CONSULTATION
PAPER
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
Legislation
xiii
Table of
Cases
xv
B The Hearsay Rule and Key
Principles in the Law of Evidence
D Outline of the
Consultation Paper
CHAPTER 1
historical Development of the hearsay
rule
B Early Development of the
Exclusionary Hearsay
Rule
C Developments in the 19th
Century
(1) Reasons for the development of the hearsay
rule
CHAPTER 2
overview of the hearsay rule IN CURRENT
IRISH LAW
B Defining hearsay, and the
distinction between
original evidence and hearsay
(2) Written and Documentary Hearsay
D General Principles of
Evidence and the Hearsay
Rule
(2) Relevance and exclusionary rules of evidence
(3) Fair Procedures under the Constitution of
Ireland
and European Convention on Human Rights
(4) Conclusions and provisional recommendations
on the right to fair procedures and the hearsay
rule
CHAPTER 3
the INCLUSIONARY Exceptions To The
Hearsay Rule
B Overview of the
Inclusionary Exceptions to the
Hearsay Rule
(1) The main inclusionary exceptions
(2) Suggested approach based on exclusion of
reliable evidence
(3) Forensic techniques used to avoid the
Hearsay
Rule
C Inclusionary Exceptions to
the Hearsay Rule
(1) Admissions and confessions
(2) Spontaneous statements connected with the
subject matter of the case (the res gestae rule)
(4) Certain statements of persons now deceased
(6) Testimony in Former Proceedings
(7) Inclusionary exceptions based on the
reliability
of the hearsay
D Judicial Reform of the
Hearsay Rule
CHAPTER 4
REFORM OF the hearsay rule in civil
CASES
B Overview of the Current
Law in Ireland
(1) Hearsay in general in civil proceedings
(2) Statutory reform of the hearsay rule in
civil proceedings
(3) Documentary Hearsay Evidence
C The Commission’s 1988
Report on the Rule Against Hearsay in Civil Cases
D Comparative review of
reform of the hearsay rule in
civil proceedings
(2) Reforms proposed or adopted in other
jurisdictions
(1) Why introduce hearsay in civil cases?
(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
(4) Wide Judicial Discretion to admit hearsay
evidence
(5) Admission of hearsay evidence in civil
proceedings subject to safeguards
(6) Judicial discretion to evaluate weight to be
attached to hearsay and to exclude hearsay
(7) Provisional recommendations for reform
CHAPTER 5
REFORM OF the hearsay rule in criminal proceedings
B Statutory amendments to
the hearsay rule
(1) Business records admissible under Part II of
the Criminal Evidence Act 1992
(2) Further statutory reform to the hearsay rule
in
criminal proceedings
C Reform of the Hearsay Rule
in Criminal
Proceedings
(1) Option 1: Preserving the current
application
of the hearsay rule
(2) Option 2: Wide exceptions with a narrow
discretion to admit
(3) Option 3: Judicial discretion based on
necessity
and reliability
(1) Previous statements of witnesses
E Conclusions and
recommendations
CHAPTER 6
Summary of ProvisIonal Recommendations
A General Scope of the
Hearsay Rule and Guiding Principles
B Inclusionary Exceptions to
the Hearsay Rule
C Reform of the Hearsay Rule
in Civil Cases
D Reform of the Hearsay Rule
in Criminal Cases
TABLE
OF LEGISLATION
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 |
[2009] ECHR 26766/05 and 22228/06 |
ECHR |
|
Asch v Austria |
ECHR |
|
Borges v Medicial Council |
Irl |
|
Button v R |
[2002] WASCA 35 |
Aust |
Crawford v Washington |
541 US 36 (2004) |
US |
Criminal Assets Bureau v Hunt |
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 |
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) |
Irl |
|
Kostovski v Netherlands |
ECHR |
|
Kuruma v R |
Eng |
|
Lenaghan v Ayrshire |
1994 SC 365 |
Scot |
Lord Advocate's Reference (No 1 of 1992) |
[1992] SCCR 724 |
Scot |
Luca v Italy |
ECHR |
|
Manase v R |
[2000] NZCA 322 |
NZ |
Moloney v Jury's Hotel plc |
Supreme Court 12 November 1999 |
Irl |
Muldoon v Herron |
Scot |
|
Murphy v GM |
Irl |
|
Myers v DPP |
[1965] AC 1001 |
Eng |
O'Callaghan v. Mahon |
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 |
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 |
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 |
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 |
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 |
Eng |
|
Sunley v Gowland |
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 |
ECHR |
|
Van Mechelen v Netherlands |
ECHR |
|
Walton v R |
(1989) 166 CLR 283 |
Aust |
Windisch v Austria |
ECHR |
|
Wright v Doe d. Tatham |
(1838) 7 Eng Rep 559 |
Eng |
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]
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]
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.
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.
1.01
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.
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]
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.
1.11
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.
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]
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]
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.
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.
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]
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
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.
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.
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.
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.
2.17
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]
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.
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.
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.
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.
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.
2.58
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]
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]
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.
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.
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.
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]
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.
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
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]
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.
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]
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.
3.15
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.
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.
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]
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]
3.33
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.
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]
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]
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.
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]
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.
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.
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.
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.
3.60
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.
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]
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.
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.
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.
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
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.
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]
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.”
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.
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.”
4.15
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]
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.
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.
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.
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]
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]
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.
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.
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.
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]
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
The Commission
recommended that the hearsay rule be abolished instead of refining Part IV of
the Evidence Ordinance. It recommended that there should be general
admissibility of hearsay evidence in civil proceedings but that in order to
avoid possible abuses, the general relaxation of the hearsay rule must be
subject to proper safeguards. It further recommended the removal of the
distinction between first-hand and multiple hearsay. The recommendations of the
Commission were implemented in 1999 with the abolition of the hearsay rule in
Hong Kong civil proceedings.[488]
4.56
In its 2007 Report
on Reform of Admissibility of Hearsay Evidence in Civil Proceedings[489] the Singapore Law Reform
Committee noted that the law of hearsay as contained in the Singapore Evidence
Act 1997 had avoided many of the criticisms which were or
have been levelled at the common law exceptions. From their inception,
the statutory exceptions were generally intended and drafted to be wider
than the common law exceptions. Nonetheless, the Law Reform Committee was of
the view that the statutory exceptions were too narrow in relation to civil
proceedings.[490]
4.57
The Law Reform
Committee noted that the Singapore Evidence Act 1997 introduced a
different conception of hearsay from the common law[491]