Supreme Court of Ireland Decisions

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AN CHÚIRT UACHTARACH

THE SUPREME COURT

 

Record No.:2022/83

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 Woulfe delivered on the 28th day of July, 2023

Introduction

1.      The appellant appeals against a decision of the Court of Appeal delivered on the 21^st of October 2021 ([2021] IECA 275). The Court of Appeal dismissed the appeal brought by the appellant against his conviction in the Central Criminal Court on the 21^st December 2018, where he was convicted by a 10/2 majority verdict of a jury of the murder of Graham McKeever on the 18^th February, 2017, at an address in Tallaght, County Dublin, following a ten day trial.  The appellant was sentenced to the mandatory term of imprisonment for life on the 28^th January 2019.

2.      The case was presented by the prosecution as a so-called “love triangle” case. Prior to the date of the alleged offence, the appellant had been in a relationship with a Ms. Claire McGrath for approximately three years. They had a son together and lived together in an apartment located in Tallaght, County Dublin.  In her sworn evidence to the jury, Ms. McGrath stated that they had been going through “a very very rocky patch” in their relationship for about a year.  A number of weeks prior to the alleged offence she had begun a relationship with the victim, Graham McKeever, without the appellant’s knowledge. The appellant, Ms. McGrath and Mr. McKeever all had addiction issues.

3.      Ms. McGrath’s evidence was that three days before the incident she and the appellant had a row, and he had left the apartment. It was his apartment because his name was on the lease, and Ms. McGrath told the jury that he had a habit of returning to the apartment and sleeping on the couch even when their relationship was not going well. In the early hours of the 18^th February, 2017, Ms. McGrath and Mr. McKeever were in bed together in the apartment when they heard a noise, and upon investigation Ms. McGrath discovered the appellant in the kitchen/sitting room. Some physical altercation ensued between Ms. McGrath and the appellant, leading Ms. McGrath to emit some form of exclamation, at which point Mr. McKeever then entered the room and became embroiled in a physical altercation with the appellant.  In the course of that altercation Mr. McKeever was stabbed with a knife in the chest (it was the prosecution’s case that he was stabbed by the appellant), and sustained injuries from which he rapidly died.

4.      As the only people present during the incident were the appellant, the deceased and Ms. McGrath, her evidence was of critical importance in the trial. In the course of testifying before the jury Ms. McGrath gave evidence that, after the stabbing, two calls were made to the emergency services.  Her evidence was that she made an emergency services call in the immediate aftermath of the stabbing, which was shortly after the appellant himself had made an emergency services call.  (The audio recording of the latter call was later allowed into evidence on the basis that the appellant, in the course of the phone call, had made a declaration against his self-interest.) 

5.      The admission of the audio recording of the emergency services call made by Ms. McGrath into evidence became a live issue on day 6 of the trial.  By this stage of the trial the respondent had made a successful application to the trial judge to treat Ms. McGrath as a hostile witness, with the result that he was permitted to cross-examine her.  Counsel for the respondent asked Ms. McGrath if she remembered what she had said to the operator when she made the emergency services call.  Counsel for the appellant raised an issue as to the admissibility of any such statements, and a voir dire then took place in the absence of the jury. 

6.      Counsel for the appellant suggested that counsel for the respondent should go first, to explain why the recording of the emergency services call was admissible, and the trial judge agreed.  Counsel for the respondent first referred to part of the transcript of the call where Ms. McGrath was asked who Mr. McKeever was to her, and the transcript records her as stating as follows:

“He was a new partner I was seeing.  My ex-partner came into the house and picked up a knife and went for him with it and stabbed him with it and he’s gone now, he broke my nose.”

7.      Counsel for the respondent submitted that this statement was inconsistent with the testimony that Ms. McGrath had given, and that he was entitled to put it to her in terms of it being a prior inconsistent statement.  Alternatively, the actual audio recording of the call was the best evidence, and ought to be admitted in terms of real evidence of what happened at the time.  He also floated the argument at that stage that the recording was “in the nature of res gestae because the incident is still in effect ongoing and it’s contemporaneous”, but later in reply said he was not going down the res gestae route “at the moment”. 

8.      In reply, counsel for the appellant first queried whether the statements made by the witness on the call engaged the rule against hearsay at all, in circumstances where the witness was present in court giving evidence, and whether the only relevant rule was the rule against narrative.  The trial judge, however, expressed a clear view that a previous out of court statement made by a witness is still hearsay, even if the witness is present in court to give evidence, if it is an out of court statement which has as its purpose the proof of the contents of the statement. 

9.      Counsel for the appellant then addressed the different grounds for admissibility put forward by the respondent.  As regards putting the statement to the witness as a previous inconsistent statement, he noted the procedure for cross-examination on previous inconsistent statements is regulated by the provisions of the Criminal Procedure Act 1865.  The purpose of putting the previous inconsistent statement is to seek to impeach the credibility of the witness, not to establish the truth of its content.  So given that is the purpose of putting the inconsistent statement, he argued that the respondent should not be permitted to play the recording for the witness for that purpose, he should only be permitted to put the statement to her asking her did she say it or not.  Counsel for the appellant also rejected the alternative arguments that the recording was admissible as real evidence, or that the res gestae exception to the rule against hearsay was applicable.

10.  The trial judge ruled at this juncture in favour of the appellant.  He ruled that the respondent could put the words stated by the Ms. McGrath on the emergency services call to her “in the admittedly rather arid circumstances of the transcript for the moment”, as the recording probably had an overlay of drama that brought something unnecessary for the respondent’s current purposes, although maybe those purposes would change and evolve.  He was simply ruling on admissibility of the recording on the narrow basis that the respondent wanted to deal with inconsistency, and he was not precluding the respondent from coming back to the issue if it were to arise in any other context. 

11.  After the above ruling Ms. McGrath resumed her evidence in front of the jury.  She was asked about what she had said on the emergency services call by reference to the transcript of that call, and she accepted that she had said what the transcript recorded.  Reference was made to the fact that she was crying on the call and in a panic.  During examination by counsel for the respondent, Ms. McGrath stated as follows:

A.      “What I'm trying to say is my ‑‑ my description to the 911 operator is not accurate, it is what I said though.

Q.      But it is what you said?

A.      Yes, it is, yes.

Q.      But it's not accurate?

A.      No.

Q.      So when you said, "He is a new partner", that is accurate?

A.      For the purpose of explaining who each person was…”

Q.    “Yes.  "He was a new partner I was seeing"?

A.      Yes, Sir.

Q.      That's accurate?

A.      Yes, Sir.

Q.      "My ex‑partner came into the house", that's accurate?

A.      Yes, Sir.

Q.      "And picked up a knife", that's accurate?

A.      Well, yes, to cut the hash he had to pick it up, so, yes.

Q.      "And went for him with it"?

A.      Well, he did stab him with it, so, yes.

Q.      "And stabbed him with it"?

A.      Yes, Sir.

Q.      "And he's gone now"?

A.      He had left at that point, as far as I'm aware, yes, was this on Graham's phone?

Q.      Yes?

A.      Yes, Mr Connorton had left the premises.

Q.      "He broke my nose"?

A.      Well, I thought it was broken at the time, yes.

Q.      So everything you said now you now accept is in fact true?

A.      That I said it, yes.”

 

12.  Subsequently, Ms. McGrath was extensively cross-examined by counsel for the appellant.  However, there was no cross-examination relating to the emergency services call, and in particular relating to any possibility of concoction or distortion on the part of Ms. McGrath; neither was any motive in respect of any conceivable concoction or distortion put to her. 

13.  On day 7 of the trial counsel for the respondent told the trial judge that the appellant wanted the recording of the first emergency services call (the call made by the appellant himself) played to the jury, and that the respondent was not objecting to that.  The trial judge queried if the respondent was coming back to the issue of playing the recording of the call made by Ms. McGrath, in circumstances where his earlier ruling was in the context of the respondent seeking to put the statements to her for a particular purpose, i.e. for the purpose of showing that she had made a previous inconsistent statement. 

14.  Counsel for the respondent then made an application that the prosecution should be permitted to play to the jury the recording of the call made by Ms. McGrath, and a further voir dire took place in the absence of the jury.  Counsel stated that the recording was “in every sense of the word real evidence, this actually happened”.  He also stated that the “actual best evidence is the recording of what the witness said”.  He submitted that the recording was made “within terms which would see it admitted under the ordinary res gestae rule”.  The recording was as near contemporaneous with events as it possibly could be, given that the call starts off with Ms. McGrath saying “Keith”, and this suggests that the appellant is still somewhere around the apartment. 

15.  Counsel for the respondent also submitted that the recording was evidence that became available because of modern technology, and that it would offend against any progressive view of the law or common sense not to permit the jury to hear the actual words spoken by the witness. He argued that what the jury get in addition from the recording that they do not get from the transcript is they get to hear her voice, they get to hear her tone, and they get to hear some impression of her emotional state during the course of that call. 

16.  In reply counsel for the appellant argued that the call made by Ms. McGrath did not fall within any of the exceptions to the rule against narrative or the rule against hearsay, and that what the respondent was effectively asking the trial judge to do was to apply some sort of new rule of evidence dealing with either narrative or hearsay.  He referred to the respondent’s submission that it would be a progressive view of the law to admit the recording and that it would offend common sense not to do so, and suggested that, if there is a problem with the rules of evidence, it is for the Oireachtas to change those rules. 

17.   The trial judge ruled that the statement made by Ms. McGrath on the call recording was a hearsay statement in the sense that it was an out of court statement, but it was admissible as part of the well established res gestae exception to the rule against hearsay.  His ruling was in the following terms:

“JUDGE:  All right.  Well, the matter has been retailed extensively both now and yesterday and Mr Grehan and Mr Staines made very learned submissions based on the law.  The general principle of O'Mahony is that I believe that such an item can be admitted in evidence subject to the ordinary rules of evidence, including the rule against hearsay.  And if one wants to apply the rule against hearsay to this, the res gestae is a well established exception to it.  It's a hearsay statement in the sense that it's an out of court statement, and that feature of it is not changed by the fact that the witness is in court and has made other in court statements and matters of that kind.  It's still a hearsay statement, so therefore it must be brought within one of the exceptions.

 

Well, I suppose one can regard the res gestae as something of a catchall category.  But in fact it's very clearly set out in the Rhattin case, which is from ‑‑ getting on for 50 years ago.  But the circumstances in fact aren't all that different, except that technology of course has addressed some of the potential objections that might arise the terms of the recording of a statement such as this.  It's clearly part of the facts in issue in this case.  As Mr Grehan points out, the opening part of it indicates that Mr Connorton is still somewhere around.  So the transaction or incident in issue is in fact ongoing at the time, that as a matter of fact the emergency services are called and as a matter of fact nowadays an emergency call is captured by a recording system.

 

As Mr Grehan says, that's the world we live in and I mean there is a statement of Baron J from sometime which one should be careful I suppose of overusing.  But it remains the fact that the rules of evidence should not offend against common sense.  And I mean here we have a situation whereby text messages are in without objection.  The first emergency call is in.  And then the jury would be left with a situation of a second call three minutes later not being played to them, obviously will be available because they'll know that because they'll have heard the first call being recorded three minutes earlier.  And then they will have a reading from a bit of paper as to what was said the second time around.

 

If I was on the jury confronted with that, I would go in and I would say to myself, what's all that about?  So it clearly offends against common sense.  But that's not really the touch stone.  Does it have a purpose?  Is it probative of something?  Well, of course it is, because this as Mr Grehan points out, as I've pointed out repeatedly, all of this comes down to what view or conclusion can be formed about the events of a number of seconds, a minute or something of that kind in this apartment on this night.  The only person who saw that is Ms McGrath.  She herself has been at pains to tell the jury that she wouldn't regard herself as a reliable witness.  They're going to have to make decisions all about that.

 

We have here a real fact which is something that the jury can pray in aid in making the difficult decisions they have that make in this case.  I'm satisfied to hang my hat on it being admissible as part of the res gestae and therefore an exception to the ‑‑ an admissible exception to the hearsay rule.  But in fact, if I had to go so far, I would happily say that this is a situation whereby things have moved on and this is simply a real fact of life that is part of what happened in the essential transaction in issue in this case.  And as I've pointed out, I'm not presiding over a scenario whereby the jury get the bits that suits some people, and don't suit others.  They get everything that's relevant, admissible ‑‑ and admissible, and for the reasons put forward by Mr Grehan, this is both relevant and admissible, and it goes in.”

…

“JUDGE:  And I should add to that, of course, that the main reason for that is that the objection that really arises to so called hearsay is the non‑availability for cross‑examination.  Forget about whether things are on oath or all the rest of it, and that is not a flaw or feature of the landscape.  The one thing that we're not short of and I'll make the observation again is cross‑examination of the relevant witness in this case.  So there can be no possible unfairness.”

 

18.  The audio of the recording of Ms. McGrath’s call was subsequently played in court before the jury, which included the recording of Ms. McGrath stating “He was a new partner I was seeing.  My ex-partner came into the house and picked up a knife and went for him with it and stabbed him with it and he’s gone now, he broke my nose.”

 

The Court of Appeal

19.  The appellant appealed his conviction to the Court of Appeal on three grounds, one of which was that the trial judge erred in law and in fact in allowing the prosecution to play the emergency services call made by Ms. McGrath to the jury, in circumstances where the legal basis pursuant to which the trial judge was requested to admit the evidence was uncertain, unclear and/or confused.

20.  Giving the judgment of the Court below, Edwards J. thought it manifest that the trial judge was of the view that it was intended to use the recording, at least in some respects, as testimonial evidence, i.e. seeking to rely on the truth of the contents of the recorded statements.  He thought it clear that the trial judge considered that the rule against hearsay was engaged on his understanding of that rule as it is usually applied, and the Court below was of the view that he was correct in that assessment, so that the material was prima facie inadmissible unless it could be shown to come within one of the recognised exceptions to the hearsay rule.   

21.  Edwards J. stated that the Court was satisfied that the trial judge was correct in concluding that the recording came within the res gestae exception, but also made it clear that there were aspects of his reasoning with which the Court did not agree.  The Court accepted the appellant’s submission that the correct approach to the res gestae exception is that commended in The People (DPP) v. Lonergan [2009] 4 IR 175 (“Lonergan”), namely that due weight should be given to both the requirement of contemporaneity and the possibility of concoction or distortion.  In the Court’s view the evidence in this case clearly established close proximity in time between the emergency services call made by Ms. McGrath and the stabbing of Mr. McKeever.  It was made while he was in extremis in the immediate aftermath of being stabbed, and the Court was satisfied that the requirement of contemporaneity was clearly established. 

22.  On the issue of possible concoction or fabrication (the Court below could discern no substantive difference between the two terms), or deliberate distortion, of the account, the Court noted that the appellant had suggested that there were a number of factors which pointed towards the possibility of concoction or distortion.  Edwards J. stated that this argument now being made by the appellant on appeal was not one made in the trial court.  Other arguments were advanced, but the case was not made that the evidence should not have been admitted because there was a risk of concoction/fabrication or deliberate distortion that could not be discounted. 

23.  Therefore, the Court found it unsurprising that the ruling of the trial judge did not address that issue in terms.  That having being said, the Court was in no doubt that the trial judge was nevertheless fully alive to the approach commended in the relevant jurisprudence and its nuances.  While it might have been better if the trial judge had expressly discounted concoction/fabrication and/or deliberate distortion in his ruling, the Court did not regard his failure to do so as having been fatal in the overall circumstances of the case, and particularly where neither party was seeking at that point to suggest that it was an issue in the case.  Importantly the trial judge did consider the issues of potential relevance and reliability. 

24.  Dismissing this ground of appeal, the Court of Appeal held as follows (at para. 109):

“In our view while the trial judge in the present case did not display the type of rigorous analysis that was provided in the judgment in the Ratten case when giving reasons for his ruling on this particular issue, it is clear from the later detailed ruling that he gave on the s. 16 issue, which covered and extensively analysed a great deal of evidence that was also relevant to the res gestae issue, that he was closely following the evidence throughout the trial and subjecting it to rigorous, ongoing analysis. While clearer and better reasons, more clearly anchored in this ongoing analysis, might have been provided by him for his decision to admit the evidence, we are satisfied that he was ultimately correct to do so. We are in no doubt that when he gave his ruling he had a full appreciation of the evidence before him and understood, and may be taken to have applied, the test in law for admitting hearsay evidence pursuant to the res gestae exception.”

 

 

Determination

25.  This Court granted the appellant leave to appeal by a determination dated the 24^th October 2022: see [2022] IESCDET 114. The Court considered that the issues raised by the appellant as to admissibility of recordings of emergency phone calls and the basis of such admissibility are matters of general public importance and are likely to arise in other cases.

 

 

Submissions in this Appeal

Submissions of the Appellant

26.  The appellant submitted that the issue for determination primarily involves considering whether the trial judge erred in his application of the res gestae exception to the rule against hearsay.  It also involves consideration as to whether the trial judge was correct to hold that the recording was admissible on the alternative basis that it was “simply a real fact of life”. He notes that in the respondent’s notice the respondent emphasised the latter point, arguing that a new exception to the hearsay rule should apply for recordings of emergency calls.

27.  The appellant submitted that the rules governing the admissibility of the recording of an emergency services call depends on the reason why the party is seeking to adduce it in evidence. Where the recording of an emergency services call is relied on as testimonial evidence, to prove the truth of matters contained in out of court statements contained on the call, the rule against hearsay is engaged and the evidence is only admissible in those circumstances if an exception to the hearsay rule applies.  The fact that the emergency call has been electronically recorded does not alter this conclusion. In this case the recording was being relied on as testimonial evidence rather than being adduced to simply prove some other matter, such as the existence of the recording or the fact that something in particular was stated.  For this reason the appellant submitted that the hearsay rule applied to the recording, and it could only be admitted if one of the exceptions to the hearsay rule applied.

28.  The appellant noted that the trial judge admitted the emergency services call under the res gestae exception to the hearsay rule. He highlighted the suggestion in one textbook that the res gestae exception has undergone considerable refinement over the years, moving from a focus on the timing of the statement to a question as to “whether given the totality of the circumstances the declarant could have been mistaken or lying”:  see Heffernan, Evidence in Criminal Trials (2^nd ed., 2020), at para. 8.77.

29.  It is further submitted the modern test is set out in R v Andrews [1987] A.C. 281(“Andrews”). In that case Lord Ackner held that the primary question to be addressed when considering admission under the res gestae exception is whether the possibility of concoction or distortion in the out of court statement can be disregarded. He stated that 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. 

30.  The Andrews test was approved in this jurisdiction in Lonergan, as cited above.  In Lonergan the Court of Criminal Appeal stated that 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, appears to this court to represent the correct approach to this issue”. The Court stated that time in this context is an important factor but not a determinant, and that the true importance of the requirement of contemporaneity is to eliminate the possibility of concoction. 

31.  The appellant submits that the trial judge was bound in this case to apply the test in Andrews as adopted in Lonergan, and to focus on whether it was possible to disregard the possibility that the statements made by Ms. McGrath were untrue or inaccurate in some way. He further submits that it would be wrong to focus exclusively on the timing of the statements in deciding whether the res gestae exception applied. It is noted that the Court below appeared to take the view, in deciding whether the res gestae exception applies, that there is a “requirement of contemporaneity” which stands separately from “the issue of possible concoction or fabrication… or deliberate distortion”.   The appellant submits that this approach is incorrect, and that the overall issue to be considered is whether the possibility of concoction or distortion can be disregarded.

32.  The appellant contends that the trial judge, in his ruling, did not consider the primary question regarding admissibility under the res gestae exception: whether the possibility of concoction or distortion in the out of court statement can be disregarded. He submits that the correct approach was to consider this central issue and take the timing of the statement into account in that consideration, as well as all other factors in the case that might have a bearing. The trial judge instead treated the timing of the statement as his sole and determinative consideration, and it is submitted that this, in and of itself, amounted to an error of law on his part.

33.  The appellant noted that the Court of Appeal acknowledged that the trial judge had made no express reference to any consideration of the possibility of concoction or distortion; however, the Court was of the view that the trial judge could be considered to have tacitly applied the correct legal principles, without ever expressly articulating same.  It is submitted that this cannot be safely assumed, as the trial judge made no reference whatsoever, either express or implicit, to the central test regarding whether the possibility of concoction or distortion could be disregarded.  

34.  The appellant highlighted that the importance of the trial judge applying the correct legal test is underscored by the fact that there were a number of factors in the case which give rise to a real possibility that Ms. McGrath’s statements on the emergency call were concocted or distorted. These factors include the appellant having engaged in a physical confrontation with Ms. McGrath’s new lover minutes before the call, Ms. McGrath’s statement in evidence that her description to the call operator was not accurate, Ms. McGrath’s overall credibility that resulted in her having been declared hostile and s. 16 having been successfully invoked, and the evidence of Ms. McGrath that she was a drug addict and had been highly intoxicated when giving certain statements. The appellant submits that had the trial judge applied the correct test, he would have considered the factual matters set out above.

35.  During oral submissions counsel for the appellant acknowledged that the appellant had not raised the issue of possible concoction or distortion at the trial, but he argued that while this may be true in the context of the statements made by Ms. McGrath on the emergency call, this was not true as regards the case as a whole.  He also submitted that the primary obligation regarding this issue rested on the prosecution, as the party seeking to admit the evidence, and that the respondent’s reliance on the appellant not having raised the issue amounted to a reversal of this obligation.

36.  The appellant referred to the respondent’s argument that there should be “a further modern exception to the rule against hearsay” for electronic recordings of emergency services calls.  The apparent basis for this argument is that the out of court statements can be given some special evidential status because they are electronically recorded.  The appellant submitted that as a matter of principle, it was not clear why an out of court statement should be admissible because of the manner in which it is recorded, and that the traditional position is that the manner in which an out of court statement is recorded is simply irrelevant to the question of whether it is admissible.  He suggested that if it is desirable that the recording of an emergency call be admissible as an exception to the hearsay rule, the appropriate way for this to be done is by the legislature enacting appropriate legislation.  It was submitted that it is notable that this is the way in which all recent exceptions to the hearsay rule have been established, and that there is good reason why such modifications of the hearsay rule should be left to the legislature. 

Submissions of the Respondent

37.  The issues arising as set out by the respondent are whether the trial judge and the Court of Appeal were correct to admit the recording of the relevant emergency services call on the basis of the res gestae exception to the rule against hearsay, and whether, if necessary, a further exception to the rule against hearsay can be recognised to allow for the playing of recordings of emergency services calls.

38.  The respondent contends that the appellant’s understanding of the contemporary law as it relates to res gestae is misstated. They state that the appellant places undue reliance on the possibility of concoction or distortion as a standalone and sole ground on which the trial court is required to base its decision, without recognising the fact that factors associated with the currency or proximity of the incident remain subsumed in the general consideration of concoction and distortion. They submitted that this is especially the case where concoction or distortion are not raised in a positive sense in submissions before the trial court, or put to the witness in cross-examination. They argued that while temporal proximity alone may not be determinative, concoction or distortion in an abstract, unspecified sense are not the determining factors in the application of the res gestae exception.

39.  The respondent submitted that the classic formulation of the res gestae exception to the rule against hearsay is found in Teper v R [1952] AC 480 (“Teper”), where the Court stated that the admission of words is permitted where they are “so clearly associated with [the action or event] in time, place and circumstances, that they are part of the thing done, and so an item or part of real evidence and not merely a reported statement”.

40.  The respondent acknowledges the appellant’s reference to the Andrews test as the contemporary approach to res gestae which was approved in this jurisdiction in Lonergan. They submitted that the appellant seemed to argue that Lonergan is authority for the proposition that a trial judge is prohibited from relying on temporal proximity alone as a factor when deciding whether to admit a statement under the res gestae exception. The respondent contends that while Lonergan holds that time alone should not be determinative, it also holds that the party opposing the admission of the statement must engage with the facts if it is suggested that concoction is an explanation for what was said: “[The statements] formed part of the same transaction, were sufficiently contemporaneous, and there was no opportunity on the part of Michael Lonergan to concoct or fabricate an explanation, and indeed no motive for his having done so was ever identified”.

41.  The respondent emphasises that the Court of Criminal Appeal in Lonergan stated: “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”.   The respondent submitted that the composite approach should not be used as a tool to exclude a statement that was made within a short period of time following an incident on the basis that this was, on its face, the primary reason relied upon by the trial judge for admitting the recording of the emergency services call.

42.  As regards concoction or distortion, the respondent refers to the test as set out in Andrews: “Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion”.  They contended that it is therefore incumbent on the challenger to identify special features relating to concoction or distortion.  They say this was highlighted in Lonergan, where a failure to identify a risk of or a motive for concoction was fatal to the accused’s effort to exclude the impugned statements. The respondent submits that in the case at hand that the appellant did not raise any such issues, or “special features”, at trial, and therefore is precluded from doing so now.

43.  The respondent referred to the appellant’s submissions that there were a number of factors which gave rise to a real possibility that Ms. McGrath’s statements on the emergency call were concocted or distorted. However, they highlight that the Court of Appeal noted that the possibility that her account to the operator had been deliberately concocted or distorted had never been suggested to her at trial.  They submit that there is no obligation on a trial judge to rule on an issue not raised by a party, and rely on DPP v Cronin [2006] 4 IR 329 (“Cronin”) as authority for the proposition that a matter not raised at trial cannot be relied on at the appellate stage, save for in exceptional circumstances.

44.  The respondent submitted that the appellant is incorrect in contending that it could not be safely assumed that the trial judge had applied the correct legal test for res gestae. This contention is based on the submission that the trial judge made no mention of the relevant legal principles, and did not demonstrate an awareness that the primary question was whether the possibility of concoction or distortion could be disregarded. The respondent submits that this approach of the appellant is incorrect for three reasons.

45.  The first reason, as already highlighted by the respondent, is that arguments pertaining to concoction and distortion were not made in the trial at first instance, nor were they put to the witness in cross-examination. The Court of Appeal recognised that the trial judge could not have been expected to outline his reasoning for allowing the emergency services call to be played under the res gestae exception in terms of concoction and distortion, where that argument had never been made before him.

46.  Secondly, it was reiterated in Lonergan that the “true importance of the requirement of contemporaneity is to eliminate the possibility of concoction”. In this case it was concluded by the trial judge that the opening part of the phone call was made while Mr. Connorton was still somewhere around, so the transaction or incident in issue was in fact ongoing at the time. The respondent submits that it is therefore clear that the general test to be applied was subsumed into the ongoing nature of the incident at hand.

47.  Thirdly, the respondent submits that it is well settled that a trial judge is not obliged to enumerate every factor which played a role in him or her reaching a decision, and that appellate courts are entitled to assume that a trial judge correctly applied the law. They highlight that all involved in this trial, including the trial judge, were highly experienced and focused on the issues raised, which did not include any suggestion of concoction.

48.  The respondent submitted that there is a requirement for the common law to keep pace with modern technology. They submit that the rules against hearsay were developed a long time ago, before this type of recording technology existed. They put forward this case as an opportunity for the Court to recognise the reality of modern technology, modern criminal prosecutions, and indeed the experience and common sense of modern juries.  They submitted that the fact that such emergency services calls are now routinely recorded, and that the actual recording is therefore available, should not be ignored by the law.  They argued that the criminal law must be capable of adapting, evolving, or refining its existing rules of evidence to encompass modern technological developments. 

49.  The respondent referred to the Canadian example, where the playing of 911 calls may be permitted as an exception to the hearsay rule. They cite R v Khan [1990] 2 SCR 351, which stated that while the traditional approach to hearsay had provided a degree of certainty to the law on hearsay, it had frequently proved unduly inflexible in dealing with new situations and new needs in the law. In R v Khan [2010] ONCJ 580, the recording of a 911 phone call was permitted to be played to the jury as an exception to the rule against hearsay on the basis that certain indicia of reliability were made out. A second Canadian authority where a similar approach was applied is cited. The respondent also highlights, however, that there remains scope for the Canadian Courts to exclude the recordings of 911 calls, and authorities to that effect are also cited.

50.  The respondent discussed the ability of the Irish Courts to keep pace with advancements in technology, in the context of exceptions to the rule against hearsay.  They refer to the Law Reform Commission’s 2010 Consultation Paper on Hearsay in Civil and Criminal Cases, where it was outlined that the Irish courts appear to lean towards modest reform and the Commission favoured retaining judicial discretion to determine whether hearsay evidence may be admitted in an individual case. The Commission suggested that 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. 

51.  The respondent compares the phone call recording evidence to CCTV evidence.  In The People (DPP) v A McD [2016] 3 I.R. 123 it was stated in an analogous context, at para. 59, that CCTV “is now frequently used in a number of criminal trials and is often described as ‘best evidence’, and it is difficult to argue with that perception”. The respondent submits that a similar approach should be adopted here to reflect the reality that, in some cases, the actual recording of an emergency services call is the best quality evidence available for the jury, particularly when a witness proves hostile.  It argues that this Court would be doing no more than recognising the reality that we live in an ever-changing, technological world and that the law must be capable of adapting to such developments.  

52.  The respondent submits that given the ubiquity of emergency services phone calls in modern criminal trials, allowance should be made for their admission where certain criteria are met. Doing so would ensure that the jury are entitled to get the best quality evidence, subject always to the overriding obligation of the trial judge to ensure that an accused receives a fair trial. The respondent then applied the criteria as outlined in the Canadian jurisprudence to the present case, and argued that the statement in the emergency services call in this case meets many if not all of those criteria, and therefore should be admitted into evidence on that basis.

 

Discussion

53.  The net issue arising on this appeal, in my opinion, is whether the trial judge was correct to admit into evidence the recording of the emergency services call on the basis of the res gestae exception to the rule against hearsay, or on some alternative “common sense” basis having regard to modern technological developments.

54.  Before coming to the exception, the question arose during the hearing as to whether the rule against hearsay was in fact engaged at all in the context of the out of court statements made by Ms. McGrath on the call recording, in circumstances where Ms. McGrath was produced in court as a witness. 

55.   The question arising as to the scope of the hearsay rule is reflected in the evolving definitions of the rule to be found in various editions of the leading textbooks over the years.  The 1964 edition of Cross and Wilkins, An Outline of the Law of Evidence contained the following definition (at p. 90):

“Express or implied assertions of persons, other than the witness who is testifying…are inadmissible as evidence of the truth of that which was asserted.”

However, the newer definition in the fifth edition of Cross on Evidence in 1979 was as follows:

“A statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated.” (emphasis added)

The newer definition has a wider reach, therefore, as it would capture not only out of court statements by a person who was not produced as a witness, but also out of court statements by a person who is so produced. 

56.  As regards this jurisdiction, the definition in McGrath, Evidence (2^nd ed. 2014, at p. 275) appears to me closer to the older Cross definition:

“A statement…other than one made by a person testifying in the proceedings in which it is sought to be admitted, is inadmissible if tendered as evidence of the truth of any fact asserted.”

McGrath does, however, note that the newer Cross definition was quoted with approval by the Court of Criminal Appeal in People (DPP) v. Murphy, unreported, 8^th July, 2003, and in People (DPP) v. Gartland [2010] IECCA 100.

57.  There was some discussion as to the scope of the hearsay rule in the decision of this Court in Cooper Flynn v. RTE [2004] I.R. 72, albeit in the context of civil proceedings, this being an appeal arising out of a defamation action tried by a jury in the High Court.  One of the grounds of appeal was that the trial judge erred in law in allowing the defendants to introduce into evidence, and cross-examine the plaintiff, on a document which was not admissible.

58.  It was submitted by the defendants that the author of the document had been subpoenaed and would be called to give evidence in relation to it.  The objection to this document was that it was inadmissible as hearsay evidence and did not come within any of the acknowledged exceptions to the rule against the admission of such evidence.  That objection proceeded on the assumption that since there was no evidence, either in the form of an admission by the plaintiff or evidence by the author of the memorandum, that it had been sent to the plaintiff, it was inadmissible under the rule against hearsay.

59.  In his judgment for the majority of the Court, Keane C.J. stated as follows (at p. 97):

“I am satisfied that this assumption was erroneous.  The rule against hearsay renders inadmissible an out of court statement which is tendered as evidence of the truth of facts which the statement asserts.  In this case, the person who wrote the memorandum, Mr. Patrick Cooney, gave sworn evidence that he was the author of the memorandum and that it accurately summarised the practice in the division of which the plaintiff was a member…

The memorandum, accordingly, was not tendered as evidence of the truth of any facts which it asserted.  It was no more than written confirmation of oral evidence which its author gave on oath in the witness box.  As such, it was not, in my view, in any sense hearsay evidence.”

60.  On its face the above definition of the rule against hearsay by Keane C.J. appears to encompass all out of court statements tendered as evidence of the truth of the facts stated, including an out of court statement by someone who is later produced as a witness.  The reason the document was not treated as inadmissible hearsay was not, it appears, because the author was produced as a witness and could be cross-examined on the document, but because the document was not tendered as evidence of the truth of its contents, but was tendered as a statement of the practice in the division in the bank of which the plaintiff was a member.

61.  In his concurring judgment Geoghegan J. agreed with the view of Keane C.J. that the hearsay rule was not infringed, for the same reasons relating to the purpose of the production of the document.  In his judgment (at p.145) he quoted the following passage from Fennell, The Law of Evidence in Ireland (2^nd ed., at p.255) regarding the rule against hearsay:

“The rule operates, therefore, to potentially exclude informal or oral remarks, formal written statements, sworn testimony in previous proceedings, as well as gestures, signs, photographs, etc. The reason behind this exclusionary rule affecting otherwise relevant and probative evidence, is that if the maker of the statement does not testify he is not available for cross-examination, (per Wigmore: “the greatest legal engine ever invented for the discovery of truth”) nor can his demeanour be observed or credibility tested.  It is moreover, desirable that the best evidence be available to the court, and that the danger of inaccuracy through repetition be avoided.”

62.  It is noteworthy that the stated rationale for the exclusionary rule is said to arise in circumstances where the maker of the out of court statement does not testify, and is not available for cross-examination.  This stated rationale does not appear to extend to an out of court statement made by a person who is later produced as a witness, and therefore the extension of the hearsay rule to also include this category of out of court statements appears to me somewhat doubtful as a matter of principle. 

63.  In the present case, it may be recalled, counsel for the appellant did initially query whether the statements made by Ms. McGrath on the call engaged the rule against hearsay at all, in circumstances where the witness was present in court giving evidence.  While the matter was not argued in any detail, and no authorities were opened, the trial judge indicated his clear view that a statement made by the witness is still hearsay, even if the witness is present in court to give evidence, if it is an out of court statement which has as its purpose the proof of the contents of the statement.  On appeal, the Court of Appeal stated that it was clear that the trial judge considered that the rule against hearsay was engaged “on his understanding of that rule as it usually applied”, and the Court below felt that the trial judge was correct in that assessment. 

64.  I was a bit hesitant about making a definitive decision on this issue as to the scope of the hearsay rule, in circumstances where the issue was not fully argued before the trial judge, and was not the subject of an express ruling by him after full argument, and where the issue was not an express ground of appeal before the Court below and before this Court.  However, it does appear that the scope of the hearsay rule has evolved as per the trial judge’s understanding of how the rule is usually applied in practice in this jurisdiction.  This issue is addressed further in the judgments of Charleton J., Murray J., and Collins J. with which I agree.

 

The Res Gestae Exception

65.  One of the established exceptions to the rule against hearsay covers out of court statements which form part of the “res gestae”.  Res gestae is a Latin term which can be literally translated as “things done” or “things transacted”.  In Teper it was stated (at p. 487) that the admission of an out of court statement could be permitted where the words are “so clearly associated with [the action or event] in time, place or circumstances, that they are part of the thing done…and not merely a reported statement”. 

66.  The leading modern Irish authority on the res gestae exception is Lonergan. In that case the accused stabbed the deceased during an altercation and was subsequently convicted of murder.  During the course of the trial a number of statements made by the deceased in the aftermath of the stabbing incident, which clearly identified the accused as his assailant, were ruled admissible as forming part of the res gestae, including statements made by the deceased some ten or fifteen minutes after the stabbing incident. 

67.  The Court of Criminal Appeal dismissed a ground of appeal arising from the trial judge’s ruling on admissibility.  In his judgment Kearns J. reviewed the principal authorities as follows (at p. 180):

“[14] The test for admissibility was formulated by the decision of the Privy Council in Ratten v. R. [1972] AC 378 where Lord Wilberforce stated at p. 389:

‘[t]he 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 a 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.’

[15] The approach outlined by Lord Wilberforce in Ratten…was later endorsed by the House of Lords in R. v. Andrews [1987] A.C. 281. Lord Ackner set out the relevant principles in the following manner at pp. 300 and 301:

‘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 has a motive of his own to fabricate or concoct, namely…malice…’”.           

68.  Kearns J. later continued as follows (at p. 181):

“[17]    The leading Irish authority on this aspect of res gestae is the decision of this Court in The People (Attorney General) v. Crosbie [1966] I.R. 490.  In that case, the appellants C. and M., together with two other accused, were charged with the murder of C.N.M.  The charge arose out of a fight which developed at the “read” room at the Dublin Docks in the course of which C.N.M. was stabbed by C.  Within a minute of being so stabbed, C.N.M. said, when C. (but not any of the other accused on the evidence) was standing near him, “he has a knife, he stabbed me”.  The appellants were convicted of the manslaughter of C.N.M. On an application by both of them for leave to appeal against conviction it was held by this Court that the words spoken by C.N.M. were admissible against all the accused, although it was hearsay evidence, because it formed a part of the criminal act for which the accused were being tried.

[18]     In delivering the judgment of the court, Kenny J. stated as follows at (p. 496):

‘The Court is of opinion that evidence of the statement made by Noel Murphy immediately after he had been stabbed by Crosbie was admissible in evidence against all the accused, although it was hearsay, because it formed a 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.’

[19]     Having considered a number of English authorities, including R. v. Christie [1914] AC 545 and Teper v. R. [1952] A.C. 480, Kenny J. stated at pp. 497 and 498:

‘The words spoken by Noel Murphy 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 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.’”

…

                        [21]      In the present appeal, counsel for the accused has argued that the trial judge went further than this Court had done in The People (Attorney General) v. Crosbie…because he took a “composite approach” to the issue, which adopted law evolved in England and which appeared to be premised on the possibility of concoction or fabrication as the ultimate test rather than contemporaneity.

                        [22]      However, this Court does not see the decision in The People (Attorney General) v. 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 The People (Attorney General) v. Crosbie somewhat further.  The Court is satisfied that the more evolved formulation of principle set out by Lord Ackner does no more than elaborate the rationale for the views expressed in The People (Attorney General) v. 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, appears to this Court to represent the correct approach to this issue.  It would be quite wrong to hold that admissibility 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.”

69.  Kearns J. then turned to the application of the above “composite approach” to the facts of the case before the Court:

“[23]    In the instant case it was never put or suggested to any of the witnesses that the statements as having being made by the deceased were not in fact so made.  No alternative version of events or no other possible perpetrator was possible on the prosecution evidence other than the accused had killed his brother.  No motive for concocting or fabricating evidence was suggested to any of the witnesses, nor was any evidence led by the defence to supply any such motive.  Furthermore, counsel for the accused has not really challenged the admissibility of the statements made by the deceased in the immediate aftermath of the stabbing.  The challenge is effectively confined to the statements made by Michael Lonergan following the return of Emmet Coffey to the dwelling house, following his chase of the accused down the street. 

[24]     The Court is entirely satisfied that the statements made some ten minutes after the stabbing were correctly admitted.  They formed part of the same transaction, were sufficiently contemporaneous and furthermore, the Court is satisfied that there was no opportunity on the part of Michael Lonergan to concoct or fabricate an explanation, and indeed no motive for his having done so was ever identified.

[25]     The Court is of the view therefore that this ground of appeal must fail.”

70.  One aspect of the present case bears a striking resemblance to the situation in Lonergan is that again no motive for concocting or distorting her account to the emergency services call operator was ever suggested to Ms. McGrath.  Indeed, as noted earlier, while Ms. McGrath was extensively cross-examined by counsel for the appellant, there was no cross-examination of any kind relating to the emergency services call. 

71.  As in the Court below, the appellant has again suggested before this Court that there were some factors which might point towards the possibility of concoction or distortion.  However, as pointed out by Edwards J. in the Court below, this argument was not made in the trial court, and therefore the Court of Appeal found it unsurprising that the ruling of the trial judge did not address that issue in terms.  I agree with this finding, and I do not think it suffices for the appellant to say now that the issues as to Ms. McGrath’s credibility were raised in a general way, taking the case as a whole. 

72.  I also agree with the Court below that while it might have been better if the trial judge had expressly discounted concoction/fabrication and/or deliberate distortion in his ruling, his failure to do so cannot be regarded as fatal in the overall circumstances of the case, and particularly where neither party was seeking at that point to suggest that it was an issue in the case.  While the appellant submits before this Court that the primary obligation as regards admissibility is on the party seeking to admit the evidence, and I accept that that is correct in general terms, in my opinion there was an obligation on the appellant to at least raise the issue of possible concoction or distortion as a potential relevant issue before the trial judge, if that issue truly arose in the context of this emergency services call. 

73.  The above conclusion is consistent with the decision of this Court in Cronin, to the effect that an appellate court should not allow a point not taken at trial to be argued on appeal, save in exceptional circumstances.

74.  I am therefore satisfied that the trial judge did not err in admitting the audio recording of the emergency services call pursuant to the res gestae exception to the hearsay rule.  In those circumstances it is unnecessary for this Court to engage with the respondent’s alternative argument that the Court should develop a further modern exception to the rule, having regard to modern technology and as a matter of common sense. 

 

Conclusion

75.  In conclusion, I am satisfied that the learned trial judge was correct in admitting the audio recording of the emergency services call, pursuant to the res gestae exception to the rule against hearsay.  I would therefore refuse the appeal. 

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Result:     Dismiss Appeal