The Gazette 1992

N W E s Cr iminal Ev idence Bill Be c omes Law this Month

GAZETTE

JULY/AUGUST 1992

The Criminal Evidence Bill, 1992, at present being considered by the Oireachtas, is one of the most radical pieces of legislation in the area of criminal procedure and evidence to be introduced since the foundation of the State. The Bill has been given a high priority by the Government and is expected to become law by the end of July. The Criminal Law Committee prepared a detailed submission on the Bill to the Department of Justice. The Committee also met officials of the Department, when all aspects of the Bill were discussed. The Department has accepted some of the points made by the Committee and these have been reflected in amendments moved in Dáil Éireann by the Minister of State at the Department of Justice, Willie O'Dea. However, a number of objections raised by the Committee have not been accepted. The purpose of this article is to make members of the profession aware of the major changes envisaged by the Bill, and of the position adopted by the Committee. The Bill itself runs to some 29 Sections. Accordingly, it would not be appropriate to cover every aspect of the Bill in this article. Indeed, many aspects of the Bill are quite uncontroversial and are to be greatly welcomed. For example, Part IV of the Bill reforms the law in relation to the competence and compellability of spouses and former spouses in a way that strikes a fair and correct balance between the interest of ensuring that available evidence can be offered in criminal proceedings and the requirement that marital

Criminal Evidence Bill will permit evidence by live TV link in certain circumstances. received otherwise than on oath or affirmation, if the Court is satisfied that the child is capable of giving an intelligible account of events which he has observed. preliminary examination by means of a live TV link, the video recording of the deposition may be used in evidence at the accused's trial.

(4) If the injured party is under the age of 14 years and has made a video recorded statement to an "appropriately qualified" person, the video recording of this statement may be considered by a judge of the District Court at a preliminary examination and may be used in evidence in any subsequent trial. (5) As the technical facilities to allow for live TV link and video recording may only be available in some courthouses, there is a provision allowing for proceedings to be transferred to another Circuit or District Court District. (6) An injured party under the age of 17 years is not required to identify the accused at a trial, where evidence has been given that the accused was known to the witness before the date of the alleged offence or that the accused has been identified by the witness on a prior occasion. (7) All of these provisions apply where the injured party/witness suffers from a mental handicap. (8) The requirement that there be corroboration of the unsworn evidence of a child is abolished. It will now be a matter for the discretion of the trial judge as to

The two main areas covered by the Bill concern the admissibility of business records and the evidence of young persons in cases of sexual or violent assault. Evidence by Young Persons The Bill's provisions in this latter category may be summarised as follows: (1) If an accused is charged with a relevant offence (sexual offence, offence involving violence or a threat of violence etc.), a witness under the age of 17 years, not necessarily the injured party, may give evidence by live TV link, unless the Court sees good reason to the contrary; in which event, the judge, barrister or solicitor may not wear a wig or gown while the witness is giving evidence. (2) The examination, cross- examination or re-examination of such witness may be conducted through an intermediary, if the Court, on application to it, is satisfied that the interests of justice so require, having regard to the age or mental condition of the witness. (3) If the injured party is under the age of 17 years and his/her evidence is taken on deposition at the

privacy should be maintained. Another welcome reform is

contained in Section 26 of the Bill, which allows the evidence of a child under the age of 14 years to be

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