Supreme Court of Ireland Decisions

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Appeal No.:2022/000083

[2023] IESC 19

Charleton J

O’Malley J.

Woulfe J

Murray J.

Collins J.

 

 

BETWEEN

 

THE PEOPLE

 (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

 

AND

KEITH CONNORTON

Appellant

 

Judgment of Mr Justice Maurice Collins delivered on 28 July 2023

 

1.                  This appeal presents two related issues. The first is whether the recording of the 999 call made by Ms McGrath in the immediate aftermath of the incident leading to the death of Mr McKeever (and the transcript of that call) constituted hearsay evidence. The second is whether, assuming that the recording was hearsay evidence, it was nonetheless properly admitted into evidence to prove the truth of its contents on the basis of the established exception to the hearsay rule commonly referred to as the res gestae exception.

 

2.                  As to the first of these issues, I agree with the analysis and conclusions set out in the judgment of Murray J. In my view, a prior out of court statement does not become admissible as evidence of the truth of its contents simply because the maker of that statement is called as a witness. Under section 16 of the Criminal Justice Act 2006, such a statement may, with the leave of the court, be admitted into evidence as evidence of any fact mentioned in it provided that the requirements set out in that section - intended to ensure fairness for the accused - are satisfied. A prior statement may also be put to a witness for the purpose of impeaching his or her credibility in accordance with the Criminal Procedure Act 1865 but the judge must explain to the jury that the prior statement goes to credibility only and is not to be taken as evidence of the truth of the matters contained in it: People (AG) v Taylor [1974] IR 97. Neither the 1865 Act nor section 16 of the 2006 Act makes any sense if, at common law, a prior statement made by a witness is admissible as proof of its contents.

 

3.                  In fact, it seems clear that such statements were and are not regarded as admissible as proof of their contents at common law. The doctrinal basis for that varies, depending on which version of the rule against hearsay and which version of the rule against narrative one adopts. On one view, such statements are inadmissible hearsay (based on a formulation of the hearsay rule that encompasses any out of court statement made by a witness, when sought to be relied on as proof of its contents). On another, such statements are excluded by the rule against narrative (even though, on its face, the rule against narrative appears to exclude reliance on prior statements only when relied on for the purpose of corroborating, rather than contradicting, the oral evidence of a witness). It is highly undesirable that there should be any uncertainty in this area and the obvious solution is that adopted in the texts and authorities considered by Murray J in his judgment and to merge the two rules in the manner he suggests. Accordingly, I agree entirely with the formulation of the hearsay rule set out in the judgments of Murray J and Charleton J.

 

4.                  As regards the second issue, the manner in which that issue was dealt with at trial was perhaps less than ideal. The 999 recording was sought to be adduced in evidence for different purposes at different times and different justifications were offered for its admissibility at different times (and, indeed, at the same time). As a result, the issue of whether the recording was admissible under the res gestae exception, and the applicable test for deciding that question, were not addressed as fully as they might have been. While the judge may not have directly addressed the fabrication/concoction issue, that is explicable having regard to the run of the trial and in circumstances where no issue of fabrication/concoction in respect of the 999 call was raised by counsel for the appellant either in submission or in cross-examination of Ms McGrath.

 

5.                  Some of the language used in the judgments in R v Ratten [1972] AC 378 and R v Andrews [1987] AC 281 and, in particular, the suggestion in those cases that any “possibility” of concoction or fabrication must be excluded as a prerequisite to the admission of evidence under the res gestae exception cannot, I think, be understood or applied overly literally. Such a threshold of certainty applies nowhere in the law. The judge is acting as a gatekeeper, deciding only the threshold issue of admissibility. He or she is not the finder of fact. The judge must decide whether the circumstances in which the disputed statement was made sufficiently exclude any reasonable possibility of concoction or fabrication such that the evidence is sufficiently reliable to go to the jury. If admitted, the evidence may be relied on by the jury in determining guilt but it is not, of course, bound to accept that evidence or give it any greater weight than any other admissible evidence.

 

6.                  Although the issue might have been addressed more clearly at trial, I have no doubt that the 999 call was properly admitted by the judge. Given the timing of the call, the circumstances in which it was made, what was said by Ms McGrath and how it was said, “the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded” (per Lord Wilberforce in Ratten, at 389F-G) and it related to “an event [that] was so unusual or startling or dramatic as to dominate the thoughts of the [caller], so that [her] reaction was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.” (per Lord Ackner in Andrews, at 301A-B).

 

7.                  For these reasons, and for the further reasons set out in the judgments of Charleton J, Woulfe J and Murray J, I would dismiss the appeal.

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Result:     Dismiss Appeal