I made the point that the term "statement" appears in two contexts in the legislation and in each context it is obvious whether the statement is intended to be assertive or nonassertive. I said that Deputy McCartan may have in mind the UK legislation and the Law Reform Commission report, both of which refer to statements contained in documents. There is no terminology such as "statements contained in documents" in this legislation. Instead of the terminology "statements contained in documents" we have substituted the terminology "information contained in documents", and from that point of view Deputy McCartan's amendment is not necessary.
Criminal Evidence Bill, 1992: Committee Stage (Resumed).
Debate resumed on amendment No. 11:
In page 4, subsection (1), between lines 17 and 18, to insert the following: "`statement' includes any oral or written utterance whether or not it is intended to be assertive and any conduct which is intended to be assertive;".
This is not an item on which I will seek to divide the House, but there is need for a more expansive definition in the context of what the Law Reform Commission have proposed and in view of the entirely innovatory concept being introduced here.
What we are talking about is enabling a person to make a response, by gesture, either directly in a court or by transmission on television. That is very important, particularly in the context of traumatic prosecutions, as is the case with sexual offences. The Law Reform Commission have advanced specific wording, which I have sought to include by way of amendment, to expand the definition of the word "statement". For the purposes of the legislation this can also apply in the context of sections 6, 26, 28 and 29, but it will be specifically of value in the context of section 15.
The Minister places emphasis on the concept of information emanating from a statement. I do not know whether that gets to the nub of the problem. Statement, by definition, be it through common sense, dictionary or parsing of the word, is delivered in writing or by word of mouth. We propose to expand that concept to meet with circumstances that can arise in the context of the nature of the proceedings and the way in which the proceedings will be conducted by including a gesture, a signal or a physical reaction as being capable of being interpreted as a "statement". In the context of penal legislation where exactitude is required and inevitably copious argument and counter-argument will be put forward about what was intended in the legislation, it is essential that there be a very succinct definition of the concept of "statement".
I do not believe that paragraph (iv) adequately addresses the issue which is innovatory, almost revolutionary in some respects, and is new in concept in criminal law. Since criminal law demands clarity I would ask the Minister to reflect again on the proposal of the Law Reform Commission. My amendment would not take from the purpose of the legislation or from what the Minister is seeking to do. It would add an element of clarity where perhaps, as the Minister has said, it is not necessary. If it is not necessary, it will cause no harm and if it is necessary, it should be accepted. I suggest that before Report Stage the Minister consider the matter.
There is an amount of good sense in the proposal put forward by Deputy McCartan, in that if videos are viewed in the context of a distressed child who has been subjected to a sexual assault, not merely what is said during the course of an interview but obviously the general appearance of the young person concerned will be viewed. It would be serious if in presenting the video in a legal argument it was suggested that a jury should be able to hear the sound but should not be able to see the gestures or the reactions and, therefore, should not be able to draw conclusions from them.
There are dangers in this proposal also. Deputy McCartan referred earlier to the fact that anatomical dolls may be used in some interviews that take place in this regard. I have tabled an amendment to deal with that issue and I do not want to pre-empt what I am going to say on that amendment. However, the manner in which anatomical dolls have been used in Great Britain and elsewhere as part of an interviewing technique to determine whether or not a young person has been sexually abused has given rise to substantial public controversy and concern. Great concern has been expressed that a child, by simply handling what is known as an anatomically correct doll in a particular way, can indicate whether they have been subjected to some form of abuse. On Second Stage I said that if either of my two children, or indeed any other child I know, was given a naked anatomical doll with all parts in place I would not like to bet too much money as to which part of the doll would be grabbed to lift it up and play with it, and I would not like anyone to reach a conclusion on that basis.
To take the other side of Deputy McCartan's case on his matter, I would be concerned that a jury, untrained in dealing with these areas, might draw entirely incorrect conclusions from the manner in which a child briefly played with an anatomically correct doll. If an interview is video-recorded and is displayed to a jury in a criminal trial, there are two components to be considered. The jury should see what takes place and hear the response or statements made but they should not be expected to draw conclusions from gestures of play from which they are not qualified to draw conclusions. The only people who could properly give some guidance to a jury as to conclusions to be drawn would be qualified child psychiatrists or child psychologists, whose word should not be a final but who, if they had a degree of professional training in these areas, would be able to indicate what conclusions could be drawn from what was observed by everybody, and what were and what were not reasonable conclusions. I am merely raising that issue now and intend to go into it in substantially more detail later on. I raise the issue to point out that just as people may draw conclusions from gestures and play in the context of the appalling offences we are talking about, sexual offences and particularly those against children, there is a possibility that people who do not have specialised training could draw very wrong and dangerous conclusions from observing certain events. There are two sides to the coin and there are worries in this area. Those concerns will be teased out in more detail in the debate on Part III.
With regard to Deputy McCartan's amendment, I suggest to the Minister — if it is not taking too great a liberty to make this suggestion in that it seems to be what Deputy McCartan himself is saying — that he might perhaps give consideration to the statements that have been made about the amendment. Issues of direct relevance to this amendment can be further teased out in the debate on Part III and perhaps we will also return to the matter on Report Stage, when we all may have thought further on the definition and its implications. The provision should be considered not merely in isolation as a definition within a definition section of the Bill but also in the overall context of its implications, particularly in relation to Part III as framed at present.
I note that Deputy Shatter has tabled amendment No. 40, relating to the video-recording of interviews in which anatomical dolls were used as an aid by the interviewer, and that will be dealt with in some detail when we come to the amendment.
If I understood Deputy Shatter correctly, part of what he said made a case against acceptance of Deputy McCartan's amendment. Deputy McCartan's amendment seeks to include the definition of "statement", including any oral or written utterance whether or not it is intended to be assertive and any conduct which is intended to be assertive. Section 15 (4) defines the term "statement" as including any representation of fact, whether in words or otherwise. It seems to me that that definition would include non-assertive statements.
Not conduct.
I take the Deputy's point. It is possible that the definition does not include conduct. Whether or not conduct should be admissible is a matter of debate. From what Deputy Shatter said, I take it that he would not feel happy if conduct were admissible in particular circumstances. Perhaps conduct could be admissible to some extent. I shall bear in mind what Deputy McCartan has said and I shall consider the matter further.
In those circumstances, I withdraw my amendment.
Amendment, by leave, withdrawn.
We now move to amendment No. 12, in the name of the Minister.
For the purposes of discussion, I have no objection to amendment No. 13 being taken with amendment No. 12. It is not an alternative amendment but it is closely related.
I should prefer to have the amendments taken separately. I move amendment No. 12:
In page 4, subsection (3), line 25, before "proceedings" to insert "criminal".
This is purely a drafting amendment. The amendment inserts the word "criminal" before the word "proceedings" in section 2 (3). As presently drafted, section 2 (3) states:
Where in any proceedings the age of a person at any time is material for the purposes of any provision of this Act, his age at that time shall for the purposes of that provision be deemed, unless the contrary is proved, to be or to have been that which appears to the court to be or to have been his age at that time.
In other words, the court is entitled to make an assumption about the person's age. Amendment No. 12 simply seeks to insert the word "criminal" because it is only criminal proceedings that can be instituted for the purposes of this legislation.
The fact that the Minister has seen fit to introduce this amendment highlights the thrust of my objective in the amendments that I had tabled but were ruled out of order. Following the adoption of the Bill we will be left with a very strange position. Normally, the position is that the strength of evidence required in a criminal matter is of a much higher degree than that required in a civil matter. The Bill frees up and introduces new elements in the laws of evidence. It introdues new methods of proofs and new positions that would have been ruled out as insufficient under the law as it stood hitherto, and rightly so, as that is required. However, unless something is done very quickly, we will be left with the ridiculous position that a higher standard of proof and a higher burden of proof will be required in civil proceedings than in criminal proceedings.
I do not know why it was not considered possible to introduce an evidence Bill to allow the new concepts of proof and evidence — video-recordings and television links for witnesses and so on — for civil cases. For the life of me, I do not understand why they could not have been provided for civil cases very simply and appropriately in this Bill. If a witness who is young or mentally handicapped may give evidence in a criminal case through a television link, why should the same facility not be accorded a similar witness in a civil case? Would the Minister say whether there is to be a comparable Bill to cover the position of civil proceedings?
A slip crept into section 2 (3), which is corrected by this amendment, an amendment we accept. After the disposal of criminal proceedings initiated on behalf of an injured child who had been abused it might be desired to bring civil proceedings for damages against the person who assaulted the child. That would be perfectly in order, an action for damages in tort.
However, the degree of evidence required to establish that civil claim for damages would probably not be obtainable as the law stands at present because the new measures, such as video-recordings and television links, being introduced in this Bill for criminal proceedings are not open for civil proceedings. We would be reduced to the ridiculous position whereby the prosecution would be in order and would stand under the new evidential provisions introduced by the Bill but the claim for damages on behalf of the unfortunate assaulted child would fail before it got under way because the new evidential measures would not be appropriate. For example, the provision in section 2 (3) relating to proof of age is a new matter in the law of evidence. Until now the court would not have been able to deem someone to be any particular age. With the enactment of this legislation the courts will now be able to do that in criminal proceedings but will not be able to do that in the mirror image position of civil proceedings. Why should that be the position? There is no rhyme or reason to it. If the Minister can tell the House that it is intended to introduce a measure to update the laws of civil evidence that would be a very welcome announcement. I look forward to the Minister's comments.
I must compliment Deputy Taylor on his ingenuity. He had tabled an amendment to this effect this morning which was ruled out of order but he has managed to get in his spoke anyway, with which I will not quibble. I have a good deal of sympathy with the point of view expressed by Deputy Taylor but this Bill would not be an appropriate vehicle for such an extension. The Law Reform Commission published a report on the rule against hearsay in civil cases in 1988, recommending extensive changes in that rule. It would be desirable to incorporate their recommendations in that respect in a separate Bill. My view is that it would perhaps have been illogical to have proceeded, first, with amendments to the law of evidence in civil cases and then tackle the criminal law. As Deputy Taylor rightly points out, the standard of proof required in criminal cases is much higher, requiring that conviction be sustained only on the basis of undoubted reliability. However, the recommendations on admissibility of business records in criminal proceedings were made first in the report of the Law Reform Commission on stolen property as being required as a matter of urgency. When this Bill is enacted the way will be clear to proceed with updating the law in civil cases in accordance with the commission's proposals.
Amendment agreed to.
I move amendment No. 13:
In page 4, subsection (3), line 26, after "Act" to insert "or any other Act involved in a criminal prosecution".
I was not seeking to be unduly clever in suggesting that this amendment be discussed in the context of the previous one; it struck me that they were closely related. The reason I suggest that there be inserted after the word "Act" the words "or any other Act involved in a criminal prosecution" is that the issue of age and proof of age, as a matter of practice, is not confined to the provisions of this Bill once passed. The issue of age arises particularly when dealing with juvenile offenders in the context of penalty and, once a conviction is entered, how their case is to be disposed of. From years of practice in the courts in Dublin my experience has been that very often defendants have an opportunity to play ducks and drakes with the court, to make great hay out of the inability of the Garda, or of the court, to obtain a birth certificate in regard to a particular defendant. I do not want to suggest I am singling out any one sector or minority within our community but there was a particular minority group who made better hay and more play out of this provision than any other group. Nonetheless, that practice was not confined by any means to that minority group. The difficulty is that, in an area of the law that stipulates age limits, beginning, remarkably, in our law at seven years of age — in that a person becomes a criminal at the age of seven according to our enlightened Christian legislation in this area — different penalties can be visited in terms of to where an offender can be remanded and, once sentenced, where they can be committed — remanded in the first instance and after conviction, committed, which is dependent on their age, whether the defendant has reached the age of 14, 15 or 17 has a particular impact depending on the defendants sex. For that reason I have often observed people being able to avoid the due process of the law simply because they were able to conceal their true age from the court because a garda might not have got the proper name, proper antecedence particulars, or whatever, to be able to produce a satisfactory record of birth from the register.
For that reason I was suggesting that we add in the words "or any other Act involved in a criminal prosecution" which would expand the application of the provisions of this Bill beyond those provisions to that other area. Rather than introduce a litany of specific Acts I was recommending the insertion of the words "or any other Act involved in a criminal prosecution". This would mean that in any case involving criminal evidence and criminal prosecution where the issue of the age of the accused was in doubt, a court should be allowed, for the purposes of the prosecution, to assume a defendant's age. Obviously any such assumption would have to be based on firm grounds. One could not make an arbitrary or wistful assumption and it would have to be based on something that would enable the judge or court to reach a conclusion beyond reasonable doubt. I contend that can and should be done, hence my suggested wording. I do not see the difficulty. If the principle is good enough for the purposes of the Bill before us, once passed, I contend it should be applied on the broad, general basis when dealing with the prosecution of offences in the criminal courts.
I listened with some interest to what Deputy McCartan said. I should point out that section 2 (3) provides essentially that a judge may make an assumption as to age in certain cases. Of course, Deputy McCartan is quite right in saying that a judge cannot make an arbitrary or wistful assumption — to use his words — for instance, if the issue is whether or not a person is aged under 17. If a person obviously is one, ten or 11 years of age a judge can make the appropriate assumption.
The effect of Deputy McCartan's amendment would be to extend generally the provision in section 2 (3) so that at any particular time a person's age is deemed, until the contrary is proved, to be that which appears to the court to have been his or her age at that time. Deputy McCartan wants to extend that provision from prosecutions for offences under the provisions of this Bill to criminal prosecutions generally, constituting quite an extension of this provision. I can understand what Deputy McCartan is contending, that it does not seem logical to confine this innovation to this Bill, that perhaps it should be extended more widely.
If his amendment was accepted I would have to make one minor point about it, which is this, in its present form, it would appear as part of section 2 (3) which is merely an interpretative provision. It would have to be inserted in Part V of the Bill as a substantive provision because it would involve a very substantive change in criminal law.
I listened carefully to what Deputy McCartan said. I will have to consult with my departmental officials further to ascertain what would be the implications of the extension Deputy McCartan proposes, that is, to other criminal statutes, and also to ascertain whether there are some particular parts of the criminal law to which it would not be appropriate to have this provision applied. I give the Deputy a commitment to undertake that consultation. If we consider we can insert it, if there is good reason for so doing, or good reason why this innovation should not be confined to offences covered under the provisions of this Bill only, since, as I have said, if it is ascertained that some criminal statutes should be subjected to this provision, I give the Deputy a commitment to consult about it to ascertain whether something can be done along those lines because, from a general point of view, it is a logical proposal.
I should like to support Deputy McCartan's amendment. As the Minister rightly says, it would represent an extension of what is provided for in the Bill but it is hard to understand why that extension should not be given effect.
The Bill before us covers two distinct categories of cases. For example, the narrow category of sex-type cases in respect of which special provisions are being introduced with regard to video-recordings, television links and so on. But that is one aspect of this Bill only. There is another very distinct aspect, that is dealing with admission of documents and a general extension of evidential provisions, quite distinct and separate altogether from the sexual offence aspect. Those general, new evidential provisions, for example, dealing with documents, are not confined to sexual offences but apply across the broad spectrum of the criminal law, to a prosecution under any Act. Part II of the Bill — Admissibility of Documentary Evidence — applies, I think, to a prosecution for any crime, that is as I read it, and is not confined solely to sexual offences. It is not as though the entirety of this Bill is confined to its effect on prosecutions of a sexual type since a major part of the Bill provides for relaxation, across the whole spectrum of the criminal law, of rules of evidence now being regarded as too tight and severe. Therefore, why should we take this new evidential relaxation, namely, giving power to the court to presume age, and confine it to the sexual offences category only? Why should we not do with it what is being done in the sections dealing with, for example, the admissibility of documentary evidence, and apply it across the broad spectrum of the criminal law? I agree with Deputy McCartan's amendment and I welcome the obvious sympathy shown for it by the Minister in his reply. So far as I can see there appears to be no logic in the restriction. It is a very good and worthwhile amendment and I ask the Minister to consider it seriously.
I thank Deputy Taylor for his support for my amendment. He probably puts the case far better than I could. I thank the Minister for his response. It may well be that my amendment is far too broad and sweeping in proposing that this provision should apply to any criminal prosecution. In view of the resources available to the Minister and his research officers it may well be that the proposal in my amendment may not be appropriate in certain circumstances as it may well impinge upon the ingredients of a crime. This point can be looked at. However, I am not abandoning the point by any means. I also take the point that the amendment is more appropriate to Part V.
I wish to refer to a contradiction which I see emerging under this section. This is why I believe it is imperative for the Minister to look again at my amendment. Section 2 (3) provides that for the purposes of any provision in the Bill the court can assume the age of an accused in any criminal proceedings. I want to give as an example the case of an accused in the dock. He may be charged — I use the word "he" because invariably it will affect a male defendant—
It may not necessarily be the accused; it could be the witness.
It does not have to be the accused. I am merely giving an example to show how a basic contradiction could arise. A court may make an assumption for the purposes of the working of the Bill that the accused in the dock is 17 years of age. When he is subsequently convicted the question of penalty will arise. As the law stands, the court will not be able to assume or make a presumption on how to deal with the accused, for example, whether he should be sent to St. Patrick's, a reformatory or correction school. The court can make an assumption as to the age of the accused for part of the proceedings but cannot do so in another part of the proceedings. We seem to be asking the court to deal with a provision which is approaching a nonsense. If the principle is good in part we should seek to apply it in general terms to the criminal law system so that incongruous contradictions cannot emerge in the prosecution of particular cases. The example I have given is particularly peculiar and narrow but, as we unfortunately know from recent incidents, it is often the peculiar and narrow which can draw the law down around our ears. For this reason I believe the Minister should look at my amendment a bit more closely between now and Report Stage. If he agrees to do this I will withdraw my amendment.
I think that the law is probably unintentionally as Deputy McCartan would want to have it. I suspect — I am using my intuition here — that the parliamentary draftsman intended to confine this provision to offences which enable witnesses to give evidence through video links. Deputy Taylor made a very good point in this regard. I take his point. Section 2 (3) refers to "any provision of this Act". The provisions of this Bill relating to the admission of documentary evidence can, of course, cover any type of criminal prosecution. Under the Bill documentary evidence which meets the criteria set out in the Bill can be admitted to establish any type of offence. Deputy McCartan has drawn our attention to this point in his amendment. I agree that this point needs consideration and I will look at it between now and Report Stage.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
I move amendment No. 14:
In page 5, paragraph (a), line 8, after "Oireachtas" to insert "and shall include any record of the Registry of Births, Deaths and Marriages as established".
The purpose of this amendment is to address the Waterford case. As I said on Second Stage, I do not see anything in the legislation, as drafted, which would clearly address that case or aspects of it. The Leas-Cheann Comhairle referred to this case in a much wider way on the Adjournment. He referred to the bewilderment, dismay and anger felt by many people at the way in which that case progressed and was ultimately disposed of.
I wish to refer to what happened in that case. A father was charged with multifarious offences of unlawful carnal knowledge with a child under a certain age. When it came to proving parenthood, the birth certificate was not sufficient to prove that the person in the dock was the natural father of the complainant. In the absence of the testimony of the mother of the child the case did not succeed.
We were told by the Minister on Second Stage that this Bill was specifically designed to deal with the Waterford case. I looked through the Bill to see how I would be of help in that case. The provisions in section 4 and Part II seem to be the only provisions which would offer any hope to the victim of this crime. Under this section, proof of evidence or fact will be by document generally. It provides in a general way for an exception to the hearsay rule in regard to the presentation of fact and evidence in criminal trials.
I do not see anything in it which would be of help in the Waterford case.
Like me, Deputy Taylor sees little or nothing in the Bill which would specifically address the difficulties which arose in the Waterford case. In his reply to Second Stage debate the Minister took on board the point raised by other Deputies and myself. Amendment No. 20, which has been tabled by Deputy Shatter, may address the issue in a more comprehensive way. Under section 4 (a) any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas may be regarded as a business. The Registry of Births, Deaths and Marriages would come under that subparagraph and, for the purpose of this legislation, it could be construed as a business. The rules to be provided in the subsequent sections would stand in regard to the production of the records of that register as proof of their content, having been compiled in the ordinary course of business proceedings. In my amendment No. 14, on behalf of the Democratic Left Party, I attempted to address that matter specifically by ensuring that in subparagraph (a) we would add the words, "and shall include any records of the Registry of Births, Deaths and Marriages as established" to put it beyond doubt that the records of that organisation would be covered by this legislation.
The appalling result of the Waterford case deserves this type of amendment. Even if my amendment is accepted it does not adequately address the problem and I am open to better suggestions. Before we leave the Criminal Evidence Bill, which is designed to deal with fundamental areas of reform of the law, I want to ensure that we have copperfastened this issue so that what has been generally considered by the public — and very well articulated by you, a Leas-Cheann Comhairle, in the House — as a ridiculous result of the preposterous prosecution will not be repeated in similar circumstances when this Bill has been passed. We will not get a chance to do this in the general area of criminal evidence for a long time to come or to refer to these issues. If my amendment is not adequate — I will accept the advice of the Minister of State in this regard — I should like to hear a better view. I should like the Minister of State to give an undertaking that it will be addressed and that these matters will be put right as far as criminal evidence is concerned in those cases.
I compliment Deputy McCartan for trying to address the Waterford case in his amendment. The case certainly upset many people and it has not been addressed elsewhere in this Bill. It is essential to take the opportunity now offered to address it. Amendment No. 20, tabled by Fine Gael, is the correct and proper way to address the Waterford case. I wonder what the Minister has in mind because we must address that problem. Does he envisage bringing forward a new Bill in regard to children or amending the 1908 Act? I hope we will have an opportunity this evening of discussing amendment No. 20, the following amendments and Part III of the Bill. By the time we have finished debating the Bill I hope we will have plugged a loophole because people were very upset by this case and are interested in seeing that child abuse is properly dealt with under the law.
I am not totally happy that amendment No. 14 would plug the loopholes. I hope that amendment will be accepted because it fulfils all the requirements, at least in regard to the Waterford case. I am interested in hearing what the Minister will say in regard to that amendment before I make up my mind in relation to it.
Deputy McCartan is correct in saying that on Second Stage I indicated my intention that the law would be changed in this legislation to ensure that if a similar case to the Waterford one arose, a conviction would result. Of course, one can never be absolutely sure about matters of this kind. Many people were unhappy with the recent Supreme Court decision in regard to Article 40.3.3º of the Constitution. It is impossible to foresee how the courts will interpret the law but we must do the best we can in this House.
My understanding of the Waterford case is that the child's mother, for one reason or another, did not appear as a witness. The prosecution sought to place in evidence the birth certificate to prove paternity but that was not acceptable because the court felt it constituted hearsay evidence. My interpretation is that, as a result of section 4, the birth certificate in cases such as this will now be admissible and will be evidence of the facts contained therein, in other words, the fact contained in the birth certificate is that X is the father of the child in question which is an essential ingredient of proof in incest cases. If that is admissible and evidence of the facts contained therein, namely paternity, then the accused person — the father in this case — will have to adduce evidence to counter that, otherwise it will stand. The matter is dealt with specifically in amendment No. 20, tabled by Deputy Shatter, which we will reach in due course.
Deputy McCartan's concern is to ensure that the birth certificate would be admissible. He is not absolutely clear that, under section 4, a document such as a birth certificate will be admissible because, as I said, if it is admissible it is evidence of the matters contained therein, namely paternity. I am advised that section 4 will adequately deal with the concerns voiced by Deputy McCartan. The relevant part of this section, as proposed to be amended, reads:
In this Part "business" includes any trade, profession or other occupation carried on, for reward or otherwise, either within or outside the State and includes also the performance of functions by or on behalf of—
(a) any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas.
Deputy McCartan wants to add: "and shall include any records of the Registry of Births, Deaths and Marriages as established". This Part provides that certain documents which were not hitherto admissible in evidence will now be admissible. Certain criteria will have to be fulfilled before those documents will be accepted, one is that they must be prepared in the ordinary course of a business. The term "business" is not confined to business as popularly understood, it is defined to include the performance of functions by or on behalf of any person or bodies remunerated or financed wholly or partly out of moneys provided by the Oireachtas.
That means if a document is prepared in the performance of functions by or on behalf of any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas, it will be admissible. The local registrar who compiles the records of births, deaths and marriages is doing so on behalf of the relevant health board and as such he is performing his functions on behalf of a body "financed wholly or partly out of moneys provided by the Oireachtas." It seems to me that a birth certificate is issued on behalf of the relevant health board, which is a body financed wholly or partly out of moneys provided by the Oireachtas.
In this section we refer to the "performance of functions by or on behalf of"—"any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas". Deputy McCartan's amendment No. 14 seeks, to use the Shakespearean phrase, to make assurance doubly sure. However I believe the matter is adequately covered already. I agree with him that this matter should be made crystal clear and it is my intention to make it crystal clear and to ensure that the loophole is plugged in so far as we can do so by way of legislation. I intend to honour that commitment, if for some reason Deputy McCartan feels that a birth certificate is not covered by the wording of the section at present and that it is not covered "by or on behalf of any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas". In compiling the register of births, deaths and marriages, the registrar is doing so on behalf of the health board and therefore fulfils the conditions. If Deputy McCartan or other Deputies feel that the matter is not adequately covered, I am prepared to reconsider the matter.
I thank the Minister for that information. I have two reasons for proposing this amendment: first, if as the Minister says, it is an appendage and an unnecessary appendage, is there any harm in inserting it to make the matter crystal clear? I would like to see a clear message going out from this House that we have succinctly dealt with the proposition in relation to the Waterford case. Second, in the first criminal prosecution when a birth certificate per se is produced the judge will ask: “Why are you producing this, Mr. O'Dea”, as the judge might address you in your other capacity, and you might answer, “In pursuance of the provisions of Part II of the Criminal Evidence Act, 1992”, but the counsel for the defence will say, “That is not a business record”. The onus will be on the prosecution to call on the Registrar of Births to prove the fact that he or she is compiling the register on behalf of the health board; the health board's chief executive might have to be called on to prove that the health board is paid “wholly or partly out of moneys provided by the Oireachtas” and you will become entangled in an amazingly complex set of proofs that the birth certificate is in fact the product of a “business” within the meaning of the Act. This will have to be proved.
The analogous area that comes immediately to mind is road traffic prosecutions where the registered medical practitioner who signs the blood alcohol certificate must come into the witness box and swear on the Book that he or she is a registered medical practitioner. That is not good enough and he or she must produce the actual register retained by the Medical Registration Council. On occasion if the defence lawyer objects to that, the keeper or registrar himself or the person in charge of the register within the registrar's office may be obliged to come to court to prove the veracity of the document and that the content is accurate and correct to the extent that it states that the medical practitioner whose name is entered on the register is the same person who signed the certificate and is sitting in the body of the court.
I see difficulties arising because inevitably the proofs will be complicated. If I am right it will mean that in all of these cases, witnesses will have to be on standby lest the defence say they do not accept the validity of the birth certificate until the matter goes to a higher court and the Court of Criminal Appeal rules on it as a matter of law for future purposes. I believe we can overcome these difficulties by inserting the words of my amendment which do not take away from the effect of the section. They serve merely to elaborate on the section. It will also give a clear indication of the decisive action by this House in the wake of the Waterford case. This is the best I can offer at this stage. The reasons may not, however, be good enough for the Minister.
I do not think Deputy McCartan is quite right in his prognosis of how it will work in practice. Sections 6, 7 and 8 provide that if a certificate is produced to authenticate the document and if it purports to be in order, it is deemed to be in order. That is quite a Draconian innovation in some respects in so far as the law of evidence is concerned. That is not to say that it is inappropriate, and according to my reading it should not be necessary to have all the witnesses that Deputy McCartan referred to on standby. The certificate is all that is required and if that appears on the surface to be in order and the court accepts it, the document then speaks for itself.
I regret that I have not had more detailed information as to what precisely happened in the Waterford case. I know something about it from the references that have been made to it but I have not read any reports on it. It appears that an essential element of the only charge before the court was the alleged paternity of the father. A birth certificate was not admissible in evidence to prove that and the mother would not or could not give evidence because she was in hospital. Whatever the reason, it raised the thought I often have that we assert the tools of the trade given to us are not adequate and we introduce additional measures to meet the needs of the situation, such as this Bill, whereas if the tools that were available were used more efficiently they would prove to be quite adequate in many cases. I cannot help feeling that if the tools that were available to the prosecution in the Waterford case were all used properly, the debacle might not have occurred.
Deputy McCartan questioned in an aside, and the thought crossed my mind also why there was only one charge that depended on paternity, as apparently there could well have been alternative charges in which paternity would not have been an essential element, and why such charges were not before the court. Why should they complain about the difficulties with evidence and the insuperable problems as the law stands if other charges that could have been easily established were not brought? Second, in so far as the actual charge before the court, the establishment of paternity, the only person who could establish that was the mother and I do not know why the mother was not called to give evidence. Was she not a compellable witness; was she too ill to come; was she not prepared to come; had she changed her evidence; was she not on subpoena? I do not know the answers to those questions. If she was too ill and was in hospital or something like that her evidence could have been taken on commission; if she was unavailable and out of the jurisdiction the case could and should have been adjourned to enable her evidence to be obtained. As she should have been on subpoena, the court could obviously adjourn the case, as is usually done when a witness who is on subpoena does not turn up.
Maybe there were good and sufficient reasons it had to be the way it was but I cannot help feeling it would show on a thorough investigation that the debacle was not necessary even under the law as it is at present. In regard to an issue such as proof of paternity we bring in a measure providing that the birth certificate may now be admitted in evidence and that it will be prima facie evidence of the facts stated therein. Prima facie evidence on a matter like that is some evidence to start with but it will not be very strong. Any court will know, so far as the name given, on the certificate for the father, there is no great weight of evidence on a birth certificate as to who the father is. All we know is that when a birth certificate is being made up, the registrar — or whoever it is from the hospital — goes along to the mother and asks her certain questions including who the father is. The mother says “Jim Smith”, or whoever she wants to say, and that name is written down and goes on the birth certificate. There is nothing very strong about that.
In a court case, after the enactment of this Bill the only evidence available may be a birth certificate showing the name of the accused as the father. If the father gets into the witness box and contravenes that and says: "I know that may be what the mother told the hospital when the birth certificate particulars were being taken but I am giving evidence that what she said is not correct. What is written there is not correct. I am not the father", it would seem to me under most normal circumstances his evidence would have to carry more weight than the most heresay statement that would be on a birth certificate based only on an unsworn statement of the mother at the time of the birth.
I do not think we should get carried away with the notion that this Bill will be some kind of panacea for cases of the Waterford type. Major advances could be made if in many cases prosecution authorities throughout the country gave more thought and attention to availing of the remedies which are available in abundance but which, unfortunately, in all too many cases are not used.
I fully agree with Deputy Taylor, particularly in regard to his latter point concerning an inexplicable case which has yet to be answered — publicly or elsewhere — as to why the prosecution relied solely on one charge in the Waterford case when there were so many other charges that could have been laid on the same set of facts without the necessary ingredient of paternity being at issue. However, the question we need to address in regard to this amendment has to be looked at more closely: the question of the definition that we are statutorily giving to the concept of a business within the working of Part II of the Bill and whether or not that includes the operations of the registry of births, deaths and marriages. Unfortunately, Deputy Taylor in referring to sections 6 and 7 did not have regard to section 6 (3) which states:
Notwithstanding that a certificate may have been given pursuant to subsection (1) the court—
(a) shall, where a notice has been served pursuant to section 7 (2) objecting to the admissibility in evidence of the whole or any specified part of the information concerned, and...
Section 7 outlines the basis on which an accused person has the absolute right on serving of notice to insist that the documentary evidence not be acted upon or admitted in evidence. I have no doubt, where one is served with a book of evidence and where one is served with the documents indicating that the State intends to rely solely upon the production of the certificate the accused can, through his counsel or solicitor, serve the requisite notice and seek the leave of the court to challenge the admissibility of the birth certificate on the basis that it does not amount to a document emanating from a "business" within the meaning of Part II. That then throws an onus on the prosecution to have available — until it is otherwise established by legal dictum from a higher court — in the court the witnesses necessary to prove all the ingredients of the definition included in the Bill, that is that the registrar, the compiler of the register, is in fact working for and on behalf of the health board and that the health board in turn are in receipt, exclusively or wholly, of moneys from the public purse. That would not be an implausible scenario to emerge; in fact, it is a very probable scenario to emerge in the course of the current thrust in criminal prosecutions. For that reason I am suggesting to the Minister, because of the clauses which exist giving rights to the accused out of necessity for balance, that it would be important to clarify the subsection
In relation to Deputy Taylor's queries about the Waterford case, I am not in possession of all the facts about the case but from inquiries I have made my understanding is that the prosecution decided not to call the mother in this case as a witness because it was felt from the information available to them that she was totally under the domination of her husband and would not prove to be a useful witness for the State. I take the points made by both Deputy McCartan and Deputy Taylor that as a substitute for the elaborate profits referred to by Deputy McCartan in his initial contribution, a certificate under section 6 would, of course, do the job in this case. However, as Deputy McCartan has rightly pointed out, if an objection is raised this will necessitate somebody being dragged in to give oral evidence. Under section 6 (3) even when an objection is not raised the court may decide in its discretion to require oral evidence. From that point of view there could be a problem. I am inclined towards the view that perhaps we should include the provision about the birth certificate and I will be recommending that to the Department. If there is some very strong objection to including it, naturally I will have to report that to the House on Report Stage.
In relation to Deputy Taylor's contribution, I should make the point that if somebody in the chain between the mother and father and the person who entered the birth on the register did not receive the information in the ordinary course of a business then the birth certificate is not admissible in evidence under section 5. Having said that, an objection could be made to any provision to suggest that information in a birth certificate is admissible as evidence, where the information might have been conveyed to someone who did not do it as part of their duties and who could, therefore, not be regarded as someone who was likely to transmit the information accurately. That is generally understandable.
On the general question of the amendment, while I am satisfied that the matter is covered adequately in the section and in view of the fact that we do not want to drag people into court unnecessarily even in the case of a certificate when an objection is raised or as the court may direct, I am inclined to the view that a specific provision should be written in as regards birth certificates and I will be advising the Department accordingly.
In that event, I withdraw my amendment.
Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 5, between lines 25 and 26, to insert the following subsection:
"(2) Where a statement is compiled other than in the ordinary course of business and the person making the statement is unable to give evidence at the request or requirement of a party to any criminal proceedings for any of the following reasons:
(i) that he is dead or is unfit by reason of his bodily or mental condition to attend as a witness; or
(ii) that he is outside the State and that it is not reasonably practicable to secure his attendance; or
(iii) that all reasonable steps have been taken to identify him, but that he cannot be identified; or
(iv) that, his identity being known, all reasonable steps have been taken to find him, but that he cannot be found, or
(v) that, having regard to the time that has elapsed since he supplied the information and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement,
then such statement shall be admissible in evidence by leave of the Court being satisfied that the interests of justice will be served by the admission in evidence, and reading of the statement.".
This amendment which deals with a general issue has been borrowed in part from the report of the Law Reform Commission on receiving stolen property. I wish to challenge the Minister of State on the reasons this part of the Bill is confined to business documents or documents compiled in the course of a business only. There are other circumstances and occasions when documents can be produced or compiled. Therefore, the general principle should not be confined to business documents. In relation to the question of waiving the hearsay rule, the principle should cover all documents by which I mean the documents covered by the permutations provided in the definition clauses we have just dealt with.
I do not understand the thinking of the Minister of State, and the Department, and the reasons a very narrow approach is being adopted to this issue. I do not want to disparage unnecessarily the good intentions of the Minister of State and his Department in bringing the Bill forward by describing it as narrow but we are being far more restrictive than necessary in the way this part of the Bill can be construed. The Law Reform Commission report on the hearsay rule was published as far back as 1980 while the decision of the Director of Public Prosecutions in England against Myers, which drew our attention to this problem, was handed down in 1965 or thereabouts. The English legislature eventually responded to this in 1968.
While I accept that the decision in that case related to the car industry in Britain nonetheless the Law Reform Commission adopted a commendable approach in relation to this issue and did not seek to confine themselves to business documents only. There is a range of circumstances where a court could safely rely on a document as proof of fact and that it should be relied upon in criminal cases as proof of fact when particular difficulties arise. I have itemised these in the various subparagraphs of the amendment.
I suggest that where a statement is compiled other than in the ordinary course of business, and the person making the statement is unable to give evidence at the request or requirement of a party to any criminal proceedings for a number of reasons, that statement "shall be admissible in evidence by leave of the court". It would be a matter for the court to adjudicate on the application from the prosecution. In ruling on it the judge will have to be satisfied that the interests of justice will be served by allowing the document to be admitted in evidence and read to the court.
Where a document is produced as proof of fact and due to an "unforeseen contingency arising", to use the Minister of State's own words the prosecution are unable to avail of it the facts should not have to be buried with the author. The court should be entitled on an application from the prosecution, who feel that they have a good case to make to the judge, to at least listen to the arguments, to consider the pros and cons and how the interests of justice would best be served and if necessary, allow the testimony.
In regard to that curious beast or concept, the business document, the hearsay rule can be waived but it cannot be waived when we come to a different form of document. On Second Stage the Minister made no effort, except to regurgitate what is contained in the explanatory memorandum, to tease out the reasons the Government decided only to go a certain distance and not to accept the Law Reform Commission's proposals in their entirety in this regard. I am still at a loss to know the reasons they did not go all the way.
If we take the example of a serious murder case or, indeed, any criminal prosecution where the murder weapon is removed from the scene of the crime and produced in court this may carry important forensic traces to link it to the accused. The biggest single complement of witnesses at the trial is the array of police who were "scene of crime" witnesses. They are the gardaí who have the thankless but important job of securing the scene of crime. An officer must be in attendance throughout the investigation to ensure that no one interferes with it.
When the trial eventually takes place up to 40 witnesses could be called to state that they were on duty at the scene of the crime at certain times and that no unauthorised person interfered with it. What this means is that the object left by the offender or criminal in flight and which was taken from the scene of the crime by the detectives to the forensic science laboratory was not interfered with.
The onus is on the prosecution at the criminal trial to maintain this great concept of "the chain of evidence" and to show that each exhibit was not interfered with, was taken away and given to the forensic science laboratory so that forensic tests could be carried out and then placed in the locker of the Garda — this is what invariably happens — where it remained for weeks and months until it was produced at the trial.
Those who handle it must make themselves available to give testimony. Many of them make a statement but what will happen if one of the "scene of the crime" witnesses dies; if one is unwell by reason of his or her physical or mental condition and is unable to attend as a witness or if a witness is outside the State and it is not practicable to bring him or her back? For example, a witness may be attending the Olympic Games or attending an international police federation conference. It is worth noting that members of the Garda Síochána are in Angola overseeing the implementation of a UN peace initiative at present. What will the position be if the witness cannot be identified or, if his identity is known, he cannot be located? It is possible that a witness may have left the employment of the State laboratory or, if a trial drags on for a considerable period, the witness may not be able to recall all the details of the incident. The statement of that person containing all the relevant details, and which was made at the time of the incident, may be included in a document.
Why, in those circumstances, can we not apply the general principles outlined in my amendment? Let us be practical and reasonable about it and provide that where the prosecution have documentary evidence duly signed and are in a position to authenticate and certify it under the general provisions provided here, they should not be put at an automatic disadvantage in regard to that testimony simply because their witness has died, emigrated or whatever. I know there are provisions in the Bill in regard to criminal investigations that can save it from this provision. However, the example I have given can apply on the civilian side as well. We should be practical in our approach and move towards enabling the prosecution to make reasonable applications to the court and to allow a judge to decide on these matters having regard to all the factors involved and having particular regard to where the interests of justice would lie. There does not appear to be any particular reason to confine the working of this part to a business document only.
In certain limited instances it is permissible for a deposition properly taken under the Criminal Procedure Act 1967 to be read to the court as evidence in a trial. This is a very narrow category which is specifically spelt out in the relevant sections of the Criminal Procedure Act, 1967. The example mentioned by Deputy McCartan in regard to evidence of handling exhibits etc. appears to be covered by section 5 (4) (b) (iii) so even if one of the handlers died and was unavailable the evidence is still admissible. On the Deputy's amendment, the effect of it would be a very wide extension of the categories of documents that would be admissible in criminal proceedings under the Bill. I do not necessarily mean that I disagree with it for that reason. The effect of the Deputy's amendment would be to allow statements compiled outside the ordinary course of business to be admitted in evidence where the witness could not attend and the court considered the interests of justice would be served by admitting it. The general policy in the legislation we are discussing today is to confine admissibility to information in documents which is likely to be reliable because it has been compiled in the ordinary course of business by people who have no incentive to distort it and who are acting without reference to the possibility that the recorded information may become the subject of litigation, whether civil or criminal. There are certain limited exceptions made to that for certain reasons which we will go into when we come to the relevant section. There is a further check on reliability in section 5, that is, that the information in the document must have been supplied by somebody who had personal knowledge of the matters dealt with, or would reasonably be supposed to have had such knowledge.
Neither of those checks are available in the case of the documents mentioned in the amendment. Even though admission of the evidence in Deputy McCartan's amendment is made contingent on a decision of the court that it would be in the interests of justice to do so, we feel that the proposed amendment in the name of Deputy McCartan may not survive a constitutional challenge in that it is contrary to the guarantee of basic fairness of procedures.
The existing provisions in section 5 are based on the specific recommendations of the Law Reform Commission in its report on receiving stolen property and were designed to amend the law on hearsay solely in relation to business and administrative documents because of the urgency of doing so. The commission has not concluded their examination of the general law on heresay in criminal proceedings and, apart from what I have just said about possible constitutional difficulties, I think it would be unwise to extend the category of admissible hearsay in criminal proceedings without having the benefit of the commission's view on that.
For the purposes of what I want to read the relevant section of the commission's report into the record of the House. I refer to paragraph 144 referring to documentary records and computer printouts:
In 1980 in the Commission's Working Paper on Hearsay, (Working Paper No. 9-1980) proposals were made which would have had the effect of making out-of-court statements admissible in all cases where the maker of the statement testified or was not available. While recommending that these proposals should be adopted in civil proceedings, the Commission deferred making a similar recommendation in relation to criminal proceedings until such time as observations had been received from interested persons. Unfortunately, despite repeated appeals, no such observations have been received and the Commission has not felt it was possible to proceed to a Final Report until such observations were received. However, it is now represented that the amendment of the law relating to the admissibility of business and administrative records is required as a matter of urgency. In these circumstances the Commission recommends the immediate adoption of the limited provision suggested in its Working Paper as appropriate in a context where the existing rule against hearsay was retained. Under this provision records possessed of a guarantee of trustworthiness comparable to direct oral evidence or admissible hearsay would be admissible. In its Report on a Criminal Evidence Bill the Commission proposes to consider whether a more far-reaching reform would be desirable — for example, a provision along the lines of sections 68 to 72 of the British Police and Criminal Evidence Act 1984. The Commission reiterates its appeal to interested parties to submit their observations.
I do not know whether any interested party have submitted their observations since the Law Reform Commission produced that report. In the circumstances a debate on this would be futile, as the Law Reform Commission is actively considering this very matter: it would be better to wait until their deliberations have been concluded.
Perhaps the Law Reform Commission would republish their 1980 report. It came in their early years and does not commend itself to easy reading whereas the presentation of their latter day reports makes them very much more attractive documents to take on board.
I am disappointed that the commission did not get a response to their request for observations. It was brought out at a time when I was too busy in practice and more worried about how the law was than about where it was going. If this is something they are actively looking at, I would like to see them recirculate that report and invite those of us concerned to conference again so that we might contribute. The commission have adopted this practice more so recently than they did at that time. I had regard to the paragraph of the report before I tabled the amendment. Nevertheless in the general scheme of a Bill to provide a law relating to stolen property and other matters the report contained a provision very similar to a provision I have drafted for the purposes for my amendment. As I indicated earlier, I borrowed from the Law Reform Commission report and they do go further. While they say in the body of the report that they are dealing with business and administrative records, they talk about a wider scenario. On page 118 at paragraph 13 (1) they say that it should be provided that "in any criminal proceedings a statement contained in a document shall, subject to this section, be admissible as evidence of any fact..." and they go on to deal with the various circumstances. They do not confine it to a business or administrative document per se.
The Bill as drafted is narrower than what the Law Reform Commission intended. I will not convince the Minister of my argument in this case, but I wanted to put on record my view that perhaps the House should have gone beyond what the Law Reform Commission had recommended. I accept that the Minister wants to wait for their final report on this matter, but he and his predecessors have on many occasions come in here and ignored the reports of the Law Reform Commission. The Government in bringing in legislation with regard to the handling of stolen property ignored the Law Reform Commission entirely. There is in the Department the capacity to draft legislation without reference to the Law Reform Commission. Nonetheless, I would like to hear more about the Minister's concerns on the constitutional aspects of this amendment.
I am conceding that my amendment would not have a very wide application. Since 1984 we have had legislation to enable evidence to be given by way of statement to cut out the unnecessary regurgitation of technical information by witness after witness, but for some reason or other that legislation is being consumed by gardaí having to hang about unnecessarily in the Circuit Criminal Court and the Central Criminal Court. I hope that we could in this Bill bring the position further and deal with much of the surplus uncontentious evidence which is nonetheless essential from the point of view of preserving the chain of evidence proofs at a criminal trial. I can see that it is futile to continue to try to persuade the Minister to my point of view so I would ask the Chair to put the question.
Amendment put and declared lost.
I move amendment No. 17:
In page 5, subsection (2), line 29, before "course" to insert "ordinary".
This is a drafting amendment. It is necessary that "ordinary course of a business" should appear in the subsection so as to be consistent with subsection (1) (a) where that expression occurs already. I commend the amendment to the House.
Amendment agreed to.
I move amendment No. 18:
In page 6, subsection (4) (b) (iv), line 26, after "person" to insert "and including any examination carried out by a medical registered practitioner pursuant to a prosecution under the Road Traffic Acts, 1961 to 1968 and including a statement by the said medical practitioner that he or she is registered within the meaning of those Acts and for those purposes".
This amendment is to ensure absolute certainty with regard to this proposition. I am dealing here with the consequences of the case of the Director of Public Prosecutions against Haughey which attracted quite a degree of interest in the media, because the defendant in the case was a close relative of the then Taoiseach and because the case took a remarkable twist before its conclusion by reason of a narrow unbelievable chain of events.
At the time the medical certificate of the blood alcohol level was being challenged during proceedings. The registered medical practitioner had been giving evidence for the previous 20 years in the Dublin District Court and throughout the country as a police doctor in drunk driving cases and he was known universally as a registered medical practitioner. Unfortunately, due to illness, the doctor was unfit to attend the court. The certificate was quite properly challenged by the lawyers for the defence and because the doctor was not in a position to attend, even though the medical register was produced and an official employee of the Medical Council attended the court to produce the register and everyone knew that the doctor in question, perhaps more than any other doctor, was a registered medical practitioner, the case failed. I subsequently tabled questions to the Minister for Justice and was told that the matter would be addressed in legislation being drafted to deal with criminal evidence generally. When the Bill was produced there was no specific reference to the Road Traffic Acts. On reading the legislation I felt that it was incumbent on us to ensure that this curiosity in our law, which often provided an unjustifiable out for defendants in drunk driving cases should be dealt with emphatically, and that if there was found to be a loophole it should be plugged by way of legislation. For that reason I am proposing my amendment to subsection (4) (b) (iv) which deals with the definition of the information contained in a document where it says:
(iv) a record by a registered medical practitioner of an examination of a living or dead person.
The specific addition of the following words:
and including any examination carried out by a medical registered practitioner pursuant to a prosecution under the Road Traffic Act, 1961 to 1968 and including a statement by the said medical practitioner that he or she is registered within the meaning of those Acts and for those purposes.
We should add those words to ensure that in future in a drunk driving case the certificate from the registered medical practitioner will speak for itself. In the event of the doctor being unable to attend court, the testimony in the document should not fall. For too long these unbelievable technicalities and loopholes have existed in the drunk driving laws. I am glad that the climate of opinion is substantially changing and that the culture of bravado that has often surrounded the drunk getting behind a steering wheel of a motor car is disappearing. It is a good development. In this case the public were dismayed and outraged at the conclusion of the prosecution because at the time it was to be established that the man was a registered medical practitioner — a fact known to the universe — the case fell, because he was ill-disposed and in a hospital bed and could not come to court to state that he was a doctor. I hope this amendment commends itself to the Minister. It meets a specific concern of mine which I understood his predecessor intended to address in this legislation.
The amendment proposes to change section 5 in two respects. It seeks to make it clear that a medical examination of a person in connection with a road traffic prosecution will be admissible under section 5. It would also make admissible a statement by a doctor carrying out the examination that he or she is a registered medical practitioner. Subsection (4) (b) (iv) makes it clear that a record by a registered medical practitioner of an examination of a living or dead person is admissible. An examination is any type of examination. It would seem that strictly speaking the amendment is not necessary because it is clearly covered in the wording of the section. The examination by a medical practitioner of a living person would include an examination for the purposes of the Road Traffic Acts, 1961 to 1968.
I would not be in favour of making admissible a statement by a person in a document that he or she is a registered medical practitioner. That would not have the inherent reliability that the section seeks to preserve. The section already provides substantial machinery for documentary evidence to be given as to entries in the Medical Register. These entries would have been made, in the words of subsection (1) (a) "in the ordinary course of a business" on the basis of information supplied by a person who had personal knowledge of the matters dealt with. The definition of "business" is wide enough to cover the activities of the Medical Council. For these reasons I am not inclined to accept this amendment.
One of the reasons the amendment is necessary is the question of whether the taking of a blood alcohol sample is an examination within the common parlance of a doctor's practice. The function of the medical practitioner is simply to insert a needle, extract a certain level of blood, put it in a phial and hand it over to the sergeant, who then takes charge of it. I have serious doubts whether that amounts to an examination. I would think that the purpose of an examination by a medical practitioner is to survey the person involved with a view to establishing a medical condition or to administering some medicine. The concept of an examination may not in judicial construction include the simple act of a doctor attending a police station, sticking a needle into a vein, extracting the small amount of blood required, and departing. Has the Minister had regard to that concept?
The Deputy's amendment used the word "examination". I can see the sense in what he is saying in terms of the definition of the word "examination". Perhaps he should consider amending the amendment and submitting it on Report Stage.
I more than welcome correction at any time, particularly from the Minister. Perhaps the matter could be simplified by adding to the subsection the words "including any examinations or any functions performed by the doctor under the Road Traffic Acts." That might be a way of dealing with it. I would urge the Minister to reconsider this matter. There were definite indicators that the problem would be addressed. It is preposterous that well-established and well-known medical practitioners have to involve themselves needlessly at our courts giving evidence in criminal road traffic cases where all they have to say is already stated on a certificate handed into the court. I find it ridiculous, if not insulting to common sense, that the same doctor may have to turn up day after day before the same judges and go through the same rigmarole of stating that he or she is still a registered medical practitioner. Anything that introduces an element of common sense and closes a loophole should be accepted and I would urge the Minister to consider a better wording for Report Stage.
In all probability the wording that "the document containing the information is a record by a registered medical practitioner of an examination of a living or dead person" would cover well enough the findings of an examination of the person, including any part of the person, including blood or urine.
Does a doctor examine it?
No. The findings of the analysis would not be covered, but that might be covered by a certificate from some other source. That would have to be dealt with separately. In all probability the wording as it stands covers the issue, but when we are in the business of framing legislation we should try to do better than provide for something which in all probability is right.
It is undeniable that we are a very litigious people. We are only looking for ways out and for loopholes and in our courts we will pick on a single word, following which the matter will go all the way to the Supreme Court. This one could go to the Supreme Court. A person who is to be prosecuted on a drunk driving charge which may have particularly serious implications may be prepared to go to the Supreme Court. Lawyers love that kind of thing and it is happening all too often. In many cases it is unavoidable. If we have the opportunity at the formative stage of legislation to do our best to cover every possible eventuality, it would be prudent to frame something for Report Stage to cover the point raised by Deputy McCartan. Undoubtedly it has some force.
As has been said, the Deputy's amendment would not cover this matter because he uses the same wording as that used in the subsection. What is needed is a variation of that wording. The definition should be extended to cover tests that would be carried out because X-rays and a myriad of tests of different types might not come within the narrow definition of an examination of the person. No doubt Deputy McCartan will be considering the matter for Report Stage and perhaps the Minister would agree to do so also.
I accept the Minister's point in regard to the certification of a medical practitioner. I have some reservations about accepting a certificate from a person to the effect that he is a medical practitioner because cases of bogus practitioners have come to light. We need to have basic standards of proof in these matters. It can be very tempting to go overboard and loosen up the requirements of evidential proof. The Garda constantly complain that the rules are too strict and they are constantly pressing for relaxations in the rules of evidence to assist them in prosecutions. We must examine critically what they say and the representations they make on these issues, but we must strike a fair balance. I think the Minister has struck a fair balance as regards the certification of the doctor and the medical association. The requirement is a reasonable and proper one in those circumstances. However, additional clarification may be necessary on the other point.
I thank Deputy Taylor for his remarks. I take Deputy McCartan's point about an examination. The Government and I are most anxious that no unnecessary loopholes exist in drunken driving legislation, regardless of whether or not the accused has a high profile. Drunken driving laws are there for a very good reason. It is my experience and that of some of my colleagues in the medical profession that a great deal of misery and hardship is caused as a result of the activities of drunken drivers. That is why the penalty for drunken driving is a mandatory suspension. Perhaps the penalty should be even harsher. We will ensure in so far as possible that no loopholes exist in legislation to allow people to walk away on a technicality. I will have the specific point raised by Deputy McCartan reconsidered in terms of the definition of the word "examination". I have a vague recollection of the Road Traffic Act and I think there is provision in that Act which affects the definition of examination in relation to the taking of a blood sample. However, I will consider the matter between now and Report Stage.
Would the Minister explain again the reasons for his reservations about the second part of my amendment, which refers to the inclusion of a statement by a medical practitioner that he or she is registered? The test will be taken by a doctor at the request of local gardaí. Is there some concern that gardaí might be inveigled into employing a bogus doctor? Am I to take it from what the Minister has said that an independent certificate from the Medical Registration Council is sufficient to cover the eventualities? I am concerned that we should eliminate the practice whereby on a daily basis busy medical practitioners, who could be doing much better work elsewhere, are required to attend courts to repeat a fact that is universally accepted, that they are registered medical practitioners.
In answer to the latter part of the Deputy's question, the documentation to which he referred will be admissible. The reason a statement by a doctor would not be considered admissible is as stated by Deputy Taylor. We are trying to free up the rules of evidence but we must maintain basic standards. What the Deputy is proposing, laudable though it may be, would be contrary to the basic policy in the Bill.
The Minister is allowing statements from witnesses in all areas. Every document produced will be a statement of proof. That is why it is produced in evidence. The medical practitioner should be required to state not only that he or she is a medical doctor but is registered currently by the Medical Registration Council. Surely if a person is found to be bogus he would be subject to the sanction imposed against every witness who might abuse the law, and be prosecuted for making a false declaration. Is that not adequate to deal with the matter? Why should we not provide in legislation that a doctor must state that he or she is registered, leaving him or her open to the standard sanctions that can be imposed under the Bill against all people who make a false statement? Why is there a problem in accepting this proposal?
I see no great difficulty in the alternative I have referred to, namely, producing the records of the Medical Council. The Deputy says we are allowing documentation from all areas, but it is documentation produced in the ordinary course of a business as it is defined in section 5. It is a matter of policy and we do not want to provide for proof beyond a certain point. The Deputy will appreciate that we are going quite a considerable distance in this regard and it is our decision if we do not want to go any further. The inclusion of the second part of the amendment would be contrary to the general policy in the Bill. I agree with Deputy Taylor that we must maintain basic standards in so far as we can. We have made exceptions where we believe they are necessary.
I do not disagree with that, but under section 4 business includes any trade or profession. Therefore, a doctor would come within that definition. If the Minister is unduly concerned about keeping a balance I will not push the matter but I had hoped that he would tease it out a little more before Report Stage.
A doctor would not produce such a document, statement or signature in the ordinary course of his business.
It would not be very difficult to get a certificate from the secretary of the Medical Council. That would be readily available, but one must remember that it is not necessarily a question of certification by a garda or doctor in a road traffic prosecution. The section has a much more generalised application. We are talking about any evidence being given by a doctor in different cases, not just in drunken driving cases. If the Deputy's amendment were accepted it would have a wider application than merely to road traffic.
That is not so.
We cannot have a provision that certification be applicable to one narrow circumstance. If evidence as to a person's medical qualification were to be required, it would have to be on a universal basis. The normal basis is a certificate issued by the secretary of the Medical Council, which is very fair and simple and involves no effort. I am not saying that bogus doctors are common by any means but they are not unheard of, either. There have been instances of doctors being struck off the register and of persons reputed to be doctors but not being so qualified. Such people could continue to practise in the medical area, gaily issuing certificates and so on.
It can happen too, in the case of judges.
That is right. We have had people on the bench in the District Court who were not judges. Certain basic standards are required. If getting the kind of certificate in question from the Medical Council constituted a major problem, perhaps one would have to reconsider the matter but as the certificates are readily obtainable, are very simple and cost little or nothing, it seems to be a basic standard that should be retained.
I was simply trying to address the everyday nonsense that goes on. I am assured, from the remarks of both Deputy Taylor and the Minister, that the Bill will make substantial progress in that regard. I am happy to let this aspect of the matter rest. The earlier aspect of the definition of an examination can be considered again on Report Stage. I am prepared to withdraw amendment No. 18.
Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
SECTION 6.
I move amendment No. 19:
In page 7, subsection (3), line 40, after "certificate" to insert "provided, in either event, the request is reasonable having regard to the overall circumstances surrounding the case and the court considers it essential for the interests of justice".
Before I say too much about my amendment I expect to be entirely on the other side in terms of the balance for which the Minister has been arguing. Perhaps I have abandoned that almost entirely. Nonetheless, I consider this an issue worthy of discussion.
Section 6 introduces the right of an accused to object to evidence being given by way of documentary proof. That provision is contained specifically in section 6 (3), which I referred to earlier in another context. Section 6 (3) states:
Notwithstanding that a certificate may have been given pursuant to subsection (1), the court—
(a) shall, where a notice has been served pursuant to section 7 (2) objecting to the admissibility in evidence of the whole or any specified part of the information concerned, and
(b) may, in any other case, require oral evidence to be given of any matter stated or specified in the certificate.
Deputies will note that section 6 (3) (a) obliges the court to require the production of oral evidence whereas section 6 (3) (b) permits the court to so require.
My amendment seeks to add the following proviso:
provided, in either event, the request is reasonable having regard to the overall circumstances surrounding the case and the court considers it essential for the interests of justice.
In discussion on my earlier amendment, No. 16 I argued for the broadening of the operation of the legislation beyond the instances of merely business documents into the wider context of all documents. I then itemised a series of events that could occur, which the prosecution could not be expected to anticipate could not be blamed for where a person had died, or could have no control over when a witness went missing, was no longer available or could not be traced after reasonable opportunity. I am saying that where an accused seeks to exercise the right proposed under section 6 (3) it is not mandatory and obligatory in all circumstances, even where a notice pursuant to section 7 (2) is served, and that there should always be a residual right in the court to say that the evidence should be admitted because of unforeseen or other circumstances beyond the control of the prosecution, and where no injury is done to the overall concept of justice. Therefore for example, where an accused seeks to avail of the prosecution's difficulty in producing a witness who is a witness only to technical or commonsense propositions — when in the normal course of events a judge might say that there could be little, if any, controversy on the fact to be proved but in the traditional maintenance of concepts of our criminal law, such as the chain of evidence that I have talked about, the preservation of the scene of crime or the production of a witness who says that he or she turned the nut on an item of a certain piece of property — the court would have the right to say ultimately that having regard to the overall circumstances surrounding the case and, in the interest of justice, the evidence could and would be read in the absence of the oral testimony to give it support.
I anticipate that the Minister's response will be that a balance has to be drawn and that the Bill makes innovative changes to the law. I suppose that to some degree I advance the amendment in the context of someone who will now be accused of being poacher turned gamekeeper. I advance the amendment on the basis of someone who has practised in the area and who would be the first, when produced with a case to defend in these circumstances, to advise an accused to avail of every opportunity to harry, trip, obstruct, confront and create obstacles for the prosecution. In doing that I would be motivated, as a practitioner, in the first instance in the interests of my client and in the second instance in the interests of ensuring, by fair means or foul, within the rules, that an accused avoids conviction. Those are my duties as a criminal defence lawyer and I make no criticism of that. However, we as legislators should approach the issue from a different perspective, from a perspective designed to ensure that the legislation we put in place works, that there is a fair balance in what we are contending for and that the interests of justice are served from the point of view of both the prosecution and the defence. For that reason I advance the formula contained in amendment No. 19. Again I should be interested to hear whether this is a concept acceptable to the Minister.
This amendment proposes to add a proviso to section 6 (3). Section 6 (3) empowers the court — in some cases imposes a duty on the court — to require the production of oral evidence of matters stated in a certificate. The certificate relates to matters necessary to establish that the documentary evidence being tendered complies with the conditions of admissibility set out in section 5, for example, that the information contained in the documents was compiled in the ordinary course of business.
That certificate must be given by a person who occupies a management position in the business concerned or a person otherwise in a position to give the certificate.
If the other party to the proceedings — let us assume that is the accused, as it usually will be — objects to the admissibility of all or some of the information, it is right that he should be able to examine the person who signed the certificate or, if that person is not available, someone else in the business who can give the evidence, so as to be able to sustain the objection.
Even where an objection is made by the accused outside the terms specified in section 7 (2), that is, later than seven days before the commencement of the trial, the trial judge may give leave for the objection to be made. To cover that case and also to allow the judge maximum discretion to act of his own motion where the interests of justice may so require, it is provided that the court may, in any other case, require oral evidence to be given; in other words, the court must require oral evidence to be given whenever there is an objection, and in any other case where the court may feel it is in the interests of justice to so require. It seems to me that the Deputy is slightly more concerned — if I correctly understand what he said in the first instance — with where the actual objection has been made before the trial, and oral evidence is compulsory in such a case.
I accept there may be cases where objections may be made that will have no merit whatsoever. However, I believe that any tendency to object unnecessarily or unreasonably will be exposed clearly as a waste of everybody's time and be dealt with on that basis by the trial judge. While not disagreeing with the principle behind the amendment I am reluctant to appear to impose restrictions on the right of an accused to cross-examine on matters mentioned in a certificate.
As Deputy McCartan rightly pointed out, it is a question of striking a balance. The difference between us is as to where that balance should lie. I feel that that balance lies not merely in allowing but in compelling oral evidence to be given where an objection has been made. It is our hope that eventually the practice in this area will be that the vast majority of objections made will be of substance.
The Minister's response is not unexpected. I do not entirely disagree with his position any more than he seeks to entirely disagree with mine. We are treading backwards and forwards on the see-saw to ascertain where the balance will ultimately lie. I do not want to depart from this as quickly as that. I contend we need to look somewhat closer at the history of this development of the law. The origins of this concept of relying on exceptions to the hearsay rule was prompted by the Myers case in Britain which caused a furore in 1965 or thereabouts. The accused was charged with receiving stolen property — I think it was from the Jaguar motor company — and handling stolen cars and parts of stolen cars. In order to prove ownership after so many years production, it was established in the court, and by the court of appeal in subsequent hearings related to Myers, that in regard to all the cars and parts of cars found in the possession of the accused, every worker on the assembly line and every person involved in the compilation of the records relating to the assembly of the motor car to the point at which it became driveable, would have to be brought into court and testify: yes, I put that axle on to that vehicle. I entered that record of work in the records of the company of Jaguar.
At the end of the day, by means of that device, the police would be able to prove positively that the vehicle found in the possession of the accused was one assembled in that factory and sold to Mr. X, from whom it had been stolen at some stage. That imponderable proposition had to be dealt with in some manner or other specifically in the case of the Jaguar company, being an efficient, modern company having on file all of the documentary evidence sustaining all of those facts.
What was sought to be done in the 1968 legislation in Britain was to allow for exceptions to the hearsay rule, so that, in future, a business manager, say, in charge of the Jaguar plant could bring that file, compiled in the ordinary course of business in the assembly of the motor car, into court, and say: it says in that document there that part X was put on that particular motor car on such a date. Thus the whole case could be tied up. The objective of the hearsay rule was to facilitate the presentation of evidence in circumstances in which it would be practically impossible otherwise. That was the concept; that is why it was done. That is why we here today are attempting to bring forward our evidentiary laws to accommodate business records with ease so that we will not have this crazy position that proofs emanating from the ordinary conduct of a business would have to be sustained by the attendance in court of the worker who had been employed by the company perhaps some ten or 15 years previously, who may have left the company, who, in the current climate, might have emigrated to Australia in pursuit of a better job opportunity, or who might be one of the several hundred thousand Irish people in America who cannot be traced, being illegals who have gone to ground and do not want their whereabouts known or where they can be contacted. What we are endeavouring to do in this Bill is to make it possible for prosecutions to prove these facts from the record without having to draw on the civilian witness, employee, emigrant or whoever, for whatever reason, who is no longer available.
If an automatic right is allowed, subject to seven day's notice being served, in every circumstance, of challenge to this record of evidence and the door is opened for the accused to have oral testimony heard, then there is no control over it as far as the relevant legislation is concerned.
That is why the question of balance is lost in our minds while we endeavour to ascertain the origins and purpose of this Bill and what its provisions seek to achieve. I have a genuine concern that the good work undertaken in its preparation and its very intentions would be set at nought if there is an absolute right of objection on the part of an accused, when a court will have no residual discretion. When I say I agree with the Minister, I agree that, in principle, an accused should have the right to have oral testimony heard in all circumstances whenever sought. But, on the question of technical records being proven, the records of the scene of crimes man, of the technical witness, the person who has custody and care of the exhibit, of all of the myriad of technical witnesses who surround and pad out no more than the basic facts of any criminal trial, the legislation is being cast out the window entirely if one gives unfettered, absolute right to the accused to seek oral testimony.
That is why I contend that "in either event but more particularly, as the Minister says, in the absolute event of the circumstances pertaining to section 6 (3) (a) a court should have a right to decide whether the request is reasonable, even though an accused serves seven days' notice. The test is reasonableness on the one hand and on the other, the service of the interests of justice. In these circumstances if an accused is ruled against, a judge will be subject to the review of the appeal court. A court of appeal would be ideally competent and suited to rule that in the circumstances as the case ultimately unravelled or in respect of the evidence the accused advanced on appeal by way of additional information, it would have been better, in the interests of justice, had the evidence been heard fully orally.
Our intentions in this House are to ensure that the good legislation we are knitting together is not simply unravelled by the provision giving absolute right in any circumstance, without question, without review by the court, without anyone's say, to set our very good work entirely at nought. For that reason I am not at all convinced by the Minister's response.
I am afraid I cannot support Deputy McCartan on this amendment. The long history of our criminal law has always been that oral evidence is required. That is the key factor — the witness in the witness box is required to be cross-examined, etc. Written documentation is fine as far as it goes but it can be subject to falsification easily enough. We all know about that only too well. To put ourselves in the position where we leave it to the judge to decide on this issue could raise some serious difficulties. For example, a case could be tried by a judge alone, without a jury. The written material will come before the judge who is determining the case and he will have to decide whether, to use Deputy McCartan's words, it is fair or reasonable to admit it in evidence. The snag is that the judge has to look at this written material before he is in a position to make a decision as to whether or not to admit it. The whole purpose is immediately defeated because the judge will have seen the material when it may well be that the correct decision is that it should not be admitted in evidence.
There is another important factor which is easy for us to lose sight of. We all tend — like everyone else here I have fallen into the trap — to think in terms of the prosecution adducing this material and seeking to have it admitted and the defence raising an objection to its admissibility or production. The Bill is not confined to this process; it is a two-way process. In certain cases it is the defendant who adduces the mass of written material and seeks to have it admitted and the prosecution may wish to object to it. The provision applies equally to any party to a criminal prosecution.
One could have a Goodman type case where there is a mass of written material — records of goods, weights of beef, etc. This written material may be supplied by the tonne. The defence may seek to adduce this material, much of which may be falsified. This will give rise to a very serious problem immediately. The prosecution may object to this material and the judge may decide to overrule that objection and say it is reasonable to admit all this written material. This will give rise to serious problems. It is a major intrusion into the law of evidence to go as far as the Bill proposes to go.
As I said earlier, we have to strike a balance. I believe the Minister has struck a reasonable balance on this issue at this stage of the development of our law. I would hesitate to include in the Bill a measure which would leave such a wide discretion to a judge to decide whether it was reasonable to admit this material. The Bill has to be definitive. I could envisage a criminal case being interrupted immediately to go to the Supreme Court simply on the issue of whether the judge was right or reasonable to accept this material and the entire case being adjourned on this point.
Oral evidence is crucial; oral evidence is at the basis of our law, and always has been. We are modifying this procedure here to some extent. To enable casual documents covering a range of allegations containing material substance to be handed in and to set that up as evidence of the truth of the facts stated in it, without giving either the prosecution or defence the opportunity to question or probate it is a major step. I would have very grave reservations about accepting that as a principle because the document will not just be accepted as a document. Once that document is handed in it is evidence of the truth of what is stated therein, with no opportunity for cross-examination. A judge may well be tempted to say it is unreasonable not to admit such documentation. Once this is done it is a major and very dangerous instrusion into the present position. Therefore, we should be very slow to adopt such a proposal.
The entire issue of documentation being handed in has to be approached with caution. The Bill, as it stands, will be of help in a large range of cases. It requires prior notification to be given to the prosecution or the defence if there is to be an objection. If there is no objection the probability is that the material will be admitted. This will avoid either the prosecution or the defence being taken short. This is fair and reasonable. To take away a right to cross-examine on what could turn out to be important matters of evidence would be too dangerous. Therefore, I support the Minister's position on this issue.
It often happens in criminal trials, both at summary and indictment level, that a judge is asked to rule on the admissibility of evidence such as statements and other technical evidence. In the course of that voir dire a trial within a trial, the judge often has sight of the evidence which will ultimately be ruled upon or objected to. This creates no difficulty whatever in the practice of the courts. Having had regard to evidence in a trial within a trial, a judge often rules against its admissibility and is required to ignore it in coming to his ultimate conclusions. I am not saying for a moment that this would confound Deputy Taylor but no doubt it confounds lay people and observers of trials. They find it hard to understand how on the one hand a judge who knows the content of a statement and has ruled that it is inadmissible can, on the other hand, ignore it when coming to a conclusion. However, judges do this every day.
I do not propose in my amendment to take away in an absolute way the right of an accused to give oral evidence. I am merely saying that a residual right should be left in the hands of the trial judge to review the request being made. An accused would have to indicate in a very brief and succinct way, through his counsel, to the trial judge the basis upon which the evidence is to be challenged and the reasons oral evidence should be advanced. Once these reasons are stated and are seen to be more than mere obstructions I do not think any judge could, in the interests of justice, deny an application. From my practical experience of the law, I believe there is a need for a saving proviso which would leave discretion in the hands of the trial judge. This is why I put down my amendment. I ask that the question be put.
Amendment put and declared lost.
Sections 6 and 7 agreed to.
NEW SECTION.
I move amendment No. 20:
In page 8, before section 8, to insert the following new section:
"8.— Where the birth of child is registered in a register maintained under the Births and Deaths Registration Acts, 1863 to 1987, and the name of a person is entered as father of the child on the register so maintained, then the information contained in the register shall be admissible in any criminal proceedings as evidence that the person whose name is so entered is the father of the child and such person shall be presumed to be the father of the child unless the contrary is satisfactorily proved.".
There is a link between amendment No. 20, amendment No. 25 and the following amendments. However, I will not address them because we will be taking them separately. Amendment No. 20, and the later amendments, derive from something adverted to in dealing with amendment No. 14 tabled by Deputy McCartan. The correct way to deal with the issue, to which I will refer shortly, is to take on board amendment No. 20 and the other extensive amendments.
In Waterford some weeks ago there was a case about which you, a Leas-Cheann Comhairle, and I expressed great concern, in which a prosecution was brought under the Prevention of Incest Act and a person who was said to be the father of the child was prosecuted for incest. The daughter, who is now an adult, gave evidence that she had been sexually abused over a long number of years by the alleged accused. At the conclusion of the evidence for the prosecution — because the onus is on the prosecution to initially establish a prima facie case — it was indicated that the counsel for the person alleged to be the father of the girl did not accept that he actually was the father; the prosecution failed. The judge directed the jury to dismiss the prosecution and the man walked free from the court.
I am very conscious that anything said in this House about a criminal trial, particularly when there has been a finding of "not guilty", albeit by way of judicial direction, should not be used to cast doubts on the validity of the decision. However, the concern arising from this case is that in prosecution of incest cases, a substantial technical difficulty has now arisen which may in future cases prevent, in particular fathers who it is alleged have sexually abused their daughters or indeed their sons, from being successfully prosecuted. The effect of this case is that if someone, in particular the father, denies that he is the father of the child who has been abused, there can be substantial difficulties in establishing the position and successfully completing a prosecution.
Why did the mother not give evidence in this case?
It is my understanding that the mother did not give evidence in this case. I am not privy to the reasons for not calling the mother. There are rumours regarding why the mother was not called to give evidence but, unless the Minister has concrete information in that regard, I will not comment on rumours or bring them into this House because it would be wrong to do so. In cases of this nature — I am not making these remarks in specific reference to this case — there are a variety of reasons for mothers not giving evidence. For example, the husband and wife may be separated and the mother may not know of the events; she may not wish to give evidence about paternity because she does not want to become entangled in the family dispute. A mother might be residing with the father and could be intimidated into not giving evidence for fear of future assaults. The mother may know of events in the past to which she has become reconciled and, in the circumstances, feel that if she gives evidence she will jeopardise her marriage.
In other sections we deal with the circumstances in which wives can be compelled to give evidence in court proceedings. However, there would be a major difficulty in a case in which, for example, it was alleged that the father of a child had committed incest in circumstances where the mother has died. That is a problem which will have to be addressed and, if the logic of the Waterford decision applied, it would mean that in any case in which the mother of a child had died in circumstances where the father was accused of incest he could simply say he did not accept that he was her father and nobody would be available to give evidence to establish that he was the person alleged to be the father.
It is quite clear that we must resolve this difficulty in the context of ensuring that a technical problem in this area of the law is sorted out in a way which ensures that, where allegations are made of incest, they can be properly prosecuted. We must also bear in mind the necessity to ensure that people are not wrongly convicted of offences which they have not committed. I propose a two-pronged approach to the House to deal with this issue. The approach I propose is based on a commonsense attitude to the issue and on sound legal precedent, bringing into the criminal law area an approach which is seen to be correct and which has worked successfully in the civil and family law area as a result of the Status of Children Act, 1987. Bearing in mind the difficulties in the criminal law area, taking account of the 1987 Act and the successful application of its provisions in these areas, I drafted the amendments which I brought before the House in relation to this issue.
The difficulty which arose in the Waterford case was, apparently, that even if a birth certificate was presented to the court naming the accused person as the father of a child, the court could not regard the birth certificate as even giving rise to a prima facie indication that the person was the father, or give rise to any presumption that that person was the father. There are very stringent rules under existing legislation as it applies from the Births and Deaths Registration Acts, 1963-1987. The 1987 reference incorporates amendments to earlier legislation by the Status of Children Act, 1987. These stringent provisions lay down the circumstances in which someone can be named in a birth certificate as the father of a child. We also have provision that where someone is incorrectly named as the father of the child, the name can be taken off the certificate.
If one steps aside from the peculiarities of the bureaucracy of the legal administration, any person outside this House would be of the view that if someone is charged with the offence of incest and is named on a birth certificate, properly registered in this State as being the father of the child against whom the offence is committed, a presumption should arise that the person so named as father is in fact the father. The production of the birth certificate should be sufficient to raise that presumption. Of course if that person is not the father of the child, the raising of the presumption does not mean that the person might be wrongly convicted of the offence of incest. That simply means that if evidence is given by someone that particularly obnoxious sexual acts had been committed against them, if they say that the person who committed those acts is their father and if a birth certificate is produced which confirms that the person alleged to have committed those acts is the father, it should be sufficient to establish a prima facie case. It would ensure that in future cases of this nature a judge would not be required to direct a jury to bring in a verdict of “not guilty” in the absence of other evidence.
Of course, the accused would be required to go into the witness box to give evidence and if he were pleading he was not guilty I presume he would give evidence that he did not commit the alleged acts. However, if he were to give evidence that he was not the father of the victim he would have to rebut the presumption that he was the father. He would have to explain why his name appeared, on the birth certificate, if he knew his name appeared on the birth certificate. He would have to say whether he had acted as a father to the child since its birth, whether he was married to the mother of the child, or whether it had ever been indicated to him before the trial that he was not the father of the child. Any lawyer in a criminal trial could put these pertinent questions to any accused who denied paternity. The accused's replies would influence a jury in determining who was telling the truth.
If the appearance of a name on a birth certificate can raise the presumption in civil cases that someone is the father of a child I do not see any reason why it should not do so in criminal cases. I invite the Minister to look at the corresponding provisions in the Status of Children Act, 1987, that deal with presumptions of paternity and I ask the Minister to take that on board in the context of this amendment.
I understand that it is the objective of all Members to ensure that we do not have a repetition of the Waterford case in the future. My recollection is that when the Leas-Cheann Comhairle, Deputy Tunney, raised this issue quite properly and carefully on the Adjournment before the Second Stage of this Bill was debated, the Minister for Justice indicated that this Bill would contain provisions to address that issue. In my view the provisions contained in Part II of the Bill do not adequately address this issue. I also believe that the issue would not be comprehensively addressed by Deputy McCartan's amendment alone, but it would be assisted by that amendment and perhaps an amalgam of the amendments proposed by Deputy McCartan and me would resolve the issue. I have no theological commitment to this proposed new section being in this particular position and perhaps the amendment would more appropriately be part of the new Part III of the Bill. I can see technical difficulties arising if it is included in Part II rather than Part III of the Bill. I am very anxious to bring this amendment before the House on Committee Stage so that we have the opportunity for all party agreement on our objectives — and I believe the objective of everybody is to resolve the difficulty that arose in the Waterford case. Having debated the technical problems on Committee Stage, we wanted to give the Minister time to consider the amendment, which I will not be pressing on Committee Stage but which I will press on Report Stage if the Minister either does not agree to this amendment or produce a substantive proposal which will resolve the problem. It may be in different language or situated in a different part of the Bill, but we must resolve this problem.
I now want to put the amendment into the context of the later amendments, which will be discussed later, because that is relevant. Let us assume that someone who allegedly has abused his child is being prosecuted for incest. The birth certificate is produced and there is a presumption that the person named is the father. When the person named gets into the witness box he says he is not the father, that his wife had had an affair with someone else and the alleged victim who is thought to be his daughter is not his daughter, that, while he may have engaged in certain sexual acts, it was not a case of incest because the victim was not his daughter. There is a presumption that he is the father but the judge has the opposite evidence. Any good lawyer acting for the prosecution could cross examine the accused in detail to assist the jury in establishing the veracity of what he is saying. Having raised the presumption and the accused having denied paternity, it would be unsatisfactory if the jury, having heard the evidence and seen the witness, had to make their decision in circumstances where medical science has advanced to such a degree that there can be a degree of certitude about the position. Under the Status of Children Act, 1987, when there is alleged paternity but the person denies he is the father of the child, the judge hearing the case or either party to the court proceedings can make application for a blood test to be carried out. The definition of a blood test under the Status of Children Act, 1987, allows not simply for the old fashioned blood test that could be conducted and which might determine that someone is not the father of a particular child but could not with any exactitude determine if someone was. However, the new style of testing in the form of genetic fingerprinting, which we recognise expressly under the Forensic Evidence Act, 1990, allows for the taking of a blood sample, or indeed other forms of tissue, which can with a substantial degree of accuracy determine whether a person alleged to be the father of the child is or is not the father of the child. All that is required is the taking of a sample from the accused and his alleged child. It is not even essential that the mother of the child be available to give a sample to determine paternity, though obviously if she were available that would assist the genetic fingerprinting tests.
The new Part III, which I propose be inserted in the Bill and which will be discussed in greater detail when we reach it, would allow a judge hearing a criminal case and faced with that dilemma to order the taking of a blood test and for genetic fingerprinting to take place in order to determine the issue of parentage. It would allow for such an issue to be resolved by such testing in a way that we would have a greater degree of exactitude and certainty than is the case in most issues of contested fact in a criminal trial. Where the defendant is going to deny that he is the father of the victim, in such circumstances it would be desirable that the defendant must notify the court in a pre-trial procedure that he will take such a stance and it should be possible for the court in the pre-trial procedure to order that the tests be carried out. Equally, the court should be able to adjourn proceedings in order that the tests be carried out. I will deal with the specifics and complications of the various new sections which I am proposing be put into Part III of the Bill when we reach it. The point I want to make in the context of amendment No. 20 is that it would allow the accused to go into the second part of the trial, where he would give evidence denying paternity; but, where it is necessary to assist the courts in determining the facts of paternity, genetic fingerprinting would be available. It is possible that the provisions of the Forensic Evidence Act, 1990, if and when it is brought into force, could be used in this context; but it would be applied in circumstances where the Garda had reasonable cause to believe that someone had committed an offence in the particular circumstances laid down in the Act and this would have to be done prior to the prosecution commencing. Under Part III we have a proposal which allows a judge to adjourn a trial to allow for the carrying out of such genetic fingerprinting to assist in the establishment of the truth.
I will conclude by saying we must find a comprehensive solution to the difficulty that arose in the Waterford case. Many people looked askance at what took place in that case and felt it went beyond legal technicalities. I am not making any criticism of the lawyers involved; the defence lawyers had their job to do to protect the defendant, the prosecution lawyers had their job to do and did their best to prosecute the case and they experienced a difficulty that had not arisen heretofore. To a lay person looking in it seemed that the dismissal of that case on a technicality was almost an abuse of the legal process. I am not saying it was an abuse, I am saying it was perceived as an abuse of the legal process. I emphasise I am making no criticism of the defence lawyers who had a job to do and no criticism of the prosecution lawyers who found themselves confronted with a dilemma that had not previously arisen in this area. It appeared to be an abuse of the legal process and we must correct it. Fortunately, the Criminal Evidence Bill is uniquely suited to deal with this matter. It is a coincidence that this Bill came into the House so soon after that case. I think the Minister tries to pretend this Bill was a response to that case but, of course, we all know it was in the course of preparation for a very lengthy period and it does not directly address the problems of that case, it only does so obliquely and not in a way that is explicit and clear and certainly not in a way that would provide the extensive provision I would like to see in the area.
I hope that what I am trying to achieve here will have the general support of the House. I appreciate this is the first time we have been able to deal with the technicalities of the case, that the Minister may need more time to consider it and, perhaps, we should come back to it on Report Stage. The initial response of the Minister, and other Members of the House, to what is proposed would be helpful in ensuring that we find the right solution to this problem. This would enable us to ensure that if cases of this nature are brought before our courts in the future we will not see charges dismissed on a technical basis. We will ensure that birth certificates are admissible and that if somebody is named on a birth certificate as the father of a child he cannot, in a criminal trial, simply say he is not the father and as a result have very serious charges dismissed; charges which require the full rigours of the law to ensure that those who have committed that type of offence are properly convicted and sentenced. This should not result in people escaping justice on legal technicalities based on the inadequacy of our laws of evidence.
During the course of the afternoon — while Deputy Shatter was absent — we discussed amendment No. 14 in the name of Deputy McCartan. The Minister said at that stage, as well as on Second Stage that he would try very hard to address the difficulty which arose in the Waterford case. Indeed, Deputy Shatter has made a very cogent argument as to why amendment No. 20 should be accepted by the Minister and in that context he referred to the Waterford case in detail and the difficulties that arose.
That case upset a great many people who are conscious of the difficulties attached to cases of child sexual abuse. First of all, there is the difficulty of getting them into court and bringing about a prosecution. The Waterford case upset people because it found that there were certain loopholes of which we were not aware which meant that when you succeeded in getting a case before the courts it could so easily fail to arrive at what might be described as a normal prosecution. It is very important that we address the matter in the course of this Bill. It appears that the Bill as drafted does not deal with this problem. Deputy McCartan attempted to include his amendment under section 14 because he felt it would go some way towards ensuring that a case similar to the Waterford case would not happen again.
In our view, amendment No. 20 is much more comprehensive and the follow-up to it in Part III gives the courts power to demand that evidence be produced in the form of a blood test in a case where a birth certificate was provided as evidence and where the accused person states he is not the parent. Before the Bill is finalised I hope, because of the openness with which the Government propose to proceed, that whatever loophole exists will be closed off. We hope amendment No. 20 will form part of the Bill. If the Minister has serious objections to the amendment, I suggest he and Deputy Shatter get together to ensure that what he and everybody in the House wants to see achieved will be achieved by means of this Bill. Amendment No. 20 and the other amendments tabled by Deputy Shatter appear to achieve that aim and I hope they will be accepted by the House.
I wish to support this amendment. It would be more accurate to refer to the case as the west Waterford case rather than the Waterford case. The reason the judge directed the jury to dismiss the case is a mystery to me, as a layman, but maybe not to some of the people here who are in the legal profession. The dismissal on the grounds directed by the judge to the jury has absolutely stunned people over a wide area. It is entirely unbelievable that the court was not adjourned until the birth certificate was produced or until such time as the mother of the child involved — or the wife — was subpoenaed to attend court. That a case could be allowed to collapse or to be dismissed on such a technicality defies the understanding of the ordinary public, of whom I am one.
This amendment should close that loophole if, indeed, it was a loophole. My information is that in a statement the defendant had referred to the child as "my daughter". I would like also to make the point that at no stage was the victim, who is now 20 years of age, called to give evidence. Because of that, the Minister for Justice, Deputy Flynn, and the Minister of State, Deputy O'Dea, who is present this evening, should look further into the case and examine why the charge which was brought against the father of the child was merely limited to a charge of incest when the Garda Síochána investigating the case had specified there should be a number of charges, including rape and sexual assault.
I cannot understand the reason no further action has been taken in this instance. Years ago if it was felt that there had been a miscarriage of justice the Attorney General or the State had the right to re-enter or reopen the case. There is a definite feeling that justice has not been done in this case. There is an aura of fear in the general district where these incidents occurred — this should not be under-estimated and some awful deeds may be carried out; I hope not but we should not under-estimate the depravity of people who carry out certain acts.
This is a dreadful blot on our legal system and something should be done immediately to correct the malfunction of that system in this case. I cannot understand the reason the case was not adjourned to allow the mother of the child, the wife of the defendant, to be subpoenaed to attend the court to verify that the accused was indeed the father of the victim. The case would then have proceeded in the way it should have and a verdict would have been arrived at on all the evidence presented to the court. It is essential that amendments such as this are taken on board by the Government to ensure there is no repetition elsewhere.
I am not unsympathetic to the sentiments expressed in the amendment. As Deputies Shatter and Cotter said, Members on all sides of the House expressed the desire that if a similar case was to occur the accused should not get off on a technicality. I cannot comment on the other factors mentioned by Deputy Deasy as I do not have sufficient information. However, I have noted the other questions he raised and will have inquiries made.
In relation to the birth certificate, which was central to the decision in the Waterford case, two matters have to be dealt with. First, we have to ensure that a birth certificate will be admissible in evidence and, second, that this will have some significant effect. While I do not want to go back over the arguments made on amendment No. 14 in the name of Deputy McCartan which was debated at some length, he wished to ensure that there would be no doubt that the birth certificate would be admissible in evidence.
I felt then and I still feel, having listened to the arguments put forward, that this legislation, as it stands, is sufficient without the need to include Deputy McCartan's amendment to ensure that a birth certificate will be admissible in evidence. However, as I indicated to Deputy McCartan in reply to amendment No. 14, if necessary, I would be prepared to include the wording of his amendment to put it beyond doubt that a birth certificate will be admissible in evidence in all cases under section 5.
The second matter that has to be dealt with is the question of what significance a birth certificate would have if admitted in evidence. That brings me to the substance of Deputy Shatter's amendment. Deputy Shatter is trying to ensure that if a birth certificate is admitted in evidence this would give rise to a rebuttable presumption of paternity; in other words, the person "shall be presumed to be the father of the child unless the contrary is satisfactorily proved." As I said, section 5 (1) provides for the admissibility of documentary evidence. That subsection states that "information contained in a document shall be admissible in any criminal proceedings as evidence of any fact therein". If we ensure that a birth certificate will be admissible in evidence under section 5 (1) this will be considered to be evidence of any fact contained therein. Obviously the principal fact would be that the person named is the father.
Deputy Shatter's amendment seeks to go further. If it is necessary to go further I am prepared to be persuaded that Deputy Shatter's amendment should be accepted but so far nothing that he has said has persuaded me that it is necessary to go that far. It would seem that if the information contained in the document, namely, the birth certificate, is considered to be evidence of any fact therein and the birth certificate is admitted in evidence it would be up to the accused to adduce evidence to contradict this fact in relation to paternity; otherwise it would stand. That is my understanding of the matter.
I should say also that I dislike the wording of Deputy Shatter's amendment because there would be a presumption that the person so named is the father of the child and that he "shall be presumed to be the father of the child unless the contrary is satisfactorily proved". This would seem to shift the burden of proof — this would be most inappropriate in a criminal case — onto the accused. Not only this, it would require the accused to prove a negative, a difficult thing to do at the best of times.
On Second Stage, in referring to Part III, which provides for the giving of evidence by way of a television link, Deputy Shatter expressed his concern that the balance would shift towards the accused. I agreed with him at that time and I still agree with him. If we are to be consistent we have to keep this question in mind at all times. We cannot rectify a case which has been the source of great public interest and dissatisfaction in Deputy's Deasy's constituency and county by overturning the criminal law and requiring the accused to prove he is innocent. A fundamental principle of criminal law is that the accused is innocent until proven guilty and the onus rests firmly on the prosecution to prove the case against the accused.
It is said that hard cases make bad law. Therefore, we cannot use the result in one case to overturn the principles of criminal law and require the accused to prove his innocence or, in the words of Deputy Shatter's amendment, to prove satisfactorily that he is not the father of the child, that is, a negative. I am not unsympathetic to the sentiments expressed in the amendment but, given the specific provisions of section 5 (1) and the fact that the information contained in the document, that is, the birth certificate, shall be admissible as evidence of the fact therein, I remain to be persuaded that there is a necessity to include this amendment. I have been advised that it may give rise to constitutional difficulties from the point of view of maintaining a balance and that the onus should remain on the prosecution from the beginning to the end of a criminal trial to prove the case.
The Minister is correct when he says that this amendment tries to shift the burden of proof; that is the intention. First, I was concerned that the Minister might bring the birth certificate in under section 5. Certainly, if the amendment proposed by Deputy McCartan is brought in, the birth certificate would be included under it. It would mean that the certificate would only be evidence of the fact contained therein. Then presumably the accused could get into the witness box and deny that fact, saying that he is not the father, and that would be the end of the story.
That is not correct.
Progress reported: Committee to sit again.