DPP v Keith Connorton
| Jurisdiction | Ireland |
| Judge | Mr Justice Peter Charleton,Mr Justice Maurice Collins,Mr. Justice Brian Murray,Mr. Justice Woulfe |
| Judgment Date | 28 July 2023 |
| Neutral Citation | [2023] IESC 19 |
| Court | Supreme Court |
| Docket Number | Supreme Court appeal number: S:AP:IE:2022:83 [2021] IECA 275 Central Criminal Court number: Bill CCDP0131/17 |
[2023] IESC 19
Charleton J
O'Malley J
Woulfe J
Murray J
Collins J
Supreme Court appeal number: S:AP:IE:2022:83
Court of Appeal record number: 2019/25
Central Criminal Court number: Bill CCDP0131/17
An Chúirt Uachtarach
The Supreme Court
Conviction – Murder – Hearsay – Appellant seeking to appeal against conviction – Whether the trial judge erred in his application of the res gestae exception to the rule against hearsay
Facts: The appellant, Mr Connorton, appealed to the Supreme Court against a decision of the Court of Appeal delivered on the 21st of October 2021 ([2021] IECA 275). The Court of Appeal dismissed the appeal brought by the appellant against his conviction in the Central Criminal Court on the 21st December 2018, where he was convicted by a 10/2 majority verdict of a jury of the murder of Mr McKeever on the 18th February, 2017, at an address in Tallaght, County Dublin, following a ten day trial. The appellant was sentenced to the mandatory term of imprisonment for life on the 28th January 2019. The appellant submitted that the issue for determination primarily involved considering whether the trial judge erred in his application of the res gestae exception to the rule against hearsay; it also involved consideration as to whether the trial judge was correct to hold that the audio recording of the emergency services call made by Ms McGrath was admissible on the alternative basis that it was “simply a real fact of life”. He noted that in the respondent’s notice the respondent, the Director of Public Prosecutions, emphasised the latter point, arguing that a new exception to the hearsay rule should apply for recordings of emergency calls. As in the court below, the appellant had again suggested before the Supreme Court that there were some factors which might point towards the possibility of concoction or distortion. However, as pointed out in the court below, that argument was not made in the trial court, and therefore the Court of Appeal found it unsurprising that the ruling of the trial judge did not address that issue in terms.
Held by the Supreme Court that it agreed with that finding, and did not think it sufficed for the appellant to say that the issues as to Ms McGrath’s credibility were raised in a general way, taking the case as a whole. The Court also agreed with the court below that while it might have been better if the trial judge had expressly discounted concoction/fabrication and/or deliberate distortion in his ruling, his failure to do so could not be regarded as fatal in the overall circumstances of the case, and particularly where neither party was seeking at that point to suggest that it was an issue in the case. While the appellant submitted before the Court that the primary obligation as regards admissibility is on the party seeking to admit the evidence, and the Court accept that that was correct in general terms, in the Court’s opinion there was an obligation on the appellant to at least raise the issue of possible concoction or distortion as a potential relevant issue before the trial judge, if that issue truly arose in the context of the emergency services call. The Court held that this conclusion was consistent with the decision of the Court in DPP v Cronin [2006] 4 IR 329, to the effect that an appellate court should not allow a point not taken at trial to be argued on appeal, save in exceptional circumstances.
The Court held that the trial judge was correct in admitting the audio recording of the emergency services call, pursuant to the res gestae exception to the rule against hearsay. The Court therefore refused the appeal.
Appeal dismissed.
Judgment of Mr Justice Peter Charleton delivered on Friday 28 July 2023
On 18 February 2017, at a flat in Tallaght, in the presence of a young woman, the accused took a knife to Graham McKeever killing him. In the charged aftermath, and upset, that witness called 999, where she said that the accused had stabbed the victim. As a witness, she was interviewed by the gardaí, split over two days because of upset, and said essentially the same. When, however, a few days after, the accused was arrested on the street, she was walking along the road with him. In December 2018 at the accused's trial for murder, her proposed witness statement did not align with her evidence. In consequence, the prosecution were enabled by the judge, after a voir dire, to treat her as a hostile witness. In the presence of the jury, the content of her 999 call was put to her, line by line. Evidence being only what a witness testifies to as to what they know, and not any question put by counsel, in answer to the text of the 999 call, she agreed that the accused had stabbed the victim. Further, she said that only one knife was involved: that is, that the victim was not armed. The accused had told the gardaí, in interview statements read to the jury, that he had been attacked. In consequence, the trial judge allowed self-defence and provocation to be considered by the jury as potential defences, ruling that the accused had met the burden of adducing evidence. He was, nonetheless, convicted of murder.
Two issues have been raised on the appeal and argued to be essential to its disposal. In respect of both, these remarks concur with the analysis offered in the principal judgment of Woulfe J. The first issue is not one on which leave to appeal was granted but since it concerns the scope of the hearsay rule and is integral to the main issue, that of the admissibility of the 999 call as proof of what the witness said on a recording of it, addressing that issue is essential. In essence, what is argued on behalf of the accused is that what was said by the witness to the emergency call taker could never have been admitted in evidence as it infringes the hearsay rule. That telephone call was recorded, and the tape was played in court. A second issue then comes up: if that recorded conversation amounted to hearsay, it is claimed on behalf of the accused that there existed no exception to the hearsay rule whereby, unless the prime witness testified on oath as to what she had said, what was related by her on the 999 call would be admissible as proof of what she said. The trial judge, after hearing submissions, admitted that recording as an exception to the hearsay rule, as part of the res gestae, meaning that the jury could rely on what they heard on the recording of the 999 call as truth of what the witness said.
The rationale behind the hearsay rule is, as Murray J says in his separate analysis, with which this judgment fully aligns, inherent unreliability: that an assertion of fact, presented as proof, which is not made in court, while under oath or affirmation, and where the person asserting such fact is not available to be tested by cross-examination, should not be admitted in evidence. On the rule and its exceptions, volumes have been written. It is, however, the principle that counts and not a comparative analysis of its application. What is required for the day-to-day business of the courts is a definition which states the hearsay rule. The point is made by Murray J that working definition is all that is needed. This suffices: a statement other than one made by a witness while giving oral evidence in the proceedings is inadmissible as evidence of any facts stated; Cross and Wilkins, An Outline of the Law of Evidence (4 th edition, London, 1975). Thereafter, the hearsay rule is qualified by multiple exceptions, each of which, however, is based on the fundamental principle of inherent reliability; Ulster Bank Ltd v O'Brien & Another [2015] IESC 96, [2016] 1 ILRM 373, 2015 WJSC-SC 26908, [2015] 2 IR 656, [2015] 12 JIC 1601, Bank of Scotland v Fergus [2019] IESC 91, [2020] 1 ILRM 313. The views of Woulfe J and Murray J correctly state the rule and its pragmatic application.
The hearsay rule ensures, basically, that only the person who witnessed what happened or heard what was said may testify in court and that those to whom that witness related the event or statement in question may not substitute for that person's evidence. Thus, if a person saw the accused kill the victim with a weapon, that person may testify to assert that this happened: any person at a remove from witnessing the event, such as someone to whom the witness related the occurrence, perhaps casually or perhaps (subject to the exception of s 16 of the Criminal Justice Act, 2000, as to which see Guerin, Witness Statements as Evidence, https://www.dppireland.ie/app/uploads/2019/03/PAPER_-_Sean_Guerin_BL.pdf) in a formal witness statement or perhaps over the telephone when making a report to the authorities, generally may not. What can be easily stated in the law as to hearsay is the general proposition, why the rule exists, and the exceptions can be similarly listed, such as a confession against interest by a party to the proceedings (the accused or a plaintiff or defendant), or a dying declaration by a, necessarily absent, witness. But, two other factors come into play from the core definition. Firstly, a statement can be admitted into evidence where an issue in the trial, or the background to an event, centres on the fact of a statement having been made, as opposed to the truth of what that statement asserts. This is called original evidence.
An example is where people testify that they moved towards or away from an area because of people, who are not called to testify because perhaps they cannot be identified or have been killed, calling out “there is a bomb” or “what happened to that woman”. Those statements are not admitted to prove there was an explosive in a particular place or that a victim had been attacked but that, because of what was said, a...
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