The Gazette 1992

GAZETTE

JULY/AUGUST 1992

whether any warning should be given and, if so, in what terms.

where the truth lies. This is why the Committee is concerned about any attempt to negate or diminish the right of cross-examination. Examination through Intermediary It is worth highlighting two aspects of these provisions. First, there is the proposal that the examination, cross- examination or re-examiantion should be through an intermediary. No other European or common law country has introduced such a concept into its criminal justice system. The Committee is not convinced of the need for an intermediary, nor is it clear what function such a person would perform. It is presumed that such a person would not be entitled to rephrase any questions put to the witness in which case the only effect of the provision would be to prevent the witness from hearing the tone in which the question is asked. To achieve this end, the witness would have to be prevented from hearing what was being said in the courtroom. As the witness would be aware that he/she was being seen and heard on a live television link, the overall effect might be to isolate and intimidate the witness and would therefore be counter-productive. Furthermore, if the witness is not capable of giving evidence except through an intermediary, this may simply suggest that such evidence is not sufficiently coherent or reliable to found a conviction. Secondly, the Bill would allow a person to be convicted where the injured party had not given any evidence before the court of trial. If the witness is under 17 years of age and has given evidence on deposition at a preliminary examination, the video recording of such evidence may be admitted at the trial. This is a revolutionary provision, which completely alters the nature of the trial process. Its only effect will be to confine the cross-examination to the District Court. But is cross- examination during a preliminary examination any less traumatic for a witness, than at the actual trial? If the injured party is under 14 years and has made a statement to an "appropriately qualified" person, the video recording of this statement may be used at the trial, even if the injured party is not available for

cross-examination, provided that the video recording was considered by a Judge of the District Court at the preliminary examination. Of course, there is a "safety clause" written into the section which prevents the evidence being admitted if the court is of the opinion that in the interests of justice it ought not to be admitted. However, the Committee is of the view that a provision that would allow a person to be convicted of a serious offence without any opportunity of cross-examining the principal witness at the actual trial has failed to strike the correct balance between the prosecution and the defence. " . . . a provision that would allow a person to be convicted of a serious offence without any opportunity of cross examining the principal witness . . . has failed to strike the correct balance." Thirdly, some of the provisions of the Bill will have a retrospective effect. Thus, an accused who is charged at present with a relevant offence would be subject to the provisions concerning "video recorded statements" of an injured party under 14 years of age, once the Bill becomes law. The Committe accepts that procedural amendments in the field of criminal law can have this retrospective effect. However, it is suggested that the sections dealing with "video recorded statements" introduce very substantial changes having an adverse effect on the position of an accused and should therefore not apply retrospectively. Business Records The provisions of the Bill in relation to the admission of business records are also quite complex. In outline, what is suggested is that information contained in a business record may be admitted, without oral testimony, if it meets certain statutory requirements. These requirements may be proven by a certificate from the manager or other person associated with the business. The opposing party (usually the accused) may serve a notice of objection not later than seven days before the commencment of the trial in which event, he is entitled to object to the admissibility of the evidence without

It is worthy of note that these provisions are not confined to cases of child sexual abuse. They apply to all cases where an injured party/ witness is under 17 years of age and the offence involves violence or threats of violence. Thus, an injured party may give evidence on live TV link in a case of common assault where the defendant is a parent, teacher, member of the Garda Siochana or indeed any member of the public, unless the court sees good reason to the contrary. Increase in wrongful convictions In its submission to the Department of Justice the Criminal Law Committee accepted that the area of child sexual abuse was a matter of great public concern, which could not be dealt with adequately at present by our criminal justice system. However, the principal reason for this is that our system demands exacting standards in the presentation of any prosecution case. convictions. The combined effect of the above provisions would be to make it difficult, if not impossible, for lawyers representing persons charged with offences to which the Part applies to test adequately the evidence offered by the State. This will undoubtedly result in an increase in the number of such cases being presented to the Courts and, possibly, an increase in the number of convictions. However, it may also result in wrongful convictions. "The combined effect of . . . the provisions would make it difficult if not impossible for [defence] lawyers . . . to adequately test the evidence offered by the State." Unlike the inquisitorial system, where the evidence is tested in a lengthy and exhaustive pre-trial enquiry by an independent investigating magistrate, the common-law system relies on the trial process, in particular cross- examination by the defence and prosecution lawyers, to ascertain This is to ensure, so far as is practicable, against wrongful

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