The Supreme Court has dismissed Keith Connorton’s appeal, holding that a 999 call made by Ms McGrath shortly after an incident that led to Mr McKeever’s death was properly admitted as evidence at trial.
In a judgment delivered on 28 July 2023, Mr Justice Maurice Collins addressed whether the call recording and transcript were hearsay and, if so, whether they could be admitted under the res gestae exception to the hearsay rule. He agreed with the analysis in Mr Justice Peter Murray’s judgment that a witness’s prior out-of-court statement does not become evidence of the truth of its contents simply because its maker later gives evidence.
Collins said legislation allows certain prior statements to be admitted for their truth with the court’s leave, subject to safeguards. A prior statement may also be used to challenge a witness’s credibility, but the jury must be told not to treat it as proof of the matters stated. He agreed with the formulation of the hearsay rule in the judgments of Murray and Mr Justice Gerard Hogan Charleton.
On the call’s admission, Collins said the issue had not been addressed as fully as it might have been at trial, where the recording was offered for different purposes and on different grounds. The trial judge had not directly addressed possible fabrication or concoction. Collins said that was understandable given how the trial unfolded, and noted that Connorton’s counsel had not raised such a concern in submissions or in cross-examination of Ms McGrath.
Collins said the trial judge’s role was to decide whether the circumstances sufficiently excluded any reasonable possibility of fabrication for the evidence to be reliable enough to go before the jury. The jury remained free to reject admitted evidence or give it no greater weight than other admissible evidence.
He concluded that the timing and circumstances of the call, and what Ms McGrath said and how she said it, supported its admission under the exception. For that and the further reasons in judgments by Charleton, Mr Justice John Woulfe and Murray, Collins would dismiss the appeal. The judgment records that he agreed with those reasons; it does not set out the full reasoning of the other justices.