Supreme Court of Ireland Decisions

An Chúirt Uachtarach

The Supreme Court

 

Charleton J

O’Malley J

Woulfe J

Murray J.

Collins J.

 

Supreme Court appeal number: S:AP:IE:2022:83

[2023] IESC 19

Court of Appeal record number: 2019/25

[2021] IECA 275

Central Criminal Court number: Bill CCDP0131/17

 

 

Between

 

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

 

 - and -

 

 Keith Connorton

Accused/Appellant

 

 

Judgment of Mr Justice Peter Charleton delivered on Friday 28 July 2023

 

1. On 18 February 2017, at a flat in Tallaght, in the presence of a young woman, the accused took a knife to Graham McKeever killing him. In the charged aftermath, and upset, that witness called 999, where she said that the accused had stabbed the victim. As a witness, she was interviewed by the gardaí, split over two days because of upset, and said essentially the same. When, however, a few days after, the accused was arrested on the street, she was walking along the road with him. In December 2018 at the accused’s trial for murder, her proposed witness statement did not align with her evidence. In consequence, the prosecution were enabled by the judge, after a voir dire, to treat her as a hostile witness. In the presence of the jury, the content of her 999 call was put to her, line by line. Evidence being only what a witness testifies to as to what they know, and not any question put by counsel, in answer to the text of the 999 call, she agreed that the accused had stabbed the victim. Further, she said that only one knife was involved: that is, that the victim was not armed. The accused had told the gardaí, in interview statements read to the jury, that he had been attacked. In consequence, the trial judge allowed self-defence and provocation to be considered by the jury as potential defences, ruling that the accused had met the burden of adducing evidence. He was, nonetheless, convicted of murder.

Issues

 

2. Two issues have been raised on the appeal and argued to be essential to its disposal. In respect of both, these remarks concur with the analysis offered in the principal judgment of Woulfe J. The first issue is not one on which leave to appeal was granted but since it concerns the scope of the hearsay rule and is integral to the main issue, that of the admissibility of the 999 call as proof of what the witness said on a recording of it, addressing that issue is essential. In essence, what is argued on behalf of the accused is that what was said by the witness to the emergency call taker could never have been admitted in evidence as it infringes the hearsay rule. That telephone call was recorded, and the tape was played in court. A second issue then comes up: if that recorded conversation amounted to hearsay, it is claimed on behalf of the accused that there existed no exception to the hearsay rule whereby, unless the prime witness testified on oath as to what she had said, what was related by her on the 999 call would be admissible as proof of what she said. The trial judge, after hearing submissions, admitted that recording as an exception to the hearsay rule, as part of the res gestae, meaning that the jury could rely on what they heard on the recording of the 999 call as truth of what the witness said.

 

Hearsay

 

3. The rationale behind the hearsay rule is, as Murray J says in his separate analysis, with which this judgment fully aligns, inherent unreliability: that an assertion of fact, presented as proof, which is not made in court, while under oath or affirmation, and where the person asserting such fact is not available to be tested by cross-examination, should not be admitted in evidence. On the rule and its exceptions, volumes have been written. It is, however, the principle that counts and not a comparative analysis of its application. What is required for the day-to-day business of the courts is a definition which states the hearsay rule. The point is made by Murray J that working definition is all that is needed. This suffices: a statement other than one made by a witness while giving oral evidence in the proceedings is inadmissible as evidence of any facts stated; Cross and Wilkins, An Outline of the Law of Evidence (4^th edition, London, 1975). Thereafter, the hearsay rule is qualified by multiple exceptions, each of which, however, is based on the fundamental principle of inherent reliability; Ulster Bank Ltd v O’Brien & Another [2015] IESC 96, [2016] 1 ILRM 373, 2015 WJSC-SC 26908, [2015] 2 IR 656 , [2015] 12 JIC 1601, Bank of Scotland v Fergus [2019] IESC 91, [2020] 1 ILRM 313. The views of Woulfe J and Murray J correctly state the rule and its pragmatic application.

 

4. The hearsay rule ensures, basically, that only the person who witnessed what happened or heard what was said may testify in court and that those to whom that witness related the event or statement in question may not substitute for that person’s evidence. Thus, if a person saw the accused kill the victim with a weapon, that person may testify to assert that this happened: any person at a remove from witnessing the event, such as someone to whom the witness related the occurrence, perhaps casually or perhaps (subject to the exception of s 16 of the Criminal Justice Act, 2000, as to which see Guerin, Witness Statements as Evidence, https://www.dppireland.ie/app/uploads/2019/03/PAPER_-_Sean_Guerin_BL.pdf) in a formal witness statement or perhaps over the telephone when making a report to the authorities, generally may not. What can be easily stated in the law as to hearsay is the general proposition, why the rule exists, and the exceptions can be similarly listed, such as a confession against interest by a party to the proceedings (the accused or a plaintiff or defendant), or a dying declaration by a, necessarily absent, witness. But, two other factors come into play from the core definition. Firstly, a statement can be admitted into evidence where an issue in the trial, or the background to an event, centres on the fact of a statement having been made, as opposed to the truth of what that statement asserts. This is called original evidence.

 

5. An example is where people testify that they moved towards or away from an area because of people, who are not called to testify because perhaps they cannot be identified or have been killed, calling out “there is a bomb” or “what happened to that woman”. Those statements are not admitted to prove there was an explosive in a particular place or that a victim had been attacked but that, because of what was said, a witness’s attention was directed to an event, to a place, or to another person. Another example would be of an accused testifying in his or her own defence on a burglary charge who asserts that the reason he was in the vicinity of the house from where jewellery was stolen was not because of involvement in the crime but because he wished to visit a friend, at an unfamiliar address, and that an absent bystander, perhaps mistakenly, had directed him or her towards the street that became, coincidentally he would assert, the crime scene. That does not infringe the hearsay rule because, in the examples given, the statements by the absent potential witnesses are not presented as fact (that there was a bomb, that someone had been attacked, that the friend lived by the crime scene) but are in themselves facts; ones whereby another fact asserted by a witness to that fact makes sense or where in consequence of the statements a useful background is laid down whereby testimony asserting fact (as to what was then seen in consequence of the shouts or why the accused was found near the burgled house) is put in proper context.

 

6. Secondly, there exists a rule against self-corroboration, sometimes called the rule against narrative. It is inadmissible, and it is also utterly illogical, for a witness to be supposedly bolstered as to their evidence by other witnesses being called in court and narrating what that witness had told them. A girl who witnessed a theft in a shop can be presented in court to say what they experienced by identifying the accused and stating the loss, relevant evidence is always admissible, but it is not evidence that this witness returned home to her flat and narrated every detail of the event, including the crucial recognition of the accused as the thief. The admissible evidence is what she saw. The inadmissible evidence is what she told others outside court of what she saw. It is, of course, relevant and admissible as to how the witness knew the accused from before the crime and perhaps concise details of their acquaintance: but trials should be controlled by the judge so that focus is kept on the essential elements.

 

7. The exception to the rule against self-corroboration most often seen in court is in sexual violence offences where, because of the fraught nature of proof of lack of consent and of the vulnerability to denial of these serious violations, the terms of an early complaint of such a crime which is not elicited through explicitly suggestive questioning, may be called to demonstrate consistency; the rule is discussed in The People (DPP) v SQ [2023] IESC 8. Another exception, rarely likely to be encountered, especially in criminal cases where the trial proceeds on the basis of a book of witness statements or in civil cases where there is an obligation to furnish what the witness will say in written form in advance of the trial, is the reception from another witness as to what the person witnessing the relevant event said as to that event: this can only happen where the percipient witness is alleged to be fabricating their testimony on a recent impulse; Cross and Wilkins, An Outline of the Law of Evidence (1^st edition, London, 1964) 64.

 

8. Under this heading of an exception to the rule against a witness self-corroborating comes also the res gestae rule. While mostly the rule is invoked because a witness is dead, the exception means that what someone testifies to as having happened may be bolstered by what others say that person spontaneously declared during an incident. This may be presented in court in order to prove the truth of that declaration; Cross and Wilkins 63.

 

9. What is notable about these two exceptions to the hearsay rule is that the jury will hear the same evidence twice: in the case of a sexual offence that the alleged victim did not consent and further that she or he had told a parent or friend of the violation; in the case of the res gestae rule that the witness testifies to an event and further that others can repeat a spontaneous and directly related utterance about that event as evidence of what that utterance states. In some res gestae cases the maker of the statement may be dead, but even still their spontaneous utterance from the heat of the events can be related by another witness as truth of the facts they then stated.

 

Normal practice

 

10. The expected course of events in this case would have been for the witness present at the stabbing of the victim to give an account of what had happened and for that to naturally have led to the 999 call, whereupon, as a matter of sense, the prosecution would have played the recording of that to the jury. She would ordinarily have said: “that’s what I told the 999 controller and that’s what happened”. No one could have argued that this infringed the rule against self-corroboration, whereby ordinarily a witness’s evidence cannot be bolstered when he or she testifies to a fact by calling another witness to say that precisely that to which the witness testified in court been said to them previously. That would not have been what was happening. Sensible regard is had at trial to the ordinary situation where a witness is, of course, allowed to say what he or she said to another if it is part of their account of a relevant event. What is said back, ordinarily, unless it is an admission by the accused or is original evidence (where evidence is admitted because it does not infringe the hearsay rule because the issue is whether something was said, and the proof of the content of what was said) or another exception to the hearsay rule, is not admissible to prove what that person (who is not to later testify) asserts.

 

11. Since the issue of repetition is raised in argument on this appeal, what matters is that the law of evidence is one of good sense. If the assertion of a witness is not challenged, the party calling that witness may decide that repetition, while legally possible because there are other witnesses who have seen or heard the same thing, may not be necessary.

 

12. Because of the uncertainty created by the reluctance of the witness to testify in accordance with her witness statement, the 999 call was not played to her when she was testifying before the jury, since she was in a state of disputing events. Rather, the prosecution later proved the call through the emergency call operator who was engaged on the call and played the recording then. By then, the trial judge had ruled the witness hostile and her prior statements were allowed to be put to her. When a hostile witness hears what is put to in court to him or her as to what he or she had said before (most normally in a police interview), such as “The accused was in the get-away car outside the bank”, the question of counsel is not evidence. To answer: “yes, that is what happened” is evidence. To deny “I may have said that but it never happened” means that this witness is not testifying to the accused being in the get-away car. A question of counsel is never evidence. As it happened, in this case, this witness agreed before the jury that what she had said on the 999 call represented the truth of what happened. But, as the analysis of both Woulfe and Murray JJ exposes, this was done very reluctantly and even equivocally.

 

Res gestae

 

13. Although, as outlined, a witness may generally not be asked whether he or she made a statement before trial to the same effect, excepted is the res gestae rule. In other words, where that rule applies, a fact can potentially be proven twice: by the witness and by a recording of what was said or by another witness who heard the res gestae statement. This is admissible as proof of the truth of what was said at the time of the incident. The res gestae exception applies to enable this where a witness is so enmeshed in the emotion of an ongoing situation that their utterance can be taken, as an exception to the hearsay rule, as proof of what they then said. Again, inherent reliability is the touchstone enabling an exception to the hearsay rule. If that witness dies, as in the several cases where they are the victim, and also where a witness survives but becomes uncertain, including situations where the witness becomes hostile, res gestae evidence may supplant or may bolster the assertion of a relevant fact: here that the accused “went for” the victim with a knife and stabbed him. Separately, in this case, the witness also agreed with prosecuting counsel that there was only one knife.

 

14. There is a comprehensive analysis of the case law, circumstances and arguments in the judgment of Woulfe J. In concurring, it may usefully be added that the trial judge correctly ruled the 999 call as being admissible under the res gestae exception to hearsay as evidence of what the witness had said. The argument itself might have benefited by citation of, even, a standard textbook. What matters, however, is that the ruling of the trial judge is correct. The trial judge was not required to give elaborate reasons. Nor is there reason for this court to engage in an elaborate exercise of cross-distinction as between various cases, the result of some being perhaps surprising, and code formulations. What matters is the underlying principle. That is usually best seen in the light of the rational for why the principle exists. Criminal law and evidence should be kept simple. Evidence such as this, declarations in the heat of an event, if near contemporaneous and because of their enmeshment in those events, are an exception to the hearsay rule.

 

15. The rule as applied in Northern Ireland is as stated in the Criminal Justice (NI) Order 2004, neatly encapsulates this in s 18: “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”; derived from the principles stated by Lord Ackner in R v Andrews [1987] 1 AC 281. This can extend to statements made in domestic violence situations as and when police arrive and while emotion continues to act on a complainant who later withdraws her evidence; McGuinness v Prosecution Service for Northern Ireland [2017] NICA 30 judgment of Weatherup LJ. As the actual recording of the 999 call in this appeal speaks so eloquently, the res gestae exception exists because the person, whether a witness or not, is put outside the situation of calculation that deceit ordinarily requires. It is an objective analysis of the situation by the trial judge which enables the admission of res gestae evidence. As Collins J says in his separate judgment, the judge is the person to decide admissibility, assessing any weight to be attached is for the jury; generally see Cole, Irish Cases on Evidence (Dublin, 1982) which references in this regard R v O’Connell (1845) 1 Cox CC 403 and The People (AG) v Crosbie and Meehan [1966] IR 490.

 

16. In concurring with the analysis offered by Woulfe J’s principal judgment, only one case need be cited here. The “doctrine of res gestae is inclusionary, allowing for the reception of evidence by way of exception” to hearsay and self-corroboration; Cross and Wilkins, Article 52. In R v Fowkes [1856] 1 WLUK 258; Times, August 3, (1856) HC a man who had a nickname of “Butcher” or “the Butcher” was charged with murder. The victim’s son testified that as he and a policeman were sitting at a window, during the events, a face appeared; whereupon the son exclaimed “There’s Butcher!” At trial, the son became uncertain as to identification and the policeman was allowed to testify to this declaration, as proof of identity, thus allaying doubts as to his uncertainty at trial. That exception to the hearsay rule was admissible because of enmeshment by the witness in the events. The consequent unthought nature of what was said enables a declaration out of court to be admitted as evidence of the fact stated.

 

Result

 

17. This case is similar to Fowkes. Even still, the doctrine of precedent is based on statable principles in decided cases and it is the principle that matters. The res gestae rule enables evidence of a declaration enmeshed with an event to be proven as truth of what was said, either by the witness who later testifies, or where that person is dead or becomes uncertain or hostile, because circumstances mean that possibilities of calculated deceit are so diminished as to attest to reliability.

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Result:     Dismiss Appeal