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

Date01 January 2017
AuthorFinn M. Keyes
Distinguishing Hearsay and Real Evidence: e
People (DPP) v McD
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.
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
06 Keyes.indd 107 30/05/2017 16:34

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