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Dáil Éireann debate -
Wednesday, 14 Dec 1966

Vol. 226 No. 4

Committee on Finance. - Criminal Justice Bill, 1965: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 3, line 10, to delete "Criminal Justice Act, 1965" and substitute "Criminal Procedure Act, 1966."

This amendment proposes to change the short title of the Bill from Criminal Justice Act to Criminal Procedure Act. The reasons for this are, firstly, to emphasise that the main purpose of the Bill is to establish a new procedure for the preliminary examination of indictable offences and, secondly, to avoid confusion with a Criminal Justice Bill which is now in course of preparation.

Deputies will observe that I also propose, in amendment No. 66, to alter the Long Title of the Bill to make it more explanatory of the changes being effected by the Bill.

Amendment put and agreed to.
Section 1, as amended, agreed to.
Sections 2 and 3 agreed to.
SECTION 4.

Amendments numbers 5, 7, 10 and 56, could be discussed with amendment No. 2.

I move amendment No. 2:

In page 3, before section 4, to insert in Part I a new section as follows:

"In this Act ‘the prosecutor', in relation to an offence, means the person by whom the offence is prosecuted, being the Attorney General, a person prosecuting at the suit of the Attorney General or a person authorised by law to prosecute."

This amendment, along with the other consequential amendments, is designed to make it clear that the position of the private prosecutor is being preserved under the new preliminary procedure. Of course, once an accused person has been returned for trial as a result of a private prosecution, it is for the Attorney General to carry on the subsequent proceedings. The other amendments are consequential.

Amendment put and agreed to:

I move amendment No. 3:

PART II.

In subsection (1), page 3, line 18, to delete "a justice of".

I do not know what "Part II" is doing here.

A good point.

Part I just covers sections 1, 2 and 3.

Yes; we have finished that.

We are still on section 4.

We are on amendment No. 3 to section 4. Amendment No. 3 is of a drafting character and is intended to emphasise that the jurisdiction to conduct a preliminary examination lies with the District Court and not with any particular justice. Accordingly, any district justice, and not only the justice before whom the accused first appears, may exercise it.

Amendment agreed to.

I move amendment No. 4:

In subsection (2), page 3, lines 24 and 25, to delete "said procedure" and substitute "procedure set out in this Part".

This also is a drafting amendment.

Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.

I move amendment No. 5:

In subsection (1), page 3, line 26, to delete "Attorney General" and substitute "prosecutor".

This amendment was discussed with amendment No. 2.

Amendment agreed to.

I move amendment No. 6:

In subsection (1), page 3, between lines 28 and 29, to insert:

"( ) a copy of any sworn information in writing upon which the proceedings were initiated,".

It has been represented to me that, where proceedings are based on a sworn information, the documents to be furnished to the accused and to the court under this section should include a copy of that information. This seems reasonable and the amendment provides accordingly.

Amendment agreed to.

I move amendment No. 7:

In subsection (1), page 3, line 29, to delete "the Attorney General proposes" and substitute "it is proposed".

This amendment was discussed with amendment No. 2.

Amendment agreed to.

I move amendment No. 8:

In subsection (1) (b), page 3, line 30, to add "stating in respect of each such witness the age, occupation, address and relationship (if any) to any party concerned in the proceedings."

This amendment arises out of the discussion on Second Reading. The Minister will recall that I urged on him, in relation to the information to be furnished, that it should not be regarded as sufficient to furnish information, without, at the same time, furnishing some information in regard to the person making the statement. I suggested to the Minister then that the kind of information which would be particularly relevant would be the age, occupation and address of the person making the statement, and the relationship, if any, of the person making the statement to any party concerned in the proceedings. I conceded that some of this information would probably be given in any event as a matter of practice. If the Garda statements were taken in the ordinary way to which we have been accustomed, they would start with: "I, so and so, of such and such a place," and then set out the occupation and so forth of the person making the statement. I imagine that, as a matter of practice, this is what will be done. But the danger is that this kind of information might not be regarded as important by a layman. Any lawyer will, of course, agree, that it is the kind of information that could be of very great importance, particularly to those engaged in the defence of the accused.

While I am reasonably satisfied ordinary practice will ensure that this information is given, nevertheless there will be no obligation on the Garda authorities, unless it is put into the Bill, to ensure that the information is furnished and, for that reason, I urge the Minister to accept the amendment. It certainly will not create any trouble for the authorities. It will not weaken the Bill in any way. All that is required is that relevant and, in some cases, essential information must be given.

I am opposed to this amendment. I agree with Deputy O'Higgins that this will, in fact, be the practice having regard to the good sense of state solicitors. It has been the practice over a long number of years. I would dislike putting it in as a rigid provision in the Bill. It is bad legislation to go into too much detail and, so long as we are satisfied that details with regard to age, occupation, address and relationship will be included as a matter of practice, there is no need to make any rigid provision. It is better to have in the Bill what one might call the basic information—a statement of the charges against the accused, a list of the witnesses to give evidence, a statement of the evidence of each witness, a list of exhibits. We should confine ourselves, in my opinion, to that type of basic information. If we go into details in regard to the matters raised by Deputy O'Higgins, there would be no end to it. So long as we are satisfied that this information will, in practice, be given we should be content.

Does the Minister agree that in some cases this kind of information might not be regarded as relevant? In other cases most people would feel it was essential. Remember, these statements will be taken in private. The information will be furnished afterwards to the accused person. It would be very important for the accused's lawyers to be in possession of information as to whether the maker of a statement in support of the prosecutor's case is, for example, related to the prosecutor. Is the person a child, an adult, a young person, or what? That kind of information is certainly important; in some cases it could be essential.

If it is essential, then surely it is a matter to be raised at the preliminary examination, either by the accused or by the solicitor acting for the accused?

I would regard it as essential in some cases, but there will be no obligation unless it is written into the Bill.

If it is put into the Bill, on the normal interpretation of criminal statutes, one will immediately be open to having an information declared bad on purely technical grounds and you would have the possibility of frustrating litigation. Suppose the Deputy's amendment were accepted and suppose that, in error, some particular, not relevant really but required statutorily, were omitted, there would be a formal defect immediately and by writing this into this Bill, one could render the proceedings bad.

All you do is require a statement to be taken which furnishes the information.

I am not quite sure it is as simple as that in a criminal case. There is a difference between the rules of evidence in criminal cases and in purely civil cases. I think the Minister's approach is the better one. I do not think the Deputy will lose anything but I do think a great number of technical defences might be built up, defences with no merit at all but which have always been admitted in criminal cases when they have been attempted. I suggest the Minister's course is the better one.

That is the nub of the issue. You would have technical non-compliance upsetting the proceedings. Deputy de Valera put his finger on the trouble. Once it is written in, in any criminal trial it becomes a technical proof, and non-compliance would succeed.

I agree with Deputy de Valera that it is quite justifiable, particularly in criminal cases, to rely on any technical flaw. But surely the position is that the Minister presumably and the House will have some confidence in their law officers and in the Garda authorities? It should not be beyond the wit of the investigating garda or of the State solicitor concerned to ensure that this simple information, which might be vital, should be furnished. We are requiring them to give a statement of the charges. It may be that it will not be stated properly, that there will be a technical flaw of which the defence may take advantage. As it appears here, it is a very general statement and a technical defence could arise from it.

We ask for a list of witnesses whom the Attorney General proposes to call at the trial. It might be of the utmost importance to a person charged with certain types of offence that he should know the material facts concerning a witness. It might be of importance for him to know whether the witness is related to the person bringing the prosecution. The Minister made it clear on a previous amendment that the right of private prosecution is being preserved and surely it is right that the accused person should know whether a long list of witnesses against him are all related to the prosecutor? In certain types of offences, it is of particular importance that the age of the witnesses should be known and should be stated.

The Minister said that as a matter of practice, that will be done. If so, it is done because it is regarded as important and as fair to do it. If it is important and if it is fair to do it, as a matter of practice, it is also important and fair that the Legislature should write it into the legislation being passed. I am not speaking as a defence lawyer. I could count on the fingers of one hand the number of times I have appeared as a defence lawyer. I am not pressing the amendment.

The Deputy should realise that it is only a preliminary investigation. It can hardly be vital at the preliminary investigation stage.

It could be vital on the question of whether the defence will require the evidence to be taken on deposition, and the Deputy may know that by an amendment the Minister is to move later that right will now be preserved in a widespread way. I imagine that if information of this kind is not given, the reaction of defence lawyers will be to request the taking of depositions in most cases and thus to invalidate the good that is in the Bill.

The Deputy is missing something. If we prescribe specifically in an Act formalities of this nature, there is always the possibility of technical non-compliance, and if there is the type of defence set up which the Deputy more or less forecast, that defence will sit tight until the plenary hearing before the trial judge and at that stage will make an objection. I do not see any good or valid reason for this amendment. The defence can always make a requisition for further information. How far can this go?

I recall a case in a circuit court not very far from Dublin where a point arose not even on a statutory requirement but on the requirement of a reported case. There was an omission of what was technically required as evidence. The case on which it rested was that of Russell and Russell. A flaw was allowed to go to hearing. I can give the Deputy particulars of that case. The point I wish to make is that if that can happen on the basis of a reported decision, how much more likely is it to happen where you have a statutory requirement in black and white? For that reason I strongly urge the Deputy to withdraw his amendment. The Minister's approach is far safer.

I am not pressing it but I think it raises a point to be considered.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 4, between lines 1 and 2, to insert a new subsection as follows:

"( ) The accused shall have the right to inspect all exhibits."

I take it we can discuss amendment No. 15 with this. It is a similar amendment tabled by Deputy M.J. O'Higgins.

It is a question of wording and the Minister's may be better.

Amendment agreed to.

I move amendment No. 10:

In subsection (3), page 4, line 2, to delete "Attorney General" and substitute "prosecutor".

This is consequential on amendments Nos. 1, 5 and 7.

Amendment agreed to.

I move amendment No. 11:

In page 4, between lines 5 and 6, to insert a new subsection as follows:

"( ) All statements of evidence referred to in this section shall as to the truth and accuracy of the contents thereof be verified by an affidavit of the witness, a copy of which shall also be served on the accused and such affidavit shall contain averments that the deponent understands the statement and that it has not been obtained under duress."

This matter was discussed on Second Reading. I wish to say at the outset that I do not regard this amendment as having quite the same importance as it had when I put it down, because of a subsequent amendment which the Minister will move.

Generally speaking, the position is that we are now altering the procedure of the courts of justice, a procedure established here about 120 years ago, if not a bit longer, and established in England very much longer. The system has been that a person is not put in peril of his life or in jeopardy as to his freedom without having some sworn evidence called against him. The vital change we are making here when this Bill becomes law is that it will be possible for a person to be charged and put on trial without preliminary examination and without sworn evidence being called against him.

I urged on the Minister during the Second Reading debate that the statements to be taken from witnesses should contain a short affidavit at the foot on the lines of the memorial from the Registry of Deeds. If that is done, while preserving intact the new system which the Minister suggests, at the same time it will preserve the position in which a person will not be put on trial or in jeopardy in the absence of sworn evidence.

Because of the greater freedom now being given, I have reason to fall back on the old system, so to speak. As I have said, this amendment is now of less importance than it was but at the same time, it is worth moving for discussion sake because, notwithstanding the fact that the old system, if one cares to call it that for convenience, may still be operated by an accused person, we are nevertheless introducing a system which if this amendment is not accepted, will provide that a person may go on trial without having a sworn statement against him, simply an unsworn statement. I am convinced that the Irish people generally have regard for the oath and we may find a situation in which a person will give a straight and careful account of an episode when he is retailing it in conversation or by way of an unsworn statement. However, if you ask him to put it in the form of an oath, he will be very much more careful and cautious and will do his best to ensure that what goes down in the affidavit under oath will be as accurate as he can make it.

Therefore, there is a lot to be said for having these statements verified by means of a short affidavit whereby the person making the statement will take an oath confirming the accuracy, so far as he knows, of the contents of his statement. That is so far as the contents are concerned. It is also of importance with regard to the general accuracy of justice that there should be some evidence before the court to show that the statements on which the court is being invited to return a person for trial, to put a person in jeopardy as to his freedom, have not been obtained under duress, that the people who made them have not been coerced in any way into making them. I am also suggesting that the affidavit should contain an affirmation to that effect, that the statement was not obtained by duress. That is of importance.

I am glad that Deputy O'Higgins made the point that amendment No. 16—by which we no longer make it necessary for the district justice to decide as to the materiality of the evidence of witnesses, and by which we enable a defence lawyer to call any witnesses he wishes, if he considers it necessary, in addition to what the State deposes—which meets the point made on the Second Stage by him and other Deputies goes a long way towards lessening the necessity for this amendment. Having regard to that, my basic reason for opposing this amendment, which I gave on the Second Stage and which still obtains, although now the argument from the other side is not as strong as it was, is an administrative reason. This is why we decided against the affidavit procedure recommended by the majority of the Committee on Court Practice and Procedure. This, in effect, would bring in the affidavit procedure again by the back door.

Consider what the realities of a case would be in which 30 witnesses from all over the country were involved. Each would have to travel to the State Solicitor's office to swear and the oath to which Deputy O'Higgins refers would not be in the person's mind to the same extent as if he had to go into the witness box and answer under oath each question, being fully aware of the consequences. While I recognise the average Irish person's regard for the oath, I do not think the same attention would be paid to putting one's name at the bottom of a declaration as would be paid to the formal swearing in open court.

At any rate, as I say, we would have these journeys from the far ends of the country to the State Solicitor's office and all the expense attached and it is for this reason that we decided instead to enact here the procedure of having a statement of evidence prepared by the State Solicitor on the basis of the Garda evidence. This is administratively a better procedure, and the procedure in the Bill, whereby we provide for the service of these various statements of evidence on the accused in time before the preliminary examination, contains sufficient safeguards for the accused and at the same time involves less administrative expense.

Is it contemplated that the statement of evidence referred to in section 5 is not going to be a statement made by the witnesses but is simply going to be a note of the evidence made by the State Solicitor?

It will be a statement of evidence given by each of the witnesses. Each witness will have made a statement to the Garda and the statement will be prepared on that basis.

If you are going to make a statement, there is no administrative difficulty in having it verified by an affidavit.

There is not in regard to the statement itself, in regard to the Garda statement, but what Deputy O'Higgins suggests in the amendment is a statement of evidence which would be prepared by the State Solicitor on foot of the Garda statement which would then be verified by each witness. This would involve enormous administrative expense as it would mean bringing people from all over the country merely for the purpose of signing their names. For this reason, because of the administrative complexity, I decided against the majority recommendation of the Committee, which was that what would be before the trial court would be sworn affidavits of testimony in regard to what each person saw or did not see. At any rate, I agree with Deputy O'Higgins that the fundamental reason behind this amendment is lessened to a considerable extent by amendment No. 16.

I agree with the Minister because fundamentally the evidence on oath will come at the trial and that is where the sworn evidence is relevant. I understand the principle on which Deputy O'Higgins has moved his amendment, and I sympathise with him, but first of all, we have to inquire, in section 5, whether the statement of evidence to be given by each witness is an original statement or a prepared statement by the prosecution. At this stage two separate responsibilities arise. There is the responsibility of the witness himself who takes an oath and he may be interrogated and almost compelled to testify against a fellow citizen. There is also the responsibility of the prosecutor to present the case properly. If the statement is bona fide and the case is properly presented, no problem arises for Deputy O'Higgins, but if there is a failure, if there is impropriety at either end, by either the witness or the prosecution, this will become manifest at the trial, and no doubt——

But only at the trial.

But that is in sufficient time because the fact that it will come at that stage will throw the onus back, as always, on the prosecution and on the witnesses, to behave properly. This is not without advantage to the accused because, as the Deputy knows, any variation from the original statements is always something to be exploited by the defence.

Yes, but I think the Deputy is falling into the error of equating the accused with the guilty.

For the purpose of my amendment, I am equating the accused with the innocent.

I know the theory the Deputy is working on. However, the person is sufficiently protected in a modern society because the fairness of his trial is guaranteed by existing procedure which is not in any way eroded. The statement here is not necessarily a statement of the witness. That fact would certainly be as much to the advantage of the accused as to his disadvantage. The administrative reasons the Minister invokes are perfectly valid. Therefore, if there is any fall down, it will show up at the trial stage.

Deputy O'Higgins's point could be met in this way but it is too late to include it in this Bill. The Minister might possibly consider it in further criminal legislation to attach to acts done within the framework of this procedure the same sanctions as would be attached to affidavits or similar matters in the old dispensation. For instance, if a witness were to furnish a statement so outrageously at variance with the evidence incorporated in court, as the substantiated evidence, whether criminal or civil, on an affidavit, the Minister might consider at some other time attaching those sanctions. That is all that would be needed.

Instead of attempting a formal act in relation to further formalities which are objectionable, both from the point of view we have been discussing on the earlier section and the Minister's point of view, if, on examination, the Minister were to find there were sanctions attached to the old procedures as against the witness for the protection of the accused, it would be a much simpler thing to attach those sanctions to the present procedure than to rewrite the whole thing. That is what I would ask the Minister to consider. I think it is too late to do it in this Bill.

Nothing is too late if we can get a sufficient number of the Minister's colleagues to agree with us.

We have not an amendment before us.

There is always the Report Stage. Deputy de Valera would make an excellent draftsman. I understand the viewpoint expressed by the Deputy. He says the whole thing is all right because it will come out in the wash, because it will come out in the trial. That is true to some extent. It is true that it may save the innocent accused person from this ultimate penalty that would be imposed if there were a miscarriage of justice and he was innocent, but it does not save the innocent accused person from all the anxiety of mind, trouble and cost which will be involved by the time the case has come to trial.

It is not good enough, in my view, to dismiss all that by saying it is sufficient protection because it will come out at the time of the trial. I want to ensure that before the trial comes up, if there is a flaw, and if there is a question of a person light-heartedly making a statement, which he is not prepared to stand over, that can be tested at the time the statement is being made. It is on those grounds that I would be particularly keen on the Minister giving further consideration to this amendment.

There is another ground. I may be misreading this section or it may be that it is so drafted that it is difficult to follow. The Minister, and Deputy de Valera following him, made it quite clear that the statement of evidence referred to at (c) of subsection (1) of section 5 refers to a statement, not a sworn statement of the witness, but a statement prepared by a State Solicitor as a result of a statement which had previously been obtained from the witness by the Garda. Subsection (c) certainly is open to that interpretation, but if the Minister turns over this page of the Bill and looks at subsection (3) of the section, he will see that the presumption there is that we are talking about a statement which has been made by the witness, not somebody else's statement.

We are talking here about evidence to be given by any witness whose statement of evidence is the statement of evidence of the witness. If that is the position and if subsection (3) is correct and not subsection (1) and if the evidence is to be given by the witness, certainly there are no administrative difficulties at all in the way of meeting my amendment. If the Minister's interpretation is correct, it seems to me he must logically amend the wording of subsection (3).

There is somewhat loose drafting there. In order to be consistent as between subsection (3) and subsection (1) (c), I agree with Deputy O'Higgins that subsection (3) should be amended. The drafting is not consistent.

Might I make this suggestion to the Minister? I know what the Minister means now. When he spoke about this on the Second Stage, I assumed this was a statement of the witness that was to be furnished. Apparently that is not what is intended. It is still open to that construction even under subsection (1) (c), although the Minister's interpretation there is certainly clearer than it is later on. It would seem to me that the Minister has now made it quite clear what is intended here. It is not a statement of the witness; it is a statement to be prepared by somebody else based on the statement the witness has made to the Garda. That should be made clear even in subsection (1) (c). It is certainly necessary to amend subsection (3).

The drafting is a bit loose there. We will do something about that between now and Report Stage.

For the moment, I will withdraw this amendment. I do not want to be ruled out if I want to put it down on Report Stage. I think I am entitled to do so. It is on that understanding that I withdraw it now.

Amendment, by leave, withdrawn.

I move amendment No. 12:

In subsection (4), page 4, line 6, to delete "in custody or on bail".

Amendments Nos. 12 and 46 should be taken together. This amendment is consequential on the amendment which I propose to move on section 19. This is a consequential one which provides that where a District Court remands a person charged with an offence, the court may either commit him to custody or release him on bail. If, as I assume, that amendment is accepted, the words "in custody or on bail" in subsection (4) of this section will be superfluous. If we go to amendment No. 46, we will get a better grasp of it. Amendment No. 46 is really a drafting amendment to section 19. It defines more clearly what is entailed by the remand of an accused person by the District Court. It provides that where the District Court remands a person charged with an offence or sends him forward for trial or sentence, the court may—(a) commit him to prison or other lawful custody, or (b) release him conditionally on his entering into a recognisance, with or without sureties. Amendment No. 12 is consequential on amendment No. 46.

Is there any objection to leaving these words in? I am always uncertain about the wisdom of basing hopes on the fact that somebody will read on into the Act in order to get the full meaning. Is there any objection to leaving the words and having it perfectly clear?

It is only a drafting matter so as to have section 5 (4) consistent with section 19, assuming that the amendment to section 19 is accepted.

Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.

Amendments Nos. 13, 14 and 31 will be taken together.

I move amendment No. 13:

In subsection (1), page 4, line 8, to add "and any submissions that may be made by or on behalf of the prosecutor or the accused."

This amendment arises out of the points made by Deputies M.J. O'Higgins, Ryan and John A. Costello on Second Reading Stage. The amendment is intended to make it clear that both the prosecution and the accused have the right to address the court and that any submissions made by them must be considered by the justice, along with the documentary evidence and exhibits, in arriving at his decision.

I took the view on Second Stage that this right is so fundamental a principle of justice that it is unlikely that it would ever be put in question. That view was disputed by Deputies opposite and, I think, having clarified the matter the amendment should be accepted.

I am glad the Minister has done this. He is doing the right thing.

Amendment agreed to.
Amendment No. 14 not moved.

My amendment No. 15 is met by amendment No. 16.

Amendment No. 15 not moved.

I move amendment No. 16:

In page 4, lines 9 to 15, to delete subsection (2), and substitute:

"(2) The prosecutor and the accused shall each be entitled to require the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him on sworn deposition. The witness may be cross-examined and re-examined on his evidence."

With amendment No. 16, we could take amendments Nos. 17 and 25 which are on the same point. In its original form, subsection (2) limited the evidence which might be taken on sworn deposition from a witness at a preliminary examination to the amount that the justice considered necessary to enable him to form an opinion on any issue material to the question he had to decide. The reason for this was to prevent an accused person taking up the time of the court unnecessarily by insisting on the taking on sworn deposition of evidence which was not in dispute or was obviously irrelevant to the matters at issue. It was felt that by giving the justice the discretion to allow depositions only where he considered that the evidence was material to the question to be decided, any attempt at abuse of the right to depositions would be checked. I cannot imagine circumstances in which a justice would not grant any request that might be made for the taking of the evidence of a particular witness on deposition, unless it was quite clear that anything the witness could possibly say would not affect the case for sending the accused forward for trial.

As I said on Second Stage, I do not think any justice would wrongfully limit the evidence, but having regard to the views put forward I have decided to put in this amendment. I have been impressed by the weight of opinion against imposing any restriction on the right to depositions and by the argument that depositions will normally be requested only where it is considered essential by the party concerned to have the evidence, or the material portions thereof, of an important witness put on record for use at the trial or to test the witness. I have, therefore, come around to the view that it would be better, in all the circumstances, to allow the taking of depositions at the request of either party without any restriction. On the basis that this granting of an unrestricted right to have any witness examined will be availed of only in exceptional circumstances, I agree that we should make suitable provision for it and, accordingly, I move this amendment. I feel we can rely on the legal profession to operate the revised provision in a commonsense manner and to ensure that it will not lead to the re-introduction, as it were through the back-door, of the deposition procedure which this Bill is designed to abolish.

When moving the original section I thought that it would prevent the bringing in of witnesses unnecessarily thereby delaying the procedure. The point of view expressed by Deputies O'Higgins, Ryan and Costello is accepted and I think the amendment put down meets the case.

Amendment agreed to.
Amendment No. 17 not moved.

I move amendment No. 18:

In subsection 3 (d), page 4, line 30, to delete "admission or".

This is a technical point. It has been represented to me that under the existing rules of evidence in criminal proceedings there are no admissions save pleas of guilty. As the phrase "admission or confession" might, therefore, be considered ambiguous, I think it would be better to omit any reference to admissions.

Amendment agreed to.
Section 6, as amended, agreed to.
NEW SECTION.

I move amendment No. 19:

Before section 7 to insert a new section as follows:

(1) If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial.

(2) If the justice is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charged, he shall cause him to be charged with that offence, take his plea and, unless section 10 applies, send him forward for trial.

(3) Subsections (1) and (2) are subject to the provisions of section 2 of the Criminal Justice Act, 1951, which relates to minor offences.

(4) If the justice is of opinion that a summary offence only is disclosed, and the Attorney General does not object, he shall deal with the case as if that offence had been originally charged.

(5) If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination.

(6) An order of a justice sending an accused person forward for trial shall be in writing signed by the justice.

The only differences of substance between the new section proposed in this amendment and the original version are, firstly, the introduction of a new subsection, subsection (3), to make it clear that the justice retains his power of deciding to deal with the offence as a minor one fit to be tried summarily under subsection (2) of section 2 of the Criminal Justice Act, 1951, and, secondly, the addition of a new subsection, subsection (6), providing that the order of the justice sending an accused forward for trial shall be in writing signed by the justice.

Some other minor changes have also been made. The words "in custody or on bail" have been omitted at the end of subsections (1) and (2) for the reasons already explained in relation to amendment No. 12, namely, that section 19 in the revised form proposed in amendment No. 46 will provide for the remand in custody or on bail of a person sent forward for trial. There have also been some purely drafting changes.

The changes in the amendments improve the section.

Amendment agreed to.
Section 7 deleted.
NEW SECTION.

I move amendment No. 20:

Before section 8 to insert a new section as follows:

(1) The justice shall, if he decides to send the accused forward for trial, make an order (in this section referred to as a witness order) in respect of each person whose statement of evidence has been supplied or whose deposition has been taken under this Part requiring him to attend and give evidence before the court by which the accused is to be tried and to produce any document or thing specified in the order.

(2) A person who without just excuse disobeys a witness order requiring him to attend before any court shall be guilty of contempt of that court.

(3) If, on the application of the Attorney General, the justice is satisfied by evidence on oath that a particular person is unlikely to comply with a witness order, the justice may bind him by recognisance to appear at the trial and if he refuses to be so bound the justice may by warrant commit him to prison until the trial or until he enters into the recognisance; and the justice shall have the same powers for enforcing the attendance of such person before him for the purposes of this subsection as the District Court has in relation to witnesses in criminal proceedings.

Amendment No. 20 is to insert a new section in the name of the Minister. With No. 20 we should take No. 21 which is related to it, and Nos. 63 and 64 which are consequential. If the House agrees, we could take amendments Nos. 20, 21, 63 and 64 together.

I have no objection, but I think there is a big difference in the remedy applied in the two sections here for failure to respond to an invitation to give evidence.

Perhaps we had better leave Nos. 63 and 64.

No, it is No. 21 I am thinking about.

Amendments Nos. 20, 63 and 64 together.

The new section dealing with witness orders is being added to the Bill to provide a simple means whereby the witnesses, whose statements of evidence or whose depositions have been taken in connection with the preliminary examination, may be required to attend and give evidence at the trial.

It is envisaged that an order will be made by the justice at the conclusion of the preliminary examination, where he decides to send the accused forward for trial. Failure to obey such an order will be punished as contempt of court (subsection (2)). Furthermore, there is provision in subsection (3) for the justice formally binding over a witness should he, on the application of the Attorney General, consider this necessary.

The section replaces the present system of binding over witnesses to attend the trial, thus giving effect to a recommendation of the Committee on Court Practice and Procedure that this system be abolished in favour of one whereby a notice be served personally on each witness stating that he is required to give evidence at the court of trial when called upon to do so and providing for penalties for his failure to appear.

The proposed "witness order" procedure will be more appropriate to the new situation where, normally, there will be no witnesses in attendance at the preliminary examination.

I am a little bit unhappy about this procedure. Here we are laying down the groundwork not merely for sending accused people found guilty of an offence to jail but for sending witnesses to prison until the trial. That is the remedy which is envisaged in this amendment. If the Attorney General makes an application to the court and if there is reason to believe the witness might not turn up no chance is going to be taken and he is going to be locked up to ensure that he will be available to give evidence. It seems to me that there is something very drastic here. If you compare this with the treatment of witnesses of an accused person, the change is dramatic. When an accused person applies and his application is granted, what happens is that a witness summons is issued to the witness. There is no question of locking up his witness until the trial. If his witness does not turn up, it is the ordinary rule which is there which applies: provided he has been served with his witness summons, he can be regarded as being in contempt of court and can be dealt with by the court accordingly. If the application is made by the Attorney General in respect of the State witness, the precaution that may be taken by the State is that the witness is going to be locked up so as to ensure that he will be available to give evidence. I do not like it.

It is there already, of course.

The ordinary procedure is there that where a witness is summoned and does not respond, the court can regard it as contempt of court. I think that is the procedure that is there at the moment?

Subsection (6) of section 13 of the Petty Sessions Act of 1851.

Only if he refuses to enter into a cognisance. The unfortunate point is does this mean that the Attorney-General could get a precautionary imprisonment of a witness without further ado?

Because if that is so, the grounds for a habeas corpus there would be very interesting.

To be fair to the Minister, the imprisonment depends on refusal to enter into cognisance.

For the benefit of the House, I shall read what is proposed:

(3) If, on the application of the Attorney General, the justice is satisfied by evidence on oath that a particular person is unlikely to comply with a witness order, the justice may bind him by recognisance to appear at the trial and if he refuses to be so bound the justice may by warrant commit him to prison until the trial or until he enters into the recognisance.

That is the existing law.

In fact, the wording of it is less strong.

The main point I was making was the distinction in the treatment of a witness where the application is made by the Attorney General on behalf of the State and where the application is made by the accused person.

Is that not there at the moment?

I admit that, but why should there be a distinction? Surely the accused person is as much entitled as the prosecutor to ensure the attendance of his witness?

We will have a look at that between now and Report Stage, with a view to putting them on the same footing.

It is worth looking into.

Amendment agreed to.
NEW SECTION.

I move amendment No. 21:

Before section 8 to insert a new section as follows:

(1) A summons (in this section referred to as a witness summons) may, on the application of an accused person, be issued out of the court to which the accused has been sent forward for trial requiring the person to whom it is directed to attend before the trial court and give evidence at the trial and to produce any document or thing specified in the summons, unless the court is satisfied that such person cannot give any material evidence or, as the case may be, produce any document or thing likely to be material evidence.

(2) A person who without just excuse disobeys a witness summons shall be guilty of contempt of the court out of which the summons was issued.

(3) This section is without prejudice to any other powers for enforcing the attendance of witnesses at the trial.

The purpose of this new section is to enable the defence to have a witness, whose evidence was not available at the preliminary investigation, summoned to appear before the trial court to give evidence on behalf of the accused. The summons must be issued in every case unless the trial court is satisfied that such person cannot give material evidence. Subsection (2) provides that failure to obey a witness summons may be punishable as contempt of court. A witness summons will, where required, be issued from the court of trial at any time between the conclusion of the preliminary investigation and the trial. Does this not go a long way towards meeting the point?

No, it weakens it.

It does; that is right.

The witness may have skipped.

We will try to have the same procedure adopted.

Amendment agreed to.
SECTION 8.

I move amendment No. 22:

In page 4, line 49, to delete "the names" and substitute "a list".

Amendment agreed to.
Amendment No. 23 not moved.

I move amendment No. 24:

In page 5, to add to the section a new subsection as follows:

"(2) Copies of the documents shall also be furnished to the trial court."

The addition of this subsection, making specific provision for the furnishing of copies of the additional documents to the court of trial, follows logically from section 5 (2), which makes similar provision in relation to the supply to the District Court of copies of the documents which form the basis of the preliminary examination.

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.

I move amendment No. 25:

In subsection (1), page 5, line 8, to add ", unless the prosecutor requires the attendance of a witness under section 6 (2)".

Amendment agreed to.

I move amendment No. 26:

In page 5, lines 9 to 12, to delete subsection (2), and substitute:

"(2) In the event of such waiver, the justice shall send him forward for trial and the Attorney General shall cause to be served on him any documents required to be supplied to the accused and not already served.

(3) Copies of the documents shall also be furnished to the trial court."

The revised version of subsection (2) proposed in this amendment shows no material change in the original. It merely ensures that only those documents that have not been supplied to the accused may be served on him at this stage, and not all the documents as might have been inferred from the subsection in its original form. In other words, it is designed simply to avoid duplication in the supply of documents.

I should have raised this point on amendment No. 25 which was discussed earlier, but in fact the point I wanted to make in relation to that is that, in some ways, the acceptance of amendment No. 25 seems to me to make the procedure here rather more complicated. Subsection (1) of section 9, as it stood, was simple, neat and clear. It has been complicated a little by writing in—"unless the Attorney General requires the attendance of a witness under section 6". However, that is past; it was taken with an earlier amendment. I just wanted to make the point on it; I have no objection to amendment No. 26.

Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.

I move amendment No. 27:

In subsection 2 (b), page 5, line 27, to delete "in custody or on bail, with that plea" and substitute "with that plea to a court to which, if he had pleaded not guilty, he could lawfully have been sent forward for trial."

This is a drafting amendment. The words "in custody or on bail" are being deleted for the same reason as they have been deleted in other sections, namely, that section 19, in the form proposed in amendment No. 46, will provide for the remand in custody or on bail of a person sent forward for trial or sentence.

It means that he does not have to get the permission of the court.

Amendment agreed to.

I move amendment No. 28:

In subsection (4) (a), page 5, lines 39 and 40, to delete ", by leave of the court to which he has been committed,".

The deletion of these words will mean that there will be no change in relation to the right of a person, who is sent forward from the District Court with a plea of guilty, to withdraw that plea and plead not guilty, as provided in section 3 (3) (a) of the Criminal Justice Act, 1951.

Amendment agreed to.

I move amendment No. 29:

In subsection 4 (b), page 5, line 42, to delete "trial judge" and substitute "court".

This is a drafting amendment. The term "court" is considered more appropriate where the accused is sent forward only for sentence and the question of trial does not arise.

Amendment agreed to.

I move amendment No. 30:

In subsection (4) (b), page 5, lines 47 and 48. to delete "the documents required to be supplied to the accused under this part" and substitute "any documents required to be supplied to the accused and not already served".

The purpose of this amendment is to ensure that the Attorney General will have to serve on the accused, under this subsection, only those documents required to be supplied to him, which have not already been served on him. In other words, it avoids duplication of documents.

Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11.
Amendment No. 31 not moved.
Question proposed: "That section 11 stand part of the Bill."

I propose that this section be deleted. As the House knows, this section was intended to replace section 62 of the Courts of Justice Act, 1936, which empowers the Attorney General to direct that a person charged with an indictable offence be sent forward for trial, where a district justice decides not to send him forward. At the time of drafting of this section this matter was before the Courts, and the President of the High Court took a certain view, a view opposed to the section in the 1936 Act. This view was overruled by the Supreme Court. At the time I thought it might be appropriate to provide, as we have here:

Where a justice of the District Court decides not to send a person forward for trial the High Court, on the application of the Attorney General may, after consideration of the documents required to be supplied to the accused..................... direct that he be sent forward for trial..........................................

In other words we sought to, if you like, amend the powers of the Attorney General under the 1936 Act by providing that in order to send an accused forward for trial, where the district justice had refused informations, he would have to seek a High Court order. That sounds very well in theory but, now that the Supreme Court have said that the procedure under the 1936 Act is valid and constitutional, I have considered the matter in greater depth. This power has been used very sparingly and has stood the test of 31 years. One can, in fact, envisage quite a large number of cases where it operates in ease of the accused. Where, for instance, the Attorney General takes a certain view of the district justice's ruling and decides to send the accused forward for trial, the accused is not in any way prejudiced, whereas if the matter is brought out in the open before a High Court hearing and the High Court judge decides not to send him forward, there is a complete re-airing of the matter. While, theoretically, I was attracted to the section at first, I have since come round to the point of view that it is better to leave things as they are, particularly in view of the endorsement of the constitutionality of section 62 of the 1936 Act by the Supreme Court. That is why I propose to move here that the section be deleted.

Question put and declared lost.
Section 11 deleted.
SECTION 12.

We might, perhaps, take with amendment No. 32, amendment No. 33, which is consequential.

I move amendment No. 32.

In subsection (1), page 6, line 26, to delete "Where" and substitute "Where, on the application of the prosecutor or an accused person,".

This is essentially a drafting amendment; it indicates that the initiative in regard to having a deposition taken under the section must come either from the prosecution or the defence. It merely re-states the obvious.

Amendment agreed to.

I move amendment No. 33:

In subsection (1), page 6, line 28, to delete "an accused person" and substitute "the accused".

Amendment agreed to.

I move amendment No. 34:

In page 6, line 33, to delete subsection (3) and substitute—

"( ) Before the deposition is taken, the justice shall inform the accused of the circumstances in which it may be read as evidence at his trial.

( ) The deponent may be cross-examined and re-examined on his evidence.

( ) The justice shall have the same powers for enforcing compliance with this section by a prospective witness and for securing the attendance of the accused as the District Court has in relation to witnesses in criminal proceedings.

( ) Where the accused has been sent forward for trial the right of application given to the prosecutor by subsection (1) shall be exercisable by, and only by, the Attorney General."

The purpose of this amendment is to ensure that the accused will be fully aware of the fact that the witness may very likely not be present at the trial, through illness, absence from the country or other good reason, and that he will be put on notice that this may be the only opportunity he will have to test the witness by cross-examination. A typical example of what I have in mind is the case of a foreign doctor who may have examined persons injured in a road accident but who has now gone abroad. He would be a vital witness in a road accident case. That is just an example that comes to my mind. I think it is only right that the accused himself should be made aware of the fact by the justice, at the preliminary examination stage, that he has this right of cross-examination. It is important that the accused be informed to that effect in relation to a witness, where it is likely that he will not have an opportunity of cross-examination, later, for instance, in the event of the witness going abroad before the trial.

Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.

An Leas Cheann Comhairle

Perhaps we could take amendment No. 36 with amendment No. 35.

I move amendment No. 35:

In page 6, lines 37 and 38, to delete paragraph (a) and substitute:

"(a) the deponent is dead or unable to attend or prevented from attending to give evidence at the trial, and".

In its original form, section 13 did not make provision for the reading as evidence at the trial of a deposition taken under section 12 from a person who could not subsequently attend the trial, because, for instance, he had left the country in the meantime. This amendment rectifies that omission by providing for the reading of the deposition where the deponent is unable to attend the trial for any sufficient reason. It will be observed, however, that under paragraph (b) of the next amendment, the trial judge must be satisfied that it is in the interest of justice to read it. I think that is reasonable.

I am not at all keen on this amendment. The section, as it stood, provided that if the deponent was dead, or was so ill or incapacitated as to be unable to attend the trial—in those circumstances only —the deposition could be put into evidence. That was clear and concrete and everyone knew what it meant, but the Minister is suggesting now that instead of the phrase—"or so ill or incapacitated as to be unable to attend the trial", we should enact that the deposition can be used as evidence where the deponent is unable to attend or prevented from attending to give evidence at the trial.

I appreciate the argument the Minister has made that there are cases, because of absence abroad and that kind of thing, in which it will not be convenient for the witness to attend, but, in fact, it is possible to bring a witness back, to secure the attendance of the witness and the Minister will appreciate—as we have already discussed in another amendment—the particular procedure whereby the State can ensure that the witness will remain here in order to give evidence. I have no objection at all to a state of affairs whereby the deposition can be used as evidence, if the witness is genuinely unable to attend because he is ill or incapacitated—that is quite proper; we are getting, in effect, the best evidence that can be obtained. If we are to leave in as open and as general a phrase as the Minister uses in his amendment, while I know what the Minister has in mind, and while the House knows what he has in mind, in fact what is being done here could be used to excuse a witness from attending to give evidence on the flimsiest of excuses, that because he wants to make money at a race meeting or something else, he is unable to attend and a deposition can be used. I know the Minister does not intend that.

I have said this so often in the House that I am rather tired of hearing myself say it, but what matters is what goes into an Act, not what the Minister or any Deputy says about it. If we say here that a deposition may be used in evidence if a deponent is unable to attend simpliciter, any excuse may be accepted as sufficient for a witness being unable to attend. “If he is prevented from attending”—by whom? By what? In what circumstances? Will it be sufficient that he is prevented because he has another engagement? The Minister is not improving the section by suggesting this amendment. I know what he has in mind and I sympathise with him. I agree with his line of reasoning. What I am objecting to is the way in which it is worded. It is far too general and is likely to create great dangers.

A witness summons will have been issued. A witness cannot just ignore that by making a purely personal excuse that he wants to be somewhere else. He will have to satisfy the court that he cannot be there.

I think the point which is worrying Deputy O'Higgins is met by amendment No. 36, to which he might advert. It is proposed that a deposition taken under section 6 on the application of the prosecutor shall not be read unless the accused consents. Furthermore, it is proposed in amendment No. 36 that a deposition taken under section 12 shall not be read if the trial judge considers that to do so would not be in the interests of justice. I think that meets the point made by Deputy O'Higgins, which I appreciate.

The first thing the Minister mentioned was there already in section 13 which the Minister is deleting and putting in another subsection. It provided that a deposition could be used only with the consent of the accused, except in the event of the deponent's death. The Minister need not be misled by what I said earlier. I was talking then from the point of view of a defence lawyer. I am now looking at it from the point of view of the State as well.

It cuts both ways.

If the Minister thinks this is protected in amendment No. 36, I will not press it, but I think it leaves it very wide. One could understand it where it was pinned to illness or ill health.

So long as we circumscribe it sufficiently, I think it is proper that we should allow the deposition of a person who is unable to attend. A person could be in France or Germany. There could be the case of a foreign doctor. A Singalese or Pakistani could disappear and we might want some essential evidence. It is no harm to have it in, providing it is sufficiently circumscribed. I think this is ensured in the following amendment, which provides that a deposition shall not be read if the trial judge considers that to do so would not be in the interests of justice. That is sufficient safeguard.

It seems to me that from the State's point of view, it will leave the position very weak. It seems to me that this amendment is an invitation to witnesses to put up excuses.

They cannot under the new section 8 which we have passed in amendment No. 20.

That section applies only where an application is made by the Attorney General who has reason to believe, from evidence given on oath, that a witness may not turn up. Supposing that application is not made?

"The justice shall ... make an order ... in respect of each person whose statement of evidence has been supplied or whose deposition has been taken ... requiring him to attend ...." A witness will be ordered by a witness order to be there, and if he fails, he has to satisfy the court as to why he failed.

Deputy O'Higgins is worried that the State may not be able to get the person who disappears for no reason, but the witness summons procedure covers that.

Amendment No. 20 deals with the question of a person who is guilty of contempt of court because without just excuse, he disobeys a witness summons. Presumably a person who puts forward the excuse that he wants to go on his holidays in August will regard that as a just excuse. I think we are opening the door too wide.

There is something in what Deputy O'Higgins says, but we had had a number of Road Traffic Act cases in recent years which involved some Eastern doctors of whom we have a number in our county hospitals. They disappeared and their evidence could not be obtained. Because of that, a number of Road Traffic Act cases fell to the ground.

That does not really advance it because, as the Minister pointed out, in any event, you require the consent of the accused before a deposition can be used as evidence.

No, not the consent. The accused is warned about it at the deposition stage.

Look at the next amendment, amendment No. 36 (2) (a).

The Deputy is back to a different type of case now. This does not include a list of witnesses. It is a separate type of case.

A section 6 case is different from a section 12 case. Section 12 deals with a person who clears out of the country and in section 12, it is not the consent of the accused that is required. It is left to the discretion of the judge.

That is right. There are two distinctions there. I appreciate the point that we may be weakening our existing summons procedure in regard to people at home. I will have a look at it between now and Report Stage.

Amendment agreed to.

I move amendment No. 36:

In page 6, lines 43 and 44, to delete subsection (2), and substitute:

"(2) Except in the case of the deponent's death—

(a) a deposition taken under section 6 on the application of the prosecutor shall not be read unless the accused consents;

(b) a deposition taken under section 12 shall not be read if the trial judge considers that to do so would not be in the interests of justice."

Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.

Before Deputy O'Higgins starts, may I say that I am going to meet him in a more drastic way than he perhaps expects? We are going to delete the section altogether.

This amendment of mine is rendered unnecessary.

Amendment No. 37 not moved.
Question proposed: "That section 14 stand part of the Bill."
Question put and declared lost.
Section 14 deleted.
SECTION 15.

Amendment No. 38 and five other amendments grouped with it are consequential on the deletion of section 11. Perhaps the House will agree to take amendments Nos. 38, 39, 40, 41, 42 and 43 together.

These are all consequential on the deletion of section 11. I move amendment No. 38:

In subsection (1), page 7, lines 12 and 13, to delete "and on application under section 11".

Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.

I move amendment No. 39:

In subsection (1), page 7, lines 25 and 26, to delete "or application under section 11".

Amendment agreed to.

I move amendment No. 40:

In subsection (1), page 7, line 27, to delete "or application".

Amendment agreed to.

I move amendment No. 41:

In subsection (2), page 7, lines 29 to 31, to delete paragraph (a).

Amendment agreed to.

I move amendment No. 42:

In subsection (2) (b), page 7, lines 34 and 35, to delete "in relation to a preliminary examination".

Amendment agreed to.

I move amendment No. 43:

In subsection (3) page 7, lines 45 and 46, to delete "the judge or justice before whom the proceedings are brought" and substitute "the justice by whom the preliminary examination was conducted".

Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.

I move amendment No. 44:

In page 7, lines 50 to 52 to delete from "facts or" to "Part" and substitute "any of the documents (including any depositions and any statement taken under section 6) and exhibits considered by the justice at the preliminary examination".

In its original form, this section would have permitted the inclusion in the indictment of charges founded solely upon documents served, pursuant to section 8, subsequent to the preliminary examination. This amendment will ensure that any charges added to the indictment after the conclusion of the preliminary examination will be based on the evidence contained in the documents and exhibits which were considered by the justice in arriving at his decision to send the accused forward for trial. This is in accordance with the existing law which it is not desired to change in this regard.

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.

I move amendment No. 45:

In subsection (2), page 8, lines 12 to 16, to delete paragraphs (a) and (b) and substitute:

"( ) by the deletion, at reference number 8, of all the words after ‘the Larceny Act, 1861', by the deletion, at reference number 14, of ‘sections 25, 26 or 27 of' and by the deletion of reference number 15;".

Paragraph (a) of section 18 (2) proposes to increase from £50 to £100 the monetary limit in offences under the Larceny Act, 1861, and under certain provisions of the Larceny Act of 1916, provided the amount involved is £100 or under, the offence will be triable as a summary offence in the District Court, if that court is of opinion that it is a minor offence and if the accused does not object to summary trial. The present limit of £50 is contained in the Criminal Justice Act of 1951, the First Schedule to which lists a number of indictable offences that may be dealt with summarily. In only two cases is there a monetary limit. I fail to understand why these two cases are singled out. The seriousness of a larceny offence, or any other criminal offence for that matter, cannot be determined by the amount of money involved. Indeed, to use a monetary standard at all is most unreal. Whether or not an offence is a minor offence must be determined, having regard to all the circumstances of a particular offence. The District Court is entitled under the Constitution to try minor offences. Then we have the Criminal Justice Act, 1951, and under section 2 (2) of that Act, the court must be of opinion that the scheduled offence is a minor offence and the accused has the right to object to summary trial where he wishes to be tried before a jury.

Far more serious offences than larceny are triable under the 1951 Act. Forgery and serious bodily assault are examples. Furthermore, quite grave offences under the Larceny Act of 1916 are triable summarily, regardless of the monetary value of the property involved. For instance burglary and housebreaking, for which heavy maximum sentences may be imposed, can be tried summarily. There seems no reason whatever why we should persist with monetary limits in the two cases in question here. The criterion should be the nature of the actual offence charged. The mere fact that a man steals, say, £5, should not itself make the offence a minor offence. Such a theft from a poor woman would be far graver than a theft from a wealthy person. Again, the stealing of £200 could, in a number of conceivable circumstances be a minor offence. It all depends on the facts of the individual case.

We are in no way bound to follow what was done in 1951 when the problem of minor offences does not appear to have received all the consideration it deserved. I cannot see any reason why we should have what I might call a legal means test for larceny cases. What I propose is that reference No. 8 in the First Schedule to the 1951 Act should refer simply to "an offence under the Larceny Act, 1861" and that reference No. 14 should refer simply to "an offence under the Larceny Act, 1916". The deletion of reference No. 15 follows in consequence.

Incidentally, my amendment will avoid the necessity for periodic revision of the 1951 Act to take account of changing money values. Further, it will ensure that each minor offence will stand, as it were, on its own feet and will be considered by the District Court, having regard to all the facts involved. I urge the Minister to accept the Amendment.

Deputy Dunne has brought to light an anomaly which does exist and which we were considering in connection with the future Criminal Justice Bill which I hope to have before the House in the new year. However, as he has introduced it now, it can be incorporated in the present measure as it is set out in the amendment. I agree that there is no reason why, as he states, the Larceny Act in particular, should be distinguished in the schedule to the Criminal Justice Act, 1951, from other statutes dealing with more serious crimes. Under the 1951 Act the larceny of more than £50, is automatically indictable and thereby entitles a person to trial by jury, whereas, more serious offences, such as offences against the person, forgery offences and offences against the various statutes listed could be far more serious. This is especially the case when one considers that under the 1951 Act a person has the right to opt for trial by jury, if he wishes.

In effect, what Deputy Dunne suggests is that in any case involving more than £50 under the Larceny Act or more than £100 as proposed in this Bill, where the justice considers on the merits that it is a minor offence, it will be in the same category as offences under the other statutes mentioned. The justice may, if the accused agrees, try the case summarily and thereby save the accused the expense of trial by jury. On the other hand the accused may, under Deputy Dunne's amendment, opt for trial by jury under the provisions of the Criminal Justice Act, 1951. I think there is a lot of sense in the amendment. It puts larceny offences in the same context as offences against other statutes set out in the First Schedule to the 1951 Act and makes no distinction in regard to money values which was a factor heretofore. I can accept the Deputy's amendment as drafted.

I completely agree. Deputy Dunne has raised an interesting point of principle here, although it is not strictly within the terms of this section. The Minister should also look in future legislation on the principle, or the alternative, of applying compensation instead of fines or prison sentences. I know I am going completely out of order, a Cheann Comhairle, but in the whole context of these Acts, the same principle should apply.

This is a matter with which I am in complete agreement and which we are considering in the context of the Criminal Justice Bill which is being drafted at the moment and which will be introduced next year. The whole question of compensation, instead of the imposition of a fine, is being considered.

Amendment put and agreed to.
Section 18, as amended, agreed to.
SECTION 19.

I move amendment No. 46:

In page 8, lines 28 to 36, to delete subsection (1) and substitute:

"(1) Where the District Court remands a person charged with an offence or sends him forward for trial or sentence, the Court may—

(a) commit him to prison or other lawful custody, or

(b) release him conditionally on his entering into a recognisance, with or without sureties.

In this Part, references to "custody" are to a committal under paragraph (a) and references to "bail" are to a conditional release under paragraph (b)."

Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.

Perhaps we could take amendments Nos. 48 and 49 with Amendment No. 47.

I move amendment No. 47:

In page 9, lines 1 to 8, to delete subsection (1) and substitute:

"(1) Where a person is remanded on bail under section 19 the recognisance shall be conditioned for his appearance before the Court at the end of the period of remand and at every place and time to which during the course of the proceedings the hearing may be adjourned."

It has been represented to me by members of the legal profession — and indeed I would like to take this opportunity of thanking people outside the House for the help they have given me on this Bill—that all bail should be continuing bail so as to take into account the possibility of adjournment from time to time. This amendment is designed to do this.

Amendment agreed to.

I move amendment No. 48:

In subsection (2), page 9, lines 9 and 10, to delete "Where the recognisance is conditioned as provided in subsection (1) (a) (ii),".

Amendment put and agreed to.
SECTION 21.

I move amendment No. 49:

In page 9, lines 29 to 37, to delete subsections (5) and (6).

Amendment agreed to.

I move amendment No. 50:

To add to the section a new subsection as follows:

"( ) Where there is no sitting of the Court on the day to which a person is remanded, he shall stand remanded to the sitting of the Court next held in the same district court district."

The purpose of the amendment is to make provision for the possibility of the sitting of a court not taking place on the day to which the accused person has been remanded, due to the illness of a justice or for some other reason. The amendment provides that where there is no sitting of the court on the day to which a person is remanded, he will be remanded to the sitting of the court next held in the same district court district.

I agree with the spirit of the amendment but it does contain some dangers. Could the Minister take another look at it between now and Report Stage? It could be that the date before the next sitting of the court would be too long. It is reasonable if the adjournment is to be only for a week or two, but if it were to run into months, it would be far too long.

There is no likelihood of the adjournment being too long. It can only be to the sitting of the court next held in the district court district.

That is going to depend on a number of factors, such as the size of the district, the number of justices available and the number of sittings normally held in the district. I agree with the spirit of the amendment but, at the same time, I would like the Minister to have another look at it between now and Report Stage and satisfy himself that the adjournment will not be too long. Taking the Minister's example, the illness of a justice, that could last for a long time.

We have that fairly well arranged administratively. Another justice is assigned to the work.

I can only speak from a personal knowledge of the city and surrounding districts and I do not think that any particular danger arises there.

It would require a positive conspiracy to bring about the circumstances in the mind of the Deputy.

There is a danger, but we can arrange administratively for another justice to take over. However, I will have another look at it.

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.

I move amendment No. 51:

In subsection (1), page 9, line 39, to delete "three" and substitute "four".

The same idea as has operated in the mind of Deputy O'Higgins in the case of the previous amendment might also operate with regard to this, which is designed to ensure better administration. It has been suggested to me that the period for which a person should remain in Garda custody should be extended from three to four days in order to cover long weekends and bank holidays when the court would not be sitting. That is the maximum period.

Amendment agreed to.
Section 22, as amended, agreed to.
NEW SECTION.

I move amendment No. 52:

Before section 23 to insert a new section as follows:

"Where a justice of the District Court or peace commissioner decides to admit to bail a person charged with an offence, he may direct that a sum of money equivalent to the amount of bail be accepted in lieu of a surety or sureties."

This amendment arises out of the debate on Second Reading. It gives specific permission to the justice or peace commissioner to order the handing over to the court of any money which has been received in lieu of a surety or sureties.

The amendment goes a lot further than was suggested during Second Reading. The section, as it was, applied only where a person had no fixed abode or was resident outside the State. This amendment makes the acceptance of a deposit in lieu of sureties of general application, irrespective of where a person resides. I am not objecting on that point, but I wish to point out that it goes much further than an amendment of the technical flaw referred to.

We feel that it is desirable that this money should go into court.

Amendment agreed to.
Section 23 deleted.
Section 24 agreed to.
Section 25 deleted.
SECTION 26.

I move amendment No. 53:

In subsection (4), page 10, line 15, to delete "amount of bail fixed" and substitute "bail".

The purpose of this amendment is to allow for an appeal for reasons other than the amount of the bail. The amendment enables a person, for instance, to appeal against the number of sureties required.

I think that is reasonable.

Amendment agreed to.

I move amendment No. 54:

In page 10, lines 32 to 43, to delete subsection (7).

I think we could take amendment No. 59 in conjunction with this. The main object of the change is to bring the existing context into line with the relevant provisions of the District Court Rules. There is no change in substance.

Amendment agreed to.

I move amendment No. 55:

In subsection (8), page 10, line 45, after "shall" to insert ", on completion of the recognisance,".

This is a drafting amendment, which I think improves the section.

Amendment agreed to.
Section 26, as amended, agreed to.
SECTION 27.

I move amendment No. 56:

In subsection (3), page 11, line 17, to delete "prosecution" and substitute "prosecutor".

Amendment agreed to.
Section 27, as amended, agreed to.
Section 28 agreed to.
SECTION 29.

I move amendment No. 57:

In subsection (3), page 11, lines 47 and 48, to delete "Where the person in custody is of no fixed abode or is not resident in the State".

This is bringing it into line?

Amendment agreed to.
Section 29, as amended, agreed to.
NEW SECTIONS.

I move amendment No. 58:

In page 12, after section 29, but in Part III, to insert a new section as follows:

"Where a person has failed to appear before a court in accordance with his recognisance, any proceedings to estreat the recognisance shall be taken in that court."

It has been suggested to me that there is some uncertainty at present as to the procedure for the recovery of monies due on estreated recognisances, particularly, as to what court has jurisdiction to order the recovery of the monies due. With a view to removing any doubts that might exist in regard to this matter, I have had this section drafted for inclusion in the Bill to make it clear that an application to estreat a recognisance should be made to the court before which the accused person has failed to appear.

Amendment agreed to.

I move amendment No. 59:

In page 12, after section 29, but in Part III, to insert a new section as follows:

(1) Where a person charged with an offence has been admitted to bail, a justice of the District Court or a peace commissioner may, if he thinks fit, on the application of the surety or any of the sureties of the accused or of a member of the Garda Síochána and upon information being made in writing and on oath by or on behalf of such surety or member that the accused is about to abscond for the purpose of evading justice, issue a warrant for the arrest of the accused.

(2) When arrested he shall be brought before a justice of the District Court or a peace commissioner.

(3) If the accused is brought before a peace commissioner or is brought before a justice otherwise than at a sitting of the Court for the district in which the order sending him forward for trial was made or, if he is on remand, of the Court before which he was bound by his recognisance to appear, the justice or peace commissioner shall remand him in custody to appear, within the period for which a remand in custody may be made, before such a sitting as aforesaid.

(4) The Court sitting as aforesaid may commit the accused to prison to await his trial or until he enters into a fresh recognisance or, if he is on remand, further remand him.

This has been discussed with amendment No. 54.

Amendment agreed to.

I move amendment No. 60:

In page 12, after section 29, in a new Part IV entitled "Miscellaneous", to insert a new section as follows:

(1) Where, on a question of law, a verdict in favour of an accused person is found by direction of the trial judge, the Attorney General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination.

(2) The statement of the question to be referred to the Supreme Court shall be settled by the Attorney General after consultation with the judge by whom the direction was given and shall include any observations which the judge may wish to add.

(3) The Supreme Court shall assign counsel to argue in support of the decision.

This new section, which I propose should be added to the Bill, will enable the Attorney General to obtain from the Supreme Court, by way of case stated, a final determination of the law in a case where, in the opinon of the Attorney General, a trial judge was wrong in law in directing the jury to return a verdict in favour of the accused. The determination of the point of law by the Supreme Court will not prejudice in any way the decision of the trial judge in favour of the accused person. Provision is made for the trial judge to be consulted by the Attorney General when the statement of case is being drawn up and for his observations to be included in it. Subsection (3) provides that the Supreme Court shall assign counsel to argue in support of the decision and the Attorney General will, of course, assign counsel to argue his point of view.

At present where a trial judge directs a jury to discharge an accused person on a point of law there is no means of having the matter reviewed by a Superior Court even though there may be considerable doubt as to whether the judge's interpretation of the law was the correct one. Not alone does the accused person go free but the direction remains as a precedent for subsequent cases even though the Supreme Court would, if the matter could be submitted to it, rule differently.

I think the principle underlying this section could, with advantage, be extended to enable decisions in favour of the accused by, say, the Court of Criminal Appeal or by the High Court in habeas corpus proceedings on a point of law to be referred to the Supreme Court for final determination. However, such an extension would be beyond the scope of the present Bill and the method of reference by way of case stated would not, I think, be the most appropriate. I am having the question examined with a view to including a suitable provision in a Criminal Justice Bill which is now in course of preparation.

This is very desirable. At the moment cases stated are limited to an appeal by way of case stated and a consultative case stated from the District Court. Here we are dealing with the situation where a case stated may be necessary in order to establish a proper precedent and where the Supreme Court may not under existing legislation review the position. It is desirable that the Supreme Court should be able to determine the rights and wrongs of the trial judge's decision without prejudice to his decision in favour of the accused person.

Irrespective of the decision of the Supreme Court, the verdict would not be affected?

There is an aspect of this which I should like to draw to the Minister's attention. We are introducing here — I am not sure whether it is anywhere else—what in a sense is a novel provision in our jurisprudence. We are asking the Supreme Court to determine the law in advance. We are here going into territory that could very profitably be considered by the Committee which is considering the Constitution. Again I was talking off the cuff. I have not studied this, but as far as I know, this is a new principle. In our jurisprudence we have the common law; grafted upon that common law is our statute law and, in our case, overriding all is the Constitution to which all our law is related.

Should be related.

We shall assume that to be what should be. We have a system whereby such a situation as the Minister envisages is dealt with by the Legislature. The normal procedure in criminal or civil cases would be to introduce amending legislation, and the function of the courts, in the tradition of our jurisprudence, is to decide cases in the concrete, not in the abstract. If that verbiage seems a little confused, let me put it this way: our courts, in our tradition, decide particular cases. When the courts decide a particular case, they set a precedent which will be followed, and the lawyers read into that certain principles. The fact remains that it is the function of the courts to decide these particular cases in accordance with the law. It is the function of the Legislature to make the law.

I do not want to oppose the Minister in this, but I am, as many other Deputies may be, taken somewhat by surprise by the depth of it. I would be constrained to press the Minister if this Committee were not sitting, and it is to this body I want to address the importance of the point involved here. We are now asking the Supreme Court to legislate, in effect, where normally a Bill would be enacted here which would be fully subject to the Constitution. The Supreme Court are being asked to legislate without appeal. Where is the constitutional safeguard? I am not in any way impeaching the various bodies involved in this, but we are putting the Supreme Court in the anomalous position that it has to decide, so to speak, the constitutionality of its own legislation.

I am not raising this in relation to the particular point here. I can understand it perfectly, but in making the analogy with a case stated, if the Minister will allow me, I want to point out a vital distinction. Our courts know the process of case stated. It usually occurs like this: there is a case in the lower court which comes in the normal way to appeal. The trial judge decides it, but there may be a point of law and one side or the other decides to have a case stated to the Supreme Court. So far, so good for the analogy, but, remember, when that is done, that rules the case. Remember, the Supreme Court does no more than try a concrete case. It is not legislation, and the case is decided by this. In regard to this new principle which the Minister is introducing, it cannot, and we are all with him in this, affect the interests of the accused. The Attorney General cannot appeal that way to secure a conviction.

But the effect of this procedure is much broader than what the Minister has introduced here. I would like to ask the Minister why we have to do this and not do what has been done in the past. I myself have appeared in cases, when I was practising, in which a decision was got. I recall one case in particular: it was not on the criminal side. The normal procedure was adopted. The necessary amending legislation was there to close the gap. I know the administrative mind will say that takes time. The administrative mind will further say that the constitutionality of that legislation will be questioned. Why not cut the whole thing out and give it to the Supreme Court, in the first instance? It is precisely there that the danger of cutting across our whole constitutional setup is to be found.

Because this Committee to examine our constitutional position is sitting and because we have a system of courts here second to none, with a very fine tradition and with the complete confidence of the community, I would not go so far in the House as to oppose the Minister. I do not oppose this, but I do wish to go on the general principle and, as a Deputy, to bring to the notice of that Committee, the other organs of State and the court concerned the dangers involved. That may not be the correct word. A decision may be taken in modern life to change our traditional pattern. I do say there are vital changes inherent and implied in a procedure of this nature, and with that I will be content. In the particular circumstances, I do not wish to oppose the Minister. This goes beyond the Minister's Department.

I want to reassure the House that there is no question of the Supreme Court legislating. This is merely an extension of the case stated procedure from the District Court to the High Court and, on appeal, to the Supreme Court. It is a translation of that procedure to the case where the trial judge has made an order releasing a prisoner and it is desirable that the Supreme Court should review the decision. The Attorney General is then empowered to refer to them a case stated for their examination. This is merely a translation of the existing case stated procedure to a case decided by a trial judge.

I want to emphasise again that this in no way prejudices the verdict of the trial court. If the prisoner is released by the judge or jury in the trial court, that prisoner goes free. But the interest in this matter is not merely administrative. A considerable number of members of the legal profession have represented to me that it is illogical in a case of this kind, where a bad point of law has been made by the trial judge, that a precedent should be established which future judges may feel bound to follow. Without prejudice to the accused person, who is allowed to go free however wrong the trial judge may have been, the verdict stands. This is proper and basic to our system of jurisprudence.

I am suggesting that it is entirely reasonable that once the verdict has been disposed of and the accused has gone free, the Attorney General should have the right to consult the Supreme Court by way of case stated on the question of whether or not the trial judge misdirected himself in law on some aspects of the case during the hearing. I do not think that is an extraordinary thing to suggest. It is merely a translation of the existing system of case stated in the District Court, which has operated very successfully over the years, to the higher courts. I think, when it is considered by Deputies that it will be welcomed.

I want to make quite clear that this is an extension, the word the Minister used. The reasonableness of what the Minister wishes to do can be understood, but it is an extension. The very fact that it does not affect the trial concerned is an innovation. But the fact remains that in our system it is taking over what heretofore would normally have been the functions of the Legislature.

Lastly, there is a very vital distinction from the ordinary case stated procedure. The Minister's analogy breaks down completely by reason of the fact that the ordinary case stated procedure determines the case. This case stated procedure does not determine the case but is, in effect, legislation. I am open to argument on all this. I merely want to ensure that the principle I have tried to underline is considered. That is the important thing.

If I thought Deputy de Valera correct in thinking that the Minister is undermining the Constitution, I would be all with him. But it seems to me it is not quite that. Deputy De Valera refers to the decision of the Supreme Court in these circumstances amounting to legislation.

Surely it does?

I do not think it does. I think what the Supreme Court are going to be called on to do here is to interpret the legislation already there. They are only going to be asked to give their decision on a point of law. They are not asked to create law. They must give their decision in accordance with the legislation which this House has passed. This brings me back to the point I raised earlier. Their only function is to interpret the words that appear in the Act of Parliament.

That is right.

They are not entitled to put new words in it or to subtract words from it. If I am right in that, I do not see the dangers Deputy de Valera sees. But, if he feels those dangers exist, I think this could be reviewed on Report.

I merely wanted to put this aspect of the situation. I know the Minister certainly has no intention of doing anything here. I have gone to some pains—and perhaps exaggerated a little—to emphasise a point of view. Lastly, I might add as a makeweight that I understand the Supreme Court decided recently it is not bound by its own decisions anyway. So, where do you get? If the Supreme Court is not bound by its own decisions——

That seems to be reasonable.

Very reasonable.

If a court makes a wrong decision, it should be entitled to correct it.

The important point here is that the Supreme Court keeps itself free to deal with cases as they arise. It keeps itself free to fulfil its obligations under the Constitution, and do that from case to case. Again, I am back to this objection of what I might call dealing with the thing in the abstract rather than the concrete, from the point of view of the Supreme Court. Far be it from me to say how the Supreme Court should operate.

It is not quite in the abstract here, surely? There is a case.

There is the point of the Attorney General going to get a ruling he will apply in other cases. It becomes a ruling to be applied to the whole lot. It is still in the abstract in a particular case.

Why am I making the Minister's case?

Deputy O'Higgins and the Minister have a point. I am pleading a particular point of view. I want to do so because I think it of great importance for the community. I understand the Supreme Court has affirmed that it holds itself free. I would say that we here, as the Legislature, find it a good principle. It keeps itself free to give justice in every single case that appears before it. If the Supreme Court is free on that point, what exactly is being gained by this case stated? I do not want to labour the point at this hour: we could argue it for quite some time. Again, let me say that I merely wanted to bring this point of view to the attention of the people who are involved in such matters. I do not wish to oppose this amendment.

Amendment agreed to.

I move amendment No. 61:

In page 12, after section 29, in a new Part IV entitled "Miscellaneous", to insert a new section as follows:

(1) For the purposes of Part III of the Extradition Act, 1965—

(a) an offence punishable under the law of Scotland by death or by imprisonment for a maximum period of at least six months shall be treated as being an indictable offence and not also a summary offence if it is certified by a Procurator Fiscal that the offence is an indictable offence so punishable and that it will not be prosecuted summarily, and

(b) an offence punishable under the said law by such imprisonment shall be treated as being a summary offence if it is certified, as aforesaid, that it will be prosecuted summarily and that it is so punishable.

(2) A certificate appearing to be given by a Procurator Fiscal may without further evidence—

(a) be accepted by the Commissioner of the Garda Síochána,

(b) be admitted in any proceedings, unless the court sees good reason to the contrary,

as evidence of the matters so certified.

(3) In this section "Procurator Fiscal" includes a Depute.

(4) This section shall be construed as one with Part III of the Extradition Act, 1965.

This amendment and amendment No. 62 are designed to remove purely procedural difficulties which the Scottish and Channel Islands authorities have encountered in the practical operation of Part III of the Extradition Act, 1965. This Act provides for the enforcement in this country of British and Northern Ireland warrants of arrest for indictable offences and for summary offences which carry a maximum penalty of at least six months' imprisonment. Reciprocal arrangements exist in Britain and Northern Ireland, also under an Act of 1965, for the enforcement of our warrants, and both Acts make provision for various documents to accompany warrants, including a certificate as to whether the offence is triable on indictment or summarily. These amendments are designed to remove technical difficulties which have arisen for the Scottish and Channel Islands authorities in giving a certificate in the precise terms required by our Act. These difficulties stem from the somewhat different systems of legal procedure in these jurisdictions.

Amendment agreed to.

I move amendment No. 62:

In page 12, after section 29, in a new Part IV entitled "Miscellaneous" to insert a new section as follows:

(1) This section applies in relation to the Channel Islands, namely Jersey and the Bailiwick of Guernsey.

(2) For the purposes of Part III of the Extradition Act, 1965, an offence punishable under the law of Jersey or of any part of the Bailiwick of Guernsey by death or by imprisonment for a maximum period of at least six months shall be treated as being an indictable offence and so also a summary offence if it is certified by the Attorney General for Jersey or Guernsey, as the case may be, that the offence is an indictable offence and that it is punishable by death or by such imprisonment.

(3) A certificate appearing to be given by the appropriate Attorney General may without further evidence—

(a) be accepted by the Commissioner of the Garda Síochána,

(b) be admitted in any proceedings, unless the court sees good reason to the contrary,

as evidence of the matters so certified.

(4) In this section "Attorney General" includes a person for the time being exercising the functions of that office.

(5) This section shall be construed as one with Part III of the Extradition Act, 1965.

Amendment agreed to.
SCHEDULE.

I move amendment ment No. 63:

In page 12, in the third column of the Schedule, at the reference to the Indictable Offences (Ireland) Act, 1849, to delete "sections 17 to 19, 21 to 25 and 27" and substitute "In section 16, the words ‘within the Jurisdiction of such Justice', and ‘for the Prosecution'.

Sections 17 to 25 and 27."

We took this amendment, and the next amendment, with amendments Nos. 20 and 21.

Amendment agreed to.

I move amendment No. 64:

In page 12, in the third column of the Schedule, at the reference to the Petty Sessions (Ireland) Act, 1851, to delete "sections 9 (2), 14, 15, 16, 17 and 19" and substitute "section 9 (2).

In section 13 the words ‘within the Jurisdiction of such Justice' and ‘for the Prosecution'.

Sections 13.6, 14 to 17 and 19."

Amendment agreed to.

I move amendment No. 65:

In page 12, in the third column of the Schedule, at the reference to the Courts of Justice Act, 1936, to delete "section 62" and substitute: "In section 62, the words ‘to receive informations in relation to such charge or'".

Section 11 of the Bill was intended to replace section 62 of the Courts of Justice Act, 1936. Now that section 11 has been deleted, it is necessary to retain section 62 of the 1936 Act. However, the phrase "to receive informations in relation to such charge or", which appears in that section is being deleted on the ground that it is no longer appropriate.

Amendment agreed to.
Schedule, as amended, agreed to.
TITLE.

I move amendment No. 66:

In page 3, line 5, after "Act" to insert "to establish a new procedure for the preliminary examination of indictable offences and for this and other purposes".

The purpose of this amendment is to make the Long Title of the Bill more explanatory of its content.

Amendment agreed to.

Pursuant to Standing Order 96 (3), I have to report specially to the Dáil that the Committee has amended the Title to read as follows:

An Act to establish a new procedure for the preliminary examination of indictable offences and for this and other purposes to amend criminal law and administration.

Bill reported with amendments.

It is a good Bill. I think Deputy O'Higgins and I might join in congratulating the Minister on the work he has done on this Bill.

Report Stage ordered for Wednesday, 8th February, 1967.
The Dáil adjourned at 8.35 p.m. until 10.30 a.m. on Thursday, 15th December, 1966.
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