237 / 462
GAZETTE
JULY/AUGUST 1992
whether any warning should be given
and, if so, in what terms.
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.
This is to ensure, so far as is
practicable, against wrongful
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
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
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