Distinguishing Hearsay and Real Evidence: The People (Dpp) v McD

• Date: 01 January 2017
• Author: Finn M. Keyes

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Distinguishing Hearsay and Real Evidence: e

People (DPP) v McD

FINN M. KEYES

Introduction

e problem of distinguishing hearsay and non-hearsay statements is an ever-

present headache for judges and lawyers. While the rule against hearsay can be

relatively simply dened as “a statement other than one made by a person while

giving oral evidence in the proceedings [is] inadmissible as evidence of any fact

s ta t e d ,” 1 such a denition belies the rule’s notoriously fraught practical application.

When a novel or dicult set of facts presents itself, even judges of great experience

can struggle to identify hearsay from original evidence or real evidence. It is

therefore unsurprising that a signicant amount of academic commentary has

sprung forth to attempt to provide assistance.2 However, while a great deal has been

written of the distinction between hearsay and original evidence, most notably in

the context of implied assertions,3 comparatively little consideration has been given

to the fault line of hearsay and real evidence.

e decision of the Supreme Court in e People (DPP) v McD,4 and particularly

the detailed and scholarly analysis of the question by McKechnie J, is therefore a

welcome contribution to the law. is case note will discuss the relative uncertainty

which obtained in relation to the hearsay status of electronic recordings prior

to McD before considering the extent to which the judgment has claried the

position. It is argued that while McD provides us with a clear exposition of the

legal foundations and justication underlying the practice, its analysis as to how it

should operate is awed in some respects.

1 C. Tapper, Cross and Tapper on Evidence, 12th edn. (Oxford: Oxford University Press, 2010) at pp.

551–552

2 See Stephen Guest, “e Scope of the Hearsay Rule” (1985) 10 L.Q.R. 385; Morgan, “Hearsay and

Non-Hearsay” (1935) 48 Harv. L. Rev 1138; Lawrence Tribe, “Triangulating Hearsay” (1974) 87

Harv. L. Rev. 957. e Law Reform Commission also discusses how hearsay and original evidence

may be distinguished in its Report on Consolidation and Reform of Aspects of the Law of Evidence

(LRC–117 2016) at pp. 29-33

3 Allan, “Implied Assertions as Hearsay” (1992) N.L.J. 142; Colin Tapper, “Hearsay and Implied

Assertions”(1992) 109 L.Q.R 524; Falknor, “e “Hear-Say” Rule as a “See-Do” Rule: Evidence of

Conduct” (1961) 33 Rocky Mt. L. Rev. 133

4 e People (DPP) v McD [2016] I.E.S.C. 71

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