unsworn or hearsay evidence, nonetheless they are constrained from acting in a way which is inconsistent with the basic fairness of procedures guaranteed by Article 40.3 of the Constitution.[218] Keane CJ also stated that basic fairness of procedures required that the applicant be given an opportunity to cross-examine his accusers in a situation where an allegation of conduct reflects on his good name or reputation.[219] Keane CJ referred to the English cases General Medical Council v Spackman[220] and Re a solicitor[221] where it had been held that the finding of another court or tribunal could be admitted in evidence and given such weight as the relevant disciplinary tribunal thought appropriate. Keane CJ noted, however, that these decisions had involved the admissibility of those findings in the context of the rules of evidence concerning the admissibility of public documents; but the issue of whether their admission as hearsay evidence would offend the principles of fairness stemming from natural justice had not been considered in those cases.[222] In the particular circumstances of the present case, Keane CJ stated:[223]

“It is sufficient to say that the applicant cannot be deprived of his right to fair procedures, which necessitate the giving of evidence by his accusers and their being cross-examined, by the extension of the exceptions to the rule against hearsay to a case in which they are unwilling to testify in person”.

2.82                        Although Keane CJ concluded that the process proposed in the Borges case failed to comply with principles of fair procedures, he also clearly accepted that no rigid rule on the use of hearsay was being set down. He stated:[224]

“Insofar as [the Medical Council’s] submission proceeds on the basis that the principle laid down in In re Haughey does not, in every case, preclude a court or tribunal from admitting an out of court statement notwithstanding the rule against hearsay, because the maker of the statement is not available for cross-examination, it is undoubtedly correct. To hold otherwise would be to ignore the enormous body of jurisprudence which has been built up in many common law jurisdictions in order to ensure that the rule against hearsay is not so rigidly applied in every case as to result in injustice.”

2.83                   In this respect, the Borges case is consistent with the approach taken in all the Supreme Court decisions since In re Haughey, including those discussed above, that hearsay evidence may be used by adjudicative bodies, provided that its use does not involve breaching fundamental principles of fair procedures. It is also clear that the courts see the hearsay rule as an important rule of evidence, but as Keane CJ also noted in Borges the law must avoid it being used in a rigid manner because that could also “result in injustice.” To that extent, the decision in Borges implicitly supports the need for some inclusionary exceptions to the hearsay rule. Indeed, Keane CJ discussed the admittedly more expansive approach shown in the case law of the Supreme Court of Canada and, while not prepared to develop the inclusionary exceptions to the level done in Canada, he accepted that inclusionary exceptions to the hearsay rule were consistent with the right to fair procedures. The Commission also notes that Keane CJ’s reluctance to engage in wide-ranging judicial development of the hearsay rule echoes the view expressed by the Court of Criminal Appeal in The People (DPP) v Marley[225] (whose judgment had been delivered by Keane J) indicating that legislative reform of the rule was preferable to judicial reform. In summary, therefore, the Commission concludes that Keane CJ contemplated some inclusionary exceptions to the hearsay rule, though not necessarily the increasing number envisaged by the Supreme Court of Canada.

(b)               Fair procedures and the right to confront in criminal trials

2.84                        The right to fair procedures in Article 40.3 of the Constitution interacts in the context of criminal trials with the requirement under Article 38.1 of the Constitution that criminal trials must be conducted “in due course of law.” This phrase has been compared with the “due process” requirement under the federal United States Constitution. A well-established component of a criminal trial is the right of the accused to cross-examine witnesses, also referred to as the right of confrontation. This right was specifically included as the Sixth Amendment to the US Constitution.[226] The United States Supreme Court has not interpreted the right of confrontation as a constitutional entrenchment of the common law hearsay rule, and so there is no blanket prohibition in US law on the use of hearsay evidence against an accused.[227] Rather, it has interpreted it as a right to cross-examine a witness against the accused in open court.[228] Unless the accused or his or her legal representatives have the opportunity to cross-examine the maker of a statement that is tendered at trial in substitution for oral evidence, the evidence is inadmissible.[229] In Crawford v Washington[230] Scalia J, writing the majority judgment of the US Supreme Court, stated that admitting statements deemed reliable by a judge is fundamentally at odds with the right to confrontation. He added that the ultimate goal of the Sixth Amendment is to ensure the reliability of evidence but this is a procedural rather than a substantive guarantee. It requires not that the court determine that the evidence is reliable, rather that its reliability be assessed by testing it in the crucible of cross-examination. In Crawford the Court held that a hearsay statement cannot be admitted unless, firstly, the accused has been given an opportunity to confront the witness at some stage, even if not at trial (for example at a preliminary hearing); and, secondly it must be shown that the witness is unavailable to give evidence at trial.

2.85                        In Ireland, in Re Haughey,[231] which, as already noted, involved an Oireachtas (parliamentary) inquiry, the Supreme Court referred to the importance of cross-examination in the context of the right to fair procedures in Article 40.3 of the Constitution. The Court noted that the evidence in this context had been given on affidavit, instead of orally as would be common in a criminal trial, and that the applicant had therefore been denied an opportunity to cross-examine the witnesses who had given evidence. Ó Dálaigh CJ stated that an accused person has a right to cross-examine every witness for the prosecution, subject, in respect of any question asked, to the court's power to disallow on the ground of irrelevancy.

2.86                        The Supreme Court also held that an accused, in advance of cross-examination, cannot be required to state the purpose of cross-examination.[232] In The State (Healy) v Donoghue[233] the Supreme Court confirmed that the right to cross-examination is integral to the criminal trial process, as it is accorded protection under Article 38 of the Constitution. O’Higgins CJ stated that it is clear that the words “due course of law” in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with the concept of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself. He added that, if this were not so, the State would have failed to vindicate the personal rights of the accused. He acknowledged that a person charged must be accorded certain rights which include the right to “test by examination the evidence offered by or on behalf of his accuser”.[234]

2.87                        In Donnelly v Ireland[235] the Supreme Court held that the right of the accused to cross-examine (or confront) did not in all circumstances extend to a right to physical confrontation with an accuser and, consequently, there was no such constitutional right. The Court decided that the circumstances in which physical confrontation was denied to an accused was a matter for the Oireachtas and did not require case-by-case determination. In Donnelly the applicant had been convicted on a charge of a sexual offence involving a young girl, who had given evidence using a live video-link, as permitted by the Criminal Evidence Act 1992. The applicant argued that these provisions of the 1992 Act were unconstitutional on the ground that they infringed his right to have his counsel cross-examine or confront the complainant in the presence of the jury. The Court dismissed the claim, holding that the 1992 Act sufficiently protected and vindicated the right to a fair trial and that the judge and jury had the opportunity to scrutinise the witness while she was under cross-examination.

(c)                The forensic value of cross-examination

2.88                        Cross-examination may have been hailed as the “greatest legal engine ever invented for the discovery of truth”[236] but there are those that are sceptical of the value of cross-examination as a legal engine for uncovering the truth. The Commission has already noted that many leading judges have doubted whether they are sufficiently “lynx-eyed” to distinguish at all times between witnesses who tell the truth and those who do not.[237] Similarly, the Australian Law Reform Commission (ALRC) in its Research Paper Manner of Giving Evidence[238] concluded that cross-examination is arguably the poorest of the techniques employed for this purpose. The ALRC stated that it might be noted in support of cross-examination that, by revealing inconsistencies and highlighting errors, it could assist in identifying dishonest witnesses. It suggested that this may not be the case; the witness may be an honest one and is making inaccurate statements in response to suggestive leading questions, the stress of the courtroom scenario or many other reasons. The ALRC therefore concluded that the mere technique of cross examination does not assist in identifying which of the evidence is false.[239]  The ALRC also noted that the New South Wales Law Reform Commission has taken issue with Wigmore’s assessment. It has said that it is ill-suited for certain types of witnesses,[240] there is a risk of distortion and the ALRC stated that the research it had conducted indicated some serious doubts on the use of cross-examination as a mechanism for the discovery of the truth.[241] It argued that cross-examination is of little utility in cases where the evidence comprises, for example, computer or automated documents or where the person who generated the records cannot be identified.[242] Thus, as these cases indicate that cross-examination may not materially affect truth-discovery, the absence of cross-examination as an underlying reason for excluding hearsay may not have great strength in such situations.

2.89                        Research conducted from a behavioural science perspective has also suggested that cross-examination is a defective technique for discovering the truth about past events.[243] There are a number of factors which are said to be questionable about the effectiveness of examination-in-chief followed by cross-examination: the danger in the delay of giving the account; the artificial manner of giving evidence rather than an open-ended narrative form and the unfamiliarity of the court process, which may heighten stress for some witnesses.

2.90                        The argument advanced that cross-examination is the best method to test the veracity of evidence is arguably not as significant today as it was at a time when the modern jury trial was in its infancy, where the role of the juror and the witness was conflated and needed to be separated. Today, especially in civil proceedings, the vast majority of cases are conducted without a jury and a more literate and technologically advanced society provides, and depends on, more reliable methods of keeping track of what has happened than can possibly be provided by the unassisted recollection of witnesses, even if their account of events is exposed to the rigour of cross-examination.[244] There are undoubtedly some cases in which cross-examination provides a means of arriving at a sound evidential basis for establishing proof in a specific setting. The Commission acknowledges, however, that cross-examination has its limits and that, in this respect, the absence of the ability to cross-examine a witness cannot in all cases justify the exclusion of all hearsay – if this was the case, there would, of course, be no exceptions to the exclusionary hearsay rule.

2.91                        In conclusion, bearing in mind these comments and reservations, it is sufficient that the Commission notes that the right to cross-examine is one of the foundations for the hearsay rule and that the right of confrontation forms an important component of the criminal trial under the Irish Constitution and at common law.

2.92                        Before drawing together its overall conclusions on the relationship between the right to fair procedures and the hearsay rule, the Commission turns to discuss the case law developed by the European Court of Human Rights under the European Convention in Human Rights on the issue of fair procedures.

(d)               Fair procedures and the European Convention on Human Rights

2.93                        Ireland was one of the first States to ratify the 1950 European Convention on Human Rights. The European Convention on Human Rights Act 2003, enacted in the wake of the 1998 Belfast (Good Friday) Agreements, gave the rights in the Convention the force of law in the State, subject to the Constitution. Under section 3 of the 2003 Act all organs of the State, including the courts, are required to carry out their functions in a manner compatible with the State’s obligations under the Convention and with due regard for the decisions of the European Court of Human Rights on the interpretation of the Convention.

2.94                        In terms of the connection between the Convention and the law of evidence, the European Court of Human Rights has emphasised that the admissibility of evidence is primarily a matter for regulation by national law and that, as a general rule, it is for the national court to assess the evidence before it. The European Court of Human Rights has repeatedly rejected complaints alleging errors in the assessment of evidence by national courts. Such questions fall outside the competence of the Court unless the matter amounts to a violation of the rights in the Convention. Thus, the treatment by the European Court of Human Rights of the principles of fair procedures under the Convention is limited and, in line with its general approach to reviewing national laws, allows each State a “margin of appreciation” in deciding whether there is a breach of the Convention. The Court has stated, for example, that its task under the Convention is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.[245] 

2.95                        The Convention and the European Court of Human Rights cannot regulate the operation of the rules of evidence in a member State nor does the Convention directly affect the content of the evidence law of a State. The Convention does however, guarantee the right to a fair trial, thus providing a context within which the rules of evidence must be made and operate within. 

2.96                        Article 6(1) of the European Convention on Human Rights, which deals with both civil and criminal proceedings, states:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

2.97                        Article 6(3)(d), which deals with the right to confront in criminal cases only, provides:

(3) Everyone charged with a criminal offence has the following minimum rights… (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

2.98                        The European Court of Human Rights has held that it is a requirement of justice that the accused in a criminal trial is entitled to face his or her opponents and that the right to confrontation should be recognised as a basic principle of the law of evidence. Thus, in Van Mechelen v Netherlands[246] the Court stated:

“[A]ll the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3(d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage”.  

2.99                        The English writer Murphy notes that the words to examine or have examined witnesses against him draws attention to two dangers associated with hearsay: first, that the repetition of any statement involves the inherent danger of error or distortion and, second, that it is virtually impossible to cross-examine a witness who is testifying about a hearsay statement where he or she did not perceive the events in question.[247] Murphy adds that, for the most part, the hearsay rule applies both to evidence tendered by the prosecution and the defence but that Article 6(3)(d) requires that the admission of hearsay against the accused be scrutinised with a view to ensuring the overall fairness of the trial.[248] Osbourne argues that, at first sight, Article 6(3)(d) appears to impose a strict rule against the use of hearsay evidence by the prosecution[249] but that the relevant case law the European Court of Human Rights has tended to take the view that the key issue is not the admissibility of hearsay but whether the accused had an opportunity to avail of the right to examine the witnesses at some point during proceedings. This appears to be comparable to the approach taken by the US Supreme Court in respect of the US Constitution’s Sixth Amendment right to confrontation.[250]

2.100                    Unterpertinger v Austria[251] concerned hearsay statements admitted at the applicant’s trial. He had been charged with actual bodily harm to his wife and stepdaughter. A report prepared by the Austrian police included statements by the accused, the two complainants and a doctor. Under the Austrian Code of Criminal Procedure members of an accused’s family are not compellable witnesses; his wife had attended a preliminary investigation and had given evidence of the assaults to the judge but, at the trial both complainants had refused to testify. The Austrian court then allowed the record of the wife’s statement to be read out and the investigation file was also read to the court.[252] The accused was convicted, his appeal dismissed and he claimed that the acceptance of written evidence of the interviews infringed Articles 6(1) and 6(3)(d), contending that his inability to have the alleged victims cross-examined was a breach of the Convention. The European Court of Human Rights held that, while there were other documents which the national court had before it to assist it to arrive at the truth, including the accused’s criminal records and his own testimony, the conviction appeared to have been substantially based on the statements of the alleged victims and this constituted a breach of Article 6.  The Court added that the reading of statements where it was not possible to examine the witness cannot be regarded as inconsistent with Article 6(1) and (3)(d) of the Convention, but that the use made of them must comply with the rights of the defence, which Article 6 is intended to protect.[253]  The Court went on to say that this is especially so where the person ‘charged with a criminal offence’ who has a right under article 6(3)(d) ‘to examine or have examined witnesses’ against him has not had an opportunity at an earlier stage in the proceedings to question the persons whose statements are read out at the hearing.

2.101                    In Kostovski v Netherlands[254] the accused was convicted of armed robbery. The conviction was based to a decisive degree on the reports of statements by two anonymous witnesses interviewed by the police in the absence of the accused or his legal advisors, and in one case by an examining magistrate at an earlier stage. The Court stressed that it was not its task to express a view on whether statements were correctly admitted and assessed by the trial court but to ascertain whether the proceedings as a whole including the way in which evidence was taken were fair. It held that in principle all the evidence had to be produced in the presence of the accused at a public hearing with a view to cross-examination, although statements obtained at a pre-trial stage could be used as evidence, “provided the rights of the defence were respected.”  As a rule, those rights would require that the accused have at some stage a proper opportunity to challenge and question a witness against him. That opportunity had not been provided to the applicant.

2.102                    In Windisch v Austria[255] the accused was convicted of aggravated burglary on the basis of the evidence of two witnesses who were permitted to maintain their anonymity. The trial court found the absent witnesses to be reliable and convicted the accused. The European Court of Human Rights held that, despite the legitimate interests in preserving anonymity of police informers and notwithstanding that the collaboration of the public with the police is of great importance, the subsequent use of their statements in a trial is quite a different matter from the use of anonymous information at the investigation stage. There was a breach of Article 6(3)(d) as the fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed.

2.103                    The principle of the right of the defence to cross-examine the witnesses against it was reiterated in Luca v Italy[256] where the Court stated:

“If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene article 6.1 and 3 (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6          .”

2.104                    It is evident from the case law of the European Court of Human Rights that the Convention does not completely prohibit the admission of hearsay as evidence. Indeed the signatories to the Convention have disparate legal systems and, in some, legislation provides expressly for the use of hearsay evidence. Nonetheless, the European Court of Human Rights has emphasised that hearsay evidence should be regarded as inferior to evidence given by a witness who can be examined and cross-examined in the course of the proceedings. The Court has indicated that hearsay evidence should only be admitted where there is no alternative, so that the accused can receive a fair trial. In summary, it appears that the admissibility of hearsay evidence does not offend the spirit of the European Convention on Human Rights provided that the manner in which the evidence is received by the court is compatible with the requirements of a fair trial under Article 6. In considering what is a fair trial the Court applies a variety of concepts, including proportionality, equality of arms and the margin of appreciation.[257] It would not be correct to conclude that the use of hearsay evidence adduced by the prosecution will in every circumstance be a breach of Article 6(3)(d). Thus, in Asch v Austria[258] the Court held that normally all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial cross-examination, but that this might take place at a pre-trial stage. It concluded that since the applicant had had the opportunity to comment on the complainant’s version of events and to put forward his own version and call his own evidence, and the hearsay statements were not the only items of evidence, there had been no breach of Article 6.[259]

(e)                Al-Khawaja and Horncastle cases

2.105                    The interaction between the use of hearsay and Article 6 came into sharp relief in two recent UK-based decisions, Al-Khawaja and Tahery v United Kingdom[260] and R v Horncastle and Others.[261]

2.106                    In Al-Khawaja and Tahery v United Kingdom[262] both defendants had been convicted on a single piece of hearsay. The first applicant, a consultant physician was charged on 2 counts of indecent assault on 2 female patients. One of the complainants had made a statement to the police after the alleged assault but she had died by the time of the trial. A preliminary hearing determined that her statement was admissible evidence and the applicant was convicted on the contents of this statement. The evidence was admitted under an exception to the hearsay rule in the Criminal Justice Act 1988[263] which provides for the admission of first hand documentary hearsay in a criminal trial.  The second applicant was convicted of a stabbing on the statement of a single witness. At the trial the prosecution made an application for leave to read this witness’s statement to the Court pursuant to the Criminal Justice Act 2003[264] on the grounds that the witness was too fearful to attend the trial before the jury and should be given special measures. The trial judge heard evidence regarding the witness’s fear and ruled that the statement should be read to the jury. The trial judge held that there would be unfairness if the statement was excluded and he was equally satisfied that there would be no unfairness caused by its admission. He also remarked that the challenge of a statement does not always come from cross-examination but can be caused by rebuttal.

2.107                    It has been noted that the reforms to the hearsay rule contained in the 1988 and 2003 Acts work on the premise that if hearsay evidence is admissible it has the same potential weight as oral evidence and it is open to the court to convict on it, even if it stands alone.[265] The defendants had appealed their convictions to the English Court of Appeal on the ground that the statements breached articles 6(1) and (3)(d) of the Convention. The Court of Appeal dismissed the appeal, holding that while evidence must normally be produced at a public hearing and as a general rule articles 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses, it also concluded that it was not incompatible with articles 6(1) and 3(d) for depositions to be read and this can be the case even where there has been no opportunity to question the witnesses at any stage of the proceedings.[266]

2.108                    Both defendants applied for relief in the European Court of Human Rights. That Court criticised the United Kingdom for failing to respect the rights of both defendants under article 6(3)(d) primarily because the “sole or decisive” evidence against them had been statements from witnesses whom the defendants had not been able to challenge by putting questions to them. The argument of the United Kingdom was that the right conferred by article 6(3)(d) is instrumental, that is, that it exists to ensure that the defendants are not convicted on evidence that is unreliable and there may be in place other safeguards to secure the reliability of the evidence. The European Court of Human Rights held, however, that the right is absolute and cannot be fulfilled by other measures. It noted that an exception to this applied in cases where the defendant is responsible for the witnesses’ non-attendance at trial.[267]

2.109                    The complexity of the relationship between the Convention and national law is illustrated by the fact that, at the time of writing (March 2010), the decision of the Court in the Al-Khawaja case has been appealed by the UK Government to the Grand Chamber of the Court. Indeed, the Grand Chamber deferred a hearing in the Al-Khawaja appeal pending the decision of the UK Supreme Court (which, since 2009, has replaced the UK House of Lords as the UK’s final court of appeal) in a similar case, R v Horncastle and Others.[268]

2.110               In the Horncastle case, each of the defendants had been convicted on indictment of a serious criminal offence and their appeals had been dismissed by the Court of Appeal. On further appeal to the UK Supreme Court, they argued that they had not received a fair trial, contrary to article 6 of the European Convention on Human Rights. This was based on the argument that their convictions were based primarily on the statement of a witness who was not called to give evidence. In each case the witness was the victim of the alleged offence. Two of the defendants had been convicted of causing grievous bodily harm, with intent, to a Mr Rice. Mr Rice made a witness statement to the police about what had happened to him but had died before the trial (of causes not attributable to the injuries that had been inflicted upon him). His statement was read at the trial and, although there was other evidence that supported it, the Court of Appeal concluded that the statement was “to a decisive degree” the basis upon which these two defendants were convicted. The two other defendants in the Horncastle case had been convicted of kidnapping a young woman called Miles. She had made a witness statement to the police in which she described what happened to her. The day before the appellants’ trial she ran away because she was too frightened to give evidence. Her statement was read to the jury. A considerable body of oral evidence was also given at the trial of these two defendants. The Court of Appeal held that the convictions of these two defendants did not rest on the evidence of Miles “to a decisive extent”.

2.111               Mr Rice’s witness statement was admitted pursuant to section 116(1) and (2)(a) of the UK Criminal Justice Act 2003, which makes admissible, subject to conditions, the statement of a witness who cannot give evidence because he has died. Miss Miles’ witness statement was admitted pursuant to section 116(1) and (2)(e) of the 2003 Act, which makes admissible, subject to conditions, the statement of a witness who is unavailable to give evidence because of fear.

2.112               As Lord Phillips noted in giving the judgment of the UK Supreme Court in the Horncastle case, the 2003 Act had been enacted on foot of recommendations made by the English Law Commission in its 1997 Report on the Hearsay Rule, which had followed lengthy consultation on the matter. He also noted that the 2001 Auld Review of the Criminal Courts in England and Wales had considered that the Law Commission’s 1997 Report had been too cautious and that more far-reaching reform of the hearsay rule should be enacted, but that the 2003 Act had, in effect, followed the Law Commission’s approach to reform. Lord Phillips also pointed out that the 2003 Act had been in force for a number of years and that it was clear from cases on the 2003 Act such as R v Y[269] “that the admissibility of hearsay evidence is being cautiously approached by the courts.”

2.113               Having reviewed at length the case law of the European Court of Human Rights on Article 6(3)(d), Lord Phillips appeared to suggest that much of it was compatible with the common law accusatorial approach to criminal trials but that the decision in the Al-Khawaja case may have failed to appreciate the nuances of the distinctions between civil law and common law trial processes. Using quite diplomatic language, Lord Phillips – and the UK Supreme Court – in effect concluded in the Horncastle case that, in such circumstances, the provisions in domestic UK law, the 2003 Act, were to be preferred to the test set out by the European Court of Human Rights in the Al-Khawaja case. He stated:[270]

“In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. In so concluding I have taken careful account of the [European Court of Human Rights] jurisprudence. I hope that in due course the [European Court of Human Rights] may also take account of the reasons that have led me not to apply the sole or decisive test in this case.”

2.114                    This passage from the judgment in the Horncastle case indicates the sensitivities in the interaction between UK law and the Convention. As is the position under the European Convention on Human Rights Act 2003 the UK Human Rights Act 1998 requires the UK courts to “have regard” to the case law of the European Court of Human Rights. While the UK courts – like the Irish courts – are not bound by the decisions of the European Court of Human Rights, the judgment in Horncastle clearly indicates that the UK courts would prefer to avoid direct conflict with the European Court of Human Rights; hence Lord Phillips expressed the hope that the lengthy analysis made by the UK Supreme Court of the distinct procedural differences between the common law accusatorial criminal trial process and the inquisitorial process would be given some weight when the Grand Chamber dealt with the Al-Khawaja case.

2.115                    At the time of writing this Consultation Paper (March 2010), the Grand Chamber decision in the Al-Khawaja case is still pending. It is therefore difficult for the Commission to make a definitive conclusion on the interaction between the hearsay rule and Article 6 of the Convention. Nonetheless, it can be said that, in general terms, the case law of the European Court of Human Rights appears to take the position that there is no objection in principle to the admission of hearsay evidence provided that the right of the defence to examine the witnesses against it is safeguarded. This appears consistent with the case law of the Irish courts in connection with the right to fair procedures under Article 40.3 and with the, arguably more stringent, approach taken to the right to confront and cross-examine in the light of the right to a criminal trial in due course of law under Article 38 of the Constitution. The European Court of Human Rights has also suggested that the opportunity for cross-examination at a pre-trial stage may meet the requirements of Article 6 of the Convention. While this may appear to provide a procedural solution in the context of an inquisitorial model of criminal trial, the Commission has previously recommended that pre-trial procedural reforms, using case management principles, can be used in the context of our accusatorial criminal trial process.[271] To that extent (subject to possible reservations concerning the ultimate outcome in the Al-Khawaja case), the case law of the European Court of Human Rights appears broadly in line with the approach taken in Irish law.

(4)                Conclusions and provisional recommendations on the right to fair procedures and the hearsay rule

2.116                    Having reviewed the case law on the right to fair procedures under the Constitution of Ireland and the European Convention on Human Rights, the Commission turns to set out its conclusions and provisional recommendations on this.

2.117                    It appears clear that the Constitution, in particular the right to fair procedures as identified in the Haughey case and subsequent decisions, does not require that hearsay evidence must, as a matter of constitutional law, always be ruled inadmissible. While the courts have not yet made a definitive ruling on this matter, subsequent decisions, such as Borges v Medical Council[272] have made clear that, where witnesses are available to testify, even where they are not compellable by the adjudicative body, the use of hearsay evidence is unlikely to be allowed. To that extent, it appears that the Constitution of Ireland clearly places limits on any reform which would involve a move towards, for example, a completely inclusionary approach to hearsay. For the Commission, this is not of particular concern because it would be imprudent to suggest such a course, bearing in mind that this could involve third-hand or fourth-hand hearsay, which would then involve decision-making by gossip.

2.118                    The more difficult question for the Commission is whether a nuanced approach, involving for example the retention of existing inclusionary exceptions to the hearsay rule in criminal proceedings combined with a generally inclusionary approach in civil proceedings – a model of reform to be found in many other States – could withstand constitutional challenge. The Commission is not, of course, a definitive arbiter of constitutionality, but has some grounds for the view at which it has arrived that such an approach would not be in breach of the Constitution.

2.119                    There are two reasons for this. First, Article 40.3.1º of the Constitution is not written in absolute terms: the State guarantees to protect the personal rights of the citizen “as far as practicable.” This has been interpreted as placing a limit on the extent to which the State is required to protect the rights in question.[273] Secondly, in Murphy v GM[274] the Supreme Court indicated – in the context of a challenge to the constitutionality of legislation providing for the confiscation of the proceeds of crime which it characterised as involving civil proceedings – that the admissibility of hearsay evidence in civil proceedings was (in general) permissible, and also implying that stricter limits on its use in criminal proceedings should be expected. Thirdly, in a number of Irish cases which the Commission discusses elsewhere in this Consultation Paper, the courts have drawn attention to the need for specific reform of the hearsay rule, for example, to provide for a business records inclusionary rule along the lines of the provisions contained in the long-standing Bankers’ Books Evidence Act 1879.[275] It would be surprising if these suggestions for reform of the hearsay rule in an inclusionary direction, made by senior members of the Irish judiciary with wide experience in constitutional litigation, would have been made if the Constitution prohibited such reforms. Of course, the Commission accepts that “a point not argued is a point not decided”[276] and that these judicial suggestions for reform can in no way be seen as definitive. Nonetheless, combined with the other decisions already discussed, the Commission has concluded that the Constitution would not appear to present an insuperable obstacle to suggestions for reform in the direction of an inclusionary approach to hearsay, at least in the context of civil litigation. The Commission acknowledges that, in connection with criminal trials, it is preferable to proceed with caution in terms of hearsay, particularly having regard to the importance attached to the right to cross-examination. The Commission’s main conclusions and recommendations on this are set out below.

2.120                    The Commission provisionally recommends that, as a general principle, the giving of direct evidence that is capable of being tested by cross-examination should be preferred over hearsay.

2.121                    The Commission considers that the right to fair procedures under the Constitution of Ireland does not prohibit the admissibility of hearsay in all cases and does not, therefore, prevent reform of the hearsay rule towards an inclusionary approach in civil cases.

2.122                    The Commission acknowledges that the right to cross-examination in criminal trials under the Constitution of Ireland may place particular restrictions on reform of the hearsay rule towards an inclusionary approach in criminal cases.

 

 

3            

CHAPTER 3            the INCLUSIONARY Exceptions To The Hearsay Rule

A                  Introduction

3.01                        In this Chapter the Commission examines the development of the inclusionary exceptions to the hearsay rule. In Part B, the Commission discusses the emergence of the common law inclusionary exceptions to the hearsay rule, and some criticisms about the absence of any underlying basis for them. The number and scope of these common law exceptions is unclear and it has been said that some were created without full consideration of their implications. In Part C, the Commission examines six inclusionary exceptions to the hearsay rule, most of which were developed judicially in court decisions. In Part D, the Commission discusses whether, assuming further statutory reform of the rule, there should be a continued role for judicial development of the rule, in particular the inclusionary exceptions. In some States, judicial decisions have expanded existing inclusionary exceptions and even the creation of entirely new ones. Irish courts have, in general, indicated a reluctance to engage in any significant reform and have tended to suggest this is a matter for statutory development.[277]

B                  Overview of the Inclusionary Exceptions to the Hearsay Rule

3.02                        In this Part, the Commission provides a general overview of the development of the inclusionary exceptions to the hearsay rule. This includes a listing of the most commonly-discussed inclusionary exceptions, a general review of suggestions to reform that have been made in other States, and a discussion of some forensic techniques that have been used (and criticised) for avoiding the hearsay rule.

(1)                The main inclusionary exceptions

3.03                        The Commission has already noted in Chapter 1 that, as the hearsay rule developed, the disadvantages emanating from its strictness became apparent. The rule in its purest form excluded evidence of a dead, unavailable or unidentifiable person even where it was agreed that such evidence was reliable.

3.04                        Ultimately, as discussed in detail in Part C below, a number of inclusionary exceptions to the hearsay rule were developed. These include the following: admissions and confessions; spontaneous statements connected with the subject matter of the case (the res gestae rule); dying declarations (admissible only in a murder and manslaughter case); certain statements of persons since deceased (including statements by testators concerning the contents of their wills); public documents; and certain statements made in previous proceedings. It has been noted that, in some respect, the range of these inclusionary exceptions have made them almost more important than the hearsay rule itself.[278]

3.05                        The numerous exceptions to the hearsay rule are unsatisfactory in several respects. In many instances it is difficult to see why they apply to the extent that they do, but no further, as in the case of the dying declarations exception (which, at common law, applies only in criminal prosecutions for murder and manslaughter). Indeed, it appears that many of the exceptions came into being as the need arose when the hearsay rule itself proved inconvenient in a particular case. As Lord Reid observed in the UK House of Lords decision Myers v DPP[279] “[i]t was relaxed just sufficiently far to meet that case, and without regard to any question of principle.”[280]

3.06                   Writing in the context of US law, it has been suggested that since anywhere from 27 to 100 specific inclusionary exceptions may exist, “another way to state the law is to assert that unreliable hearsay is not admitted”.[281] It has also been argued that, because of its many exceptions and evolving policies, the concept of a strict “rule against hearsay” is probably not strictly accurate so that the term “hearsay rule” is more accurate.[282]

(2)                Suggested approach based on exclusion of reliable evidence.

3.07                        As already noted, there is judicial acceptance that the rigidity of the hearsay rule has the potential to produce injustice in individual cases because of the exclusion of probative evidence.[283] Clearly, the reluctance to admit hearsay is based on the dangers associated with hearsay evidence in general.[284] These include the risk of distortion inherent in evidence which consists of repeating a statement uttered by someone else, fears that juries may place misguided reliance on hearsay evidence and the risks associated with an absence of cross-examination. Nonetheless, it has been conceded that the boundaries of the hearsay rule are confusing, including that there is little agreement on the exact number of the inclusionary exceptions.

3.08                        In this respect, it has been recognised that not all hearsay is susceptible to the risks associated with distortion, jury confusion and the lack of cross examination. The risk is minimised in the case of written hearsay and the Oireachtas, in enacting the business documents inclusionary exception in Part II of the Criminal Evidence Act 1992, has taken this into account.[285] The 1992 Act reflects the need to take account of technological developments, and ensure that reliable and largely uncontroversial evidence being is not excluded from a case. The 1992 Act ensured that the outcome in the UK House of Lords in Myers v DPP,[286] which has being described as “perhaps the most obstructive decision in the field of hearsay,”[287] was avoided (assuming that the decision in Myers would have been followed).[288]

3.09                        Of course, all the judges in the UK Myers[289] case acknowledged that a policy of “make do and mend” by the courts was no longer an option, and as this Consultation Paper makes clear wide-ranging reform of the hearsay rule has been enacted by virtually every common law country in the intervening 50 years since the Myers decision (in addition to the partial statutory reforms that had been enacted from the 19th century onwards). For example, in 1997 the Law Commission for England and Wales examined options for legislative reform in its Report  on Evidence in Criminal Proceedings - Hearsay and Related Topics.[290] The Law Commission’s draft Evidence Bill appended to the 1997 Report proposed automatic categories of admissibility and a limited residual discretion to admit reliable hearsay that did not fit into any of the fixed exceptions. The UK Criminal Justice Act 2003 adopted this category-based approach rather than the suggestion in the Auld Report[291] that “hearsay should generally be admissible subject to the principle of best evidence”.[292]

3.10                        As discussed in more detail below in Part D, the prevailing approach of the Canadian courts is not to follow the approach in the UK Myers case, but rather to allow the development of new inclusionary exceptions based on a dual reliability and necessity test.

3.11                        The United States Supreme Court favours a test of whether the evidence appears to be reliable. Murphy notes that originally the Court sought to protect the interests of the accused by requiring that before hearsay evidence can be admitted the prosecution must have shown that the declarant witness was unavailable.[293] In Ohio v Roberts[294] the United States Supreme Court stated that the prosecution must demonstrate unavailability and an adequate “indicia of reliability”. Among the possible indicia of reliability is that the statement is corroborated by independent evidence from another source and the apparent absence of any motive to fabricate, exaggerate or conceal the facts.

3.12                        In South Africa, the South African Law Commission’s 1986 Review of Evidence[295] rejected the categorisation approach of the English common law as it relates to the hearsay rule and introduced a more principled approach. In its Discussion Paper on Evidence and Hearsay in 2008 it said that there was no reason to depart from this principled approach.

3.13                        A possible argument can be made that wide-ranging admission of hearsay, subject to safeguards for relevance or the weight of evidence, could ensure that all reliable evidence was brought before the court and that inefficiencies arising from determining the admissibility of hearsay would be eliminated. In the Commission’s view, however, any such approach is unlikely to withstand challenge by reference to the right to fair procedures in Article 40.3 of the Constitution, and the comparable principles in the European Convention on Human Rights, which the Commission has already discussed in Chapter 2.[296] From a purely practical point of view, the Commission would also be concerned that a wide-ranging expansion of the inclusionary exceptions or creating a new overarching exception could lead to numerous court challenges, in particular in criminal proceedings, and the risk that low quality evidence might be admitted.

3.14                        An alternative approach which would minimise the difficulties associated with excluding reliable evidence but would retain protection afforded by the rule is to have a separate approach to hearsay in civil and criminal cases, with the rule being tailored by legislation to the requirements of both proceedings. For the reasons already outlined in this respect in Chapter 2 in connection with the analysis of the right to fair procedures the Commission has taken the view that this differentiated approach to reform appears to be the most appropriate to take.

(3)                Forensic techniques used to avoid the Hearsay Rule

3.15                        Related to the absence of a clear foundation for the development of the hearsay rule, and the inclusionary exceptions, it appears that, in England at least, practising lawyers have resorted to certain forensic techniques designed to avoid the rule.[297] One such technique involves avoiding direct questions on the contents of a statement but instead asking a witness a sequence of questions from which the jury can infer what was in the statement. McGrath[298] notes that Lord Devlin spoke disapprovingly of such practices in the course of his judgment in the UK House of Lords decision Glinski v McIver[299] :

“The first consists in not asking what was said in a conversation or written in a document but in asking what the conversation or document was about; it is apparently thought that what would be objectionable if fully exposed is permissible if decently veiled... The other device is to ask by means of ‘Yes’ or ‘No’ questions what was done. (Just answer ‘Yes’ or ‘No’: Did you go to see counsel? Do not tell us what he said but as a result of it did you do something? What did you do?) This device is commonly defended on the ground that counsel is asking only about what was done and not about what was said. But in truth what was done is relevant only because from it there can be inferred something about what was said. Such evidence seems to me to be clearly objectionable. If there is nothing in it, it is irrelevant; if there is something in it, what there is in it is inadmissible.[300]

3.16                        The Commission considers that, regardless of whether such techniques have been used in Ireland, it seems preferable to approach the hearsay rules from the point of view of making suitable proposals for reform which would then provide a clear statutory framework on which the admissibility of evidence can be based. Bearing these general comments in mind, the Commission turns to examine a number of the most significant common law and statutory inclusionary exceptions.

 

C                  Inclusionary Exceptions to the Hearsay Rule

3.17                   In this Part, the Commission discusses the following six inclusionary exceptions to the hearsay rule: admissions and confessions; spontaneous statements connected with the subject matter of the case (the res gestae rule); dying declarations (admissible only in a murder and manslaughter case); certain statements of persons since deceased (including statements by testators concerning the contents of their wills); public documents; and certain statements made in previous proceedings. The Commission concludes this Part by considering whether a general “inherent reliability” test, which has emerged in Australia as a basis for new inclusionary exceptions, would be a suitable basis for reform of the law.

 

(1)                Admissions and confessions

3.18                        One the most important, and oldest, exceptions to the hearsay rule concerns admissions and confessions. In a strict sense, the words “admission” and “confession” are slightly different in meaning but the law relating to their admissibility is the same. In civil cases, an admission is a statement given in evidence that is in conflict with one party’s claim; in criminal cases, an admission is usually contrary to the accused’s interests and may be sufficient to convict. In civil proceedings, admissions (or statements against interest as they are sometimes called) are generally more widely regarded as admissible, bearing in mind that they may have been generated in a neutral setting. By contrast, in a criminal trial an admission or confession was traditionally regarded with unease because it often arose during police interrogation, and the law   therefore developed many specific rules (at first common law, and later statutory) unrelated to the hearsay rule, concerning the admissibility of admissions and confessions.[301]

3.19                        The Commission does not propose in this Consultation Paper to explore the rules concerning the admissibility of confessions in criminal cases that do not concern the hearsay rule. It is sufficient to note for present purposes that, assuming compliance with these admissibility rules, the rationale for allowing the admission of a self-incriminating statement, in terms of being an inclusionary exception to the hearsay rule, was that “it is fairly presumed that no man would make such a confession against himself if the facts confessed were not true”.[302]

(2)                Spontaneous statements connected with the subject matter of the case (the res gestae rule)

3.20                   The phrase res gestae (literally, “things done”) refers to the inclusionary exception by which a party is allowed to admit evidence which consists of, among other things, everything that is said and done in the course of an incident or transaction that is the subject of a civil or criminal trial. The res gestae exception is based on the view that, because certain statements are made spontaneously in the course of an event, they carry a high degree of credibility.

3.21                   In Ireland, the Court of Criminal Appeal considered in detail the res gestae in The People (Attorney General) v Crosbie and Meehan[303] and The People (DPP) v Lonergan.[304] In the Crosbie case, the defendants were convicted of manslaughter. The victim, who had been stabbed, stated within a minute of being stabbed – and when the first defendant was standing near him: “he has a knife, he stabbed me”. On appeal, the Court of Criminal Appeal held that the words spoken by the victim were admissible, although it was hearsay, because it formed part of the criminal act for which the accused was tried. The Court stated that:[305]

“evidence of the statement made by [the victim] immediately after he had been stabbed by [the defendant] was admissible in evidence against all the accused, although it was hearsay, because it formed part of the criminal act for which the accused were being tried or for those who prefer to use Latin phrases, because it formed part of the res gestae.”

3.22                        The Court in Crosbie approved the following comments made on the res gestae by Lord Normand in the UK Privy Council case Teper v R[306]:

“The rule against the admission of hearsay evidence is fundamental... Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae… It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.”

3.23                        In Crosbie the Court of Criminal Appeal concluded:[307]

“The words spoken by [the victim] were spoken within one minute of the stabbing. They related directly to the incident which was being investigated (the stabbing), and they were spoken immediately after it. If the words of Lord Normand [in Teper v R] are adopted, the words were so clearly associated with the stabbing in time, place and circumstances that they were part of the thing being done and so an item or part of real evidence and not merely a reported statement.”

3.24                        In The People (DPP) v Lonergan,[308] the Court of Criminal Appeal again considered the res gestae. The defendant had been convicted of murdering his brother, who had died as a result of stabbing. At his trial, evidence was given by witnesses as to statements made by the victim 10 or 15 minutes after the stabbing, which were admitted in evidence on the basis that they formed part of the res gestae and as evidence of the truth of their contents. One of the witnesses stated that the victim had said to her: “the bastard stabbed me, my own brother stabbed me”. Another witness stated that the victim said: “he is after stabbing me, Albie [the defendant’s first name] is after stabbing me”. On appeal, the defendant argued that these statements had been improperly admitted into evidence. He argued that only statements that had been made contemporaneously with the stabbing should have been admitted into evidence and that the statements in question were not and thus did not form part of the res gestae. The prosecution argued that all of the statements made by the victim, who clearly identified the defendant as the assailant, were admissible as forming part of the res gestae including the statements he made up to 15 minutes after the stabbing incident.

3.25                   In Lonergan, the Court of Criminal Appeal quoted with approval the following summary of the res gestae by McGrath:[309]

“Statements 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, are admissible as evidence of the truth of their contents. The rationale for the admission of this category of out of court statements is evident from the formulation of the exception – they are made in circumstances where the declarant’s mind is so dominated by a startling or overwhelming event that the statement is a spontaneous and instinctive reaction, made without any opportunity for the declarant to devise a false statement.”

3.26                        The Court in Lonergan also approved the approach to the res gestae taken in the UK Privy Council case R v Ratten,[310] in which Lord Wilberforce stated:

“The test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.”[311]

3.27                   The Court in Lonergan also noted that this view had later been endorsed by the UK House of Lords in R v Andrews,[312] in which Lord Ackner had engaged in a significant re-formulation of the relevant principles:[313]

“1. The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event…

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely… malice…

5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error... In such circumstances the trial judge must consider whether he can exclude the possibility of error.”

3.28                        In Lonergan, it had been argued that the trial judge had deviated from the approach taken in the Crosbie case, above, because he had taken the “composite approach” identified in the UK Ratten and Andrews decisions. Significantly, the Court of Criminal Appeal in Lonergan considered that there was no conflict involved. In an important passage on this, the Court stated:[314]

“[T]his Court does not see the decision in Crosbie as being in conflict with the decision of the Privy Council in Ratten v R or the decision of the House of Lords in R v Andrews albeit that those decisions carry the reasoning in Crosbie somewhat further. The Court is satisfied that the more evolved formulation of principle set out by Lord Ackner [in R v Andrews] does no more than elaborate the rationale for the views expressed in Crosbie. The composite approach adopted by the trial judge, which gave due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication, appear to this Court to represent the correct approach to this issue. It would be quite wrong to hold that admissibility should be determined by reference solely to a given time period as to do so would lead to arbitrary and unfair results. Time in this context is an important factor but not a determinant. The true importance of the requirement of contemporaneity is to eliminate the possibility of concoction. Where it is clear that no such opportunity existed on the facts of a given case it would be quite wrong to exclude statements on some arbitrary time basis. It is more a matter of factoring in both components when deciding whether or not to admit such statements as part of the res gestae. In every case the trial judge will have to exercise his discretion having regard to the particular circumstances of the case.”

3.29                        Applying this approach in Lonergan the Court of Criminal Appeal noted that there was no suggestion that there was an alternative set of events other than those described by the witnesses. Neither was it suggested that there was another possible perpetrator. The Court was, therefore, “entirely satisfied” that the statements made 10 minutes after the stabbing were correctly admitted. In this respect, the Court concluded that: they formed part of the same transaction; they were sufficiently contemporaneous; the Court was satisfied that there was no opportunity on the part of the victim to concoct or fabricate an explanation, and that no motive for his having done so was ever identified; and they were sufficiently contemporaneous to be admissible as evidence.

3.30                        As has been noted,[315] it is clear that the decision in the Lonergan has adopted the composite approach to the res gestae taken by the UK House of Lords in R v Andrews,[316] and that all the circumstances identified by Lord Ackner ought to be considered.

3.31                        Despite its long-established position in the law of evidence, the res gestae inclusionary exception has attracted some criticism. In the English case Holmes v Newman,[317] the phrase res gestae was criticised because it provides “a respectable legal cloak for a variety of cases to which no formulae of precision can be applied.” Likewise, in R v Ratten[318] it was said that the expression res gestae is often used to cover situations that have been insufficiently analysed. Cowen and Carter are more vehement in their critique of the exception stating that “often refuge is sought in the dustbin of res gestae”.[319] Similarly disparaging comments were made by the Court of Criminal Appeal in The People (DPP) v O’Callaghan[320] although this was prior to the detailed analysis in the Lonergan case, discussed above. In England, the Law Commission contemplated the abolition of the res gestae exception as it considered the case law on the scope of it to be convoluted and lacking in any clear principles.[321] Ultimately, it recommended that the composite test set out by the UK House of Lords in R v Andrews[322] - which the Court of Criminal Appeal approved in the Lonergan case - should be retained in statutory form in criminal cases. Bearing in mind that English law in civil cases (under the Civil Evidence Act 1995) has effectively moved towards an inclusionary hearsay rule, it is notable that, following the Law Commission’s approach the res gestae exception has, for criminal cases, been placed on a statutory footing in section 118 of Criminal Justice Act 2003, and this statutory version reflects the approach taken in R v Andrews.

3.32                        The Commission notes that, in the United States, Rule 803(2) of the Federal Rules of Evidence has, in effect, subsumed the res gestae rule within the ambit of “excited utterances” whereby statements are admitted if they relate to a startling event or condition and are made while the declarant is under stress or excitement arising from that event or condition. The res gestae doctrine in the United States has, therefore, evolved into a number of specific inclusionary exceptions some of which bear only a distant resemblance to the original res gestae concept.[323]

(3)                Dying Declarations

3.33                        A dying declaration, made with the knowledge of the imminence of death, is another important inclusionary exception because it may be admitted to prove the circumstances in which the death occurred. Traditionally, the dying declaration inclusionary exception has never been applied to civil claims; and, in criminal proceedings, it only applies to charges of murder and manslaughter. In the English case R v Woodcock,[324] the defendant had been charged with murder. The victim had been badly beaten and, two days prior to her death, which occurred from the beating, she told a magistrate that her husband, the defendant, was the perpetrator. The trial court, faced with the difficulty that hearsay was available but the witness was not, surmounted this by developing the dying declaration exception to the hearsay rule. The Court stated:

“[T]he general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is created by a positive oath administered in a Court of Justice”.[325]

3.34                        As is evident from this passage in R v. Woodcock, when the dying declaration inclusionary exception was developed, the belief was that these statements were, by their very nature, trustworthy since persons were beyond the hope of recovery and were in fear of eternal punishment if they lied. In R v Osman,[326] it was held that the exception’s trustworthiness requirement was satisfied because no person “who is immediately going into the presence of his Maker will do so with a lie upon his lips”.[327] Thus the law of dying declarations is based on the view that the imminence of death is a substitute for the oath. In the early 21st century, this religious foundation may have lost some of its influence although the premise that psychological pressure might keep a declarant from lying remains applicable.

3.35                        Rose notes that while religion and spontaneity have traditionally provided the foundations for the dying declaration exception the fundamental rationale for admitting the evidence is to have a fair hearing when a key witness is dead.[328] Reliance on the artificial construct of “settled hopeless expectation of death” for admitting a dying declaration has formed a basis of criticism of this exception to the hearsay rule. It has also been argued that the restriction of the rule to murder and manslaughter is arbitrary and indefensible. For example if a person is evidently dying as a result of his or her throat being slit it cannot be assumed that the person knew that they were dying. As Glanville Williams pointed out, the presumption is that “hope springs eternal” so that however desperate a person’s condition evidently is, the statement may only be admitted as a dying declaration if there are words expressed or other deeds to show that the person had a “settled hopeless expectation of death”.[329] 

3.36                        The fear that the dying person would manufacture evidence against his or her enemy and then precipitate his or her own death in an act of revenge is a remote and fanciful concern. Glanville Williams also stated that there is no need to confine the exception to declarations made while dying and it ought to be extended to declarations of all deceased persons and to those people who are unable for any other reason to give evidence.[330] This would, however, be a major extension of the rule and could include statements by vulnerable or intimidated witnesses in a trial whose evidence would otherwise fall squarely within the exclusionary hearsay rule.

3.37                        The English common law approach to dying declarations has largely been followed in the United States. In 1973, the Report of the House of Representatives Committee on the Federal Rules of Evidence[331] did not recommend its expansion to all criminal and civil cases because the Committee did not consider dying declarations as among the most reliable forms of hearsay. Consequently, it amended the relevant provision in the Federal Rules of Evidence to limit their admissibility in criminal cases to homicide prosecutions, where exceptional need for the evidence is present. In 1975 the concept of dying declarations was codified in Rule 804(b)(2) of the Federal Rules of Evidence.[332] In addition to applying it in the traditional setting of homicide, Rule 804(b)(2) extended the dying declaration exception to civil cases. Jarreau states:

“Still relying on the English and common law rules, courts held that Rule 804(b)(2) provided for an exception to the hearsay rule because the circumstances of belief of impending death seem to obviate any motive on the part of the declarant to misstate the truth. More realistically, the dying declaration is admitted, because of compelling need for the statement rather than any inherent trustworthiness”.[333]

3.38                        Garza v Delta Tau Delta Fraternity National[334] illustrates the limits of the rule, even as extended. In Garza the Supreme Court of Louisiana held that a suicide note did not fall within the “statement under belief of impending death” exception.

(4)                Certain statements of persons now deceased

3.39                        The common law also relaxed the hearsay rule for certain prior statements of persons who had died by the time civil or criminal proceedings came to trial. There is no general test for admitting the hearsay statements of persons now deceased. Instead exceptions developed on an ad hoc basis and were confined to specific situations. These are:

·          Declarations by deceased persons against a pecuniary or proprietary interest,

·          Written declarations by the deceased in the course of duty,

·          Declarations by a deceased person relating to pedigree (in effect, blood relationships),

·          Declarations by a deceased person explaining the contents of his or her will.

Healy comments that these specific instances have not arisen for judicial consideration in Ireland in recent times and that, in any event, courts prefer, where possible, to assess such statements as res gestae or original evidence.[335]

(5)                Public documents

3.40                        During the 19th century, the English courts recognised that most public documents should be held admissible as evidence of the truth of their contents, thus constituting another extremely important exception to the hearsay rule. This exception is clearly based on both reliability and convenience. One of the leading English cases on this is the UK House of Lords decision Sturla v Freccia[336] in which the exception was described as applying to a document that is made by a public officer for the purpose of the public making use of it and being able to refer to it. In the case itself, it was decided that the document in question (a confidential report of a committee appointed by a public authority in Italy to decide the fitness of a person for public office in that country) was not a public document. The following passage from the judgment of Lord Blackburn has often been cited with approval:

“I do not think that ‘public’ there is to be taken in the sense of meaning the whole world... an entry probably in a corporation book concerning a corporate matter, or something in which all the corporation is concerned, would be “public” within that sense. But it must be a public document, and it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it.” [337]

3.41                        Typical examples therefore include certificates of birth, marriages and death and ordnance survey maps. It is likely that the public official who made the original entries in question may be dead, unavailable or unable to remember the facts recorded in a later court hearing, so it is clear that the rule was developed primarily on the basis of convenience. Equally, such documents can be presumed reliable, but of course it remains possible for parties to challenge the facts contained in them.[338]

3.42                        The Commission notes that, in addition to this judicially-developed inclusionary exception, many comparable statutory provisions were enacted in the 19th century and 20th century to make public documents admissible. Thus, a number of Evidence Acts, including the Evidence Act 1851 and the Documentary Evidence Act 1925, were enacted to provide that certain public documents are admissible. The Commission has considered these Acts in detail in its Consultation Paper on Documentary and Electronic Evidence.[339] These Acts complement the approach now taken to certain “private” documentary business records in, for example, Part II of the Criminal Evidence Act 1992.[340]

(6)                Testimony in Former Proceedings

3.43                        A statement made by a person while giving evidence, whether orally or by affidavit, is admissible in subsequent proceedings, between the same parties concerning the same (or substantially same) subject matter if the witness is unavailable to give evidence. This constitutes an exception to the hearsay rule because the circumstances in which the statement was made address the concerns underlying the hearsay rule – the statement was made under oath and the party against whom the statement was made had an opportunity to cross-examine the witness. The requirement of unavailability is met if the witness is dead, is too ill to attend court, has been prevented from attending by the party against whom the evidence is to be admitted, is outside of the jurisdiction or cannot be located following intensive enquires. This exception was not expressly considered by the Supreme Court in Borges v Medical Council[341] but the decision indicates that it does not apply where the witness is unavailable simply because he or she is unwilling to testify.

(7)                Inclusionary exceptions based on the reliability of the hearsay

3.44                        In some countries, the courts have replaced the approach followed in Ireland (and, at common law, in the UK), that is, the development of limited exceptions on a case-by-case basis, with a more general approach which takes an inclusionary approach based on the reliability of the evidence.

3.45                        An “inherent reliability” exception has, for example, emerged in Australia based on extending the spontaneity test used in the UK Privy Council in R v Ratten[342] for the res gestae, thus applying this to all evidence, whether part of the “transaction” or not.[343] The exception was first developed by Mason CJ in Walton v R[344] and appeared to aim to strike a balance between the stance taken by the UK House of Lords in the Myers case, that any reform of the hearsay rule would need to come from the legislature, and the flexible approach taken by, for example, the Supreme Court of Canada in R v Khan.[345] Collins has stated:

“The exception is formulated as a discretion rather than a criterion-based categorical exception. It is expressed in terms of weighing up the competing factors of reliability (such as spontaneity, non-concoction) against various dangers (such as the lack of cross examination, motive for fabrication). The legal          significance of the exception's characterisation as a discretion is that it would be much more difficult for appellate courts to overturn a decision regarding an issue of admissibility.”[346]

3.46                        In Pollitt v R[347] the Court returned to the issue but there was no clear agreement as to whether this flexible approach to the hearsay rule should be adopted. While there was some support for Mason CJ’s approach, McHugh J supported it only insofar as it was limited to admit evidence where there appeared to be a high degree of reliability. By contrast, Brennan J explicitly rejected a flexible approach to the hearsay rule and restated this position in Bannon v R[348] where he criticised the reliability exception on the grounds that it is not based on any specific criteria. In addition McHugh J, despite indicating support for the inherent reliability exception in Pollitt, expressed reluctance in Bannon to support any new changes to the hearsay rule. Following the decision of Papakosmas v R[349] it is apparent that the reliability exception has lost favour with the Court, even as a broad guiding principle and in that case both Kirby and Gaudron JJ noted that no new common law exceptions to the hearsay rule had been developed since Myers v DPP.

3.47                        Following a review of the law by the Australian Law Reform Commission, the Evidence Act 1995 now provides for circumstances in which the hearsay rule does not apply, with prescribed conditions that are intended to promote reliability. However, Collins argues that the fact that the 1995 Act only applies to federal and territorial courts has contributed to judicial ambiguity regarding hearsay reforms.[350] In 2004, the Australian Law Reform Commission began a review of the operation of the 1995 Act. In that review a concern was raised whether the threshold reliability of a hearsay statement should continue to be assessed with regard only to the circumstances in which the statement was made, or whether the 1995 Act should be amended so that other evidence could be considered in evaluating the threshold reliability of a statement. The Australian Law Reform Commission declined to propose such an amendment on the ground that an enquiry into broader circumstances “is likely to require the trial judge to consider the whole of the prosecution case and determine guilt before admitting the representation as reliable. This would sit uncomfortably with safeguards designed to afford the defendant a fair trial”.[351]

3.48                        The Supreme Court of Canada, in R v. Khan[352] decided that hearsay should be admissible on the basis of two key governing principles, reliability and necessity. In Khan the Court held that evidence of what a 4 year old girl said to her mother about a sexual assault on her should have been admitted because in the specific circumstances the evidence was reasonably necessary and reliable. In R v Smith[353] the Supreme Court in Canada made it clear that the approach in R v. Khan should not be restricted to child abuse cases. Favouring the Wigmore approach for all hearsay cases, in Smith the court stated that the decision in Khan should be understood as the triumph of a principled analysis over a set of ossified judicially created categories. It held that the departure from the traditional view of hearsay was towards an approach governed by the principles which underlie the rule and its exceptions alike. The movement towards a flexible approach was motivated by the principle that reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination. The preliminary determination of reliability is, therefore, to be made exclusively by the trial judge before the evidence is admitted.

3.49                        The Canadian approach has been adopted in New Zealand where the Court of Appeal has formulated a new general residual exception to the hearsay rule based on the criteria of relevance, inability and reliability.[354]

(8)                Conclusions

3.50                   It is clear from this, relatively brief, discussion that the Irish courts favour a case-by-case approach to the inclusionary exceptions to the hearsay rule. Indeed, the Commission notes that, by contrast with other countries, the Irish courts have studiously avoided any move towards the kind of general “inherent reliability” test developed in, for example, Australia or Canada. The Commission has, accordingly, come to the provisional view that any reform of the law in this area should be based for the present on retaining the existing exceptions. The Commission discusses in more detail any future judicial role in the hearsay rule in Part D, below.  

3.51                        The Commission provisionally recommends that the existing inclusionary exceptions to the hearsay rule should be retained, and notes that these include:

·          Admissions and confessions;

·          Spontaneous statements connected with the subject matter of the case (the res gestae);

·          Dying declarations (currently admissible only in a murder and manslaughter case);

·          Certain statements of persons since deceased (including statements by testators concerning the contents of their wills);

·          Public documents; and

·          Certain statements made in previous proceedings.

3.52                        The Commission provisionally recommends that the existing inclusionary exceptions to the hearsay rule should not be replaced by a general inclusionary approach based on inherent reliability.

D                  Judicial Reform of the Hearsay Rule

3.53                        In this Part, the Commission considers to what extent, assuming statutory reform of the hearsay rule, continued judicial reform of the rule – in particular the inclusionary exceptions – should remain a feature of the law. There is a great deal of divergence between the approaches of the courts in different common law countries regarding the appropriate judicial role in this respect. As the Commission has already noted, the UK House of Lords effectively rejected judicial development of the rule in Myers v DPP whereas the Supreme Court of Canada has been quite proactive in the continued judicial development of inclusionary exceptions to the hearsay rule. The Commission now turns to examine in more detail the approach of the Irish courts in a comparative setting.


 

(1)                Ireland

3.54                        The Irish courts have not ruled out broadening or narrowing the hearsay rule by judicial development. In Eastern Health Board v MK[355] the issue arose as to whether the courts could expand the inclusionary exceptions. Denham J stated that merely because the Oireachtas had enacted inclusionary exceptions to the hearsay rule did not preclude the courts from doing likewise. She added that the hearsay exceptions and its rules are “not set in stone” and the court retains the jurisdiction to develop the law on the use of hearsay evidence. Keane J, reflecting a view he applied consistently in other cases, [356] was more sympathetic to the argument that any major new exception to the hearsay rule would be best effected by the Oireachtas. He referred to the exceptions designed “to avoid the injustice and inconvenience which would flow from an unyielding adherence to the rule”, and he did not discount the possibility of newly judicially created exceptions grounded on the twin criteria of necessity and reliability which he identified as the common underlying features of exceptions to the hearsay rule. 

3.55                        In Borges v The Medical Council[357] Keane CJ left open the question as to whether the Canadian approach of developing exceptions to the hearsay rule based on the requirements of necessity and reliability (discussed below) would be followed by the Irish courts. As already discussed, however, he concluded that the circumstances of that case did not justify creating an inclusionary exception that would have deprived the applicant of his right to fair procedures under the Constitution.

3.56                        McGrath argues that the decisions in Eastern Health Board v. MK[358] and Borges v The Medical Council[359] “indicate a consistent view on the part of the Court that the hearsay rule is not merely a rule of evidence but has a constitutional foundation as a requirement of fair procedures and an ingredient of a fair trial.”[360] He also suggests that it is unlikely the Supreme Court will favour relaxing the hearsay rule to the extent that has occurred in Canada:[361]  

“Instead any new exceptions to the hearsay rule, whether specific or of a general residual nature, are likely to have carefully and narrowly drawn parameters with a focus on the two crucial criteria of necessity and reliability.”

3.57                        The Commission, in its Working Paper on the Rule Against Hearsay[362] stated that the Irish courts could reject the rigid position adopted by the UK House of Lords in Myers v. DPP[363] and expand the exceptions to the hearsay rule piecemeal. This could cover other categories of case where hearsay evidence is of peculiar reliability. The Commission considered, however, that even if this were done there would be a long period of uncertainty while new exceptions were being evolved judicially.[364] The Commission considers that this approach remains valid today. The courts may, of course, decide that, in appropriate cases, a new inclusionary approach could be taken in exceptional cases, but the Commission considers that, given the limited number of occasions when such situations arise (especially in a small jurisdiction), it is preferable that parties engaged in civil litigation or criminal trials should have a clear basis on which the rules of evidence are applied.

(2)                England

3.58                        As already discussed, the UK House of Lords has, since Myers v. DPP[365] resisted developing a general residual judicial discretion to develop inclusionary exceptions to the hearsay rule, despite, as Healy describes “the implausible specificity of many of the exceptions”.[366] In Myers the House of Lords insisted that any further exception could only be created by the UK Parliament. The approach in Myers was applied by the UK Privy Council in Patel v Comptroller of Customs.[367] 

3.59                        Nonetheless, at a narrower level, in 1987 the House of Lords, radically redesigned the res gestae exception in R v. Andrews,[368] and this limited judicial development was, as already noted, approved by the Court of Criminal Appeal in The People (DPP) v Lonergan.[369] To that extent the courts in the UK, and in Ireland, appear prepared, at the least, to engage in judicial development of the existing inclusionary exceptions.

(3)                Scotland

3.60                        In Scotland the courts have been noticeably more willing than the English courts to create new exceptions to the hearsay rule. In Lord Advocate’s Reference (No. 1 of 1992)[370], which involved a prosecution in the Sheriff’s Court for social security fraud, the prosecution sought to introduce evidence of remittances generated by a health authority’s computer, in respect of which it was not possible to trace the staff member who had made the entries. The circumstances were thus similar to those which arose in Myers v DPP.[371] The Civil Evidence (Scotland) Act 1988  (which defines “civil proceedings” to include criminal proceedings in the Sheriff’s Court, the Scottish equivalent of the District Court) contained a general “business records” inclusionary exception (thus, in general, reversing the effect of Myers), but a health authority did not come within the definition of a “business” in the 1988 Act. In the trial in the Sheriff’s Court, the computer records were held to be inadmissible as hearsay, even though the Sheriff accepted that refusing to admit this type of computer evidence in such cases, where its authors could not be identified and called, presented enormous difficulties for the prosecution.

3.61                        On appeal, the Scottish High Court took a different view. Delivering the Court’s judgment, Lord Hope stated that it was open to a court to “take account of changing circumstances which may render the continued application of the rule against hearsay unacceptable.”[372] It is noticeable that, in taking a different approach by comparison with the one taken by the UK House of Lords in Myers, Lord Hope linked this to the “declaratory” jurisdiction claimed by the Scottish High Court to declare conduct to be criminal even where it is not already covered by existing criminal law, in effect a power to declare new crimes (the Commission notes that this asserted power must be regarded in Irish law as controversial, bearing in mind the prohibition in Article 15.5 of the Constitution of Ireland on the Oireachtas declaring acts to be infringements of the law which were not so at the time of their commission). Lord Hope added that this asserted power of the Scottish courts must never be applied arbitrarily and ought only to be done by developing the application of well-established principles of law. For this reason, he accepted that it would be possible to create an inclusionary exception to allow computer records to be introduced as evidence where it was not reasonably practicable to obtain any other evidence, because this followed recognised principles of existing law.

3.62                        The Scottish High Court may be protective of its jurisdiction to alter the hearsay rule judicially, but Duff notes that it has been criticised for tending to proceed stealthily through the use of “hearsay fiddles” in the creation of new exceptions.[373] In Muldoon v Herron[374] a majority of the Scottish High Court approved a Sheriff’s decision to admit police evidence of the prior identification of the defendants by two witnesses who claimed to be unable to identify them in court. The High Court held that this was direct evidence that simply filled the gap in the witnesses’ testimony and thus was admissible. Both witnesses agreed in court that they had pointed out various people shortly after the crime to the police, but one witness claimed that the defendants were not the people that she had pointed out. Commentators have not been convinced of the majority’s reasoning that the police evidence was not hearsay[375] and have tended to prefer the views of the dissenting judge, Lord Wheatley, who stated that rather than filling a gap in the eye-witnesses’ evidence, the effect of the police evidence was to contradict it.[376] He stated that if the rules of evidence were to be changed it was a matter for the legislature.[377] 

3.63                        An even greater departure from the hearsay rule in an inclusionary direction occurred in Smith v HMA.[378] Here the witness, who was unable to make a definitive identification in the courtroom, claimed that at the identification parade she had said “I think it is No.2” but the police claimed that she had said “it is No.2” and it was held that the police evidence could be used to establish that she had identified the accused despite the fact that the witness did not accept the police testimony.

3.64                        This style of police evidence of prior identification by a witness is recognised to be hearsay evidence[379] but it appears to form a new exception to the hearsay rule. In its 1995 Report on Hearsay Evidence in Criminal Cases, the Scottish Law Commission referred to the admissibility of such prior identification as “a well-recognised exception to the general rule”[380] and it has been generally accepted as a new exception created by the court in Muldoon and confirmed in ensuing cases. Ultimately, on foot of the Scottish Law Commission’s 1995 Report, the matter is now dealt with in legislative form in sections 17 to 20 of the Criminal Justice (Scotland) Act 1995, which deal with hearsay generally in criminal proceedings in Scotland.

(4)                Canada

3.65                        The Supreme Court of Canada has also taken a different approach to extending inclusionary exceptions to the hearsay rule, if one is to compare it with that taken by the UK House of Lords in Myers v DPP.[381] The Supreme Court of Canada does not provide an exhaustive definition of hearsay, instead preferring to define hearsay by reference to its key characteristics. An out-of-court statement is therefore treated as hearsay if it is introduced as proof of the truth of its contents and it was obtained in the absence of contemporaneous cross-examination.[382] This appears to correspond, broadly, with the approach taken in Irish law by the Supreme Court in Cullen v Clarke.[383] In what is regarded as a landmark decision in Canadian law, R v Khan,[384] the Supreme Court of Canada did not follow the approach taken in Myers, preferring to continue the route of allowing judicial development of hearsay exceptions. The Court took this approach even though many Canadian legislatures had already enacted legislation to ensure that the outcome arrived at by the UK House of Lords in Myers v DPP would not follow in Canada. The Khan decision created some uncertainty as to whether the legislative or judicial reform was definitive. Nonetheless, the approach in Khan has been affirmed by the Court in R v Smith,[385] R v O’Brien[386] and R v Khelawon.[387] There has been some controversy over whether the approach adopted in these decisions has replaced or merely supplemented a category-based approach to hearsay exceptions, but the general view is that the scope of admissible evidence has been considerably broadened.[388]

3.66                        The stance adopted by the Canadian courts to the hearsay rule and its exceptions involves a principle-based approach. The effect of these decisions by the Supreme Court of Canada is that hearsay evidence is admissible if the evidence meets two criteria: that the evidence is necessary and reliable and that the probative value of the evidence is not outweighed by its prejudicial effect. Case law establishes that the necessity criterion will be satisfied if the hearsay evidence is reasonably necessary to prove a fact in issue, the relevant direct evidence is not available, and that evidence of the same quality cannot be obtained from another source.[389] The rationale for this new approach to the admissibility of hearsay evidence was articulated by Lamer CJ in R v. Smith[390], where he stated:

“The movement towards a flexible approach was motivated by the realisation that, as a general rule, reliable evidence ought not to be excluded simply because it cannot be           tested by cross-examination... Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity”.

3.67                   Lamer CJ qualified the principles of necessity and reliability as follows:

“In my opinion hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible, where the circumstances under which the statements were made satisfy the criteria of necessity and reliability set out in [R v] Khan and subject to the residual discretion of the trial judge to exclude the evidence when its probative value is slight and undue prejudice might result to the accused.”[391]

3.68                   In R v Starr[392] the Supreme Court of Canada held that the principled approach preferred by the Court could be used not only to reform the existing exceptions but also to exclude hearsay falling within an otherwise valid exception if there were insufficient indicia of necessity and reliability in the particular circumstances of the case.[393]

(5)                 United States

3.69                        At federal level in the United States, rule 807 of the Federal Rules of Evidence (1975) prohibits the courts from creating new inclusionary exceptions. Although rule 807 contains a residual exception for evidence with a “circumstantial guarantee of trustworthiness” this is clearly a discretion rather than a rule of law. The US approach has been criticised on the grounds that the wording of the rule is problematic; in particular, that the requirement of equivalent circumstantial guarantee is incoherent as the very fact that it has not fitted into any of the other exceptions may indicate that there is no such guarantee.

(6)                Australia

3.70                        As already noted, [394] in Walton v R,[395] Mason CJ first articulated in the High Court of Australia a new inclusionary exception based on a test of “inherent reliability”. This was followed in Pollitt v R[396] when the Court developed an exception for implied assertions made in social telephone conversations. Collins notes that, unlike the inherent reliability exception, the telephone exception was clearly formulated as a non discretionary exception.[397] The exception qualifies the hearsay rule so as:

“not to preclude the receipt of evidence of contemporaneous statements made by one party to a telephone conversation (either in the middle of the conversion or immediately before or after it) which disclose that the other party against whom it is sought to lead otherwise relevant and admissible evidence of that part of the conversation which was overheard”.[398]

The rationale for the exception is that statements identifying the other party to the telephone conversation possess a minimal risk of fabrication and are generally of high probative value. It only extends to statements which identify the other party to the telephone conversation and is not a general ‘catch-all’ exception for any statement overheard in a telephone conversation merely because they were made through the medium of a telephone.[399] Following the decision in Pollitt v R the telephone exception was given partial statutory effect in the Australian Evidence Act 1995.

3.71                        It should be noted that the new departure appears to have been cut short in the late 1990s with the Court noting in Papakosmas v R[400]  that no new inclusionary exceptions to the hearsay rule had been created since Myers v DPP.

(7)                New Zealand

3.72                        The New Zealand courts have been unwilling to engage in judicial creation of new inclusionary exceptions. Commentators have remarked on the tendency of the New Zealand criminal courts to approach hearsay problems in an overly-technical and rule-based fashion.[401] The New Zealand Court of Appeal has distanced itself from creating a reliability-based exception to the hearsay rule and in R v Manase[402] it was critical of what it perceived to be the low and imprecise standard of “necessity” in Canada. It criticised the Canadian standard as allowing hearsay to be introduced in circumstances which depend on little more than the trial judge’s subjective opinion that, given relevance and a sufficient degree of reliability, it would be desirable to admit it. The Court recognised, however, a “general residual exception” based on the requirements of relevance, inability to testify and threshold reliability. This is subject to an overarching safeguard of a residual discretion to exclude evidence where its prejudicial value outweighs its probative value.

(8)                         Conclusions

3.73                        The Commission notes that the Irish courts have regularly commented that, bearing in mind the importance of the right to fair procedures under the Constitution of Ireland, the hearsay rule should not be applied in such a rigid manner that it operates to work an injustice. At the same time, they have emphasised that the right to cross-examine in criminal trials would prevent the development of a wide-ranging inclusionary approach.

3.74                        While the Irish courts have not completely ruled out the Canadian approach, it is clear that no enthusiasm has been indicated for that approach either. Rather, the Irish courts appear to lean towards modest reform of existing inclusionary exceptions if required. The Commission has already provisionally concluded that it does not propose to take either a completely inclusionary approach to reform or a completely exclusionary one. In that light, it would seem appropriate to continue to have in place a judicial discretion to determine whether hearsay evidence may be included or excluded in an individual case.

3.75                        The Commission provisionally recommends that the courts should retain the discretion to determine whether hearsay may be included or excluded in an individual case.

 

4            

CHAPTER 4            REFORM OF the hearsay rule in civil CASES

A                  Introduction

4.01                        In this Chapter, the Commission discusses reform of the hearsay rule in civil cases. In Part B the Commission discusses the current law in Ireland as it operates in practice, including the use of documentary hearsay. The Commission also examines the, relatively limited, legislative amendments made to date and also examines the impact of legislative provisions concernning electronic evidence.

4.02                        In Part C the Commission examines its 1988 Report on the Rule Against Hearsay in Civil Cases, in which the Commission’s central recommendation was that hearsay should, in general, be admissible in civil proceedings. In Part D the Commission examines reform of the hearsay rule in civil cases in other States and notes a general trend towards an inclusionary approach, although there is no consensus as to how this is achieved.

4.03                        In Part E the Commission sets out and considers options as to how the hearsay rule should be dealt with in civil cases in Ireland: to maintain the current position; to allow partial admission of hearsay evidence in civil proceedings; to abolish the hearsay rule in civil proceedings subject to statutory safeguards and to allow judicial discretion to admit hearsay evidence. The Commission then sets out its detailed provisional recommendations for reform. 

B                  Overview of the Current Law in Ireland

4.04                        During the second half of the 20th century, a dominant view, though not a consensus, emerged that civil proceedings should be differentiated from criminal proceedings in two important respects, with important implications for the hearsay rule. Unlike an accused, parties in a civil case do not require special protection from a mistaken verdict and, unlike a suspect, a potential party to civil proceedings does not need protection from illegal, unfair or improper treatment in the manner in which evidence was obtained. On both grounds, it was thought that the hearsay rule should not be applied in civil proceedings with the same severity as in criminal proceedings; and, as a result in a number of countries the hearsay rule has moved towards a largely inclusionary approach. Thus, in civil cases hearsay is, in general, admissible in, for example, England[403], Northern Ireland,[404] Scotland,[405] Australia[406], South Africa[407], and the United States.[408] In general, this has been justified on the basis of a combination of: the absence (usually) of juries in civil proceedings; that the consequences in terms of outcomes in civil litigation are different; but, perhaps just as importantly, that civil proceedings often involve sufficient procedural protections, such as advance disclosure and discovery of documents, that any potential prejudice arising from the introduction of hearsay in minimised. The need to minimise potential injustice in civil proceedings has, of course, been reiterated many times in the courts, notably by the Supreme Court in Kiely v Minister for Social Welfare (No. 2).[409]

(1)                Hearsay in general in civil proceedings

4.05                        In Ireland the hearsay rule applies, in principle, equally to civil and criminal cases. In practice, however, in civil cases, parties are free to, and often do, waive any objections to evidence which is hearsay, notably in the case of documentary information and expert reports. For example in Shelley-Morris v Bus Átha Cliath,[410] a personal injuries action, the Supreme Court noted that it had been agreed between the parties that medical reports from the United Kingdom would be received into evidence in substitution for oral evidence. Similarly, in Hughes v Staunton,[411] a medical negligence claim, the parties mutually consented to admitting a “book of records” containing, for example, medical records which had been discovered on affidavit by all the parties. In the High Court, Lynch J agreed to admit the documents although he noted that “[m]erely because a book of documents has been discovered on affidavit by a party does not prove that the contents of such documents are accurate or reliable. However the parties agreed that I could read their books of discovery and take them into account to such extent as I thought proper even though strictly speaking many of these documents are pure hearsay.” Lynch J in discussing the hearsay quality of the evidence stated:

“[T]here are medical notes, clinical notes, nursing notes, reports of tests and reports from doctors all emanating from the plaintiff’s stay in [two hospitals] in... England... No witness was called from either of these English hospitals and therefore the statements of fact and the conclusions in all these documents are strictly speaking pure hearsay. On the other hand, if for example nurses had been brought over from England with a view to their verifying entries made by them in the nursing notes in those hospitals it is likely that at the trial before me just five years later many if not all of the nurses would have no actual recollection of the events described in the notes... I do not need the nurses to tell me that they would not make fictitious entries in a patient’s nursing notes; that goes without saying because it would be such an extraordinary event if a fictitious entry were to be made. The notes are therefore quite reliable and probably every bit as good as if a nurse were called to verify them provided that there is no ambiguity or uncertainty in them and even though they are technically speaking pure hearsay.”

4.06                        Lynch J concluded that it was sensible of the parties to agree that he may read and have regard to the documents. He also referred to the potential problem which could have arisen in the case if the approach taken by of the UK House of Lords in Myers v Director of Public Prosecutions[412] (albeit a criminal case) had been applied in the Hughes case itself. Lynch J noted that, for civil proceedings, the English Civil Evidence Act 1968 (since replaced by the Civil Evidence Act 1995) had removed this difficulty and he considered that similar reform should take place in Ireland. He added:

“The [UK] Parliament has long since amended the law of evidence to cope with the foregoing problem and our Law Reform Commission issued a report entitled The Rule against Hearsay in Civil Cases on the 10 September 1988 which hopefully will soon result in remedial legislation in this State”.

4.07                        As already noted,[413] while the Oireachtas implemented some elements in the Commission’s 1988 Report, the general recommendation on reform of the hearsay rule in civil proceedings has yet to be implemented.

4.08                        As the Commission noted in Chapter 2, above, administrative adjudicative bodies, such as a social welfare appeals officer, are required to act fairly and in accordance with the requirements of constitutional fair procedures. In J & E Davy v Financial Services Ombudsman[414]  Charleton J reiterated that tribunals are entitled to some latitude as to how they order their procedures but they may not imperil a fair resolution of a conflict in consequence of adopting a procedure which infringes fundamental principles of constitutional fairness.[415] Echoing the Supreme Court in Kiely v Minister for Social Welfare (No. 2),[416] Charleton J stated:

“Tribunals are entitled to depart from the rules of evidence, they are entitled to receive unsworn evidence, they are entitled to act on hearsay and they are entitled to ensure that procedures, unlike court procedures, are informal. The guiding principle is evenness of treatment towards each side... If oral evidence is heard from one side then both sides must be entitled to make such submissions. If one party is allowed to call and cross-examine a witness, then the other party should have the same facility. It is impermissible for instance to hear oral submissions from one party but have to confine the other to written submissions”.[417]

Charleton J also cited with approval the following comments of Barron J in Flanagan v University College Dublin:[418]

“[P]rocedures which might afford a sufficient protection to the person concerned in one case, and so be acceptable, might not be acceptable in a more serious case. In the present case, the principles of natural justice involved relate to the requirement that the person involved should be made aware of the complaint against them and should have an opportunity both to prepare and to present their defence. Matters to be considered are the form in which the complaint should be made, the time to be allowed to the person concerned to prepare a defence, and the nature of the hearing at which that defence may be presented. In addition depending upon the gravity of the matter, the person concerned may be entitled to be represented and may also be entitled to be informed of their rights. Clearly, matters of a criminal nature must be treated more seriously than matters of a civil nature, but ultimately the criterion must be the consequences for the person concerned of an adverse verdict.”

(2)                Statutory reform of the hearsay rule in civil proceedings

4.09                        Unlike the position in a number of other countries discussed below, there has been no general statutory reform of the hearsay rule in civil cases in Ireland. In practice, of course, parties in civil litigation are free to waive their objection to evidence that technically constitutes hearsay, such as expert reports and documentary information as a matter of procedural convenience or mutual benefit.[419]

4.10                        In addition to the general proposals for reform of the hearsay rule in civil proceedings made in the Commission’s 1988 Report on the Rule Against Hearsay in Civil Cases,[420] the Commission had recommended that, in family proceedings, out-of-court statements made by children should be admitted in certain circumstances, subject to specific safeguards. While the general proposals for reform have yet to be implemented by the Oireachtas,[421] this specific recommendation was implemented by section 23 of the Children Act 1997. Section 23 of the 1997 Act provides for the admission of hearsay evidence of any fact in all proceedings relating to the welfare of a child, public and private and it also applies in cases relating to any person who has a mental disability to such an extent that independent living is not feasible. Once the statement is admissible the court must then assess what weight to attach to it. Section 24(2) of the 1997 Act sets out five factors that the court should have particular regard to:

                (a) whether the original statement was made contemporaneously with                the occurrence or existence of the matters stated,

                (b) whether the evidence involves multiple hearsay,

                (c) whether any person involved has any motive to conceal or   misrepresent matters,

                (d) whether the original statement was an edited account or was made                in collaboration with another for a particular purpose, and

                (e) whether the circumstances in which the evidence is adduced as        hearsay are such as to suggest an attempt to prevent proper evaluation     of its weight.

4.11                         In Eastern Health Board v Mooney[422] the High Court considered the giving of hearsay evidence in proceedings initiated under the Child Care Act 1991. Carney J held that hearsay evidence can be admissible in such cases where appropriate. Section 25 of the Children Act 1997 allows evidence regarding the credibility of the child to be admitted, even though the child is not strictly speaking a witness.

4.12                        Section 26 of the 1997 Act also allows a copy of any document to be admitted in evidence in proceedings where section 23 permits hearsay to be admitted. A document for these purposes includes a sound recording and a video recording and the document need not be an original, nor is it necessary to prove that the original document is still in existence.

(3)                Documentary Hearsay Evidence

4.13                        Unlike in criminal proceedings (as to which see Part II of the Criminal Evidence Act 1992, discussed in Chapter 5), there is no general legislative provision to admit hearsay evidence in civil proceedings and such evidence is only admitted if parties consent. The Bankers' Books Evidence Act 1879 as amended (notably by the Bankers’ Books Evidence (Amendment) Act 1959)[423] provides for the admissibility of copies of entries from the books and records of banks against any person as prima facie evidence. There is a wide definition of “bankers books” in the 1879 Act, as amended, and this includes any records used in the ordinary course of the business of a bank or used in the transfer department of a bank acting as a register of securities. It has been held, however, that the 1879 Act does not extend to items of correspondence and that it cannot be interpreted as permitting a banker to give secondary evidence of mere correspondence, the removal of which could hardly upset the conduct of the business of the banker.[424] In order for an entry in the bankers’ book to be admissible, it must be proved by the person seeking to admit the copy that the original document falls within the remit of the Act and it must also be proved that the copy is an original copy.

4.14                        A court may not accept documentary hearsay evidence where it is contradicted by oral evidence in the case. In Moloney v Jury's Hotel plc[425] the Supreme Court noted that during the course of the High Court hearing in the case, the doctors who were the authors of the medical reports concerning the plaintiff had never been called to give evidence and the statements in the reports tending to discredit the plaintiff were held to be clearly hearsay:

“[T]he learned trial judge referred to two hospital notes which he assumed tended to undermine a portion of the plaintiff’s evidence and to support that of [another witness]. The trouble is that neither note is evidence. While either note could have been put to the plaintiff in cross-examination (and one was) the cross-examiner would have been bound by her answer. The persons who made these notes were not called to give evidence. … These notes are of no evidential value and should not have been used by the trial judge.”

(4)                E-Commerce and Hearsay

4.15                        As already noted, oral evidence is often given strong preference over other forms of evidence. Such evidence can only be admitted, however, if it comes from the person who had direct knowledge of the matter to which he or she refers. Therefore, the hearsay rule in general specifies a document cannot be used as evidence if its author does not witness it.

4.16                        In recent years a number of statutory provisions have been introduced into the tax code in order to address the hearsay rule as it affects computer generated evidence.[426] Broadly, these provisions were designed to allow a court to admit computer evidence even though it was hearsay. Irish law, at present, with few exceptions treats computer records as hearsay. There is, currently, no general legislation which has adapted the rules of evidence, particularly the rule against hearsay, to take account of computer technology. The Commission has discussed this matter in its Consultation Paper on Documentary and Electronic Evidence.[427]

C                  The Commission’s 1988 Report on the Rule Against Hearsay in Civil Cases

4.17                        In its 1988 Report on the Rule Against Hearsay in Civil Cases[428] the Commission examined the main reasons for excluding hearsay. The Commission noted that the rule against hearsay is not without justification or rationale and that it is clearly preferable that evidence be given orally in court and be testable by cross examination.[429] The Commission added, however:

“[T]his principle should be applied in a flexible and common sense manner, should not be so complex as to be incapable of consistent application or of being understood, should not operate unfairly on parties and witnesses, should not exclude relevant evidence of probative value and should not add to costs and time both in and out of court.”[430]

4.18                        The Commission therefore recommended that the exclusionary hearsay rule should be retained as a general statement of principle but that the inadequacies of the law governing hearsay in civil cases could be resolved by providing that hearsay in civil cases would be admissible in circumstances where certain circumstances would be met. The Commission recommended that an out-of-court statement should be admissible as evidence of any fact in it if:

·           the witness is unavailable because he or she is dead or is unable to attend to testify because of their health or cannot be identified or found;

·          the witness, being a competent and compellable witness, refuses to be  sworn or to testify;

·          the witness is outside the State and it is not possible to obtain his or her evidence;

·          the other parties are notified in advance (unless the court exercises its discretion to waive this requirement) and

·          the statement is proved in court to be the best available evidence.

4.19                        In its Report the Commission recommended that a statement should be defined to include any oral or written utterance and conduct which is intended to be assertive. It recommended that no distinction should be made between first-hand and multiple hearsay.

4.20                        The Commission advocated that three specific safeguards were to be observed before the hearsay evidence could be admitted, namely:

·          The court should have a discretion to exclude any out-of-court statement which is of insufficient probative value;

·          The admissibility of the evidence should be conditional on the person who is the source of the information being called and subjected to cross-examination whenever he or she is available; and

·          Advance notice should be required of the intention to call such evidence unless the court in stated circumstances waives that requirement.

4.21                        The Commission considered that this “safeguarded inclusionary approach” was preferable to an exclusionary approach which may be rigidly applied subject to the recognised exceptions. The Commission was of the view that the existing exclusionary approach “must carry the serious risk that valuable and relevant evidence not coming within any of the specific exceptions will be excluded”.[431] The Commission also noted that the reasoning on this matter in its 1980 Working Paper on the Rule Against Hearsay[432] which preceded the Report “had not evoked any dissent and is in line with the approach adopted in some other common law jurisdictions”.[433]

4.22                        The Commission also considered in the 1980 Working Paper the desirability of excluding second-hand hearsay in any scheme of reform. It referred to the views of the English Law Reform Committee in its 1966 Report on Hearsay Evidence in Civil Proceedings[434] that allowing such evidence would run the risk of allowing all sorts of rumour to be admitted and involve the risk of “proliferation of hearsay evidence of minimal probative value”. Nonetheless, the Commission in its Working Paper did not recommend restricting the categories of hearsay evidence which are admissible as it believed this could result in valuable evidence being excluded. The Commission in its Working Paper and its Report decided to adhere to the recommendation that it was not desirable to limit the categories of hearsay evidence which are admissible by a requirement that they must be first hand in any sense. A similar approach was taken in Scotland.

4.23                         In recommending that a more inclusionary approach be taken towards hearsay in civil cases, the Commission in its 1988 Report placed some weight on the enactment of the Courts Act 1988 which, in effect, abolished jury trials for most civil claims.[435]

4.24                        As already indicated, the courts in Ireland have supported the reform proposals made in the 1988 Report[436] and the Commission reiterates in this Consultation Paper that it does not see any particular reason to depart from that general approach. Before turning to consider the specific approach the Commission proposes in this Consultation Paper, it is important to review developments in other States.

D                  Comparative review of reform of the hearsay rule in civil proceedings

(1)                The General Trend

4.25                        Recent legislative trends in the regulation of civil litigation is to place all relevant evidence before the court and to allow the court decide the weight to be attached to it. While there may be divergent approaches sharing the common law tradition on many elements of hearsay evidence, it is notable that as early as the 1960s, a dominant view, though not a consensus, emerged that civil proceedings are to be differentiated from criminal proceedings.[437] In considering reform of the hearsay rule it is important to appreciate the reasons justifying separate treatment of criminal and civil rules of evidence. As already mentioned, unlike an accused, parties to civil proceedings do not require special protection from a mistaken verdict and, unlike a suspect, parties in civil proceedings do not require protection from illegal, unfair or improper treatment in the manner in which evidence was obtained.[438] On both grounds, it is generally considered that the hearsay rule should not be applied in civil proceedings with the same stringency as in criminal proceedings. In its 1988 Report, the Commission also recognised that different considerations apply in criminal proceedings than in civil proceedings.[439]

4.26                        As in Ireland, in many of the common law and other States that have examined reform of the hearsay rule in civil proceedings, the usual mode of civil trial is before a judge who is professionally trained to assess the weight of evidence and it is rare that civil trials are heard before a jury. In England, the Law Commission highlighted this and stated that it can no longer be correct for rules of civil evidence to be based on an assumed separation of tribunals of fact and law when in practice the judge is the sole arbitrator of law and fact. Arguments based on the danger of misleading juries therefore lose their force. The different burden of proof, discovery, the diversity of types of proceedings and the variety of forms of relief being claimed by parties in civil proceedings against each other provide a disparate background from what applies in criminal proceedings and the dangers of miscarriages of justice leading to a loss of liberty are of a different nature.[440]

4.27                        Despite the absence of juries in most civil proceedings in many countries the fact that no consensus has emerged as to how the rule should operate has impeded uniform reform of the rule. The Singapore Law Reform Committee concluded in this respect:

“Major law reform commissions have produced divergent recommendations and none have been compelling. To compound the difficulties, each law reform commission has examined the necessity of reform in different contexts and such proposals as may be made are sometimes peculiar responses to differences in context”.[441]

4.28                        One difficulty in finding a consensus on this may be that civil proceedings in general rely to a higher degree than criminal proceedings on the use of documents. It may be for that reason that civil courts are particularly reluctant to allow the taking of technical points as to hearsay.

(2)                Reforms proposed or adopted in other jurisdictions

(a)                England, Wales and Northern Ireland

4.29                        In England the reform of the hearsay rule in civil proceedings has developed separately and, initially, further in civil proceedings than in criminal proceedings. Under the Evidence Act 1938 some forms of documentary hearsay were admissible. The Civil Evidence Act 1968 first provided for the admission of hearsay evidence in civil proceedings on a general statutory basis.[442] Although it contains limitations on the admissibility of hearsay evidence, the reality is that the 1968 Act in effect swept away, so far as civil cases are concerned, the common law rule against hearsay, and substituted a statutory code which provided for the general admissibility of hearsay evidence subject to important evidential and procedural safeguards. In relation to firsthand hearsay, these safeguards involved the identification of hearsay evidence, followed by notification to the opponent of an intention to use it at trial. The receiver of such notice, not willing to agree on the introduction of the hearsay could issue a counter-notice requiring the attendance of the statement maker. Such a counter notice could be defeated if the maker was dead, abroad, unfit, could not be found or due to the lapse of time could not be expected to remember the issues involved.[443] In such instances the judge had discretion to admit the evidence. Second hand and multiple hearsay were not admissible except for business records but this was limited to records collated by a person with personal knowledge of the records and then passed through a secure chain to storage.[444] This complex scheme in the 1968 Act was not applied in practice and came under criticism especially in relation to the difficulties surrounding the notice provision and non-documentary statements.[445] The 1968 Act was amended by the Civil Evidence Act 1972 which implemented the recommendations in the English Law Reform Committee’s 1966 Report on Hearsay Evidence in Civil Proceedings[446] (referred to in the Commission’s 1988 Report) to extend the scope of the 1968 Act to statements of opinion.

4.30                        In 1988, the Law Commission in England and Wales was asked to examine the usefulness of the hearsay rule in civil proceedings and in its Consultation Paper and ensuing Report concluded that the old rules were unwieldy, outmoded and overcomplicated.[447]  The Commission noted that the 1968 Act had been enacted in an era preceding the use of computers and photocopiers on an everyday basis. The Law Commission was conscious that the statutory scheme in place did not provide solutions to the practical difficulties that arose in litigation.  The Law Commission worked on the assumption that the rule should continue to apply differently in civil and criminal proceedings, with more radical reform reserved for civil proceedings. The new approach in civil cases was to ensure that where possible all relevant evidence was admitted subject to considerations of reliability and weight.[448]

4.31                        In their deliberations, the Law Commission considered the two options available to them:

         i.            Reforming the Civil Evidence Act 1968 by making a few amendments and

       ii.            Abolition of the hearsay rule in civil proceedings in a similar vein to the abolition of the rule in Scotland in the Civil Evidence (Scotland) Act 1988.

The Law Commission was opposed to amending the 1968 Act for three reasons:

·         The presumption enshrined in the Act that hearsay should be inadmissible subject to statutory or common law exceptions was at odds with a guiding principle of evidence: that all relevant evidence should be admitted unless there was a cogent reason to exclude it[449];

·         That all issues surrounding hearsay should be dealt with at trial and that the process should avoid surprises at trial[450] and

·         The scheme of the 1968 Act was anachronistic.[451]

4.32                        The approach of the Law Commission was that reform should extend not only to first hand hearsay but also to multiple hearsay “of whatever degree and form”.[452]  Nonetheless the Commission still considered it important that the concept of hearsay should continue to be understood and recognised.[453] When introducing what became the Civil Evidence Act 1995 (which implemented the Law Commission’s recommendations) in the House of Lords, Lord Mackay stated: “The concept of hearsay will remain and hearsay evidence may well be less than direct evidence. But it should not be excluded because it is hearsay.”[454]

4.33                        In England and Wales, under the Civil Evidence Act 1995, and in Northern Ireland, under the Civil Evidence (Northern Ireland) Order 1997,[455] all hearsay evidence is admissible in civil proceedings.[456] Section 1 of the 1995 Act states: “In civil proceedings evidence shall not be excluded on the ground that it is hearsay.” It should be noted that even before the 1995 Act came into force, the English courts had begun to limit the impact of the hearsay rule in civil proceedings. For instance, in Secretary of State for Trade and Industry v. Ashcroft[457] the Court of Appeal held that the rule did not apply in applications by the Secretary of State for disqualification orders against directors pursuant to section 7 of the Company Directors Disqualification Act 1986.[458]

4.34                        Section 1 of the Civil Evidence Act 1995 defines civil proceedings as proceedings “before any tribunal, in relation to which the strict rules of evidence apply, whether as a matter of law or agreement of the parties”. Thus as Hollander notes, if the strict rules of evidence do not apply to the proceedings, the 1995 Act does not apply.[459]  The definition of “statement” in section 1 covers opinions but does not extend to implied assertions; this has remained the position since in the original 1968 Act.[460] The 1995 Act also leaves the position of the common law hearsay exceptions unchanged and these continue to apply as do any statutory exceptions that existed at the commencement of the Act. The admissibility of hearsay evidence under the 1995 Act is subject to considerations of weight and safeguards in the form of certain procedural requirements.

(i)                 Safeguards

4.35                        While the 1995 Act allows for hearsay to be admitted in civil proceedings, there are, as Peyner notes, three procedural hurdles for a party to overcome before such evidence can be adduced in proceedings, namely the need for the adducer to identify the hearsay evidence; the openings available to the receiver of the evidence to test it and the weight to be attached to it by the fact-finder.[461]

·         Notice Provisions

4.36                        Section 2(1) of the Civil Evidence Act 1995 provides that a party intending to adduce hearsay evidence must give notice of that fact. The requirement to give notice to adduce hearsay evidence unless exempted by the governing rules of court, the Civil Procedure Rules 1998 (CPR), is mandatory. Despite the mandatory nature of this requirement as set out in section 2(1), section 2(4) of the 1995 Act states that failure to give notice goes to costs and weight but failure to abide with the notice requirement does not affect the admissibility of the evidence. In Sunley v Gowland[462] the Court of Appeal admitted into evidence a surveyor’s and valuer’s report which constituted hearsay evidence despite the failure of the defendants to abide by the notice provisions. Hollander notes that in this respect there is a contrast with other provisions of the CPR, where the court has a discretion to exclude the admission of evidence led in breach of the rules. However, the Law Commission took the view that if this discretion to refuse admission where proper notice was not served was to stand in respect of hearsay evidence, this would only achieve a reintroduction of the hearsay rule.[463]

4.37                        The dislike of the notification procedures centres on the need to analyse the degree and nature of hearsay in order to provide the other side with proper notification. The Law Commission pointed out that such effort is costly in legal time given the difficulties involved in identifying and classifying hearsay. It points out that much hearsay is uncontroversial and the effort of classification and detailed information of the chain or recording of the statement is unwarranted.[464]

4.38                        The rules of notification are, perhaps unavoidably, complex. The difficulty with the notice provisions was, as noted by the Law Commission, that they had fallen into disuse and that the prescribed time-limits were not complied with. The Law Commission noted for example that the Law Society had commented that the rules were rarely relied on, where a witness had died, disappeared or moved overseas.”[465] It also noted that the need to serve notices was often considered too late in the day and as a result of the ‘slip-shod atmosphere’ compliance with the notice requirements became the exception rather than the rule, with the parties relying on the discretion of the court to admit the hearsay evidence notwithstanding a failure to comply with the notice procedure or an agreement at trial to admit.[466] A major criticism of the notice provisions was that they imposed unrealistic requirements. The Law Commission ultimately recommended that all hearsay evidence - first hand hearsay and multiple hearsay – should be admissible in civil proceedings but felt that it was important to retain the concept of hearsay. The Commission recommended a flexible notice provision as a safeguard following the abolition of the exclusionary rule in civil cases “because it seems in accord with the developing ‘cards on the table approach’”.[467]

·         Requesting further particulars

4.39                        Section 2 of the Civil Evidence Act 1995 provides that a party can request further particulars; these are “of or relating to the evidence” and might deal with circumstances of its creation or the whereabouts of a witness that could not be called.

·         Provision to call the maker of the original statement

4.40                        Section 3 of the Civil Evidence Act 1995 provides that if one party puts in hearsay evidence of a statement, then the other side, with the leave of the court can call that witness and cross-examine him on his statement. The section provides that the witness can be cross-examined as if the hearsay evidence had been his evidence-in–chief. Peysner notes that the intention of this is to avoid “paper trials”.[468]  Phipson comments that the 1995 Act does not intend that the cross-examination be limited only to the “statement” and states that there may be circumstances “where both sides could equally well lead evidence from the witness or where both sides intend to do so, where the court might properly decide that the right of one party to cross-examine under section 3 should be limited to the statement as a matter of discretion, but that this will not usually be the case”.[469]

·         Attacking the credit of the witness

4.41                        Section 5 of the Civil Evidence Act 1995 provides that if the receiver wishes to attack the credibility of a witness, that party must notify the adducer of the witness of its intention. This would enable the adducer of the witness to reconsider its decision to call that witness or alternatively assemble supporting testimony or other evidence.[470]

·         Weight to be attached to the evidence

4.42                        The Civil Evidence Act 1995 introduces a statutory regime of circumstances which may be relevant in weighing hearsay evidence. Section 2(4)(b) contains a general warning that failure to give notice or particulars of hearsay may be taken into account by the court as a matter adversely affecting the weight to be given to the evidence. Section 4 of the Civil Evidence Act 1995 expressly provides for the weight to be attached to hearsay evidence. Salako comments that the safeguards encapsulated in section 4 have resulted in the best evidence rule being let in by stealth.[471] Section 4(1) provides that in estimating the weight, if any, that the court should attach to the hearsay evidence in civil proceedings, it should have regard to any circumstances from which an inference could reasonably be drawn as to the reliability or otherwise of the evidence.

4.43                        Section 4(2)(a) to 4(f) set out a list of matters to which the court should have regard in determining weight. Peysner comments that these factors in reality constitute a list of discounting factors and that the factors should encourage parties to present their “best evidence” if it is available. Section 4(2)(a) of the 1995 Act instructs the court to regard whether it would be reasonable and practicable for the party to whom the evidence was adduced to have produced the original statement-maker in court as a witness. This should be considered together with whether there was a failure to give notice, particularly if this is done to avoid having to produce an unreliable or dubious witness, or an attempt to conceal an essential witness by accruing hearsay evidence to avoid detection.   A further consideration in section 4(2)(b)  going to weight is whether the statement is made contemporaneously with the occurrence or existence of the matters stated and a third consideration is whether the evidence involves multiple hearsay.[472]  The court may also take into consideration any motive to conceal or represent matters[473], whether the original statement was an edited account or was made in collaboration with another for a particular purpose[474] and whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.[475]

4.44                        In essence section 4 allows the judge to focus on the probative value of the evidence to the facts in issue: it requires lawyers and judges to focus on function not form: the evidence may be admissible but is it of any value in proving the facts in issue?[476]

(b)               Scotland

4.45                        The Civil Evidence (Scotland) Act 1988 provides another statutory precedent for the option to abolish the rule in civil cases. The 1988 Act followed from the Scottish Law Commission’s 1986 Report on Corroboration, Hearsay and Related Matters in Civil Proceedings[477] but was more radical in scope than the Commission had proposed.

4.46                        The 1988 Act abolished the exclusionary rule and it is no longer acceptable in principle to have a general rule which excludes relevant evidence solely on the basis of its hearsay nature. Like the later English 1995 Act, section 2(1)(a) of the 1988 Act states: “In any civil proceedings… evidence shall not be excluded solely on the ground that it is hearsay.” The 1988 Act ended the need to distinguish between first-hand and multiple hearsay for the purposes of admissibility. In recommending the abolition of the hearsay rule in civil cases, the Scottish Law Commission considered that the problem of distortion through repetition is better dealt with by permitting the court to consider what weight is to be attached to the hearsay rather than by simply excluding hearsay altogether.  A witness giving evidence on hearsay will normally be able to give some explanation as to the source of the information and the circumstances in which it was transmitted.  This would provide the court with material on which to judge its weight.[478] All statements adduced as representations of fact are covered by the definition of ‘statement’ contained in section 9 of the 1988 Act and that section gives the same treatment to statements of opinion as statements of facts. For all practical purposes this ends the dispute as to whether assertive conduct is or should be treated as hearsay.

4.47                        The 1988 Act does not provide a requirement of notification but section 4 permits an additional witness to be called by either party before the start of closing submissions; so if the maker of a statement to be adduced in evidence is available, his presence for cross-examination can be secured, though only with leave of the court. The rationale for a notification requirement is that the notification procedure would ensure that the hearsay elements in evidence were recognised and communicated to the other side in sufficient time for objections to be raised. However, the criticisms of the notification requirement are that it does not relate specifically to particular refinements for special circumstances but to the difficulty of categorising in advance evidence of a hearsay nature. The 1988 Act does not require any notification of the intention to use hearsay evidence. The Law Commission pointed out however that in deciding not to require prior notification the Act may in theory have increased the possibility of unfair surprise at trial and the danger that the weakness of hearsay statements will not be discovered.  Section 7 makes provisions for admissibility of negative hearsay in business records.

4.48                        The abolition of the hearsay rule in the 1988 Act has, it appears, been largely trouble-free although courts are still required to distinguish between hearsay and non hearsay.[479] Nevertheless the reform in the 1988 Act is a radical one and at times it appears the Scottish courts have had difficulty in adjusting to all the implications of the change in law.[480]

(c)                Hong Kong

4.49                        In Kong Kong until 1969, the hearsay rule in civil proceedings was governed by the common law, with the addition of several statutory exceptions based on English legislation. The Evidence (Amendment) Ordinance (Ord 25 of 1969) largely replaced the common law rule with provisions based on the English Civil Evidence Act 1968.

4.50                        In 1996, the Hong Kong Law Reform Commission published a Report on the Heasay Rule in Civil Proceedings.[481] It put forward two options for reform, following those in the English Commission’s 1993 Report.  The first option was to refine the existing legislation.  The second option was to do away with the hearsay rule in civil proceedings altogether. The Hong Kong Law Reform Commission also examined the approach adopted in Scotland under the Civil Evidence (Scotland) Act 1988. As already noted the 1988 Act abolished the hearsay rule in civil proceedings in Scotland and removed any requirement for prior notification of hearsay evidence.

(i)                 The Hearsay Notice and counter notice prior to reform

4.51                        Any party who wished to adduce a hearsay statement which was admissible in evidence by virtue of sections 47, 49 or 50 of the Evidence Ordinance had to serve a notice on all other parties of his intention to do so not later than 21 days before application was made to set down for trial.  A copy of any documentary hearsay statement was required to be served with the notice.  If the statement was non-documentary hearsay, admissible under section 47 of the Evidence Ordinance, the party who proposed to adduce it must have given particulars of the maker and the substance of the statement.  Reasons must have been stated where the adducer of hearsay could not call the maker of the statement, or where the adducer for some other reason proposed not to call him. The opposing party must have served a counter-notice within 21 days after service of the hearsay notice if it requires the maker of the hearsay statement to attend court.  If such a counter-notice had been served, the party proposing to adduce the hearsay statement had no right to use it in evidence unless the adducer satisfied the court that the maker cannot or should not be called as a witness.

(ii)               Residual discretion to admit hearsay evidence

4.52                        The operation of the rules on notice is subject to a residual discretion in the court to allow a hearsay statement which was admissible under section 47(1), 49(1) or 50(1) of the Ordinance to be given in evidence despite the fact that the rules have not been complied with.[482]  This discretion is exercisable when the court considers it just to do so. The Hong Kong Law Reform Commission notes that the margin of discretion is wide although there is direction as to the manner it should be exercised in.  In Ford v Lewis[483], the English Court of Appeal denounced the avoidance of the rules for the purpose of preserving the element of surprise. The rules should not be avoided for tactical reasons.  The discretion was meant to be exercised to overcome the party's inadvertence or inability to comply. The discretion may be exercised in favour of admission despite non-compliance where refusal to admit the evidence might otherwise compel one side to call the opposing party or his servant or agent.

(iii)              Further safeguards

4.53                        Section 51 of the Ordinance provided guidance as to the weight to be accorded to hearsay evidence.  The court was required to have regard to all the circumstances from which an inference can reasonably be drawn, and, in particular, whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and whether or not the maker (or, for records, the first supplier of the information or other person concerned with compiling and keeping the records) had an incentive to conceal or misrepresent the facts.[484] Section 52 of the Evidence Ordinance permitted evidence impeaching credibility of the witness, including prior inconsistent statements, even if such statements are themselves hearsay.[485] A further safeguard protected vexatious or mischievous attempts to needless challenges to the adducing of hearsay evidence may be penalised in costs.  The court had a discretion to disallow or award costs against a party who unreasonably insisted by way of a counter-notice on the attendance of a witness who is the maker of a statement that is admissible as a hearsay statement.[486]

 

(iv)              Recommendations of the Hong Kong Law Reform Commission

4.54                   In its 1996 Report the Hong Kong Law Reform Commission shared the view of the English Law Commission in adopting the following guiding principles:

·          The law should be simplified to the greatest degree consistent with the proper functioning of a law of evidence.

·          As a general rule all evidence should be admissible unless there is good reason for it to be treated as inadmissible.[487]

4.55