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 this is an original page-break: page number15 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. In justice it is difficult to defend the exclusion of any logically probative evidence exculpating an accused.
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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. 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. 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 this is an original page-break: page number13 of Lord reid in myers. 1001 at 1022, when declining to create a new exception to the hearsay rule:- this is an original page-break: page number14 chapter 2 general scheme of reform whereas other parts of the law of evidence, such as those relating to privilege or excluding for previous convictions. 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 keralam 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).
While there is in essay law no discretion to admit this is an original page-break: page number11 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) 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. 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 this is an original page-break: page number12 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.
1001) A statement concerning the place of manufacture inscribed on goods was held inadmissible as evidence of that fact ( Patel. Customs Comptroller 1966. 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. Metcalfe 1967 3 All. McLean (1967). In each about 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. 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. 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.
Said: this is an original page-break: page number9 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. Dryden (1836). 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. Guthrie (1884). This is an original page-break: page number10 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. Thomson 1912. 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.
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Unless write 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. This is an original page-break: page number8 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. Director of Public Prosecutions 1965.
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. 76 a death bed confession by a third person that he, not the accused, had committed the murder charged was held inadmissible. Ulster Spinning Company Ltd. 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.
This is an original page-break: page number5 evidence of facts of a public nature stated in them. 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. 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. 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.
Under Order 39 of the rules of the superior this is an original page-break: page number6 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. 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. 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. 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. It has been held that no such order should be made where the evidence goes to the gist of the action. O'grady and Thompson 1940. 19 following Cronin. Paul (1881). Several classes of this is an original page-break: page number7 proceedings are generally heard on affidavit but the opposite party may always request the production of the deponent for cross-examination.
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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. This is an original page-break: essay page number4 of the facts report stated as may declarations of deceased persons (1) against their proprietary or pecuniary interest or (2) in pursuance of a duty to record or report, (3) to the reputed existence of public rights, (4). Evidence of reputation may also be tendered to establish character or to prove marriage. 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.; Public documents,. Entries made by authorised agents of the public relating to facts of public interest or notoriety are generally admissible at common law: and statutory provision has been made by statute to put beyond doubt the admissibility of documents such as birth, marriage and death certificates. Published works, such as histories, scientific works, dictionaries and maps are admissible.
Where it is made formally there is the danger. This is an original page-break: page number3 that it will be tailored to the requirements of the party making. A further reason sometimes the 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 (. Minister for Social Welfare 1971. 21 at 267) 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. Minister for Social Welfare (No. 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.
to whom application was made. 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. Public Prosecutor 1956. 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. 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. 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.
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,. Statements or non-verbal conduct which are not intended by their maker to be assertive of the. This is an original page-break: page number1 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. It is important to note the exact scope of the rule. 368, write 378, the leading recent Irish case on the subject, kingsmill moore.
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The rule Against hearsay, the rule against hearsay, chapter 1 the present law. The rule against hearsay, the rule against hearsay is statement 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. Cross on evidence,. 1974) In the latest edition. 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. 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.