THE RULE AGAINST HEARSAY

CHAPTER 1 THE PRESENT LAW

A. The rule against hearsay

The rule against hearsay is not defined in any statute. Professor Sir Rupert Cross, in his text book on the law of evidence, has offered as a statement of the rule that “a statement other than one made by a person while giving oral evidence in the proceedings is (inadmissible as evidence of any fact stated”. (Cross on Evidence, p. 6 (4th ed. 1974)) In the latest edition of Phipson on Evidence, the standard practitioners' work, the following statement is given: “Former oral or written statements by any person, whether or not he is a witness in the proceedings, may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted”. (para. 625 (12th ed. 1976)) Thus, in a trial for drunken driving, a police officer cannot give evidence that X, a publican, told him that he had served the accused with six large whiskies before he got into the car. Nor could a written statement by the publican to the same effect be adduced. Statements excluded by the rule may take many forms, ranging from informal oral remarks to formal written statements or sworn testimony in previous proceedings. The rule is applicable to signs, gestures, drawings, charts, photographs as well as to statements in the narrow sense. There is doubt as to whether the rule applies to implied assertions, i.e. statements or non-verbal conduct which are not intended by their maker to be assertive of the

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fact they are tendered to prove. If it does, a witness could not testify that he heard someone say 'Hello X' to prove that X was in a particular place.¹

It is important to note the exact scope of the Rule. In Cullen v. Clarke [1963] I.R. 368, 378, the leading recent Irish case on the subject, Kingsmill Moore J. gave a full statement of its limitations:

Thus, where it is sought to prove that a workman could not obtain employment on account of an injury, evidence may be given that an employer to whom application was made for a job said “no”. Similarly, in an action on a contract, the words used by a non-witness when making or accepting an offer may be narrated to the court. If the question is whether an assault by B upon A was provoked, the fact that, prior to the assault, B had made an insulting gesture or called A a liar would be admissible in evidence as relevant to the issue of provocation. The distinction highlighted here was illustrated in Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965, an appeal to the Privy Council from a conviction in Malaya where S was charged with being in possession of firearms without lawful excuse and his defence was that he was acting under duress in consequence of threats uttered by Malayan terrorists. The judge would not allow the accused to state what had been said to him by the terrorists and the Judicial Committee of the Privy Council advised that the conviction should be quashed because the statements excluded were admissible, the purpose of proving them having been to show the accused's apprehension of instant death if he refused to carry the arms and not to establish the truth of what was contained in them.

The rule against hearsay has its basis in the principle of orality according to which truth is best ascertained by the unrehearsed answers on oath or affirmation of witnesses who have actually perceived the relevant events and who are then subjected to cross-examination in the presence of the courts. A hearsay statement is by definition not made before the court and, if the maker does not testify, he cannot be cross-examined nor can his demeanour be observed or his credibility tested. Where the hearsay statement narrated is oral, there is a chance that it may be altered in the telling. Where it is made formally there is the danger

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that it will be tailored to the requirements of the party making it. A further reason sometimes given for the rule against hearsay is the possibility that a jury, where there is one, will be confused by a proliferation of evidence of little value.

The rule against hearsay, like other rules of evidence, is not binding on administrative tribunals (Kiely v. Minister for Social Welfare [1971] I.R. 21 at 26–7) However, there are circumstances where the admission of such evidence may lead a court to find that a hearing before a tribunal has not been conducted in accordance with natural justice. In Kiely v. Minister for Social Welfare (No. 2) [1977] I.R. 267, holding that an appeals officer was wrong to accept a written opinion of one doctor in rebuttal of the oral testimony of two others when considering a claim for a death benefit under the Social Welfare (Occupational Injuries) Act 1966, Henchy J. remarked:

B. Exceptions to the rule against hearsay

The rule against hearsay is subject to exceptions. Confessions of crime and informal statements made by a party adverse to his own case, may be given in evidence as proof

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of the facts stated² as may declarations of deceased persons (1) against their proprietary or pecuniary interest³ or (2) in pursuance of a duty to record or report⁴, (3) to the reputed existence of public rights⁵, (4) as to the pedigree of a blood relation⁶, (5) as to the cause of death in homicide cases⁷, or (6) as to the contents of their wills.⁸ Evidence of reputation may also be tendered to establish character or to prove marriage.⁹ Under the doctrine of res gestae contemporaneous spontaneous statements about a fact in issue or as to the state of mind of the maker at any relevant time are admissible as evidence of the truth of their contents.¹⁰; Public documents, i.e. entries made by authorised agents of the public relating to facts of public interest or notoriety are generally admissible at common law:¹¹ and statutory provision has been made by statute to put beyond doubt the admissibility of documents such as birth, marriage and death certificates as well as some private records such as bankers' books.¹² Published works, such as histories, scientific works, dictionaries and maps are admissible as

evidence of facts of a public nature stated in them.¹³ Evidence given in previous proceedings between the same parties may be read at a subsequent trial provided the issues are the same, the witness who made the statement is unavailable and the other side had the opportunity of cross-examination in the previous proceedings.¹⁴

The Criminal Procedure Act 1967 allows depositions taken by a district justice to be read at a trial on indictment in certain circumstances. Such depositions may be taken in the course of the preliminary examination before the district justice or at any other time where a justice is of opinion that a prospective witness may be unable to attend to give evidence at the trial.¹⁵ They may be read at the trial provided the deponent is unable to attend to give evidence, the deposition was taken in the presence of the accused and an opportunity was given for cross examination and re-examination of the deponent. However, except in cases where the deponent is dead, a deposition taken at a preliminary examination may not be read unless the accused consents and the trial judge has a residual discretion not to allow other depositions taken from persons still living to be read if he considers that to do so would not be in the interests of justice.¹⁶ Under Order 39 of the Rules of the Superior

Courts, the Court may order that any witness whose attendance may be dispensed with shall be examined by interrogatories or otherwise before a commissioner or examiner; letters of request may be issued to the competent judicial authorities in other countries, and evidence may be taken before Irish consuls abroad. However, it is specifically provided that “the examination shall take place in the presence of the parties, their counsel, solicitors or agents, and the witnesses shall be subject to cross-examination and re-examination” (Ord. 39, r. 10) and except where “directed by the Court no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court is satisfied that the deponent is dead, or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence saving all just exceptions....”. (Ord. 39, r. 17)¹⁷ Under Order 39, rule 1, the Court may also order that any particular fact or facts may be proved by affidavit but no such order will be made where the other party bona fide desires the production of a witness and he can be produced. It has been held that no such order should be made where the evidence goes to the gist of the action. (Northridge v. O'Grady and Thompson [1940] Ir. Jur. Rep. 19 following Cronin v. Paul (1881) 15 I.L.T.R. 121). Several classes of

proceedings are generally heard on affidavit but the opposite party may always request the production of the deponent for cross-examination.^17A Unless the deponent is then produced, his affidavit may not be used as evidence unless by the special leave of the Court. This will only be granted in cases of absolute necessity as where the deponent is dead, or too ill to give evidence.¹⁸

The exceptions to the rule against hearsay are explicable either in terms of the peculiar reliability of a particular type of evidence or of the unavailability of better evidence. But, as often happens, rules of law have become cut off from their original rationale and the exceptions have been restricted to the rigid categories stated, many of which are subject to still further limitations. In England, in Myers v. Director of Public Prosecutions [1965] A.C. 1001, the House of Lords has ruled that the exceptions to the hearsay rule cannot now be expanded on the basis that the evidence sought to be given is peculiarly reliable or is the best available. In Ireland, while no such rigid position has been taken, there has been no indication that the courts do not believe themselves in principle limited to the existing exceptions to the hearsay rule.

It is possible to list numerous examples of logically probative evidence which would be excluded by the operation of the rule against hearsay and would not fall within any of the existing exceptions. In R. v. Gray (1841) Ir. Circ. Rep. 76 a death bed confession by a third person that he, not the accused, had committed the murder charged was held inadmissible. In Donaghy v. Ulster Spinning Company Ltd. (1912) 46 I.L.T.R. 33 evidence of what a deceased had said to his doctor as to the cause of the fatal injury was rejected. In his judgment in the Court of Appeal, Cherry L.J. said:

Another category of evidence excluded in such cases despite its undoubted probative value is the written report of a doctor, since deceased or otherwise unavailable. Examination of the English cases reveals other varied examples of the exclusion of logically probative evidence on the basis of the hearsay rule. In an old case on a mortgage deed, where the defendant pleaded that the deed had been fraudulently altered by one of the attesting witnesses who had since died, it was held that evidence of statements by the attesting witness in question admitting such alterations was inadmissible (Stobart v. Dryden (1836) 1 M. & W. 615). In an action for the price of goods sold, where infancy was the defence, a statement by the defendant's deceased father as to the infant's date of birth which had been made in an affidavit in a previous action between different parties was held not admissible (Haines v. Guthrie (1884) 13 Q.B.D. 818).²⁰

In an abortion-manslaughter charge evidence was not allowed to be given that the deceased had said that she intended to operate on herself before the operation and that she said afterwards that she had in fact done so (R. v. Thomson [1912] 3 K.B. 19) Business records, although inherently reliable, have been excluded because the person who made the record could not be identified and so called to give evidence (Myers v. Director of Public Prosecutions [1965] A.C. 1001) A statement concerning the place of manufacture inscribed on goods was held inadmissible as evidence of that fact (Patel v. Customs Comptroller [1966] A.C. 356) More recently, there have been two cases where the only evidence identifying a car was a note made by a bystander of the registration number observed by an eye-witness (Jones v. Metcalfe [1967] 3 All E.R. 205; R. v. McLean (1967) 52 Cr. App. Rep. 80). In each case the eye-witness had forgotten the number at the time of the trial and it was held that neither the note nor the evidence of the bystander who made it could be given in evidence to identify the car. In Jones v. Metcalfe [1967] 3 All. E.R. 205 at p. 208 Lord Justice Diplock (as he then was) felt moved to remark that the law as to hearsay was “a branch of the law which has little to do with commonsense”.²¹

The disadvantages of the hearsay rule are in practice somewhat alleviated because the courts freely allow hearsay evidence which is of probative value to be given on behalf of the defence in criminal cases while, in civil cases, judges often discourage counsel from pressing points on hearsay or insist on hearing an item of hearsay evidence de bene esse. While there is in law no discretion to admit

inadmissible evidence either in civil or criminal cases, the wrongful admission of evidence will not necessarily result in a verdict being set aside on appeal, even in jury trials. In criminal cases an appeal may be dismissed if the appeal court considers that no miscarriage of justice has actually occurred notwithstanding its opinion that the point raised in the appeal should be decided in favour of the accused. (Courts of Justice Act 1928, Section 5(1) (a))²² On appeals to the Supreme Court from jury verdicts in civil cases, a new trial may not be granted on the ground of mis-direction or of improper admission or rejection of evidence unless, “in the opinion of the Supreme Court some substantial wrong or miscarriage has been occasioned in the trial”.²³ On the other hand, there are very few reported Irish cases in the last fifty years, apart from those dealing with confessions, where evidence of any probative value has been shut out by the operation of the rule against hearsay. Nevertheless, the situation cannot be regarded as satisfactory. The exclusion of evidence at first instance is rarely reported, especially in jury trials, unless an appeal is brought. Also

undue expense and inconvenience may result from the necessity to comply with unreasonable exclusionary rules, even if they are not, in the event, insisted upon in most cases. As was well said by the English Law Reform Committee in their Report on Hearsay Evidence in Civil Proceedings published in 1966:

The Irish Courts could reject the rigid position adopted by the House of Lords in Myers v. Director of Public Prosecutions [1965] A.C. 1001 and expand the exceptions to the hearsay rule piecemeal to cover other categories of case where hearsay evidence is of peculiar reliability. There is ample precedent for such an approach in other common law countries.²⁵ Even if this were done there would be a long period of uncertainty while new exceptions were being evolved judicially. As it is desirable that parties to litigation should know where they stand as regards the rules of evidence, it is difficult to disagree with the conclusion

of Lord Reid in Myers v. Director of Public Prosecutions [1965] A.C. 1001 at 1022, when declining to create a new exception to the hearsay rule:-

CHAPTER 2 GENERAL SCHEME OF REFORM

Whereas other parts of the law of evidence, such as those relating to privilege or excluding previous convictions of accused persons, are designed to reconcile other policy ends with that of ascertaining the truth in the individual case, no such complication arises in the consideration of the rule against hearsay. The problem is essentially a technical one of designing rules best calculated to assist in the ascertainment of the truth.

In reforming the law it should be borne in mind that it will have to be applied in courts of every level and questions will often arise in circumstances where the relevant authorities are not to hand. It is, therefore, desirable to avoid rules which are over refined or subject to subtle qualifications such as exist in the present law.

In other common law jurisdictions more hesitation has been felt about relaxing the hearsay rule in criminal than in civil cases. In England, for instance, the Civil Evidence Act 1968 made first hand hearsay generally admissible in civil cases but no similar provision has yet been made for criminal proceedings despite the recommendations in the Eleventh Report of the Criminal Law Revision Committee (1972). Certainly, it cannot be denied that special considerations apply to criminal proceedings. The standard of proof beyond reasonable doubt which is applicable in such proceedings demands that convictions should be sustained only on the basis of evidence of undoubted reliability. Whereas, in civil cases, neither side has an incentive to confuse the tribunal by adducing a proliferation of evidence of little value, the defence in criminal cases may seek to create a doubt by this tactic, especially in jury trials. Also, the

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tendency to fanciful defences, already a cause of concern in England since the introduction of criminal legal aid, would be accentuated. Laxer standards would also give more scope for the fabrication of evidence consisting of statements of absent persons, which might be availed of by the professional criminal. It is of interest that the New South Wales Law Reform Commission in their very comprehensive Report on the Rule against Hearsay published in 1978 argued that admissibility of such evidence should be more restricted in criminal cases:-

However, it must be said that if the present rule against hearsay were to be retained in criminal cases while being relaxed in civil cases anomalies could result; for example, a person sued for fraud might be found not liable in tort on the basis of hearsay evidence while being convicted in criminal proceedings for the same act because this evidence

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was excluded. In justice it is difficult to defend the exclusion of any logically probative evidence exculpating an accused. As regards evidence for the prosecution it may be argued that the public interest is not protected fully if any logically probative evidence is withheld. While it would seldom be appropriate to convict on the basis of hearsay evidence alone, such evidence might be valuable in corroborating the testimony of other witnesses.

Any reform of the law should be designed to ensure that all evidence which is logically probative is admissible, at the same time endeavouring to exclude evidence of little or no value, especially where its proliferation is likely to confuse the issues. But it is desirable that the evidence before the court should not only be logically probative but also the best available. For this reason those who perceived facts in dispute should be examined, where possible, so that the veracity and reliability of their recollection can be tested by examination as well as by observation of their demeanour, and so that error arising from the tailoring of a proof of evidence to the requirements of the party taking it or from the inaccurate reproduction of a story by third persons may be avoided.

The most simple solution would be to retain the present rule but to give the court a discretion to admit otherwise inadmissible hearsay evidence. This approach was adopted to some extent in the Federal Rules of Evidence in the United States.²⁷ These rules contain two groups of exceptions to a general prohibition of hearsay. The first group, comprising 23 exceptions, apply even though the maker of the hearsay statement is available as a witness. The second group, comprising 4 exceptions, apply only where the maker of the hearsay statement is not available as a witness. Both groups conclude with an omnibus exception as follows:

The objections to an inclusionary discretion such as that embodied in the Federal Rules were thus stated by the English Criminal Law Revision Committee in their Report on Evidence (General):

An additional objection not mentioned by the Committee is that the present exceptions to the rule against hearsay are not satisfactory in their detail.²⁸ To superimpose an inclusionary discretion on them would perpetuate them in their imperfections and argument would still have to be joined on

their scope in order to determine whether a particular item of hearsay evidence was admissible as of right or merely at the discretion of the court.

Any scheme providing for a general prohibition of hearsay followed by specific exceptions would be bound, in the absence of an inclusionary discretion, to result in the exclusion of logically probative evidence in some cases. For this reason most suggestions for reform have proceeded by way of a general permission followed by specific qualifications. The Model Code of Evidence proposed by the American Law Institute (1942), the draft Act attached to the Report of the Ontario Law Reform Commission on the Law of Evidence (1976) and the English Civil Evidence Act 1968, all of which make admissible the out-of-court statements of unavailable witnesses, limit this admissibility to first-hand hearsay. Consequently, where the hearsay statement sought to be admitted is oral, it has to be proved by the testimony of the person who heard it and it is also necessary that the statement itself should be made from personal knowledge. Where the statement is written, personal knowledge on the part of the maker is also necessary but the authorship and authenticity of the document may be proved in the ordinary way. The exclusion of second-hand hearsay which is, it should be noted, subject to some exceptions was justified as follows in the Thirteenth Report of the English Law Reform Committee, upon whose recommendations the Civil Evidence Act 1968 was based:

The New South Wales Law Reform Commission Report on the Rule against Hearsay (1978), which is the most thorough modern survey of the subject, recommended that a more permissive attitude might be adopted towards multiple (i.e. second-hand and more remote) hearsay statements contained in documents:-

Accordingly, they proposed that certain documentary hearsay statements, whether first-hand or not, should be admissible in the same way as first-hand oral hearsay statements.

The difference between the New South Wales Law Reform Commission proposal and the English Civil Evidence Act 1968 is illustrated by a case where C, having overheard A telling B the number of a car, writes the number down, and A, B and C die. This would be inadmissible in England because it is second-hand oral hearsay but would be admissible as documentary hearsay of 'the second kind' under the New South Wales proposal. In support of the latter it was argued as follows:

There is, however, the serious practical difficulty about drawing a line at first hand hearsay that it will usually be impossible to establish independently that the maker of the out-of-court statement had personal knowledge of the facts asserted. The New South Wales Law Reform Commission recognised this problem and suggested that it should suffice if the maker is in a position to have personal knowledge.²⁹ It may be doubted if a limitation which depends on so uncertain a test is very meaningful.

The New South Wales Law Reform Commission suggested some further restrictions on the admissibility of hearsay to guard against manufactured evidence in criminal cases. They recommended that statements in proofs of evidence taken for the purpose of indicating testimony which the declarant would be able to give in contemplated legal proceedings should not be generally admissible.

The manufacture of fabricated hearsay evidence on behalf of an accused has also been a cause of concern to reformers. The New South Wales Law Reform Commission followed the earlier Report of the English Criminal Law Revision Committee on Evidence (General) in recommending the exclusion of out-of-court statements made after the accused had been summoned, charged or informed that he might be prosecuted.

Professor Glanville Williams, who was a member of the English Criminal Law Revision Committee, explained their preoccupations thus:-

The possibility of such manufactured evidence led the Committee to recommend that no hearsay statement should be admissible on the ground that the maker is abroad, unidentifiable or unfindable if the statement was made after the accused had

been summoned, charged or informed that he might be prosecuted. If, on the other hand, he is dead or unable by virtue of his health to attend court, his statement would be admissible.

The difficulty about these or other proposals restricting the categories of hearsay evidence which are admissible is that there will inevitably be cases where valuable evidence is excluded. Glanville Williams suggested the following illustration of where the exclusion of second-hand hearsay would cause injustice:

Despite its reliability, A's statement would not be admissible either under the English Civil Evidence Act 1968, or the proposals of the English Criminal Law Revision Committee or of the New South Wales Law Reform Commission. Similarly excluded under both the latter two proposals would be a statement exculpating an accused made by a person who has since disappeared, perhaps because he has been intimidated by the real offender who remains at large. But the New South Wales Law Reform Commission argued that the exclusion of such statements should be subject to the court's inclusionary discretion in exceptional cases. Criticising the proposal for automatic inadmissibility made by the English Criminal Law Revision Committee they said:

Consequently, the New South Wales Law Reform Commission recommended that the court should have a more general inclusionary discretion to admit an inadmissible statement where there are reasonable grounds for thinking it may be reliable or where, in a criminal case, it tends to support the acquittal of an accused person.³² If such an inclusionary discretion is necessary even in the context of liberal rules for the admissibility of out-of-court statements, such as those proposed by the New South Wales Commission, it must be doubtful if it is desirable to maintain rigid exclusionary rules based on hearsay at all.

The danger of such a complete abolition of the rule against hearsay is that mere rumour, the unsubstantiated statements of unidentified witnesses and much other evidence of little or no probative value would be let in. This is probably not a real danger in civil cases or for the prosecution in criminal cases because confusion is unlikely to assist the party creating it. However, the defence in a criminal case may be

able to create the doubt necessary to acquittal in the minds of the jury by means of such confusion. To guard against this, it is considered that the judge should have a discretion to exclude any out-of-court statement which is of insufficient probative value.³³ This together with the further safeguards suggested infra should be adequate to prevent a proliferation of evidence of negligible value.

The first safeguard is to make the admissibility of out-of-court statements conditional upon the maker or the person from whom the information derived, where the maker had not personal knowledge of the facts asserted, being called and subjected to cross-examination whenever he is available. It cannot be taken for granted that a party will always desire his witnesses to testify in court because their statements are likely to carry more weight if they do so. He may, for

instance, be happy with the content of a witness's out-of-court statement but apprehensive of the answers on those or other points which that witness might give under cross-examination.

To ensure that direct evidence of facts in dispute is given where it is available the English Civil Evidence Act 1968 requires advance notice of an out-of-court statement proposed to be tendered in evidence to be served on the opposing party who can, by counter-notice, require the maker of the statement to attend in court to give evidence. If he does not attend, his evidence is admissible as of right only if he is dead or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, or cannot be reasonably expected to have any recollection of matters relevant to the accuracy of the statement. The court is, however, given a residual discretion to admit a particular item of hearsay evidence even where none of these pre-conditions is applicable to the maker of a statement or where no notice has been given of it. If the opposing party requires the attendance of a person unnecessarily he may be penalised in costs.³⁴ The thinking behind this scheme was set out as follows by the English Law Reform Committee in their Thirteenth Report:

The system of notice and counter-notice may be criticised as cumbersome.³⁵ The same end can be achieved by providing for the admission of facts pursuant to a notice to admit, the admission of out-of-court statements by agreement, and making out-of-court statements admissible whenever the maker is not available. The English Criminal Law Revision Committee, believing that a system of notice and counter-notice was not feasible in criminal proceedings, recommended that an out-of-court statement of any person should be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible, if –

The Ontario Law Reform Commission proposed that a statement otherwise inadmissible as hearsay should nevertheless be admissible as evidence of any fact stated therein of which direct evidence would be admissible:

In 1978 the New South Wales Law Reform Commission recommended that an out-of-court statement of a declarant should be admissible as evidence of facts asserted if the declarant is called as a witness or the party tendering the statement has justification for not calling the declarant as a witness. More restricted standards of justification were suggested for

criminal than for civil proceedings. Accordingly, in their draft Bill it was provided that in any legal proceedings a party has justification for not calling a person as a witness where –

In a civil legal proceeding a party also has justification for not calling a person as a witness where –

These various solutions have been set out here in some detail because they illustrate an unanimity of view on the desirability of admitting the out-of-court statements of unavailable witnesses together with differences of approach as to the exact circumstances when a witness should be deemed to be unavailable. Clearly no problem arises where the maker of a statement is dead. But, in cases where ill-health prevents his attendance in court, it is considered he should not be regarded as unavailable if it is possible to have him examined on commission or, in criminal cases, to take his evidence by way of sworn deposition under section 14 of the Criminal Procedure Act 1967; in either case the deponent may be cross-examined on his evidence by the other side. The admission of the statements of unidentifiable or untraceable persons is more problematical. The English Criminal Bar Association, commenting on the recommendation of the Criminal Law Revision Committee that such statements should be admissible, cited as examples the case of a prosecution witness in an assault charge who states that immediately after the assault a man, whose name he knows but who has since disappeared, told him that it was the defendant who committed the assault; or conversely a defence witness who testifies that he was approached by a man, whose name he was unable to obtain, but whom he can describe, who told him that the defendant could not be guilty because

he, the informant had, in fact, committed the assault. Such evidence which is easily manufactured and cannot of its nature be tested might, argued the Bar Association, have a strong effect on lay magistrates or a jury. They were of opinion that no safeguards could be designed which would avoid these dangers or prevent the resulting injustice.⁴⁰

Professor Sir Rupert Cross, who was a member of the Criminal Law Revision Committee which recommended that the out-of-court statements of unidentifiable and untraceable witnesses should be admissible in criminal cases, later conceded that their draft Bill may have gone too far in allowing the reception of such statements and suggested that these might be confined to res gestae cases.⁴¹ It is considered that no such limitation is necessary if the judge is given discretion to exclude valueless evidence in the individual case. The professionally trained district justices who try summary offences in Ireland should be less prone to the mistakes predicted for lay magistrates by the Criminal Bar Association in England. Cases may arise where a statement of an unidentifiable or untraceable person has probative value, especially in the context of the other evidence, and should be considered by the jury. Such a case was R. v. Gibson (1887) 18 Q.B.D. 537, a case of unlawful wounding, where evidence was given that immediately after the wounding stone

was thrown, an unidentified woman said, pointing to the prisoner's house: “The man who threw the stone went in there”. In the case of many records of undoubted reliability, the maker of an entry in the records may not be known.

The Law Reform Commission of Canada, reporting in 1975, suggested that a hearsay statement of an unavailable person should not be admissible if “the unavailability of the person who made it was brought about by the proponent of the statement for the purpose of preventing the person from attending or testifying”.⁴² The New South Wales Law Reform Commission included in their draft Bill a provision preventing the admission of statements by persons who have refused to disclose or who have deliberately withheld or concealed their identity.⁴³ It is considered that these situations are best dealt with by the exercise of a general exclusionary discretion based on lack of probative value and on abuse of the process of the court. It is conceivable that a person who has deliberately withheld his identity may have made a statement of genuine probative value.

The treatment of the out-of-court statements of persons who do not testify and either do not have or could not be expected to have any recollection of the matters stated therein has varied in different jurisdictions. Within a single jurisdiction differences occur as between civil and criminal cases. Thus such statements are admissible as of right under the English Civil Evidence Act 1968 but the draft Bill annexed to the subsequent Report of the Criminal Law

Revision Committee has recommended admissibility in these circumstances only where the statement is part of a business record.⁴⁴ A similar difference of treatment as between civil and criminal cases has been noted in the recommendations of the New South Wales Law Reform Commission Report on the Rule against Hearsay.⁴⁵ If such statements are not admitted, it will mean that the maker of the statement will have to be called to make them admissible. It may be considered futile to require witnesses to be called who cannot recollect the facts asserted in a statement made by them which it is sought to tender in evidence. To insist that persons involved in making a business record should testify whenever such a record has to be proved may be unduly burdensome, especially where the record is the result of information supplied by a number of persons. However, the best evidence of a person's lack of recollection is his own testimony to that effect and ideally the other party should be entitled to require this to be given in court. Observation of the demeanour of the maker of a statement may be helpful in assessing his reliability and examination of his habits as regards checking such statements may also be of value. On balance, it is considered that lack of recollection on the part of the maker of an out-of-court statement should not entitle a party to prove such a statement in evidence without calling the maker. Special provision may be required, however, for statements in business records where information is supplied by a number of persons and there is other evidence as to the reliability of the system of record-keeping.

Another class of witness whose testimony is, in practice, unavailable are those who though competent and compellable, refuse to be sworn or to answer questions, once sworn. Such a refusal is most likely to arise in the context of a criminal trial where a witness who has made a statement is subject to intimidation and is prepared to risk punishment by the court rather than to testify. The standard case is where a prosecution witness is 'got at' by the accused or his associates. It may also arise in the case of defence witnesses, especially where there are several accused and the statement exculpates one at the expense of another. Alternatively, a witness who has made a confession or an admission exculpating the accused may not be willing to repeat it in court. To meet this problem, the English Criminal Law Revision Committee recommended that an out-of-court statement should be admissible whenever the maker, being a compellable witness, “attends or is brought before the court but refuses to be sworn”.⁴⁶ This proposal was criticised roundly in the memorandum of the Criminal Bar Association which referred to the problem of the intimidation of witnesses:

The Bar Association's contention that dishonesty and not intimidation is the most likely reason why a compellable witness would decline to testify and so lay himself open to punishment for contempt of court is not convincing. Even if it were, it would not follow that a party should be deprived of the use of that person's out-of-court statement in evidence. It is only where the party tendering the evidence was privy to the intimidation or dishonesty that there would be justification for keeping the evidence out. It is considered therefore that the out-of-court statement of a person who, being competent and compellable, refuses to testify, should be admissible.

In some of the proposals which have been considered, the maker of a statement is regarded as unavailable where he is outside the jurisdiction and a party is then entitled to tender the statement in evidence. Holding that there was no discretion to exclude a statement of a person “beyond the seas” under the English Civil Evidence Act 1968, Mr Justice Finer remarked:-

It may be doubted if the statement of a person who is abroad should be admitted at all unless it is impossible to obtain his testimony on commission or pursuant to a letter of request. The fact that it may be costly to secure

the attendance of such a witness is insufficient reason for regarding him as unavailable as this may be equally true of witnesses within the country. While it may appear arbitrary to draw a line according to whether the maker of a statement is in a country where he can be compelled to testify at the instance of an Irish court, this is, in fact, the true division between availability and unavailability of an unwilling witness.

It may be questioned if it is over-rigid to exclude an out-of-court statement of a person whom it is unduly costly to call as a witness, especially where the facts asserted are of marginal importance or are not seriously disputed. The New South Wales Law Reform Commission recommended that it should be permissible to tender in evidence in civil cases an out-of-court statement of such a witness without calling him as a witness.⁴⁸ In England, under the Civil Evidence Act 1968, a party who unreasonably requires the presence of a person whose out-of-court statement is to be given in evidence may be penalised by having to pay the costs occasioned thereby.⁴⁹ As there are no reported cases on the interpretation of the relevant rule it is not clear how it has operated in practice.⁵⁰

It is considered that the problem of costly witnesses is best met by permitting the reception of out-of-court statements by agreement and the extension of the power of the courts to admit evidence taken on commission and statements on affidavit. As depositions under the Criminal Procedure Act

1967 cannot be taken outside the State, evidence on commission should be made admissible in all proceedings, civil and criminal. At present the facility for taking evidence on commission is not really effective to avoid expense as the parties and their lawyers are entitled to attend such a hearing.⁵¹ Accordingly, it is considered that where it appears that it would cause undue expense or inconvenience if a witness is to be examined by the parties, the court should be empowered to order the taking of evidence without allowing any such examination. This would necessitate the amendment of the relevant Rule of Court. It should also be permissible to receive evidence on affidavit in the absence of a deponent where his presence would involve undue expense or inconvenience. However, it is considered that statements on affidavit should only be admissible for this reason when made from personal knowledge. These powers to admit evidence taken on commission and statements on affidavit are likely to be of particular importance in proceedings in the lower courts where criminal charges are less serious and the amounts involved in civil cases are small. The existing procedure by which one party may call on another to admit a specific fact under pain of having to pay the costs if the refusal is unreasonable, should, it is considered, be extended to District Court proceedings.

The second safeguard recommended to prevent a proliferation of evidence of negligible value is a requirement that an out-of-court statement of an unavailable person should be proved by the best available evidence. Thus an oral statement should be proved by a witness who heard it, if one is available, and a statement in a document should be proved by production of the original document if this is available. The New South Wales Law Reform Commission, which recommended

that several forms of second-hand hearsay should be admissible, included in their draft Bill

elaborate provisions designed to ensure that the best evidence of an out-of-court statement would be before the court. Basic to their scheme was the distinction between an immediate and a remote record in section 61 of their draft Bill which reads:

Section 73 (2) and (3) of their draft Bill provides as follows:

It is considered that such elaboration would not be necessary in legislation not restricting the categories of out-of-court statements which are admissible and it would be preferable to provide in general terms that an out-of-court statement must be proved by the best available evidence.

The third safeguard is that advance notice should be given of any out-of-court statement which it is proposed to tender in evidence. This requirement is to be found in the Rules of

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Court under the English Civil Evidence Act 1968,⁵³ in the Federal Rules of Evidence in the United States,⁵⁴ and in the proposals of the English Criminal Law Revision Committee,⁵⁵ the Law Reform Commission of Canada⁵⁶ and the Ontario Law Reform Commission.⁵⁷ It has the advantage that it enables the other side to make enquiries about the source of a statement and is likely to act as a deterrent to fabricated or worthless hearsay.

The English Criminal Law Revision Committee, while recommending a notice procedure for out-of-court statements in trials on indictment suggested that there should be no similar requirement for summary trials. They expressed themselves influenced by the need to keep the procedure in the magistrates' courts simple and the fact that there is unlikely to be “the same elaborate falsification of evidence as sometimes occurs in cases before the higher courts”.⁵⁸ It is submitted that the complication of procedures involved

in giving notice has the positive advantage that it will tend to limit the use of out-of-court statements to cases where they are of special value. In this way the actual hearing will be simplified. A requirement of notice is likely to cause hardship only where there are unrepresented litigants. This latter case can be met by adjourning proceedings whenever the other side may be prejudiced by the reception of out-of-court statements of which no notice has been given.

The New South Wales Law Reform Commission rejected the adoption of a compulsory notice procedure altogether.⁵⁹ They pointed out that the desirability of tendering a particular piece of hearsay might not become apparent until shortly before, or indeed, during the trial itself. There was also the danger that a party who has to give notice of a hearsay statement might find that the other side's witnesses tailor their case to meet it. “The conflict between avoiding surprise and avoiding manufacture,” remarked the Commission, 'is difficult to reconcile.”⁶⁰ But they were sufficiently conscious of the desirability of notice to suggest that the court should be empowered to reject evidence where it would unfairly surprise a party who has not reasonable ground to anticipate that such evidence would be offered.⁶¹ It is considered that it would be preferable to make notice compulsory while allowing the court to waive it where the other side is not prejudiced thereby or where the necessity to give evidence of an out-of-court statement could not have been foreseen.

One difficulty which may arise with the requirement of notice under present procedures in civil cases should be noted. It may be impossible to give notice because a witness

refuses to make a statement or to produce a document in advance of the actual trial. In prosecutions on indictment such a witness may be compelled to give evidence on deposition before the trial under section 7 of the Criminal Procedure Act 1967 but there is no similar procedure in summary trials or civil litigation. This already gives rise to problems in any case where a party to litigation has to rely on the testimony of or documents in the possession of a third person who is not well-disposed or who is under pressure not to seem to co-operate.

In their Third Interim Report submitted in 1965 the Committee on Court Practice and Procedure recommended that a witness who has refused to give a statement of evidence to the party approaching him should be compellable by order of the court to furnish it in the form of a sworn statement if he has refused to give an ordinary statement in the first instance.⁶² But no action has been taken on this recommendation. Unless some provision along these lines is made, it may be difficult to insist on the requirement of notice in cases where the refusal of a prospective witness to give an account of an out-of-court statement of another person or to produce a document prevents adequate notice from being given. In such a case the only satisfactory solution may be to grant an adjournment but this could increase costs and would be unworkable in jury trials.

It is common practice to admit hearsay evidence if the other party does not object. There is some doubt as to whether this is in accordance with the law.⁶³ It is considered

that express provision should be made for the admissibility of out-of-court statements where the other party does not object. To cover the case of unrepresented persons or failure to object by legal advisers, the court should have discretion to exclude an inadmissible out-of-court statement to which no objection is raised.⁶⁴

In framing legislation it will be necessary to decide whether the provisions applying to out-of-court statements should extend beyond express assertions to implied assertions i.e. statements or non-verbal conduct which are not intended by their maker to be assertive of the fact they are tendered to prove and non-verbal conduct not intended to be assertive of the fact it is tendered to prove.⁶⁵ Implied assertions are less likely to be insincere than express ones and it might be felt that there is less reason to guard against their falsity. In several codes, e.g. the American Uniform Rules of Evidence (1953), the draft Evidence Code of the Law Reform Commission of Canada (1975), they are not treated as hearsay. But these are codes which prohibit hearsay generally. Where out-of-court statements are generally admissible, albeit

subject to procedural pre-conditions, there is less reason to adopt a restrictive definition. It is considered that out-of-court statements should be defined to include conduct which is intended to be assertive and all statements, whether or not they are intended to be assertive. But there is no reason why conduct not intended to be assertive should be treated differently from other circumstantial evidence and regarded as a statement.⁶⁶

In certain cases, corroboration is required as a matter of law.⁶⁷ For example, a person may not be convicted of perjury solely upon the evidence of one witness as to the falsity of the statement alleged to be false; in affiliation proceedings or proceedings for breach of promise of marriage the plaintiff cannot succeed unless her testimony is corroborated by some other material evidence. In addition, there are a number of cases where there is a rule of practice that the judge must warn the jury of the danger of acting on uncorroborated evidence and, where there is no jury, the tribunal must warn itself of this danger. However, subject to giving such a warning they may, in such cases, act on the evidence despite the absence of corroboration. The most important of these are cases where it is sought to sustain a conviction on the uncorroborated evidence of an accomplice or of a child.

Corroboration is a separate item of evidence implicating the person against whom the testimony is given in relation to the matter concerning which corroboration is necessary. Of its nature it must necessarily be extraneous to the witness whose evidence is to be corroborated. It is established that a person's own out-of-court statement cannot constitute corroboration of his testimony. The English Civil Evidence Act 1968 section 6(4) has made specific provision to this effect. But nothing is said in that statute about the case where an out-of-court statement of another person is tendered to corroborate the testimony of the witness who narrates it. However, the Ontario Law Reform Commission in their Report on the Law of Evidence (1976) included the following provision in the draft Evidence Act which they proposed:-

It is considered that a similar provision should be adopted in Ireland but it should be extended to cover cases where a warning as to the danger of acting without corroboration is required by practice, as well as those where corroboration is required by law; it might also be extended to cases where the evidence sought to be corroborated is that of a person who relayed it from the maker of the statement to the witness who proves it in court. It is considered that it would also be appropriate to follow the English example of giving statutory formulation to the existing rule that the out-of-court statement of a person does not constitute corroboration of his testimony in court.

Statements of opinion and statements based on hearsay, which would normally be inadmissible, are admissible in evidence if made by an expert witness in the course of his testimony. The

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question arises how the out-of-court statement of a qualified expert should be treated. The cross-examination of expert witnesses is important in view of the latitude they are allowed and there might be objection to allowing them the same latitude in out-of-court statements when they are not subject to cross-examination. It might be argued that any informants on whom they base statements of facts not within their personal knowledge should be called to testify if available. This would be consistent with the general scheme of legislation proposed and would have much merit in cases where a particular statement of fact was obviously fundamental to an opinion expressed by an expert. However, it is suggested that this question is best tackled in the general context of expert evidence. It is considered, therefore, that a provision should be included excluding expert evidence from the application of the proposed legislation. (See Chapter 10 infra.)

Accordingly it is considered that in civil cases at least the law should provide as follows:

If it is decided to retain the rule against hearsay in criminal cases even when the maker of the statement is dead or otherwise unavailable, consideration will have to be given to the exact scope of the existing exceptions to that rule to decide if they

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should be amended. The law relating to the admissibility of business and administrative records has been amended in other common law jurisdictions where the rule against hearsay has been retained. This matter is considered in Chapter 4 of this Working Paper. The other existing exceptions to the rule against hearsay are considered in Chapter 6.

CHAPTER 3 PREVIOUS STATEMENTS OF WITNESSES

The hearsay rule excludes the out-of-court statements of witnesses in so far as they are tendered as evidence of the facts asserted. However, such a statement may also be relevant to the credibility of the witness in that it reveals consistency or inconsistency with his testimony in court. But even if it is sought to be proved only for this limited purpose, it may be excluded by the rule against self-corroboration, sometimes called the rule against narrative. According to this, a witness may not give evidence that, on a past occasion, he made a statement consistent with his testimony in court and other witnesses may not be called to prove that he made any such statement. Any previous statement inconsistent with his testimony in court may be proved but such a statement may only be used to discredit the witness's sworn testimony and is not evidence of the facts asserted in it.

Certain exceptional cases where the prior consistent statements of a witness may be tendered in evidence must be noted. Firstly, in prosecutions for sexual offences, a complaint made voluntarily by the victim as soon as could reasonably be expected after the incident is admissible to support the complainant's credibility and as evidence of lack of consent, where this is in issue, but it does not amount to corroboration where this is required as a matter of law.⁶⁸ This exception was described by Oliver Wendell Holmes, in a Massachusetts case^68A as “a perverted survival of the ancient

requirement that a woman should make hue and cry as a preliminary to an appeal of rape”. While it has been stated in the Court of Criminal Appeal in England that the fact of a complaint having been made but not its contents may be proved even if the victim does not testify (R. v. Wallwork (1958) 42 Cr. App. Rep. 153) the better view seems to be that no evidence of the complaint may be given when the victim does not testify.⁶⁹ There is some authority in England that this exception to the rule against self-corroboration is applicable in all cases of personal violence, not just sexual cases (Cross on Evidence, p. 241 (5th ed. 1979)) Secondly, a prior consistent statement may be admitted as part of the res gestae when it is made contemporaneously with the event in issue. Thirdly, and most important, a prior consistent statement may be adduced where “counsel on the other side impute a design to misrepresent from some motive of interest or relationship; in that case, perhaps, in order to repel such an imputation, it might be proper to show that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts”.⁷⁰ These words were quoted by Molony L.J. in an entertaining Irish will suit Flanagan v. Fahy [1918] 2 I.R. 361 at 392, described by Lord Radcliffe in a House of Lords case in 1960 as “perhaps the best example of the way in which the exception can properly be invoked and applied”. ⁷¹ In Flanagan v. Fahy

it was alleged that the plaintiff had forged the will sought to be propounded. One Patrick Ryan, called for the defence, testified that he had seen the will forged and had been offered a sheep as a bribe to secure his silence. In cross-examination, Ryan was asked about hostility between the plaintiff and himself arising out of the fact that he had refused to marry the plaintiff's daughter having made her pregnant. In rebuttal of the implicit suggestion that Ryan had given false testimony on account of the resulting enmity, the defence were allowed to prove that he had told the story to another person before any enmity arose. It has been suggested recently in England that evidence may be adduced of a prior consistent statement of a witness whenever the other side raises an inconsistent statement of that witness⁷² but this proposition conflicts with earlier English authority as well as the bulk of United States case law and was expressly disavowed in Ireland in R. v. Coll (1889) 24 L.R. Ir. 522. It seems there must at least be an implicit suggestion by the other side that the witness had recently made up the story in his testimony. In addition to these three recognised exceptions, the prohibition on prior consistent statements is disregarded, as a matter of practice, in criminal cases where everything said by the accused when charged is proved even if this consists wholly or partly of statements corroborating his testimony in court.⁷³ Statements by an accused explaining the possession of goods found on him or on his premises are admitted on the same basis provided they are made at the time of discovery. In Canada such admissibility has been justified by reference to the doctrine of res gestae.⁷⁴ Evidence of identification of a person before the trial is also given regularly even though it may involve corroboration of testimony given in court.⁷⁵

As the person who made the statement is present in court and subject to cross-examination on its contents and the circumstances in which it was made, the main objection to the reception of out-of-court statements has no application to the previous statements of a witness. The first reason usually given for the exclusion of such previous statements is that an unsworn statement out of court generally adds little or nothing to testimony to the same effect made on oath and is, therefore, superfluous. “Generally speaking”, said Lord Radcliffe in Fox v. General Medical Council [1960] 3 All E.R. 225 at 230, “such confirmatory evidence is not admissible, the reason presumably being that all trials, civil or criminal, must be conducted with an effort to concentrate evidence on what is capable of being cogent.” The admission of the out-of-court statements of witnesses might give rise to a multitude of side-issues on such matters as the precise terms and circumstances in which they were made. While these considerations may be valid for the general run of the out-of-court statements of witnesses, there are cases where the circumstances in which such a statement was made give it a guarantee of veracity additional to or superior to sworn testimony in court. The most common example is where a statement is made soon after an incident by a witness whose recollection of the matter has since become hazy or even non-existent. At present, unless the previous statement comes within the limited category of documents from which a witness may refresh memory in court, its contents cannot be put in evidence.⁷⁶ Statements made by a party before he has any interest in misrepresenting the facts may also have a special value. The loss liable to be caused by their exclusion was exemplified in the Kenyan case

Gillie v. Posho Ltd [1939] 2 All E.R. 196, where the issue was whether a contract was made before or after the publication of an advertisement containing allegedly fraudulent misrepresentations. It was held by the Privy Council that a witness who swore that the offer made by him was accepted before publication of the advertisement should not have been allowed to prove a letter written by him before publication referring to the contract although the contents of the letter, written before any dispute could have been anticipated, greatly enhanced the veracity of his evidence in Court. The consistency of out-of-court statements of different persons made before the authors could have concocted a story together may also be significant. Thus, a man, when arrested for assault, states that he was acting in self-defence; his wife witnessed the incident and, without having had the opportunity to know what her husband has said, corroborates his account precisely.⁷⁷ Clearly the circumstances of these statements enhance the veracity of similar testimony given later in court but under the present law evidence of the wife's earlier statement may be given only if a suggestion of recent fabrication is made by the other side.

The second reason given for the exclusion of the previous statements of a witness is the danger of fabrication. If proofs of evidence taken at the instance of one of the parties or his lawyers were tendered as evidence instead of oral testimony, these would inevitably reflect the preoccupations of the questioner. As the California Law Revision Commission argued in 1962:

The oral examination of a witness by counsel for the side calling him, called the examination in chief, has a special value in eliciting the truth. Contrary to what is commonly supposed by laymen, the way in which a witness responds to it is often much more informative as regards his reliability than his reaction to cross-examination by the opposing side. However, it is not necessary to exclude all previous statements to ensure that such oral examination-in-chief of witnesses takes place. Under the English Civil Evidence Act 1968 previous statements of a witness are generally only admissible at the conclusion of his examination-in-chief and then only with the leave of the court. The Law Reform Committee, upon whose report the Act was based, anticipated that the provision would work thus:

The same objective is sought to be achieved by the draft Criminal Evidence Bill proposed by the English Criminal Law Revision Committee. Under this, the out-of-court statements of witnesses are declared generally admissible but the leave of the court is required before the admission of a proof of the witness's evidence. Section 32(3) of the draft Bill, which governs the matter provides:

The Model Code of Evidence approved by the American Law Institute (1942), the Uniform Rules approved by the Commissioners for Uniform State Laws (1953), the draft Evidence Code proposed by the Law Reform Commission of Canada and the Bill attached to the New South Wales Law Reform Commission Report on the Rule against Hearsay (1978) all provide that an out-of-court statement of a witness who is present and subject to cross-examination should be admissible.⁸⁰

The admission of the previous statements of a witness would also have the incidental advantage of sweeping away the artificial distinctions that have become embedded in the exceptions to the present rule against self-corroboration between sexual and non-sexual assaults. Accordingly, it is considered that an out-of-court statement of a witness should be admissible as evidence of the facts asserted subject to the proviso that any such statement should not be given in evidence before the conclusion of the examination-in-chief of the witness who made it, without the leave of the court. Like other out-of-court statements they should be liable to exclusion at the judge's discretion.

Neither the Civil Evidence Act 1968 in England nor the draft Criminal Evidence Bill proposed by the English Criminal Law Revision Committee in 1972

require that prior notice should be given of a previous statement of a witness proposed to be tendered in evidence. No reasons have been advanced for this. It would be valuable for the other side to be able to investigate the circumstances and terms of such a previous statement. The requirement of notice would discourage parties from relying on previous statements which do not add materially to the testimony in court. As in the case of any other out-of-court statement, notice should be waived where it becomes relevant as a result of factors outside the control of the party tendering it. Thus, for example, no notice should be required where it is desired to prove a previous statement of one's own witness to counter an allegation in cross-examination that his recollection has become hazy with lapse of time.

A provision making previous statements of witnesses admissible would enable the side calling a witness to adduce evidence of statements supplementing his testimony as well as statements to the same effect confirming it. This is likely to be of importance in cases where a witness no longer has a full recollection of events which he perceived and about which he is called to testify. At present this situation is governed largely by the somewhat complex rules relating to the refreshing of a witness's memory. According to these, a witness may refresh his memory by referring in court to a document made or, at least, verified by him at the time of an incident. Kennedy C.J. dealt with this matter in his judgment in Northern Banking Company v. Carpenter [1931] I.R. 268 at 276, a case where a sub-manager of the Ball's Bridge branch of the bank was allowed to refresh his memory that title deeds were deposited as security by referring to a standard form deed signed by him at the time:

In the earlier Irish case Lord Talbot de Malahide v. Cusack (1864) 17 Ir.C.L.R. 213 it had been recognised that this principle had “been extended to the case of entries which though not in the witness's handwriting, were either made in his presence, and read by him at the time of the transactions, or were read and examined by him shortly afterwards when the facts were fresh in his recollection and when he was enabled to ascertain that the facts stated in the entries were true”.⁸¹

Wigmore in his great treatise on the Anglo-American system of Evidence has suggested that in cases where the recollection of a witness is not revived and he is merely “giving credit to the truth and accuracy of his habits” the document itself is evidence.⁸² But this view has been rejected in England⁸³

and there is no indication that it would be accepted here. However, a distinction is drawn between cases where memory is genuinely revived and those where a witness merely swears to a fact because it is in a document in that the original must be produced in the latter case (unless it has been lost) whereas a copy will suffice in the former.⁸⁴ But, whether or not memory is genuinely revived, the document refreshing memory may be inspected by the jury and by the other side, who may cross-examine the witness by reference to it. But such cross-examination does not make the document evidence in its own right unless the cross-examiner so wishes. However, if the latter cross-examines on parts of a document other than those used to refresh memory, the side calling the witness may put it in evidence.^84A

These complex rules may be characterised as of a type which get the law of evidence a bad name. But, in their tortuous way, they are effective to bring before the court most out-of-court statements of witnesses which possess probative value additional to their oral testimony, although it must be said that they are not much utilised except by police witnesses referring to their notebooks. The acceptance of the practice of reading over previous statements to revive recollection before giving evidence also reduces the gaps in testimony arising from hazy recollection. But it remains possible to envisage situations where a previous statement made by a witness which is of some probative value cannot be used. For example, the note recording the recollection of the witness whose memory is not revived may not be sufficiently contemporaneous, or it may not have been reduced to writing or checked by him at the time. But perhaps most

objectionable is the artificiality introduced into the law. As Glanville Williams has written:-

It is even more unsatisfactory if, as has been held permissible by the English Court of Appeal in R. v. Richardson [1971] 2 Q.B. 484, a witness may refresh his memory by a previous statement never brought to the notice of the court. It is considered that the other side should be given advance notice of any documents used to refresh the memory of a witness either before or while he is testifying.

Accordingly, it is suggested that where the memory of a witness is refreshed by referring to any statement, whether made by himself or by another, notice of the statement should be served on the other side, who should be entitled to put it in as evidence of the facts asserted. But where a witness refreshes his memory by referring to a statement made by another, the party calling the witness should not be entitled to put that statement in evidence unless it is otherwise admissible or unless the statement – or some part of it – is read out in cross-examination by the other party.

At present, as has been noted, a cross-examiner may call for a document from which a witness refreshes memory and may cross-examine him on parts other than those from which his memory is refreshed. This is an exception to the general

rule that cross-examination with reference to inadmissible evidence is not allowed but it entails the disadvantage for the cross-examiner that the material cross-examined upon becomes evidence at the option of the side calling the witness. If all previous statements of witnesses are admissible there is no reason why a witness should not be cross-examined on any such statement even if he does not refresh his memory from it. But where memory is refreshed from the statement of another, it is considered that cross-examination should not be allowed from parts of it other than those from which the witness refreshes his memory unless these are admissible in evidence in their own right as out-of-court statements.

It has been argued that there should be some restriction on the documents used to refresh a witness's memory out of court.⁸⁶ But it is an objection to any such restriction that it would be difficult to police. In these circumstances it is anomalous that the classes of documents used to refresh memory in court should be restricted, especially as such a restriction can be evaded simply by refreshing memory out of court. The requirement that the document refreshing memory should have been made contemporaneously would be over-rigid if, as is suggested, the out-of-court statements of witnesses are made generally admissible in their own right. The requirement that the document should have been checked by the witness at the time it was made where it was made by another is over-stringent in cases where memory is genuinely revived. Any effort to draw a distinction between genuine revival of recollection and cases where the witness swears to a fact because it is in a document, such as is now required for the purpose of

deciding if an original should be produced, is fraught with difficulty. Accordingly, it is considered that the rules limiting the documents from which a witness may refresh memory in court should be abolished. The obligation to disclose all such documents to the other side should be an adequate safeguard against pseudo-revivals of memory on the basis of inadequate material.

The reasons for excluding prior consistent statements of witnesses, namely that they are superfluous or are likely to be fabricated by the side calling him, are not applicable to the out-of-court statements of a witness which are inconsistent with his testimony in court. But strict limitations are placed on the admissibility of such inconsistent statements and the use that can be made of them. These limitations arise, in part, from the rules governing the examination and cross-examination of witnesses according to which a party calling a witness is not permitted to impugn the credit of that witness. One aspect of this is that a previous out-of-court statement of a witness which is inconsistent with his testimony in court may not be proved by the party calling him. An exception is made in the case of a hostile witness, defined as one not desirous of telling the truth at the instance of the party calling him, who may be cross-examined by the party calling him and evidence given of his previous statements inconsistent with his testimony in order to discredit him.

The rules governing cross-examination are rooted in the theory that a witness is on the side of the party calling him and this party must be taken to guarantee the trustworthiness of those whom he calls to prove his case. In reality a party often has to call witnesses not favourably disposed to him to prove facts essential to his case. It can be a grave disadvantage to him not to be permitted to cross-

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examine such a witness especially if he has declined to provide a proof of evidence from which to be examined in chief. In the case of a witness who has made a statement inconsistent with his testimony, proof of this fact is often sufficient to have him regarded as hostile, and he can then be cross-examined by the party calling him and any previous inconsistent statement he has made adduced to discredit him. In the only recent reported Irish case on the subject The People v. Taylor [1974] I.R. 97, a witness who had told the police that the accused attacked the deceased with a knife and who then gave evidence that the weapon used was a scissors, was, by virtue of this discrepancy, allowed to be treated as hostile by the prosecution. Whether this equation of inconsistency with hostility is typical is difficult to ascertain as it is a matter on which the decision of the trial judge can be challenged only in exceptional circumstances.⁸⁷ But it is hard to dispute the view of the English Criminal Law Revision Committee that “it seems difficult to regard the inconsistency as sufficient in itself to show that the witness is a hostile witness” and their conclusion that it is “artificial to base the admission of the previous statement ... on the idea that the witness made it shows that he is now hostile”.⁸⁸ They recommended that whenever a witness gives evidence inconsistent with a previous statement of his, the party calling him should be entitled to seek the leave of the court to cross-examine him and prove his inconsistency. In Canada, the Evidence Act was amended in 1969 to enable the court to permit cross-examination by a party of his own witness without proof of adversity where that witness has

made an inconsistent statement in writing, or reduced to writing, inconsistent with his testimony. Many United States jurisdictions have removed any requirement of adversity as a pre-condition of cross-examining one's own witness and the Federal Rules provide simply that “the credibility of a witness may be attacked by any person, including the party calling him”.⁸⁹ While the tendency to accept inconsistency as conclusive evidence of hostility under the present law may make this change unimportant, it would be more satisfactory to make the prior inconsistent statement of a witness admissible at the option of the party calling him without making any imputation of deliberate untruthfulness against that witness. It would also be more consistent with a general scheme of legislation making the out-of-court statements of witnesses generally admissible as evidence of the facts asserted.

Even where a prior inconsistent statement of a witness is allowed to be proved it may, under the present law, be used only to discredit him and so neutralize his testimony in court; as was stated by Walsh J. delivering the judgement of the Court of Criminal Appeal in The People v. Taylor [1974] I.R. 97 at 102:-

One reason given for the rule is that an unsworn statement should never be allowed to outweigh sworn testimony. Fears have also been expressed that evidence might be fabricated by means of prior inconsistent statements. As was stated by the English Criminal Bar Association in their observations on a proposal by the Criminal Law Revision Committee to make such statements evidence of the facts asserted:

However, the rule so stoutly defended has been roundly criticised by eminent authorities. The English Criminal Law Revision Committee maintained that it involved a distinction which was over-subtle and not easily understood.⁹² Professor Sir Rupert Cross, the author of a standard textbook on the Law of Evidence, has expressed the view that it constitutes one of the absurdities of the present law and involves judges in “talking gibberish” when instructing juries.⁹³ There are cases where the previous

statement of a witness has a higher probative value than his testimony in court and this should be assessed in the individual case by the judge or jury untrammelled by any artificial restrictions. A statement made nearer the time of an event is, for instance, less likely to be affected by loss of memory than one made years later in court and should not be deprived of its logical weight in determining the facts. Professor Cross has provided another example:

Despite such examples the matter is not clear cut. It was only by a narrow majority that the English Law Reform Committee recommended that prior inconsistent statements should be evidence of the facts asserted.⁹⁵ The Ontario Law Reform Commission, reporting in 1976, recommended that such prior statements should be evidence if proved against a witness on the other side but not if proved in respect of one's own witness.⁹⁶ They were influenced in their recommendation by the fact that a party might intimidate his own witnesses by the threat of discrediting them if they failed to come up to proof.

However, provided that a witness called by his own side can only be discredited by proof of prior inconsistent statements, as with hostile witnesses at present, and not in other ways, this threat is unlikely to count for much. A further argument in favour of making prior inconsistent statements of a witness evidence of the facts asserted is that it will avoid the difficulty which would otherwise arise where the testimony given in court by a witness is partly consistent and partly inconsistent with an out-of-court statement of his.

The need to give evidence of a prior inconsistent statement of a witness would not generally become apparent until that witness had testified. For this reason any requirement of advance notice would often be impossible of fulfilment. Accordingly, it is considered that the prior inconsistent statements of a witness should be admissible as evidence of the facts asserted at the instance of any party without any requirement of advance notice.

There are rules governing the use of prior inconsistent statements in the cross-examination of a witness which were described recently by the New South Wales Law Reform Commission as “shrouded in obscurity and complication which is exceptional even by the standards of the law of evidence”.⁹⁷ The failure to observe these rules resulted in a conviction for murder being set aside as recently as 1974 in The People v. Taylor [1974] I.R. 97, where the Court of Criminal Appeal held that no proper foundation had been laid for the introduction of a prior inconsistent statement of a witness. In that case, as has been noted, a prosecution witness having previously made a statement

to the police that the accused had stabbed the deceased with a knife testified at the trial that a scissors was the weapon used. The difference was important as the defence was provocation. As a result, the jury having withdrawn, the prosecution proved the previous inconsistent statement and were allowed to treat the witness as hostile. The subsequent cross-examination began by counsel reading out the previous statement. Allowing an appeal on the ground that the procedure had been telescoped, the Court of Criminal Appeal stated:–

The law relating to the use of prior inconsistent statements of a witness in cross-examination is contained in Sections 3, 4 and 5 of the Criminal Procedure Act 1865 (Denman's Act), which notwithstanding its title, applies to civil as well as criminal proceedings. They provide as follows:-

Cross-examination with reference to a prior inconsistent statement of a witness may take a number of forms. The cross-examiner may merely show the witness his previous statement in writing without reading it to the court and ask him if in the light of it he adheres to his testimony. In that case the statement has not been put in evidence nor is the other side entitled to see it or to have it put in evidence. However, the judge may, under Section 5 of the Criminal Procedure Act 1865, call for the document and make such use of it, including putting it in evidence, as he thinks fit. This is to meet the possibility of a “very tricky practice” outlined by Baron Alderson in R. v. Ford (1851) 2 Den 245 at 248, 169 E.R. 491, at 493:-

The cross-examiner may go no further than asking if the witness has said the contrary to that to which he testifies on any occasion. If the witness does not admit it, the cross-examiner may drop the matter. But if the cross-examiner wishes to prove a prior inconsistent statement he must point out to the witness the circumstances of the

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supposed statement sufficient to designate the occasion or, if the previous statement was in writing or has been reduced to writing, the witness is entitled to have those parts of the prior statement which are to be used to contradict him drawn to his attention. If the witness agrees that he made an inconsistent statement it is not permissible to put it in evidence.⁹⁹ If the witness does not so agree, the statement may be proved but the witness must be given an opportunity to explain any inconsistency between his testimony and the statement. The latter is then relevant only to the credibility of the witness and is not evidence of the facts asserted.

As regards the right of the party calling a witness to put in evidence documents used by the other party in the cross-examination of that witness, there seems to be little or no recent reported authority in this country, or indeed, in England. It appears to have come up more frequently in Australia. The New South Wales Law Reform Commission in their Working Paper on The Course of the Trial argued that such a right exists provided that such cross-examination went beyond calling the witness's attention to his previous statement without reading it out or proving it.¹⁰⁰ There was conflicting authority, they opined, on whether cross-examination on a prior statement let in the whole document containing the statement or only those parts explaining or qualifying the statement.

Much of the point of the rules relating to the proof of prior inconsistent statements disappears if the cut-of-court statements of a witness are made generally admissible as evidence of the facts asserted. There is then no reason in principle why any party should not be free to tender such a statement in evidence. Sections 3 and 4 of the Criminal Procedure Act 1865 could be repealed as redundant as their purpose is to make prior inconsistent statements admissible in certain circumstances and subject to certain conditions. Section 5 might be retained in a modified form to allow for cross-examination on a previous statement without showing it to the witness beforehand and to protect the right of a witness to explain any discrepancy between his testimony and a previous statement tendered in evidence. The difficult point is how far the side calling a witness should be entitled to see and put in evidence previous statements of that witness put to him but not read out in the course of cross-examination. It may be felt that a cross-examiner should be entitled to show a witness an out-of-court statement, or ask him about it in general terms while not revealing its contents, for the purpose of getting an admission of inconsistency or a different answer in court without having the whole document containing the statement (which his opponent may not have) tendered in evidence. But the complications and distinctions involved in such rules would be endless. In principle, all previous statements of witnesses, being admissible in evidence, should be available to every side in litigation. If one side has evidence of such a statement and uses it in cross-examination it should be made available to the other side who should then be free to decide whether to put it in evidence.

It is considered, therefore, that an out-of-court statement of a witness used during cross-examination of that witness should be made available to the other party (or parties) to

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the litigation immediately it is introduced. But it should remain permissible to cross-examine a witness about a previous statement in general terms before drawing his attention to its exact contents or any document containing it. Where a previous statement has been used in cross-examination of a witness, that witness should be entitled to comment thereupon and explain any discrepancy between it and his testimony in court and evidence would then be admissible without notice of other previous statements explaining or qualifying any inconsistency.

The suggestions made in this chapter may be summarised as follows:-

CHAPTER 4 BUSINESS AND ADMINISTRATIVE RECORDS

Records are admissible under a common law rule – which may antedate the hearsay rule itself – according to which an oral or written statement of a deceased person made in pursuance of a duty to record and report is admissible on certain conditions. It was under this rule that entries in marriage registers were admitted in Ireland in cases where registers were not kept pursuant to any statute. Delivering judgment in Malone v. L'Estrange (1839) 2 Ir. Eq. Rep. 16, a case relating to the will of the great advocate Anthony Malone, Lord Chancellor Plunket declared that the books of Roman Catholic Chapels containing entries of marriages and baptisms were admissible:-

More recently notes made by solicitors of negotiations with third parties on behalf of a client and of instructions taken from a client have been held admissible as being necessary to the discharge of the solicitor's duties to the client.¹⁰²

However, the limitations of this rule are such as to exclude records which may have probative value. In Miller v. Wheatley (1890) 28 L.R. Ir. 144 an entry in a marriage register was rejected because there was no proof of the handwriting in the entry, the official position of the writer or of his duty to record such facts. This was, as was stated in a dissenting judgment of O'Brien J., to impose a condition of proof impossible in nature for documents of some antiquity¹⁰³ especially, since as was held by FitzGibbon J. in Mulhern v. Clery [1930] I.R. 649 at 688, “there is no presumption, in the absence of all evidence, that the handwriting is that of the person by whom the entry ought to have been made”. Statements relating to the legitimacy of an infant in a baptismal register have been excluded because there was no duty to record that matter and it was not within the personal knowledge of the writer.¹⁰⁴ In England the concept of duty has been interpreted restrictively so as to exclude a broker's entry as to the purchase of shares and a doctor's record of his patient's condition, it being held that they were both made for the deceased writer's own convenience and not pursuant to any specific duty to the client or patient.¹⁰⁵ In rejecting an entry in a ship's log book by a deceased mate as to the navigation of another ship, the Court of Admiralty in The Henry Coxon (1878) 3 P.D. 156 at 158 held that:

In another case about the same time it was laid down that the entry must relate not to something ascertained by the person making the entry but to something done by or to him.¹⁰⁶ In New South Wales, the Law Reform Commission expressed the view that a business record kept or processed by machines would not be admissible as it was neither written, initialled nor signed by any person.¹⁰⁷ The requirement that the declarant must be deceased was held by the House of Lords in Myers v. Director of Public Prosecutions [1965] A.C. 1001 to exclude a record made by an unidentifiable person who could be alive. In that case the cars alleged to have been stolen had log books of wrecked cars purchased by the accused but the prosecution called an officer in charge of the records of the manufacturers of the stolen cars to prove that the numbers of those cars coincided with those on the cylinder blocks in the cars sold by the accused. The trial judge admitted the evidence of the officer in charge of records and the schedule of microfilms produced by him, the cards filled in by the workman having been destroyed after being copied. But the majority in the House of Lords considered that the records ought not to have been admitted because “the entries on the cards were assertions by the unidentifiable men who made them that they had entered numbers which they had seen on the cards”.¹⁰⁸ Subsequently Glanville Williams wrote that “one of the most pedantic aspects of the common law relating to hearsay was its exclusion of routine reports”.¹⁰⁹

However, in other Common Law jurisdictions a less restrictive approach to the admissibility of records has prevailed than in England. In Potts v. Miller (1940) 64 C.L.R. 282, a case not cited to the House of Lords in Myers v. Director of Public Prosecutions, the High Court of Australia held that “books of accounts kept according to an established system in organized business are receivable in evidence as proof, not of the occurrence of some particular fact recorded or indicated by a specific entry or narration, but of the financial progress or result of business operations conducted on a large scale”.¹¹⁰ In Canada, in Ares v. Venner [1970] S.C.R. 608 the Supreme Court declined to follow the Myers case and held that the hearsay rule, in so far as it related to records, needed “to be restated to meet modern conditions”.¹¹¹ They ruled that “hospital records including nurses' notes made contemporaneously by someone having personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein”.¹¹² The principle stated is clearly applicable to other classes of records. Having regard to the lack of recent Irish authority in this area our courts might well follow this Canadian decision rather than the House of Lords decision in the Myers case.^112A

Records may be admissible under other headings. First, as has been noted, a witness may refresh his memory by referring to a note made or verified by him at the time of the event noted provided that, he had personal knowledge of the facts recorded. As the note may be inspected and put in evidence by the other side, the record is effectively available to the court. But this device is not effective where, as frequently occurs in modern record-keeping systems, the person who supplied the facts recorded cannot be identified or where the record was not verified by him. Secondly, records may be admissible as admissions if they are adverse to the case of the party making them. In Australia, in a case against a hospital for negligence arising out of medical treatment, entries by servants in the records of the hospital sued were admitted as evidence of the facts recorded on the basis that they were adopted by their employer.¹¹³ It is not certain that this line of reasoning would be followed in Ireland as there is authority that an admission made by an agent or servant only binds his principal if it is made to a third person.¹¹⁴ Even if it were followed, it would only make records admissible at the behest of a party other than the person keeping the record. Thirdly, records may be admissible where they rank as public documents.¹¹⁵ Finally, statutory provision has been made for the admissibility of certain classes of records, such as registers of births, marriages and deaths and bankers' books.

The increasing size and complexity of modern administration has rendered obsolete the old archetype of records being made in writing by identifiable persons with personal knowledge of the facts recorded. Frequently, the person making the record does so on information supplied and has no personal knowledge of the content or any recollection of the source of the facts recorded. The records kept may not reproduce the information actually supplied by individuals but only contain facts derived from this information or facts recorded automatically by machines. This is especially true in the case of computers which are now used widely both in business and administration. Reliability in such cases depends not only on the veracity of those supplying the information but also on the thoroughness of checks and the efficiency of the machines producing the records. Legal rules must be framed to take account of these technological developments.

If, as has been proposed supra, out-of-court statements are made admissible as evidence of the facts asserted subject to (i) the maker of the statement or the person from whom the information was derived being called to testify, if he is available, and (ii) a requirement of notice, business records would become generally admissible, albeit subject to procedural requirements. The question arises whether any special provision need be made for such records different from those applying to out-of-court statements generally.

In the case of records it is likely that those supplying or recording information will have done so as a matter of routine and will have no present knowledge or recollection of the matters recorded; and it may be questioned whether it is appropriate to insist on their being called as the makers of the statement where they are identifiable and available. If the system of recording had been anonymous, they could not be identified to be called and it may be considered

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anomalous that a more personalised recording system should be subject to stricter scrutiny before its statements are admitted. Records are often compiled from information supplied by a number of people and the expense and trouble of calling all of them may be disproportionate. Moreover, the real guarantee of their veracity lies in the reliability and checks of the system according to which they are compiled; and it is likely to be more helpful to examine a person who can testify to this than the people who supplied or recorded particular items of information of which they cannot reasonably be expected to have any present recollection. In the vast majority of cases the trouble and expense of identifying and calling the latter as witnesses to testify to their lack of recollection or proving that they are not identifiable or otherwise unavailable, would not be justified by the likely value of their testimony. It may be instructive to consider how this problem has been tackled in the legislation of other Common Law jurisdictions.

In England the admissibility of records is now governed by the Criminal Evidence Act 1965 and the Civil Evidence Act 1968.¹¹⁶ Both stipulate that the record must have been compiled from information supplied either directly or indirectly by persons who had or may reasonably be supposed to have had personal knowledge of the matters dealt with in that information. In criminal cases, admissibility is conditional upon the unavailability

of the person who supplied the information or its not being reasonable to expect him to have any recollection of the matters dealt with in the information.¹¹⁷

In civil cases, the scheme of the legislation is more complex. Section 4(1) of the Civil Evidence Act 1968 provides:

Under the rules of court, notice must be given to the other side before a statement contained in a record may be received in evidence.¹¹⁹ The other party may, by counter-notice, require the attendance of the person compiling the record, the person who originally supplied the information and any other person through whom that information was supplied to the compiler of the record.¹²⁰ If the persons whose attendance is requested are dead, unavailable or cannot reasonably be expected to have any recollection of matters relevant to the accuracy of the statement in question it is admissible. If they attend as requested, the statement is admissible but, in the case of the person who originally supplied the information from which the record containing the statement was compiled, the statement cannot be given in evidence without the leave of the court and then generally only after the person who supplied the information has testified.¹²¹ Even in cases where notice has not been given, or a person whose attendance is requested being available, fails to testify, the court has a residual discretion to admit the statement if it thinks it just to do so.¹²² Apart from these statutory provisions, in both criminal and civil cases, if the person who supplied the information testifies, he may, if he checked the record at the time, refresh his memory by reference to it so, in effect, bringing its contents before the court.

The Civil Evidence Act 1968 also makes separate provision for statements produced by a computer which is defined as “any device for storing and processing information”. The only conditions attached to the admissibility of such a statement to be found in the Act itself are that the computer is in regular use in the business for the receipt of information of the kind supplied and has been operating properly.¹²³ However, by virtue of rules of court, the other party may by counter-notice require the party tendering the computer statement in evidence to call as witnesses any persons who occupied a responsible position either in relation to the management of the activities for which the computer was used, the supply of information to the computer or the operation

of the computer.¹²⁴ If the persons whose attendance is requested testify or are dead, unavailable or cannot reasonably be expected to have any recollection of matters relevant to the accuracy of the statement in question, the statement is admissible. As with other hearsay evidence, even where notice has not been given or where a person whose attendance is requested, being available, fails to testify, the court has a residual discretion to admit a statement if it thinks it just to do so.

One consequence of the English provisions relating to statements produced by computers is that such a statement may be given in evidence without calling as a witness the person who supplied the information although he is available and has a recollection of the subject-matter of the information. It was this preferential treatment over records produced other than by computer that caused disquiet to the New South Wales Law Reform Commission, whose Report on Evidence (Business Records) published in July 1973 is the most thorough official study yet published on the law relating to business records. Having referred to the English Civil Evidence Act 1968 and to similar legislation in Victoria and in the Australian Capital Territory the Commission goes on:

They recommended that statements in such records should be admissible in civil proceedings notwithstanding the rule against hearsay without it being obligatory to call the person who supplied the information originally or any other person involved in the making of the statement. They justified their position thus:

It is submitted that the Commission may have been over-sanguine in their view of the efficacy of cross-examination to ensureing that a party will always call the person (or persons) who supplied information on which a record is based, whenever that person has any relevant contribution to make. If it is accepted as desirable that a witness with personal knowledge of a disputed fact should testify, if available, the most effective way to achieve this is not to admit statements in business records unless those who supplied the information testify to those facts from their personal knowledge or recollection if they are in a position to do so. The New South Wales Law Reform Commission itself was not prepared to make business records admissible in criminal proceedings unless:

This more rigorous standard of admissibility in criminal cases was justified by reference to certain special features of criminal proceedings, viz. the standard of proof beyond reasonable doubt required, the basically oral nature

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of proceedings, the absence of interlocutory procedures, the difficulty of granting adjournments in trials with a jury, the fact that some prosecutions are conducted privately and the substantial number of prosecutions in Petty Sessions in which the accused is not represented.¹²⁶

It is considered that it is equally desirable that the best possible evidence should be available in civil proceedings. Indeed, it is submitted that the New South Wales Law Reform Commission's proposal for criminal cases (which was duly enacted into the Evidence Act 1898 by the Evidence (Amendment) Act 1976) may even be too lax in admitting records without the person supplying information being called, merely because undue delay and expense would be caused by calling him. If there is a witness involved in the making of the record who had personal knowledge and has a recollection of the facts therein it is clearly appropriate that he should testify. But if there is no such witness, then it should be permissible to give in evidence a statement in a record provided that testimony is offered supporting its reliability. It is considered that such testimony should be made available in advance to the other side so that they can make their own investigations. And provision might also be made along the lines of section 30(9) of the Canada Evidence Act which provides:-

It is considered, therefore, that an out-of-court statement contained in a business or administrative record should be admissible not only where the persons who supplied the information testify or are unavailable but also where they have not any recollection of the facts supplied or recorded. It should be permissible to establish such lack of recollection by evidence on affidavit or to infer it from the circumstances of the case. In cases where a record is derived from information supplied from several sources, the unavailability or lack of recollection of some of those contributing to the record may make it futile to attempt to establish the truth of its contents by direct oral testimony. Then the record should be admissible without requiring such testimony. Where a fact is sought to be proved by reference to a statement contained in a record or produced from a record ordinary principles of proof would seem to require that evidence should be tendered supporting the reliability of the system of compiling the record in question. It is

considered that there should be provision requiring such evidence of reliability to be made available in advance of the trial to the other side so that they can make appropriate investigations.

In their Report on Evidence published in July 1972, the English Criminal Law Revision Committee suggested that, unlike other out-of-court statements, advance notice should not be required of statements in records tendered in evidence:-

The Committee might also have relied on the fact that under various statutory provisions, statements in records, such as birth, marriage and death registers and in bankers' books may be tendered in evidence at present without having to give notice. Despite this, it is considered that the Committee's recommendation should not be followed. Business records, however defined, are not of such universal reliability that the other party should be denied the opportunity of investigating them in advance of the trial. In civil cases in England, advance notice is generally required of statements in records sought to be given in evidence under the Civil Evidence Act 1968. The Canada Evidence Act, section 30(7) provides that “unless the court orders otherwise, no record or affidavit shall be received in evidence under this section unless the party producing the record or affidavit has, at least seven days before its

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production, given notice of his intention to produce it to each other party to the legal proceedings and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by such party”.¹²⁸ The New South Wales Evidence (Amendment) Act 1976, section 14 CU, provides for the giving of notice before business records are tendered in evidence. Commenting on this matter, the New South Wales Law Reform Commission Report on Evidence (Business Records) (1973), upon whose recommendations the legislation was based, remarked:-

It is considered that the requirement of notice is of particular importance in the case of records, as an opposing party should be given an adequate opportunity to investigate the reliability of the system on which the court is asked to rely. Notice should also be given of the evidence to be tendered in support of the reliability of a system of records so that this too may be investigated. It is considered that any discretion to waive notice should be exercised only in cases where the other party is not prejudiced by the lack of notice and where it is not the fault of the party tendering the record. As in the case of out-of-court statements generally, such a discretion, exercisable within clearly defined limits, would not open the way to a general disregard for the indispensable requirement of notice.

There is an increasing tendency for statements in business records to be based wholly or partly on information collected and supplied by automatic measuring and recording devices. In New South Wales, the Evidence Act, section 14CE makes statements admissible which reproduce or are derived from “information from one or more devices designed for, and used for the purposes of the business in or for recording, measuring, counting or identifying information, not being information based on information supplied by any person”. It is doubtful if such a provision is necessary to make the evidence in question admissible. If a mechanical device records information without the intervention of any person, the resulting statement is not excluded by the rule against hearsay, not being derived from a statement made by a person not testifying. It would be admissible on the same basis as tape-recordings and cinematograph film strips have been held admissible in decided cases.¹²⁹ However, it is considered that evidence of this kind should be available to the other party in advance of trial so that they may have adequate opportunity for examination and inspection. This can be achieved by making its admissibility subject to the same requirement of notice as out-of-court statements. As in the case of other records, evidence supporting its reliability should be made available to the other party in advance of the trial.

It will be necessary to enact consequential provisions to facilitate the reception of evidence of records not kept in words or figures, by allowing an explanation to be tendered in evidence. This has been done in New South Wales by section 14CN(1)(c) of their Evidence Act which provides:-

Section 39(5) of the draft Evidence Act proposed in the Ontario Law Reform Commission Report on the Law of Evidence (1976) goes further in providing for explanations of computer records produced by human agency rather than the use of a computer. It provides:

Finally, for the removal of uncertainty it would be advisable to provide for the situation where it is sought to prove that an event did not happen with reference to records covering all events of a given description.

Accordingly it is considered that if the arguments put forward in previous chapters in favour of the admissibility of out-of-court statements are accepted, the following special provisions should be enacted in respect of statements contained in or produced by business or administrative records.

If, on the other hand, it is decided to retain the rule excluding out-of-court statements as evidence of the facts stated either generally or for criminal cases, it would be illogical not to limit admissible records to those possessed of some guarantee of trustworthiness comparable to direct oral evidence or admissible hearsay. However, the generally recognised common law exceptions are not wide enough to cover some records of undoubted trustworthiness. Most of the major common law jurisdictions have made some statutory provision to extend their scope by making reliable records admissible.

The justification for making such records admissible is that the obligations of employment or the exigencies of business make it likely that records will be kept accurately and

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impose a sanction comparable to an oath and cross-examination. Statutory provisions have generally made it a prerequisite of admissibility that the record should be made in the course of business which is defined to include public administration and other undertakings not carried on for profit. In England the Civil Evidence Act 1968 stipulated that the record should be compiled by a person acting under a duty which was defined to include a person “acting in the course of any trade, business, profession or other occupation in which he is engaged for the purposes of any paid or unpaid office held by him”.¹³⁰ This is apt to cover records kept by a person on his own account pursuant to trade and professional practice as well as those kept pursuant to a contractual duty. In some jurisdictions it is necessary that it should be the regular practice in that business activity to make such a record.¹³¹ However, this might exclude a reliable record simply because it is not part of a series of records. What is necessary is that the particular record should be made by a person under the restraint of some duty to record accurately. For this reason it is considered that it would be inappropriate to follow the New South Wales example¹³² of admitting any statement made in the course of business provided it finds its way into the records of the business; there should be a consciousness of an obligation to record accurately, if a statement is to be treated on the same footing as sworn testimony.

The next question is what personal knowledge of the facts asserted should be required of the maker of a record if statements in it are to be admissible. Clearly the most acceptable situation is where the person making the record also has personal knowledge of the facts recorded. Under legislation in several common law countries, records are admissible where they are made from information supplied by persons who have personal knowledge of the matters dealt with in the information.¹³³ This would make admissible a record based on information supplied by persons who are under no duty to be accurate and are not therefore subject to any sanction to tell the truth comparable to that imposed by the oath. The New South Wales Evidence (Amendment) Act 1976 only admits records based on information supplied by those involved in the business keeping the records. Thus a hospital record based on information within the personal knowledge of a doctor or nurse would be admissible but not the “history” given by a patient. While involvement in the business might be expected to provide a sanction against inaccuracy it would perhaps be more appropriate to require that information should have been supplied pursuant to a duty by a person with personal knowledge either directly or via persons under a duty to relay the information.

In Ares v. Venner,^133A the Canadian case where the exceptions to the rule against hearsay were extended to include hospital records, it was stated that the records should be made contemporaneously and under a duty by someone having

personal knowledge. It is considered that contemporaneity should go only to weight. Just as direct evidence is admissible although given long after an event, so an entry in a record should be admissible although not made contemporaneously. A further argument has been advanced by the Ontario Law Reform Commission:

If the admissibility of records is confined to those compiled under a duty from information supplied pursuant to a duty, either directly or indirectly, by persons with personal knowledge, certain consequential provisions will be required. The admissibility of a statement from any system of records or produced by means of a mechanical device should be conditional on evidence being given in support of their reliability by a responsible person. Provision should be made for the reception of statements derived by mechanical or logical processes from admissible statements and explanations of statements made otherwise than in words or figures. The absence of a record should, in appropriate cases, be evidence that an event not recorded did not happen. Admissible expert evidence should be treated on the same basis as a statement made by a person from personal knowledge. Despite the higher threshold of admissibility, advance notice should be given not only of statements in records tendered in evidence but

also of the evidence proposed to be tendered in support of the reliability of the system of records itself. If it is stipulated generally that the person who supplied information must be called as a witness if he is available, an exception should be made in the case of records derived from information supplied by several persons provided that their lack of recollection of the information is proved by affidavit.

CHAPTER 5 INCOMPETENT AND NON-COMPELLABLE WITNESSES

Special problems arise in respect of the out-of-court statements of witnesses who do not testify because they are not competent, or who, not being compellable, decline to give evidence. These fall into five categories; (1) children, (2) persons of defective intellect, (3) diplomats, (4) accused persons, (5) spouses of accused persons.

Whether the out-of-court statement of an incompetent or non-compellable witness would now be admissible if it came within one of the exceptions to the rule against hearsay is uncertain. There is ancient authority in England that “what the wife said immediate upon the hurt received and before she had time to devise or contrive anything to her own advantage” might be given in evidence, although she would have been incompetent as a witness.¹³⁵ Similarly it was held that an out-of-court statement admissible as a declaration against interest was not excluded because the maker of the statement would have been incompetent as a witness.¹³⁶ On the other hand, otherwise admissible dying declarations have been disallowed because the declarant would have been incompetent.¹³⁷

A. Children

The general common law rule is that no child is competent to give evidence unless he understands the nature and consequences of an oath.^137A In criminal cases, by virtue of

section 28(2) of the Criminal Justice Administration Act 1914, a child of tender years may give unsworn evidence provided that he is possessed of sufficient intelligence to justify the reception of the evidence and he understands the duty of speaking the truth. Under the present law, an out-of-court statement of a child, like that of any other person, is generally inadmissible as evidence of the facts asserted. Thus in Sparks v. R. [1964] A.C. 964, a case of indecent assault on a four-year-old child, which was appealed to the Privy Council, it was held that the court had rightly rejected evidence by the mother on behalf of the accused, who was white, of a statement made to her by the child, who did not testify, that the assault had been committed by a coloured boy.¹³⁸

There is no provision in Irish law similar to sections 42 and 43 of the Children and Young Persons Act 1933 in the United Kingdom which allow the deposition of a child or young person to be taken out of court for use at a trial for certain offences where the child's attendance in court would be likely to cause serious danger to his life or health. However, such a deposition could be admitted under the Criminal Procedure Act 1967, sections 14 and 15 of which provide for the taking of depositions before a district justice whenever a prospective witness may be unable to attend to give evidence at the trial.

It is impossible to consider the admissibility of the out-of-court statements of children apart from the more general question of their competence to testify, as it would be

somewhat illogical to admit the out-of-court statement of a person who is not considered reliable enough to give sworn or unsworn evidence in court.^138A Yet, even if a child does not understand the nature of an oath nor the duty or importance of telling the truth, what he says, especially in the immediate aftermath of an event, may be worthy of account or even convincing. In a case such as Sparks v. R. it may give rise to such legitimate doubts as to make conviction inappropriate. In England, the Criminal Law Revision Committee was sufficiently impressed by these considerations to recommend that the out-of-court statement of a child who is incompetent to testify should “be admissible as evidence of any fact stated therein if (a) it directly concerns an event in issue in those proceedings which took place in the presence, sight or hearing of that person; and (b) it was made by him as an immediate reaction to that event”.¹³⁹ However, this proposal would allow in the statement of an incompetent child without any opportunity being afforded to the court to examine the child at first hand, which must surely be objectionable.

It is considered that the only satisfactory solution is to make the testimony of children generally admissible. Also consideration might be given to extending the application of section 28 of the Criminal Justice Administration Act 1914 so as to enable a child to give unsworn testimony in

civil cases if he does not understand the nature and consequences of an oath. Provision might also be made for the taking of evidence from children out of court. It might be appropriate to vest in the judge a discretion to carry out any questioning himself and to exclude the evidence of a child altogether where he considers it to be of insufficient probative value.

If the law relating to the admissibility of the evidence of children were amended in this way there would be less need to make any special provision for their out-of-court statements, as a child could be called to give evidence in the appropriate manner. If the child is unavailable because, for example, he is dead, his out-of-court statement would be admissible but it would normally be of little probative value and so liable to exclusion at the discretion of the judge.

Pending a review of the law governing the competence of children to testify it is considered that an out-of-court statement of a child who is not competent to give sworn or unsworn evidence should be inadmissible except, perhaps, for the accused in criminal cases.

B. Persons of Defective Intellect

Persons of defective intellect are incompetent as witnesses if they do not understand the nature of an oath. Yet it is possible to envisage circumstances in which an out-of-court statement of such a person might be of some probative value. Where a person has become mentally ill after making a statement, the reason for his incompetence is not a logical reason for excluding the statement, although it may cast grave suspicion on its value.

As in the case of children, it is impossible to consider the admissibility of the out-of-court statements of persons of defective intellect apart from the more general question of their competence to testify. It is considered that provision should be made for the reception of unsworn testimony and for the examination without oath of such persons. Out-of-court statements could then be admissible in accordance with the usual principles – a witness who was suffering from mental illness making his testimony unprocurable being treated as unavailable. Expert testimony supporting the credibility of a person of defective intellect or disturbed mind should be admissible as well as similar testimony impugning credibility which is already admissible for all witnesses.¹⁴⁰ This would be particularly important for out-of-court statements where the credibility of the maker at another time would be crucial.

Pending review of the law relating to the competence of persons of defective intellect and disturbed mind to testify, it is considered that the out-of-court statement of a person who is incompetent on these grounds should not be admissible except, perhaps, for the accused in criminal cases, unless there is evidence that the maker of the statement would have been competent to testify when he made the statement.

c. Diplomats

According to Article 31.2 of the Vienna Convention on Diplomatic Relations which has been given the force of law in the State by section 5 of the Diplomatic Relations and Immunities Act 1967, a diplomatic agent is not obliged to give evidence as a witness. Other persons having diplomatic immunity enjoy a similar or lesser exemption. There are no reported cases whether, under the present law, an admissible hearsay statement of such a person may be given in evidence.

It might be questioned if diplomatic immunity is fully respected where an out-of-court statement of a diplomat is narrated in court without his consent, especially as this may sometimes act as a form of pressure to testify. However, on balance, it is considered that it would not be appropriate to grant to such persons an immunity which goes beyond what is required under international law when the effect would be to withhold logically probative evidence with possible injustice to the parties to litigation. It cannot be said that a witness is available in any real sense if, not being compellable, he refuses to testify when requested to do so.

Consequently it is considered that the out-of-court statements of diplomats who decline to testify should be admissible in the same way as those of other witnesses who refuse to be sworn.¹⁴¹

D. An Accused

Under the Criminal Justice (Evidence) Act 1924 an accused is a competent witness on his own behalf and also competent although not compellable for anyone being tried jointly with him. But the common law rule that he is not competent to give evidence for the prosecution remains intact; the effect of this rule in joint trials is that one co-accused cannot be called by the prosecution to give evidence against another.¹⁴²

Out-of-court confessions or admissions made by an accused may be proved against him under an exception to the rule against hearsay, irrespective of whether he gives evidence, and are sufficient to sustain a conviction.¹⁴³ But such a statement is not evidence against a co-accused and, in the case of a jury trial, the jury must be instructed that it is only evidence against the person making it.¹⁴⁴

Professor Sir Rupert Cross characterised an instruction along these lines as gibberish, which might involve the surprising assertion at a trial of a brother and sister for incest that the brother's out-of-court admission of intercourse is enough to justify his conviction, although it is not even evidence against the sister that she had intercourse with him.¹⁴⁵ The English Criminal Law Revision Committee, of which Professor Cross was a member,

recommended that any statement made out-of-court by one co-accused about the part played by another co-accused in the events in question should be admissible in evidence for the prosecution, irrespective of whether the maker of the statement gives evidence. Apart from the desirability of having all relevant evidence before the court they advanced two arguments in favour of their proposal:

It is always difficult to justify the exclusion of logically probative evidence but a statement of one co-accused implicating another has a peculiarly unreliable quality because of the natural inclination of an accused person to shift the blame from himself. There is serious objection to the admission of such a statement without affording the party whom it implicates an opportunity to cross-examine the maker.

But such an opportunity for cross-examination could only be achieved in a joint trial by making the co-accused who made the statement a compellable witness which would involve a radical transformation of our criminal procedures. Under our present system, where an accused is not compellable, the prosecution retains the option of having separate trials in which case a potential co-accused becomes a compellable witness. If the prosecution opts for a joint trial, it ill becomes them to complain of the disadvantages entailed by their choice.

While dissenting from the solution suggested by the English Criminal Law Revision Committee, it is considered that their criticism of the present law as involving an unobservable subtlety is justified. It may well be true that juries inevitably disregard it and take the statements of one co-accused into account against another. This led the United States Supreme Court to hold that a confession implicating a co-accused cannot be proved at a joint trial, however emphatically the judge directs the jury that the statement is only evidence against its maker.¹⁴⁷ It is considered that this rule should be adopted, at least in cases where the person making the confession does not testify.

Cases where a conspiracy is alleged against the accused merit special consideration. The declarations of any conspirator in furtherance of the common design are admissible in evidence against any other conspirator when the charge is one of a crime committed in pursuance of a conspiracy whether the indictment contains a count of conspiracy or not. It makes no difference to the admissibility of the declaration whether the declarant is indicted or not. (R. v. Meany, 10 Cox C.C. 506; R. v. McCafferty, 10 Cox C.C. 603) But before such a declaration is admitted there must be other evidence giving rise to a real possibility that an agreement exists. What one alleged conspirator “may have said, not in furtherance of the plot, but as a mere relation of some past transaction or as to the share which some of the others have had in the execution of the common design, cannot it is conceived, be admitted in evidence to affect other persons”.¹⁴⁸

It is considered that the existing law relating to the statements of conspirators should be maintained. It may work injustice in cases where a number of substantive charges are tried jointly with a conspiracy charge “where juries are unable to grasp the subtleties of the situation when they are charged that evidence inadmissible against the accused on the substantive count may be admissible against him on the conspiracy count once he is shown to be a conspirator”.^148A But the remedy for this is to ensure that the conspiracy count is tried separately to the substantive counts.

At present, as has been noted, one accused cannot compel a co-accused to give evidence. On the other hand, he may presumably rely on an out-of-court statement admissible under one of the existing exceptions to the hearsay rule such as a confession or admission.

If out-of-court statements of unavailable witnesses are made generally admissible, it is considered that one accused should be entitled to rely on an out-of-court statement of a co-accused, whether or not that co-accused gives evidence. This difference of treatment as between the prosecution and defence may be justified on the grounds that (1) it is intolerable that any evidence exculpating an accused should be excluded and (2) the choice of a joint trial does not rest with the accused who seeks to tender his co-accused's out-of-court statement in evidence.¹⁴⁹

It has been noted that the prosecution may prove an out-of-court statement of an accused as a confession or admission. In that case the whole statement, even those parts favouring the case of the accused, is admissible. Moreover, it has been held in England that any statement made by the accused at the time he is charged is admissible,¹⁵⁰ and this has been applied by the

Supreme Court of Canada to a statement made when stolen goods were recovered.¹⁵¹ If, as is suggested, the out-of-court statements of witnesses are made generally admissible, any such statement made by an accused who testifies should be admitted. However, in cases where an accused declines to advance his story in sworn testimony, it is considered that his out-of-court statements should not be admissible. While this may involve a more restrictive rule than exists under the present law, it may be justified as discouraging accused persons from withholding their testimony.¹⁵² Accordingly, as long as an accused remains a non-compellable witness it is considered:-

If the out-of-court statements of unavailable witnesses are made admissible, an out-of-court statement of one accused should be admissible for a co-accused whether or not the accused who made the statement testifies.

E. The Spouse of an Accused

The treatment of the out-of-court statement of the spouse of the accused is a more complex matter. The root of the difficulty lies in the rules governing the competence and compellability of spouses as witnesses. The same rules apply to husbands as to wives but, for ease of exposition, it is proposed to assume the case of the wife as witness and the husband as party to the case.

In civil proceedings the wife is competent and compellable as a witness on behalf of her husband or of any other party to the action. In criminal proceedings the general rule is that the wife of an accused is not competent to testify for the prosecution and is competent but not compellable on behalf of her accused husband. In a joint trial, a wife cannot testify for the prosecution even when her evidence only inculpates those co-accused with her husband; the wife of one accused is, however, competent, but not compellable, to testify on behalf of a co-accused provided that her accused husband consents.

In cases of personal violence against a wife, the common law made the wife competent to testify for the prosecution. In some common law jurisdictions, including England, it was believed that the wife was also compellable in such cases but the House of Lords has recently held otherwise in Hoskyn v. Commissioner of Police for the Metropolis [1978] 2 All E.R. 136. There is no reported decision on the question in Ireland. The former assumption that in cases of personal violence a wife was also compellable for her accused husband or for a co-accused without the husband's consent must now also be considered doubtful. In the case of offences under certain enactments, most of which are offences against the property of the wife and cruelty to children,¹⁵³ the wife is competent, though not compellable, for the prosecution

and also for a co-accused of her husband, without the husband's consent in either case. The common law position, by virtue of which a wife was competent but not compellable for her accused husband, remains in respect of trials for such offences.

The interaction of the rule against hearsay and its exceptions with these rules on the competence and compellability of spouses has not, as we have seen, been the subject of any recent reported decisions. It is uncertain, therefore, whether the out-of-court statement of a spouse who is not or would not, if alive, be competent or compellable may be given in evidence if it comes within one of the existing exceptions to the rule against hearsay.

These rules as to the evidence of spouses apply to matters occurring before as well as after marriage. In England they have been held to be unaffected by the judicial separation of the spouses.¹⁵⁴ According to another English case,¹⁵⁵ if the spouses have been divorced or if their marriage, being voidable, has been annulled, the former wife is

incompetent to give evidence for the prosecution about a matter which occurred during the marriage, at least if she would have been incompetent to do so had the marriage still subsisted; the position as to matters occurring before the marriage in such a case was not clarified. There are no reported cases in Ireland on the effect of separation or divorce on the competence and compellability of a spouse.

Where a wife is incompetent to give evidence for the prosecution or where she is not competent to give evidence for a co-accused without the consent of her spouse, it is logical to exclude out-of-court statements made by her subsequent to the marriage. However, the rules making a spouse incompetent have themselves been the subject of telling adverse criticism, and the Criminal Law Revision Committee in England had no hesitation about recommending that the spouse of an accused person should always be competent, though not compellable, for the prosecution or for a co-accused without the consent of the accused spouse:-

If the wife is merely non-compellable and not incompetent, the argument against the admissibility of her out-of-court statements is, as a matter of logic, less coercive. The main reason for making a wife non-compellable is to avoid placing her in a dilemma where she has to commit contempt of court or perjury if she is not to give evidence helping to have her husband convicted. No such intolerable dilemma is presented to her if some out-of-court statement she has made is proved by another. Moreover, as out-of-court statements made by an accused person may be proved against him even when he does not testify, it is not obvious why out-of-court statements made by his wife should be treated differently. The most persuasive reason for excluding the out-of-court statement of a wife is to discourage questioning designed to extract from her evidence incriminating her husband as such questioning would be inconsistent with respect for her right not to give away her husband. This is not, however, justification for excluding all out-of-court statements made by a wife. It is considered, therefore, that any exclusion of the out-of-court statements of a wife in cases where she is competent but not compellable should be confined to statements made subsequent to marriage in response to questioning by or on behalf of parties after the dispute arose. This exclusion should not extend to cases where the

wife testifies or where evidence is given of another of the wife's out-of-court statements inconsistent with that sought to be tendered.

If, as was generally thought prior to Hoskyn v. Commissioner of Police for the Metropolis, the wife is a compellable witness for the prosecution in cases of personal violence against her, the problem of how to treat her out-of-court statements when she refuses to testify is less likely to arise in such cases. If it does, there is no reason why they should not be admitted on the same basis as the out-of-court statements of any other compellable witness who refuses to testify. It is, therefore, relevant to note that there is formidable authority in favour of such compellability both in decided cases in other common law jurisdictions and among reformers. In 1972 the English Criminal Law Revision Committee expressed the view “that the public interest in the punishment of violence requires that compellability should remain”.¹⁵⁷ They felt that “compellability should make it easier to counter the effect of possible intimidation by her husband and to persuade her to give evidence”. This Committee, in fact, went even further and suggested that the wife should be compellable in trials for offences of violence towards a child under the age of 16 belonging to the same household as the accused:

If a wife is made compellable to testify on behalf of a co-accused of her accused husband without the latter's consent, the problem of the admissibility of her out-of-court statements at the instance of a co-accused is also less likely to arise and, where it does, such a statement should be admitted on the same basis as an out-of-court statement of any

other compellable witness who refuses to testify. It is, therefore, relevant to note that the English Criminal Law Revision Committee, while having no hesitation in recommending that an accused should have no right to prevent his wife giving evidence for a co-accused if she wished to do so, considered that the arguments for and against making a wife compellable for a co-accused in all cases were evenly balanced:

In the case of a wife's out-of-court statement, it should be possible to predict in advance if it would inculpate her husband. If it does not do so, there is no reason why it should be excluded. Even if it inculpates the husband it should be admissible for a co-accused, as it is for the prosecution, where it is not made in response to questioning after the dispute arose, especially as it is a serious injustice to exclude any evidence which tends to exculpate an accused person. Similarly an out-of-court statement of a wife should be admissible where she

testifies or where evidence is given of another of her out-of-court statements inconsistent with it. In cases where an accused person is not allowed to give evidence of an out-of-court statement made by a wife of a co-accused, he should be entitled to a separate trial on this ground.

There can be no justification for denying to an accused husband any testimony or statement of his wife which may tell in his favour. It is not surprising that the English Criminal Law Revision Committee recommended that a wife should be compellable and not, as at present, merely competent in favour of her husband.¹⁶⁰ Similarly, if she declines to testify, being competent or even compellable, it is considered that any out-of-court statement should be admissible on behalf of the husband. While the problem of the wife declining to testify is most likely to arise in cases of estrangement it may occasionally be a contrivance to get in a wife's out-of-court statement without running the risks of cross-examination under oath. Where such contrivance is present, it would be proper that the court should be empowered to disallow the statement to be given in evidence. The possibility of such a strategem, which would be difficult to detect, is a further argument for making a wife compellable for the defence.

The treatment of the statements of divorced and separated spouses is a matter of some difficulty. The English Criminal Law Revision Committee recommended that divorced spouses should be treated as if they had never married for the purposes of the rules regulating competence and compellability.¹⁶¹

Consequently a divorced wife would be compellable to testify for the prosecution at the trial of her former husband, even as regards events occurring while they were still married. Her out-of-court statements, whenever made, would be admissible as if they had been made by any other person.¹⁶² The question is of marginal significance in Ireland as there is no domestic divorce jurisdiction, and foreign divorces may be recognised only when the parties are domiciled outside Ireland at the time of the divorce.^162A However this question of the compellability of spouses is resolved, it is considered that for the purpose of the admissibility of out-of-court statements a divorced spouse should be treated as if she were still married except where the statement was made before the marriage or after the divorce and relates to matters occurring either before the marriage or since the divorce.

The position where spouses are separated is more important in Ireland. The English Criminal Law Revision Committee, which found itself in difficulty in drawing a distinction between different forms of separation, ranging from judicial or legal separation to mere non co-habitation, decided to recommend that the judicial separation of spouses should not affect their competence and compellability.¹⁶³ The problem is of marginal significance in England where the existence of a divorce jurisdiction results in judicial separation being

comparatively rare. It is otherwise in Ireland. It is considered that a satisfactory distinction can be drawn between legal separation and other forms of separation and that legal separation should be treated on the same basis as divorce. Consequently the cut-of-court statement of a legally separated spouse should be admissible on the same basis as if she were not separated except where the statement was made before the marriage or after the separation and relates to matters occurring either before the marriage or since the separation. Similar provision should be made for annulled marriages.

Whatever decisions are made on the law governing the competence and compellability of spouses, the treatment of their out-of-court statements should be logically consistent with them. Accordingly, if the arguments put forward in this Paper in favour of the admissibility of out-of-court statements are accepted, it is considered that the following provisions should be enacted in respect of statements made by the spouse of a party:

If the tentative suggestions made in this chapter on competence and compellability are adopted the admissibility of an out-of-court statement of a spouse of the accused tendered on his behalf will be governed by (3) while admissibility of such a statement on behalf of the prosecution or a co-accused will be governed by (4).

It may be instructive to compare the suggestions made in this Chapter on the out-of-court statements of the spouse of an accused with the fully-worked-out recommendations of the English Criminal Law Revision Committee. By a majority, that Committee recommended that the out-of-court statement of a wife should not generally be admissible except in trials for those crimes of violence where the spouse is or, if dead, would have been a compellable witness.¹⁶⁴ It is submitted that there is no objection to the prosecution giving in evidence a statement of the spouse as long as it is not extracted by questioning. Despite the fact that they did not think that the spouse of an accused should be compellable for a co-accused, the Criminal Law Revision Committee recommended that the co-accused should be entitled to give in evidence her out-of-court statement where she refuses to testify.¹⁶⁵ Because it was felt that it is objectionable to extract from a wife a statement implicating an accused husband, it has been argued in this Chapter that no statement so extracted should be admissible. The injustice of denying to a co-accused of the husband the right to rely on relevant evidence which tells in his favour should, it is submitted, be avoided by giving the right to a separate trial in such a case. The difference between the suggestions in this chapter and the recommendations of the English Criminal Law Revision Committee would, in practice, be even less than might appear at first sight, as that Committee's draft Bill excludes any out-of-court statement made after the accused is charged or told he will be charged, unless the maker of the statement testifies, is dead or unfit

to attend court.¹⁶⁶ This would exclude most statements made by a non-testifying spouse in response to questioning.

The suggestions made in this Chapter relating to the admissibility of the out-of-court statements of various categories of incompetent and non-compellable witnesses may be summarised as follows:

CHAPTER 6 EVIDENCE ADMISSIBLE UNDER EXISTING EXCEPTIONS TO THE RULE AGAINST HEARSAY

If a General Scheme of legislation is adopted making out-of-court statements admissible whenever the person who made the statement is not available or, being available, testifies, the question arises what provision should be made for out-of-court statements in those cases where the common law already allows the reception of hearsay evidence even where the person who made the statement is available to testify and does not do so. These cases fall into six classes: (1) admissions; (2) statements which are part of the res gestae; (3) cases where reputation may be tendered as evidence of the facts reputed; (4) public documents and published works; (5) pre-trial identification; (6) statements which are admissible by virtue of specific statutory provisions.

A. Admissions

At present one party to an action may give evidence of a statement made by or on behalf of the other party which is adverse to the latter's case.¹⁶⁷ Such statements, called admissions, may be proved both in civil and criminal cases. In the latter an admission may be sufficient to sustain a conviction.¹⁶⁸ When made to a person in authority by an

accused person, they are called confessions and special rules regulate their admissibility which are designed to ensure that they are voluntary. These rules were considered by the Committee to Recommend Certain Safeguards for Persons in Custody and for Members of the Garda Siochana under the chairmanship of Mr Justice Barra O'Briain which reported in April 1978 and it is not proposed to re-examine its conclusions here.¹⁶⁹

An admission may take the form of silence or some other reaction in face of the statement of another.¹⁷⁰

It is on this basis that any statement made in the presence of a party is allowed to be proved although it may then be ruled inadmissible if no admission can be inferred in the circumstances. There is authority that the correct practice in such cases is to give evidence of the fact, but not the contents, of the statement in the first instance together with the answer and, only if the judge thinks an admission may be inferred, should the contents be received,¹⁷¹ but this practice is not a rule of law and is apparently often disregarded. Conduct, such as fleeing from arrest or making an offer in a civil case, may constitute an admission.¹⁷² In Sullivan v. Robinson [1954] I.R. 161 submission to a test for drunkenness was treated as a species of admission. It is not certain whether a person making an admission must have personal knowledge of the facts stated or whether a statement of opinion may be received as an admission. There is no requirement that the statement should be against interest when made so long as it is adverse to the party's case in the litigation. Once part of a statement is given in evidence as an admission, the entire statement becomes evidence including those parts favourable to the party making the admission.

There are cases where a statement made by a third person may rank as an admission as against a party to litigation. In Power v. Dublin United Tramways Co. [1926] I.R. 302, a claim by dependants under the Fatal Accidents Act 1846, it was held, by the former Supreme Court, Kennedy C.J. dissenting, that a statement made by the deceased was admissible as an admission

as against the dependants. An admission made by a servant or agent may bind his employer or principal when it is made either (1) as part of a conversation or other communication which he was authorised to have with a third person or (2) in the ordinary course of business by an agent or servant authorised to represent the principal in that business.¹⁷³ Thus, in England, it was held by the Court of Appeal in Burr v. Ware R.D.C. [1939] 2 All E.R. 688 that a driver's admission of negligence was not admissible against his employer as he was not authorised to make a statement relative to his driving. A statement made by a servant or agent to his principal can never be admitted as an admission against the latter. As was stated by O'Connor L.J. in Swan v. Miller, Son and Torrance Ltd. [1919] 1 I.R. 151 at 183: “the notion that a principal should be bound by what his agent says to him seems to me to have no warrant whatever, either in law or sense.” In cases where a statement of an agent is admissible as an admission against his principal, the fact of agency must be proved by evidence in court and it is not enough that the alleged agent or servant purported to speak on behalf of a party. Thus in Bord na gCon v. Murphy [1970] I.R. 301 it was held by the Supreme Court on a case stated from the Circuit Court that evidence could not be given of a statement made by the defendant's solicitor in a letter purporting to be written on the defendant's instructions in reply to the complainants' initial letter,

as the complainants did not offer sworn testimony to establish that the documents had been written with the defendant's authority.

Apart from agents and servants, the statements of others with whom a party is in a relationship of privity may constitute admissions as against that party. In Ireland maps made by a predecessor of a landlord have been held admissible against a person claiming under a lease subsequently executed by him.¹⁷⁴ An admission by a principal that he had received money has been held admissible against a surety who was made liable on this basis when the principal absconded.¹⁷⁵ A statement made by a partner concerning partnership business may be an admission against the partnership. Corporation books are evidence by way of admission between members of the corporation.¹⁷⁶ But in Turner v. Attorney General (1847) Ir. R. 10 Eq. 386, a statement by one joint tenant asserting the existence of a trust affecting trust property was not admitted as against other joint tenants. There is authority that the contents of an affidavit used by a party in previous legal proceedings may be proved against him.¹⁷⁷ But it seems that a party must cause the affidavit to be made or knowingly use it as true. In some circumstances, a party's possession

of documents may give rise to an inference that the contents have been adopted by him. However, in Duke of Devonshire v. Neill and Fenton (1876–77) 2 L.R. Ir. 132 at 158 the Court of Exchequer rejected as having no solid foundation the proposition “that a person is to be deemed bound, by way of recognition or adoption of their truth, by the statements of fact contained in every document made by any person whomsoever, of his own knowledge or upon hearsay, for any purpose, known or unknown, provided only that such document be after his death found among his muniments”.

In England the Civil Evidence Act 1968, section 9, preserved, unaffected by its other provisions, the “rule of law whereby in any civil proceedings an admission adverse to a party to the proceedings whether made by that party or any other person may be given in evidence against that party for the purpose of proving any fact stated in the admission”. Consequently, in contrast to the generality of out-of-court statements made admissible under the Act, no advance notice need be given to the other side of an admission proposed to be tendered nor is its admissibility conditional on the maker of the statement being unavailable or dependent on the leave of the court when he is called as a witness. Where an admission is made by a party himself, this approach is unexceptionable. As a party will generally recollect his own statement in such a case, advance notice is unnecessary and might merely give scope for false explanations of a genuine admission. A requirement of unavailability would generally have no application. As long as the present rules prohibiting any cross-examination of one's own witness are retained, it would put a party at an unfair disadvantage if he had to call the opposing party as a witness in order to make that party's admission admissible.

In criminal cases there would be the further difficulty that the accused is incompetent for the prosecution and the prosecution has no means of compelling him to testify on his own behalf. To make the reception of an admission conditional upon the accused choosing to testify in such cases would give him an unacceptable degree of control over the evidence tendered by the prosecution.

Where admissions are made by servants, agents or other persons in privity with a party the position is different. It cannot be assumed that the principal will be aware of the admission. It is desirable, therefore, that he should receive notice and that the maker of the statement should testify if he is available. If admissions by servants or agents are to be exempt from the requirements of admissibility applicable to other out-of-court statements, the uncertainty which afflicts the present law of deciding what statements of such persons are to be considered as admissions against their principal would persist. If, however, this exemption applies only to admissions made by a party himself the position is clear-cut. It is submitted that it is preferable to draw the distinction where it is easily understood, i.e. between the out-of-court statements of parties and those of all other persons.

The position as regards admissions of a co-plaintiff or a co-defendant merits special consideration. Apart from some cases where there is a relationship of agency or privity between the co-parties, the admission of one is not, under the present law, evidence against another. This can lead to anomalies. In divorce proceedings in England where a co-respondent had admitted committing adultery with the respondent, it was held that there was no evidence

that the wife had committed adultery with him, but that there was evidence that the co-respondent had committed adultery with her,¹⁷⁸ a conclusion stigmatised by Wigmore who said that “it is perfectly and absurdly artificial and negates the claim of Courts of Justice to be efficient fact-finders”.¹⁷⁹ However, it would be objectionable that a party should be prejudiced by the out-of-court statement of a co-party who does not testify. As in criminal cases it is desirable to avoid artificial situations where evidence is taken into consideration against one party and not another. It is considered that an out-of-court statement of any party adverse to another's case should not be admissible at all unless the maker testifies. It is then open to the party who wishes to tender the statement to call the maker as a witness. A relaxation of the rules prohibiting cross-examination of one's own witness would meet the difficulties inherent in requiring a party to call an unfavourable witness. However, it is considered that the rule should be retained by which a statement made by a declarant in pursuance of a conspiracy to commit a civil wrong is admissible against other persons participating in the conspiracy at that time.

In any legislation which is enacted, it would be appropriate to resolve some uncertainties in the law. It is considered

that a statement should be regarded as an admission notwithstanding the fact that the maker lacks personal knowledge thereof. As it was put by the New South Wales Law Reform Commission in their Report on the Rule against Hearsay (1978):-

It is also considered that the recommendations of that Commission should be followed making statements admissible as admissions even if they contain statements of opinion or notwithstanding the fact that they may indicate a party's assumption as to the law as when he states that he was negligent.

Accordingly, if the law relating to hearsay is amended so that out-of-court statements are admissible generally on condition that the maker testifies, if he is available and if notice is given, it is suggested that the following special provisions should be made in respect of admissions:

If, in respect of any category of proceedings, it is decided that out-of-court statements should not be generally admissible, it will then be desirable to consider the exact scope of the rule making admissions admissible. The rule that a statement made by a servant or agent is not admissible unless it is made in the course of an authorised conversation has been much criticised. Wigmore, having cited

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an American case in which it was held that an admission made by a superintendent of a coal station did not bind his employer, comments:

The rule is overcome in practice by suing the servant or agent as well as his principal for the purpose of making the admission evidence. But even if this is done, the admission is not properly evidence against the principal. In the United States, rule 801 (d)(2) of the Federal Rules of Evidence makes admissible against a party “a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship”. A similar provision was recommended after very full examination by the Ontario Law Reform Commission in 1976.¹⁸¹ It may be objected that it is wrong to make an admission of an agent admissible on the basis of some implied contract with his principal, as the employer and employee would never have agreed to any such term if it had been mentioned.

The reception of admissions would open the way to a principal being prejudiced in litigation by an incompetent employee who knows little of the business or a vindictive ex-employee who bears a grudge. The New South Wales Law Reform Commission in their Report on the Rule against Hearsay (1978) sifted these arguments:-

Another solution would be to provide that an admission by a servant or agent should be admissible only in cases where he is personally liable on the basis of the admission. On facts such as those in Burr v. Ware R.D.C.^181A the admission of negligence by the driver would be admissible because he is being sued for that negligence and is liable equally with his master.

The rule that an admission of an agent or servant should be excluded because it was made to his principal and not to a third party has also been criticised. In Victoria it has been held not to apply in the case of records made by a

hospital employee as these were the means by which the hospital made its own records.¹⁸² This exclusion is all the more anomalous if, as has been held in the United States, a statement contained in a document retained by the maker and not communicated to anyone else is admissible as an admission.¹⁸³ It is submitted that an authorised statement should be capable of being an admission irrespective of the person (if any) to whom it is communicated. To exclude admissions because they were made by an agent to his principal would be tantamount to creating a new category of privilege which could hardly be supported having regard to the fact that an admission made by a husband to a wife has been allowed to be proved by a person who overheard it.¹⁸⁴

The New South Wales Law Reform Commission in their Report on the Rule against Hearsay (1978) suggested a modification of the common law rule, approved by the Supreme Court in Bord na gCon v. Murphy [1970] I.R. 301, that the terms of the agent's admission itself could not be used to prove the fact of agency.¹⁸⁵ They recommended that the terms of the

statement should be admissible evidence, although not conclusive evidence, of the fact of the agency. This was part of a more general proposal designed “to overcome the problem of statements the admissibility of which depends on proof of some antecedent fact, and which assert that fact”. “On ground of necessity,” concluded the Report, “it is desirable that to some extent such statements be allowed to hoist themselves up by their own bootstraps if in fact a bare assertion of the antecedent fact seems reliable.”¹⁸⁶

Finally, it should be noted that the practice of admitting all statements made in the presence of a party is not warranted by the present law, where the statement is otherwise inadmissible and no admission can be inferred from the reaction of that party. If such statements are proved in the presence of the jury, even if they are told to disregard them where no admission can be inferred in the circumstances, there is a danger that they will act on evidence which is inadmissible. It is, therefore, suggested that a judge should, as a matter of law, be required to rule on whether an admission should be inferred before an otherwise inadmissible statement made in the presence of a party is put to the jury. Where a judge sits without a jury he should be required to rule explicitly on the admissibility of the statement.

B. Statements which are part of the res gestae

The doctrine of res gestae makes statements admissible which either constitute a fact in issue or a relevant fact or are closely associated in time and circumstance with a fact in issue. In Teper v. R. [1952] A.C. 480, a Privy Council case, which was cited with approval by the Court of Criminal Appeal in The People (Attorney General) v. Crosbie and Meehan [1966] I.R. 490 at 497 it was stated:

No fully satisfactory formulation of the doctrine has ever been achieved. It is, in the words of Lord Tomlin in Homes v. Newman [1931] 2 Ch. 112 at 120, “adopted to provide a respectable legal cloak for a variety of cases of which no formula of precision can be applied”. “If you wish to tender inadmissible evidence” advised Lord Blackburn, “say it is part of the res gestae.”¹⁸⁷

Essentially, statements admitted by virtue of the doctrine of res gestae belong to three categories. The first are statements which are relevant for reasons other than the truth of what they assert. Examples commonly given are words of offer and acceptance in an action on a contract; words of provocation where provocation is put forward as a defence to a criminal charge; a declaration accompanying a delivery of money to determine whether a loan or payment was made or whether it was a gift. In all of these cases what is relevant is that the statement was made, not whether its contents are true. For this reason they cannot properly be regarded as exceptions to the rule against hearsay.

The second category are statements made by a person as to his own state of mind or feelings when this is in issue or relevant. The necessity for admitting such evidence was explained by Mellish L.J. in the celebrated Victorian case Sugden v. Lord St. Leonards (1876) 1 P.D. 154 at 251:-

Thus, a person's out-of-court declaration of his intention to stay in a country or his reasons for going there are regularly received on issues concerning his domicile.¹⁸⁸

A statement of intention by a deceased to benefit others while depositing money in the joint names of those others and himself is admissible to rebut a presumption of a resulting trust.¹⁸⁹ Evidence may be given of the reasons given by prospective employers for not offering a job to a person the reasons for whose inability to obtain employment are in issue.¹⁹⁰ The belief of third parties that a libel referred to a particular person may be proved by giving evidence of their statements to that effect.¹⁹¹ In personal injury actions a statement by the injured person as to his contemporaneous physical sensation, e.g. “I have a pain in my head”, may be proved although his statement as to the cause of the injury would not be admissible.¹⁹² As a general rule, such out-of-court statements must be contemporaneous with the state of mind or feeling which they narrate; but the matter is not clear, especially as the continuance of a state of mind or feeling may be inferred. In his judgment in Cullen v. Clarke, Kingsmill Moore J. stated, albeit without citing authority, that the modern tendency is to admit declarations as to states of mind even where they are made prior to or subsequent to an act and unconnected therewith.¹⁹³

There is a difference among the authorities on whether statements as to one's own state of mind or feelings, admissible under the doctrine of res gestae, are properly classified as an exception to the hearsay rule or not.¹⁹⁴ On one view, such statements are original circumstantial evidence from which a state of mind or feeling may be inferred; on the other view, they are assertions about the facts of a person's state of mind or feelings, the truth of which is sought to be proved. (See Cross on Evidence pp. 474–5 (3rd ed. 1967))

The third category of statement admitted under the doctrine of res gestae are words which “if not absolutely contemporaneous with the action or event, [are] .... so closely 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”. (Teper v. R. [1952] A.C. 480 at 486). This passage was cited with approval by the Court of Criminal Appeal in The People (Attorney General) v. Crosbie and Meehan [1966] I.R. 490 at 497, when holding admissible the words “He has a knife, he stabbed me”, spoken of an accused by the deceased victim of an assault within a minute of receiving the fatal wound. The Court was of opinion that evidence of these words was admissible “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”.¹⁹⁵ Subsequently in Ratten v. R. [1972] A.C. 378 at 389, Lord Wilberforce, delivering the opinion of the Judicial Committee of the Privy Council, having reviewed all the authorities, stated:

This judgment has thrown the law on the topic into a state of flux as it is uncertain whether the courts in Ireland will accept the test adumbrated by the Privy Council, and if so, whether it will be treated as superseding that applied in cases such as The People (Attorney General) v. Crosbie and Meehan, or merely as an additional ground upon which statements may be admitted as part of the res gestae.

It is also uncertain whether a statement which is concerned with a relevant fact rather than a fact in issue is admissible under the doctrine of res gestae. The Privy Council clearly thought not in Teper v. R. [1952] A.C. 480:

Consequently, on a charge of arson against an owner of his own premises, it was held that a police constable should not have been permitted to give evidence that he heard a woman in the crowd shouting a half-an-hour after the fire broke out, “Your place burning and you going away from the fire”, as this only related to a relevant fact, viz., the whereabouts of the accused half an hour later. However, the reasoning in Ratten v. R., linking admissibility with the spontaneous reaction to an event observed, would appear to be just as applicable to a relevant event as to the actual event in issue.

In Canada the doctrine of res gestae has been utilised to admit statements made by an accused person relating to property in his possession at the moment it is discovered, on the basis that any explanation then offered constitutes part of the res gestae which is the possession of goods.¹⁹⁶

If out-of-court statements are made generally admissible as evidence of the facts asserted subject to the maker of the

statement being called to testify, if available, and a requirement of notice, recourse to the doctrine of res gestae will be unnecessary to make out-of-court statements admissible. But it may be questioned whether statements presently within the doctrine should be subject to the maker of the statement being called, if available, and a requirement of notice. The circumstances in which such statements are made generally gives them a guarantee of trustworthiness not possessed by the general run of out-of-court statements. It may be considered retrograde to make the conditions for the reception of any class of hearsay more restrictive than they are at present. As against this, the assessment of the veracity of any out-of-court statement will be aided if the maker of the statement is subject to examination in court and the other side has an opportunity to investigate its reliability beforehand. As was argued by the New South Wales Law Reform Commission:

Consequently it is considered that out-of-court statements, which would formerly have been admissible under the doctrine of res gestae, should not receive special treatment when they are tendered as evidence of the facts asserted, but should

be subject to the requirement of the maker being called, if available, and notice being given. But where it is the fact of the statement rather than its truth that is sought to be proved, these requirements should not apply any more than they do to proof of any other facts. It is, as has been noted, doubtful whether the second category of statements admissible under the doctrine of res gestae, viz. a person's statements about his own state of mind or feelings, are received as evidence of the facts asserted, or merely as circumstantial evidence. It is considered that they should be treated as evidence of the facts asserted and the definition of out-of-court statements whose admissibility is subject to the maker being called if available and to a requirement of notice, should be such so as to include such statements. Thus, in a case such as Cullen v. Clarke where the reasons why an injured person failed to obtain a job were in issue, the out-of-court statements of persons who refused him employment as to their reasons for so doing would be inadmissible unless these prospective employers are called, if available, and advance notice given to the other side of their evidence. It seems incontestable that this would be more satisfactory than placing exclusive reliance on reports of their statements relayed to the court by the injured man himself or some other person. Accordingly, it is suggested that, if the arguments put forward in this Paper in favour of the admissibility of out-of-court statements are accepted, no special provision be made for out-of-court statements now admissible as evidence of the facts asserted by virtue of the doctrine of res gestae; but, for the sake of clarification, a provision should be included to the effect that a statement of a person as to his state of mind or feelings is an assertion of the truth of the facts stated.

If it is decided that the existing rules excluding out-of-court statements should be retained either generally or for any class of case, it will be necessary to decide whether any amendment is required in respect of statements admitted under the doctrine of res gestae. It is suggested that statements as to the maker's own state of mind or feelings should remain admissible as they are valuable evidence of these matters and are sometimes the only or best evidence available. Statements made as an immediate reaction to events may have a built-in guarantee of trustworthiness arising out of their contemporaneity and spontaneity, which is justification for their reception. It would be beneficial to resolve the uncertainty of the law on this matter by a provision along the lines of that contained in rule 803 of the United States Federal Rules of Evidence (1978), which provides as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:-

Such a provision should cover statements as to relevant facts as well as facts in issue. It is not considered that statements made on arrest or on the recovery of goods should as a rule be admissible under this heading where the maker does not testify.

C. Reputation

The general rule is that the reputation prevailing in the community as a whole or among a particular group is not admissible as proof of any facts reputed. There are, however, certain exceptions. An oral or written declaration by a deceased person concerning the reputed existence of a public or general right is admissible as evidence of the existence of such a right, provided that the declaration was made before any dispute arose.¹⁹⁸ Where questions of pedigree arise, these may be proved by means of a statement as to family tradition or reputation by a dead member of the family provided this statement was made before any dispute arose.¹⁹⁹ Where a man and woman cohabit, the reputation among the community of being married gives rise to a presumption of marriage except in criminal cases and actions for criminal conversation.²⁰⁰ Whenever the character of a person is allowed to be proved in legal proceedings²⁰¹ it may be done by giving evidence

as to his general reputation: at common law no other evidence is allowed, not the individual opinions of witnesses as to a person's character nor evidence of specific acts.²⁰²

There are cases where the actual existence of a reputation rather than the truth of the facts reputed is relevant or at issue. The stock example is a defamation action where damages depend on the plaintiff's reputation. Reputation as such might also be relevant in assessing the reasonableness of a person's behaviour in relation to another person or to a situation where that is in issue. In such cases, so long as the person testifying has personal knowledge of the reputation of which he testifies there is no question of hearsay. However, where a witness deposes to the existence of a reputation to prove the facts reputed, he is in effect recounting the express or implied assertions of a number of other people in order to establish the truth of that which he asserts. Where the reputation must be proved by the statement of a dead person, as is presently the case in respect of declarations as to pedigree and public rights, there is, in effect, a requirement of double hearsay as a person is testifying about the assertion of another as to matters of which that other has not personal knowledge.

The admissibility of evidence so far removed from personal knowledge is strange within the context of a general prohibition of hearsay. Its justification in cases where

such ancient facts as public rights or pedigree are in issue is the difficulty of adducing any more convincing evidence. As regards proof of character by means of reputation, Cockburn C.J. in his judgment in R. v. Rowton (1865) 169 E.R. 1497, the case which established the rule, admitted that “this part of our law is an anomaly”. Several years afterwards Fitzjames Stephen in his great treatise on the law of evidence, commented:

However, in these and other cases where evidence of reputation is given, it can be tested in cross-examination and the basis of any such reputation explored. If the person whose reputation is the subject of evidence testifies, he may be asked questions about his previous conduct in the course of cross-examination. If a Scheme of legislation is adopted abolishing the rule against hearsay altogether whenever the maker of a statement is unidentifiable or unavailable, statements as to reputation would be generally admissible as evidence of the truth of any facts reputed. There would then be no need for any special provision relating to evidence of reputation. It might be feared that this would lead to a proliferation of evidence which is, of its nature, generally of slight probative value. But unsatisfactory as evidence of reputation is, it may be the best available in a particular case. The safeguard against its proliferation would be the

requirement that statements about reputation, like any other evidence of out-of-court statements, must be supplied in advance and the means of knowledge stated. These safeguards, buttressed by the residual judicial discretion to exclude out-of-court statements of negligible probative value should suffice to limit evidence of reputation to the rare cases where it has special value.

If, however, the existing law excluding hearsay statements is retained, either generally or for any class of proceedings, consideration must be given to those cases where evidence of reputation is now admissible to prove the facts reputed. In England the Law Reform Committee in their report on hearsay evidence in civil proceedings did not deal with evidence of reputation in great detail but they did express the view that the general prohibition of secondhand hearsay, which they recommended, should not have the effect of removing or restricting any of the existing common law exceptions to the hearsay rule and they instanced cases where evidence of character could be proved by means of reputation, where statements of family repute or tradition are admissible in pedigree cases and where statements of public repute are admissible on issues concerning public or general rights.²⁰⁴ Section 9 of the subsequent Civil Evidence Act 1968 preserves these exceptions. The relevant provisions are:

This is a rather difficult provision the exact purpose and scope of which is not easy to discern.²⁰⁵ It appears in the context of a statute which made first-hand hearsay generally admissible and might not be appropriate if the prohibition against hearsay is retained as a general rule. There is justification for admitting evidence of reputation on matters of public concern in cases where the hearsay statements of individuals are excluded because matters which have achieved general repute are likely to have been checked and verified in the course of public discussion. However, the present rules under which evidence of reputation is admissible are based on ancient precedents and some re-statement may be desirable. The requirement that the declaration as to the reputed existence of a public or general right should have been made by a deceased person seems perverse as, ceteribus paribus it is more satisfactory that it should be proved by a living person who can be examined in court as to the basis of that reputation. In the United States the Federal Rules of Evidence (1978) provide at rule 803(20) for the admissibility of “reputation in a community, arising before the controversy, as to the boundaries of or customs affecting lands in the community”. Whether it is necessary to provide for proof of private rights in this way in Ireland is questionable. The American rule was related to the early unsettled condition of their country. If it is followed, it might be argued that reputation should be admissible to prove all rights and not just private land rights.²⁰⁶ The fact

of controversy having arisen should, it is suggested, go only to weight and not affect admissibility.²⁰⁷

The exception relating to proof of pedigree by reputation might also be broadened. The present requirement that the declaration as to reputation must be made by a deceased member of the family is too restrictive. A declaration by a living person who can be called to testify should also be admissible as should the statements of servants or close associates, who have competent knowledge. Consideration might be given to the adoption of a provision along the lines of rule 803(19) of the United States Federal Rules of Evidence (1978) which makes admissible:

This is apt to cover the present rule as to proof of marriage from co-habitation and the reputation of being married. However, it should be noted that the New South Wales Law Reform Commission, while making provision to allow evidence of reputation on questions of pedigree and to prove marriage, recommended that it should not be admissible when tendered against the accused in criminal cases.²⁰⁸

There are a number of other cases where provision might be made for the reception of evidence of reputation by way of exception to the rule against hearsay. At present a witness may assert the actual existence of a trade usage from personal knowledge without having to give evidence of particular instances of its exercise. In so far as his personal knowledge is derived from reputation or what others have told him, the evidence can only be admitted by way of exception to the hearsay rule. The New South Wales Law Reform Commission recommended that provision should be made for the reception of such evidence.²⁰⁹ Another case where provision might be made for evidence of reputation are events of general history important to the community where they occurred.²¹⁰

D. Public Documents and Published Works

A variety of documents classified as public documents are admissible as evidence of the facts stated in them. These include statutes, state papers, gazettes, registers relating to matters such as births, deaths, marriages, returns made under public authority on matters of public interest and entries in the public books of corporations and public companies.

In order to qualify for reception at common law under this heading it is necessary that there should be a strict duty on the part of an authorised agent of the public to inquire into and record the facts, but he need not have personal knowledge of them;²¹¹ the record must relate to a matter of public interest and concern; the documents constituting it must be intended to be retained and not made for some mere temporary purpose and they must be meant for public inspection.²¹² Under this principle, the Down Survey made by Sir William Petty in the seventeenth century and the Book of Distributions consisting of extracts from the Down Survey have been held admissible on issues of title to land as showing that parcels of land existed as separate

divisions at that time which assisted in the determination of the exact boundaries of the settlements of land made in the reign of Charles II.²¹³ Delivering his judgment in Poole v. Griffith (1849) 15 I.C.L.R. 239 holding the Book of Distributions admissible, Monahan C.J. said:

In R. (Lanktree) v. McCarthy and Ors [1903] 2 I.R. 146 the Dublin Gazette was held to be evidence of Acts of State, such as the fact that a district had been proclaimed as one to which certain provisions in the Criminal Law and Procedure (Ireland) Act 1887 applied. The finding of lunacy by inquisition, being a return made under public authority on a matter of public interest, was recognised in Hassard v. Smith (1872) Ir. R. 6 Eq. 429 as evidence of insanity in an action to set aside a contract on grounds of incapacity. A census of population was held to be evidence of the population of a town in Dublin Corporation v. Bray Townships [1900] 2 I.R. 88. More recently in Minister for Defence v. Buckley and Ors (Case No. 112/1974, unreported) a

map of the Curragh outlining its divisions for the purposes of the Curragh of Kildare Act 1969 was held by the Supreme Court to be a public document and so prima facie evidence of those divisions. However, in Ireland parish registers of births (or baptisms), deaths or marriages are probably not admissible under this heading as the existence of any common law duty to keep such a register, even in the former Established Church, was not accepted by FitzGibbon J. after an exhaustive survey of the history of the matter in Mulhern v. Clery [1930] I.R. 649 at 682 sqq. But such parish registers have, as noted, been admitted as declarations made in the course of duty. Of course, later registers kept pursuant to statute are admissible by virtue of those statutes.

In England the courts have resisted efforts to extend the common law rule making public documents admissible to cover certain modern public records which are not admissible by statute. In Heyne v. Fischel & Co. (1913) 30 T.L.R. 190, records compiled by the Post Office showing the times at which telegrams were received were ruled inadmissible because there was no intention that such records should be retained for public inspection. In Lilley v. Pettitt [1946] K.B. 401, a case where a mother was prosecuted for making a false statement as to the paternity of her child, regimental records of an army unit showing that the named father was abroad at the relevant time were held inadmissible to show his non-access, the reason being that the records were not kept for the use and information of the public. It is possible that the courts in Ireland would feel bound to adopt a similarly restrictive approach. Even so, this common law exception to the rule against hearsay is not bereft of all importance. Cases concerning ancient facts recorded prior to the coming into effect of

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provisions making particular public records admissible, may occasionally arise. Where records are those of another State, reliance may have to be placed on the common law rule to make them admissible.

A related rule makes published works admissible to prove ancient facts of a public nature. Such published works may take the form of histories, dictionaries, scientific works or maps. In several English decisions early this century²¹⁴ a restrictive attitude was adopted towards this exception and stress was laid on the necessity for proof of public repute of the facts recorded in a book and the public duty to make a map. Referring to these cases Professor Sir Rupert Cross remarked that “it is regrettably true that a high degree of technicality has been allowed to creep into this branch of the law”.²¹⁵

If out-of-court statements (including those made by unidentifiable persons) are made generally admissible as evidence of the facts asserted subject to the maker being called to testify, if he is available, and to a requirement of notice, it is unnecessary to have any special provision making statements in public documents or published works admissible. In the case of ancient public documents or published works, the maker of the statement will be dead so

the requirement that he must be called, if available, would have no application in practice. If a statement in a public document is made by a living person, there is no reason why, in general, he should not give evidence if he is available and has a recollection of the facts stated. The requirement of notice would have the effect of imposing an extra restriction not presently applicable. But where a party to a case is to be faced with evidence gleaned from ancient public documents or published works, it is not unreasonable that the other party should have adequate notice so as to be able to check the reliability of such evidence.

If, on the other hand, the rule against hearsay is retained generally or for any class of case it is necessary to consider whether these exceptions to that rule should be retained or amended. In England the Civil Evidence Act 1968, section 9, following the recommendations of the Thirteenth Report of the Law Reform Committee, simply carried over these common law exceptions to the hearsay rule unaffected by the provisions of the Act prohibiting second-hand hearsay, requiring notice of intention to adduce an out-of-court statement as evidence and making admissibility conditional on the presence or unavailability of the maker as a witness. This approach had the advantage of retaining exceptions to the rule against hearsay which might occasionally prove useful while avoiding the thorny problem of examining and re-defining them. The New South Wales Law Reform Commission in their Report on the Rule against Hearsay (1978) was, however, not satisfied to follow this device of “referential preservation” and advocated a bolder course to eliminate the perplexity, obscurity and anachronism of the common law.²¹⁶ Section 85

of their draft Bill which related to public documents did not contain any requirement of personal knowledge or public inspection and there were “no esoteric limitations on the meaning of public records”. It provides as follows:

The New South Wales Law Reform Commission also recommended that the rule making assertions in published works admissible should be expanded to cover all works of authority relating to matters of learning or special study. Accordingly, Section 78 of their draft Bill provides:

This has the effect of eliminating the former requirements that there should be a duty to assert the facts and that they should be of a public nature.

E. Evidence of Pre-trial Identification

In The People (Attorney General) v. Dominic Casey (No. 1) [1961] I.R. 264 at 274–8 the Court of Criminal Appeal seemed to accept that evidence of pre-trial identification at a parade is admissible even when the person making the identification does not testify. However, it was held that in the circumstances of the case the evidence of the identification ought not to have been admitted as it might have prejudiced the accused unfairly. No reference was made in argument to a previous Irish case where evidence had been given of a pre-trial identification by a witness although the witness failed to make an identification in court. In R. v. Burke and Kelly (1847) 2 Cox C.C. 295, a charge of robbery, the victim identified Kelly as one of his assailants two days after the attack. At the trial he swore that his identification was correct but he could not say that the prisoner was the man he had identified. In a more recent English robbery case R. v. Osbourne and Virtue [1973] Q.B. 678 at 690 the Court of Appeal held that “evidence of identification other than identification in the witness box is admissible”. In the actual rase an eye witness identified Osbourne at an identification parade. At the actual trial the eye witness said “she did not remember that she had picked out anyone on the last parade”. An Inspector of Police was called to prove the identification. It was held that the evidence was admissible.²¹⁷ This

decision has been criticised;²¹⁸ evidence of a pre-trial identification by a witness who does not testify to that identification is clearly evidence of the assertion of a person other than while testifying, tendered as evidence of its truth. If out-of-court statements are made generally admissible as evidence of the facts asserted subject to the maker of the statement being called to testify, if he is available, and a requirement of notice, there is no reason why an exception should be made excluding a pre-trial identification by an unavailable witness or admitting a pre-trial identification by an available witness who does not testify. If the existing law excluding hearsay is retained, it will be necessary to clarify any exception relating to evidence of pre-trial identification. It is considered that evidence of such identification should be admissible whenever the person making it testifies even if, as in R. v. Osbourne and Virtue, he does not recall making any identification. The jury having observed his demeanour in the witness box is in as good a position as anyone to decide what weight to give to his pre-trial identification. But if he does not testify, evidence of his pre-trial identification should not be admissible. This may result in the exclusion of logically probative evidence either for the prosecution or the defence but this is a consequence of the hearsay rule and there is no reason to make a special exception in this case.

Mistaken identification was described by the Criminal Law Revision Committee in England as “by far the greatest cause of actual or possible wrong convictions” and they recommended that in all cases of disputed identification the jury should be warned of the danger of convicting in the absence of corroboration. This recommendation had been anticipated by the

Supreme Court in The People (Attorney General) v. Dominic Casey (No. 2) [1963] I.R. 33 and The People (Attorney General) v. Bond [1966] I.R. 214. In England, in 1976, a committee under the chairmanship of Lord Devlin recommended a general rule, subject to clearly defined exceptions, prohibiting convictions in cases where the prosecution relied mainly on evidence of visual identification. Clearly no review of the law relating to the admissibility of evidence of pre-trial identification will be complete without consideration of the wider question of the weight to be attached to evidence of identification generally.^218A

F. Statements Admissible by virtue of Specific Statutory Provisions

There are a host of cases where out-of-court statements are admissible as evidence of the facts therein by virtue of specific statutory provisions. For example, a certified copy of an entry of a birth or death in the General Registrar Office is admissible as evidence of the birth or death to which it relates by virtue of section 5 of the Registration of Births and Deaths (Ireland) Act 1863. A certified copy of an entry in the register of marriages may be received as evidence of a marriage under section 71 of the Marriages (Ireland) Act 1844. Under the Bankers' Books Evidence Act 1879, section 3, (as amended by the Bankers' Books Evidence (Amendment) Act 1959) a copy of an entry made in any records used in the ordinary business of a bank, or used in the transfer department of a bank acting as registrar of securities is prima facie evidence of the matters, transactions and accounts therein recorded. Under section 2(2) of the Vendor and Purchaser Act, 1874, recitals, statements and descriptions of facts, matters and parties in deeds, instruments, Acts of Parliament or statutory declarations twenty years old at the date of a contract for the sale of land are to be taken as sufficient evidence of the truth of such facts, matters and descriptions, unless and except so

far as they are proved to be inaccurate.

If out-of-court statements are made generally admissible, subject to the requirements that the maker testifies if he is available and that notice is given, the question arises whether out-of-court statements admissible by virtue of specific statutory provisions should be subject to the requirements laid down for the generality of out-of-court statements. It might be argued that there is no reason why these out-of-court statements should enjoy more favourable treatment by virtue of statutory provisions enacted before advance notice for admissible hearsay became the rule. On the other hand it may be presumed that the legislature directed its attention to the reliability of statements made admissible by virtue of specific statutory provisions and that this renders it unnecessary to superimpose extra guarantees of reliability. It is considered that a full examination of all cases where statements have been made admissible by virtue of specific statutory provisions should be undertaken before deciding to subject such statements to a requirement of notice or a requirement that the maker of the statement should testify, if he is available.

If it is decided that the existing rules excluding out-of-court statements should be retained either generally or for any class of proceedings, it will be necessary to consider those existing exceptions to the rule against hearsay under which the statements of deceased persons are admissible as evidence of the facts therein. These fall into five classes: (1) Declarations against interest; (2) Dying declarations; (3) Post-testamentary declarations of testators; (4) Declarations as to Public or General Rights; (5) Pedigree declarations.

G. Declarations against Interest

A statement by a deceased person of a fact which he knew to be against his pecuniary and proprietary interest when the declaration was made is admissible as evidence of that fact and of collateral matters mentioned in the declaration.²²⁴ Thus, in Richards v. Gogarty (1870) 4 Ir. C.L.R. 300, entries in accounts made by a deceased person stating that he had received rent was accepted as evidence of its payment. In Conner v. Fitzgerald (1883) 4 L.R. Ir. 106, a note by a deceased landlord that he had agreed to let land for a certain term at a certain rent was held admissible. In his judgment in the Court of Appeal Chatterton V.C. stated:

In Flood v. Russell (1891) 29 L.R. Ir. 91, a statement by a wife, since deceased, that her husband had made a will leaving her a life interest was admitted as a declaration against interest as she would have taken an absolute interest in much of his property had he died intestate. In Domvile and Ors. v. Calwell and Ors. [1907] 2 I.R. 617, a case involving the right to possession of a considerable portion of Ballybrack in Co. Dublin, a statement by the tenant for life of the freehold interest contained in a deed renewing a lease for lives to the effect that the lease had been renewed on two previous occasions was admitted as evidence of that fact because the tenant for life would have gained materially from the determination of the lease and she had special knowledge of the facts.

A statement exposing the maker to criminal liability is not within the exception. Thus in R. v. Gray (1841) Ir. Circ. Rep. 76 a death-bed confession by a third person that he, not the accused, had committed the murder charged was held inadmissible.²²⁶ Moreover, “the interest against which the statement appears to be made must, in order to supply that sanction which, after the death of the party, is accepted as a substitute for an oath, be an interest existing at the time of making the statement”. These words are those of Fitzgibbon L.J. in his judgment in Lalor v. Lalor (1879) 4 L.R. Ir. 678, at 681, a case where a statement said to have

been made by a deceased person after he had parted with his interest in land admitting that he held the land in trust was excluded. In England it has been held that a statement affirming a contract where each side has still to perform its part is not a declaration against interest. (R. v. Inhabitants of Worth (1843) 4 Q.B. 132; Ward v. H.S. Pitt. & Co. [1913] 2 K.B. 130).

There is no conclusive authority in this country or in England on whether an acknowledgment of liability in tort constitutes a declaration against interest (Cross on Evidence, p. 556 (5th ed. 1979)). In Power v. Dublin United Tramways Company [1926] I.R. 302 at 315, Kennedy C.J. in his dissenting judgment, held that the statement of a deceased person that he had alighted from a moving tram was not admissible as a declaration against interest in an action by his dependants arising from his death. In the English cases there is conflicting authority on whether the declarant must have personal knowledge of the facts stated in order that his statement should be admissible as a declaration against interest. (Cross on Evidence p. 559 (5th ed. 1979)).

The scope of this exception to the hearsay rule has been much criticised.²²⁷ The exclusion of admissions of criminal guilt was described by Wigmore as a “barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows,

by the true culprit now beyond the reach of justice”.²²⁸ The U.S. Federal Rules of Evidence have made statements against penal interest admissible where the maker is unavailable as a witness but it is specifically provided in rule 804(3) that “a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement”.

The rigid classification as declarations against interest of all statements by a person in possession of land claiming less than an absolute title is highly artificial if only because the maker of the statement is unlikely to be aware that possession gives rise to a presumption of ownership and that the statement he has made is therefore against his interest. In fact other evidence displacing the presumption may make the statement obviously self-serving. Where, as in Conner v. Fitzgerald, the statement is one of a landlord recording a tenancy it is anomalous that this should be admissible when statements as to the terms of executory contracts are not. Similarly, the acceptance of all statements that money has been received as declarations against interest so as to make collateral facts stated admissible as evidence may result in the admission of statements which are self-serving. Thus in the English case of Taylor v. Witham^228A a receipt for payment of interest of £20 made by a deceased creditor was received as proof of the debt of £2,000, a result which Fitzgibbon L.J. said in Lalor v. Lalor“was perhaps a questionable extension of a dangerous principle”.

On the other hand there may be circumstances where a statement of a party to an executory contract as to its terms may be so much against interest as to be some confirmation of its truth.

This exception to the rule against hearsay is criticised because of its rather simplistic reasoning about when people lie or tell the truth whereas “men lie for so many reasons and some for no reason at all and some tell the truth without thinking or even in spite of thinking about their pockets”.²²⁹ However, in general the interests of the maker of a statement may be some indication of its veracity. Accordingly, if the rule against hearsay is retained, it is considered that out-of-court statements of deceased persons should be admissible when they are against the interests of the declarant. But only the actual statement which is against interest and not collateral statements should be admissible. Moreover, the Court should be free to approach the issue untrammelled by any rigid rules such as exist in the present law. The evidence should indicate that the declarant knew that the statement was against his interest when made. But personal knowledge on the part of the maker should not be required as it is a fair presumption that a person will not make a statement against his interest without satisying himself of its truth. A statement of a person who is unavailable to testify should be admissible under the exception in the same way as that of a deceased person.

H. Dying Declarations

A statement, whether oral or written, of a deceased person is admissible as evidence of the cause of his death at a trial for his homicide, provided that he was under a settled hopeless expectation of death when he made the statement.²³⁰ The justification for this exception is that the imminence of death removes every motive to falsehood and the solemnity of the occasion is regarded as imposing a sanction equivalent to that of an oath.²³¹

There are few cases where it is invoked, especially since legislative provision has been made for the taking of bedside depositions. A dying declaration is not rendered inadmissible because it is made in response to questions.²³² In R. v. Stephenson [1947] N.I.110 at 116, the Court of Criminal Appeal in Northern Ireland, in holding admissible the statement of the deceased victim in an abortion – manslaughter case, said that “it is no objection to the admissibility of a dying declaration that it is made in answer to leading questions, though that fact may affect its weight in evidence”.

However, the Court felt that the jury should have been warned of the shortcomings of such evidence:

The exception may be criticised for the simplistic psychology on which it is based. The dying may be influenced more by revenge than by fear of divine retribution. The very circumstances which cause the necessary expectation of death may also cause such weakened faculties as to make declarations unreliable.²³³ There is also little logic in limiting the exception to homicide cases and to the facts causing the death of the declarant as the knowledge of impending death is as likely to produce a true declaration relating to any other fact. In the United States

rule 804(b)(2) of the Federal Rules of Evidence (1978) makes dying declarations as to the cause or circumstances of the declarant's death admissible in a civil action or proceeding as well as in a prosecution for homicide.

I. Testamentary Declarations

In Re Ball (1890) 25 L.R. Ir. 556, it was held that a copy of the first page of the will in the testator's handwriting bearing a statement by him that he had substituted the copy for the original, was admissible to prove the contents of the will. Warren, J. in delivering judgment professed to follow the principle laid down by the House of Lords in Sugden v. St. Leonards (1876) 1 P.D. 154 “that declarations made by a testator, both before and after the execution of his will, are, in the event of its loss, admissible as secondary evidence of its contents”. However, as was pointed out by Andrews L.C.J. in his judgment in the Court of Appeal in Northern Ireland in Re Gilliland [1940] N.I. 125 at 130, the judge in Re Ball“suffered from the disadvantage that the case was imperfectly argued and that his attention was never directed to the doubts [about Sugden v. Lord St. Leonards] expressed by the House of Lords in Woodward v. Goulstone 11 A.C. 469” and to the view expressed in Phipson on Evidence that the decision in Sugden v. Lord St. Leonards was “contrary to principle”. In Re Gilliland the contents of a will were sought to be proved by means of a letter written by the Testatrix to the main beneficiary on the day of the will. The Court held that this letter was “entitled to be classified not as a post-testamentary statement but as one which was contemporaneous with the making of the will”. “As such,” concluded the Court, “it is admissible as part of the res gestae– part of the act itself, or so intimately connected therewith that it may

be considered as forming part of the act.”²³⁴

The letter admitted in Re Gilliland would probably not have qualified as part of the res gestae under the test adumbrated by Lord Wilberforce in Ratten v. R. [1972] A.C. 378 at 389 as it was not “so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded”. There is probably little case for drawing a distinction between testamentary declarations made immediately after the will is made and other post-testamentary declarations as a testator is unlikely to forget the main provisions of his will. Whether any post-testamentary declarations should be admissible is more problematical. Sugden v. Lord St. Leonards has been much criticised by legal writers. However, pre-testamentary declarations are admissible to prove the contents of the will on the basis that they are statements of intention. It would be illogical to treat post-testamentary declarations differently. It is also somewhat illogical that post-testamentary dispositions should be admissible to prove the contents of a will but not its execution, revocation or, according to older English authorities, the presence of fraud or undue influence.²³⁵ The California Evidence Code section 1260 provides that “evidence of a statement made by a declarant who is unavailable as a witness that he has

or has not made a will, or has or has not revoked his will, or that identifies his will, is not made inadmissible by the hearsay rule”. The Federal Rules of Evidence (1978) at rule 803(3) while providing that a statement of memory or belief is not generally admissible to prove the fact remembered or believed excepts from this rule a statement which “relates to the execution, revocation, identification, or terms of declarant's will”.

J. Declarations as to Public Rights

Reference has been made to the rule that a statement by a deceased person concerning the reputed existence of a public or general right is evidence of the existence of such a right and it has been suggested that a statement of a living person who can testify as to the reputed existence of the right should be admissible.^235A This rule was invoked in Duke of Devonshire v. Neill and Fenton (1877) 2 L.R. Ir. 132 where it was sought to tender in evidence a document dated 7 July 1733 and found among the Duke's papers at Lismore Castle entitled “An account of weyers and nettes on the River Blackwater, and in whose possession”. It was unsigned and there was nothing to show by whom, or for what purpose it was made. Holding that it was inadmissible Palles C.B. stated:

In the same case a decree of the Court of Chancery in a seventeenth century case stating that the ancestor of the Duke was in possession of the fishery was admitted as evidence of reputation. The position by which statements as to facts from which the existence of a right may be inferred are excluded while those as to the reputed existence of those rights are admitted has been criticised by Professor Sir Rupert Cross who remarked that “this has produced decisions of breathtaking absurdity”.²³⁶ In its Report on the Rule against Hearsay (1978) the New South Wales Law Reform Commission developed this argument at some length:

In England some of the resulting inconcenience has been obviated by a statutory provision that any map, plan or history of a locality is admissible to show whether a way has or has not been dedicated as a highway.²³⁷ In Ireland the courts may well adopt a less rigid approach by following Giant's Causeway Co. Ltd. v. Attorney-General and Ors. (1898) [1905] 5 New. Ir. Jur. Rep. 301, where the Irish Court of Appeal held that the original Ordnance Survey map was admissible as reputation to prove the existence of a public right of way:

K. Pedigree Declarations

Reference has been made to the rule by which declarations to be inferred from family conduct, are admissible as evidence of pedigree.^237A A pedigree hung up in a family mansion is good evidence even if the person who made it

is unknown because of the presumption that if the family did not more or less adopt it, it would not have been suffered to remain. (Duke of Devonshire v. Neill and Fenton (1877) 2 L.R. Ir. 132 at 160) For similar reasons entries in family bibles and on tombstones are admitted.

The scope of the questions of pedigree to which this rule applies is not fully settled. In Haines v. Guthrie (1884) 13 Q.B.D. 818, where infancy was pleaded as a defence, a statement on affidavit by the deceased father of the defendant as to the latter's age was rejected because no question of family was raised. Shortly afterwards the Court of Appeal in Ireland had to consider a similar question in Palmer v. Palmer (1885) 18 L.R. Ir. 192 where the devolution of property turned on whether a particular member of the family had died. Following the earlier Irish case, Smith v. Smith 1 L.R. Ir. 206, which had not been cited in Haines v. Guthrie, the Court held that evidence of family reputation was admissible to establish the death. Where questions of relationship are raised, evidence of statements by deceased members of the family are admissible to establish particular facts which are relevant to the inquiry (Cross on Evidence, p. 416 (3rd ed. 1967)) These fine distinctions do little credit to the law and it is suggested that evidence of any fact concerning a person's descent, birth, marriage and death should all be admissible on the same footing.

To come within this exception to the rule against hearsay, the declarant must be a blood relation or the spouse of a blood relation of the person whose pedigree is in issue, although the statement may be proved in court by a person who is not a member of the family. (Re Holmes; Beamish v. Smeltzer [1934] I.R. 693) These restrictions give rise to

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difficulty in cases where there is illegitimacy as an illegitimate child is legally filius nullius and has no family except his descendants. The statements of persons, such as servants, professional advisers and close friends, should be received on the same footing as those of members of the family. The fact that the statement was made after the controversy arose should go to weight and should not, as at present, make it inadmissible.

The United States Federal Rules of Evidence (1978) have, as noted, made provision for the admissibility of evidence of reputation concerning a person's personal or family history. Further provision is made in rule 804(b)(4) for the admission of statements of personal or family history if the declarant is unavailable as a witness.

In other common law jurisdictions where the rule against hearsay has been retained, provision has been made for exceptions which have no counterpart in our law. The United States Federal Rules of Evidence (1978) make provision at rule 803(4) for the admissibility of “statements made for the purposes of medical diagnosis or treatment and describing

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medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment”. Rule 803(11) makes admissible statements of births, marriages and such matters contained in a regularly kept record of a religious organization. Statements in a document in existence twenty years or more, the authenticity of which is established, are admissible as evidence of the facts therein under rule 803(16). Rule 803(17) makes admissible market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. Learned treatises are generally admissible by virtue of rule 803(18) and judgments of previous convictions are evidence of any fact essential to sustain the judgment under rule 803(22).

The New South Wales Law Reform Commission in their Report on the Rule against Hearsay (1978) proposed several other exceptions to the rule against hearsay. Section 81 of their draft Bill provides that where in the course of manufacture, packaging or distribution of goods, a statement is made to appear on the goods, or any label, package or container associated with the goods, the statement is admissible as evidence of any fact asserted in it. The purpose of this provision is to reverse the decision in Patel v. Customs Comptroller [1966] A.C. 356 (see p. 11 supra).²³⁸

Section 82 purports to clear up a doubt in the common law by making statements displayed on land in the course of business admissible against the person carrying on the business at the time of the display.²³⁹ Section 90 provides that where in the course of a business a person receives from a second person a message, package or parcel for delivery or transmission, any statement made on or in it by the first in the course of delivery or transmission is admissible as evidence of any fact asserted in it. The main purpose of this provision is to resolve doubts about the admissibility of postmarks in the wake of Myers v. Director of Public Prosecutions [1965] A.C. 1001. (See p. 11 supra.)

CHAPTER 7 EXAMINATION OF WITNESSES

The treatment of out-of-court statements of a witness, when used during his cross-examination, has already been considered as has that of documents used to refresh memory which are so used.²⁴⁰ Where a witness is cross-examined on the basis of a statement made by another, it may not be read out unless that statement is admissible in evidence. In R. v. Gillespie and Simpson (1967) 51 Cr. App. Rep. 172 documents prepared by others which would have been inadmissible as hearsay were handed to the accused in cross-examination with a request, notwithstanding their dissent from what was said in the documents, to read them aloud. This procedure was held to be improper by the English Court of Appeal and the convictions in the case were quashed. The proper procedure in such a case is to put the document into the hands of a witness without describing it and simply ask whether he still adheres to his answer or alternatively whether he accepts the truth of what is in the document. If he does the latter it becomes evidence – not otherwise. If the statement is admissible, the cross-examiner may refer to its contents in cross-examination. But if he does, it seems that he must show any document containing the statement to the witness and tender it in evidence.²⁴¹

It is submitted that the correct principle is that no out-of-court statement should become admissible by virtue of its use in cross-examination if it is not otherwise admissible. If such a statement is admissible as evidence of the facts stated therein there should be no restrictions on how a witness may be questioned about it. But if it is not so admissible, it should not be used in cross-examination even to the extent of putting it to a witness without comment to induce him to change his answer. It was argued in the Working Paper of the New South Wales Law Reform Commission on The Course of the Trial (1978) as follows:

There is an old obscure rule of evidence that if a party calls for and inspects a document held by an adversary, other than one being used to refresh memory, he is bound to put that document in evidence if required to do so.²⁴² This rule, which may apply in criminal as well as in civil cases, is effective to allow in statements which would otherwise be excluded by the rule against hearsay. This is best exemplified by an Australian case Walker v. Walker (1937) 57 C.L.R. 630 where a wife was suing her husband for maintenance. She made a statement about her husband's

means in the course of her testimony. When cross-examined about her knowledge of this, she referred to a letter she had from an accountant who had been investigating the matter. Counsel for the husband called for the letter and it was held that he had been rightly obliged to put it in evidence at the request of the wife's counsel and that it could be regarded as evidence of the husband's means.

The New South Wales Law Reform Commission Working Paper on The Course of the Trial examined this rule, the basis of which they found to be obscure “for none of the cases applying [it] have explained what principle or policy underlies it”:

Earlier the Commission had remarked that the rule sat strangely with the rule that counsel may inspect a document used to refresh a witness's memory without having to put it in evidence.²⁴³

In 1972 the English Criminal Law Revision Committee had recommended the abolition of the rule for criminal cases:-

It is considered that the arguments put forward against this rule by both these bodies are persuasive both for

civil and criminal cases and it is suggested that provision should be made that where in any proceedings a party calls for or inspects a document which is in the possession or power of another party or of a witness called by that party, his doing so should not entitle that party to make the document evidence in the proceedings.

CHAPTER 8 EVIDENCE OF THE CREDIBILITY OF THE MAKER OF AN OUT-OF-COURT STATEMENT

In a trial the credibility of a witness may be challenged in the course of cross-examination by the other side and he may be asked any question concerning himself which, although irrelevant to the issue, would be likely to discredit him and, consequently, his testimony. While he cannot be compelled to answer such questions and while his answers are final in the sense that evidence may not be called to contradict them, such cross-examination under oath with the sanction of perjury is usually effective to undermine the credibility of a suspect witness. In addition, there are three recognised exceptions to the rule that a witness's answer to questions on credit may not be contradicted: viz. where he denies that (1) he has been convicted of a crime, (2) he is biased in favour of a party calling him, as would be the case with a witness who had been bribed or who was the mistress of one of the parties, or (3) he has made statements inconsistent with his present testimony. In certain circumstances it is permissible for the other side to lead evidence impugning the veracity of a witness. For this purpose somebody may be called to testify as to the reputation for veracity of the witness or as to his own opinion as to that veracity. But the person so called may not give reasons for his opinion unless asked about them in cross-examination by the side calling the witness whose credit he has impugned. In practice evidence of this latter kind is rarely given. In Toohey v. Commissioner of Metropolitan Police [1965] A.C. 595 the House of Lords has held that it is permissible to call

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medical evidence to show that a witness suffers from some disease or abnormality that affects the reliability of his evidence. But it does not appear to be permissible to lead other evidence on the capacity or opportunity of a witness to observe the facts to which he has testified.²⁴⁵

If the maker of a statement does not give evidence there is no mechanism for subjecting his credibility to examination. This is one of the main objections to the reception of such out-of-court statements as evidence. There is no recent reported case under the existing exceptions to the rule against hearsay where evidence has been allowed adverse to the credibility of the maker of an admissible out-of-court statement.²⁴⁶ If such evidence is not allowed, the maker of the statement may be given a credibility he would not merit if he had appeared before the court. Accordingly, in England, section 7 of the Civil Evidence Act 1968 declares admissible any evidence which, if the maker of an out-of-court statement had testified, could have been given

for the purpose of destroying or supporting his credibility, including other statements inconsistent with the statement sought to be tendered. But evidence may not be given of any matter of which, if the maker of the statement had been called as a witness and had denied that matter in cross-examination, evidence could not have been adduced by the cross-examining party. A similar provision is contained in Rule 806 of the United States Federal Rules of Evidence (1978) and in the draft Act proposed by the Ontario Law Reform Commission in their Report on the Law of Evidence (1976).²⁴⁷

In its Report on Evidence in criminal proceedings in 1972 the English Criminal Law Revision Committee was not prepared to follow the solution adopted for civil cases by section 7 of the Civil Evidence Act 1968: