Dáil Éireann debate -
Tuesday, 26 May 1992

Vol. 420 No. 3

Criminal Evidence Bill, 1992: Committee Stage (Resumed).

Debate resumed on amendment No. 20:

In page 8, before section 8, to insert the following new section:

"8.— Where the birth of a 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.".

—(Deputy Shatter).

Mr. Cotter

We discussed this amendment previously and, to date, we have not been satisfied with the response of the Minister of State in relation to the difficulties which arose as a result of the Waterford case. Deputy McCartan's amendment led to quite a lot of debate and indeed there was much soul searching.

The Minister should accept this amendment although he said that, for various reasons, he would not do so. If he accepted it he said that it would put the onus on the accused person to prove his innocence rather than vice versa. However, where child sexual abuse and incest, particularly distasteful crimes are involved, which are exceedingly difficult to bring to court and to prosecute, we should try to ensure that when a case is brought to court it is prosecuted without the kind of technicalities which arose in the Waterford case. Indeed, the dismissal of that case led to great outrage and the public find it very hard to understand how an individual who referred to the person who had brought the complaint as his daughter subsequently denied that she was and that that simple denial was enough to bring the court crashing to its knees. As the judge saw it, he had no option but to dismiss the case. Lay people found this inexplicable and could not understand how a simple denial could give the defence the facility which it would have found very difficult to produce otherwise. Before this Bill is passed it is incumbent on us to ensure that dismissal on a technicality of that nature will not happen again.

Deputy Shatter tabled quite a number of amendments to later sections which are intended to copperfasten this whole area and to ensure that people accused of child sexual abuse and incest will not have a simple means of having their case dismissed. I am disappointed that Deputy Shatter is not present because, with his qualifications and insight, he is far better qualified than I am to argue in favour of his amendment.

Of course there is another side to the case and the Minister said on the previous occasion that one must try to maintain a balance. We accept that. The part of this amendment to which the Minister took exception, before the debate adjourned, that "such person shall be presumed to be the father of the child unless the contrary is satisfactorily proved" puts the onus on the individual to prove that he is not the father of the child. That would apply in cases such as the Waterford case. The general public would agree that such a provision was acceptable and would contend that if a person made a statement to the effect that he was not the father then the onus should be put on him to prove the statement if necessary.

Earlier on, the committee also discussed the admissibility of birth certificates. What would be the position in a court case if a birth certificate was produced and the individual who stood accused denied paternity, even though he was named on the birth certificate? As happened in the recent Waterford case, would a simple denial be accepted as the basis for dismissal of the case?

Deputy Shatter has tabled amendments Nos. 25 to 31. So far as I can determine, Deputy Shatter has borrowed from the Status of Children Act, 1987, to draw up the amendments which he wants introduced into this legislation to give the court the ability to take certain actions and make certain orders to ensure that what happened in Waterford cannot happen again.

I should not put amendment No. 20 to a vote if I thought the Minister would take the matter seriously and try very hard before Report Stage is finished to have the issue satisfactorily resolved. When the Committee were discussing Deputy McCartan's amendment No. 14, the Minister indicated his willingness to do something to ensure the admissibility of a birth certificate. I hope he will go further than that and come down part of the road with us at least and agree to ensure that these very difficult cases can be prosecuted in an acceptable way and that the kind of thing that happens occasionally, as instanced by the recent Waterford case, does not recur. We should make sure that if such cases are lost they are lost for a reason other than a simple technicality.

Mr. McCartan

The Committee had a very full and detailed debate on this general proposition on 8 April, When the Committee Stage was last before us. During discussion on amendment No. 14 the Minister undertook to examine the issue positively for Report Stage. For that reason, I am happy to leave the matter over until Report Stage, when the issue will be examined in more detail. The point has been made very well in the House that there is a legislative gap in that area and the Minister has undertaken to deal with that.

I should like to comment about the length of time it has taken for Committee Stage of this Bill to resume. Initially we were told by the Minister that the matter was urgent as regards two aspects of the law, which emerged in the recent Waterford case and in dealing with child sexual abuse generally. It is regrettable that it has taken almost six weeks to resume Committee Stage.

Minister of State at the Department of Justice (Mr. O'Dea)

I take the point made by Deputy McCartan, but I do not have any responsibility in relation to the timing of legislation or when legislation is brought into the House. I fully recognise the view expressed by Deputy Cotter that it is unacceptable that people should escape conviction in cases such as the recent Waterford case on a technicality. The other side of the coin is that we should not react in a knee-jerk manner when a particular case received wide publicity in the news media and immediately change the criminal law in relation to that type of case in order to ensure conviction. As I said when we previously discussed the issue, there are arguments for and against revision. Constitutional difficulties would quickly be encountered were we to adopt the approach suggested by Deputy Shatter and Deputy Cotter.

Having said that, I realise that there is a great public concern about people being able to escape conviction in cases, such as in the recent Waterford case, on technicalities. We, as legislators, must do our utmost to ensure that such instances recur as infrequently as possible.

In relation to Deputy McCartan's amendment No. 14, I did mention before the adjournment of the debate that I was prepared to look sympathetically at his proposal, which sought to ensure the admissibility of birth certificates, to put the matter beyond any doubt. Deputy Shatter seems worried that even if we were to ensure the admissibility of birth certificates that in itself would not be of any consequence so far as evidence is concerned unless we were to write in some sort of a presumption which an accused would then have to rebut. I am still not in favour of going as far as actually writing in a rebuttable presumption which an accused would have to rebut, because I feel that it smacks too much of shifting the burden of proof.

However, we must ensure that once a birth certificate is admitted in evidence that will have some effect. I have had discussions with the parliamentary draftsman on that issue, and I am glad to be able to assure the House that an amendment designed to take into account the points made by Deputies Shatter, Cotter and McCartan is being prepared and I shall present it to the House on Report Stage. The amendment will deal not only with the admissibility of birth certificates but will also seek to ensure that a birth certificate has definite evidential value and has to be taken into account once admitted. I hope that the amendment will meet the fears expressed.

Mr. Cotter

I am very happy that the Minister has decided to go at least part of the way with us and take into account all the arguments put in this regard by Deputy McCartan and the rest of us.

I do not particularly accept the Minister's comment that hard cases make bad law in his instance. The intricacy of such cases is well known and our lack of preparedness to deal with this whole area of child sexual abuse is also well known. It is accepted that we have no research and no background on the issue and that we are trying to find our way forward. Strengthening the law to ensure that the kind of dismissal that happened in the Waterford case will not happen again would be wise in that it would give the public confidence that the law can be applied. Given the difficulty we face in investigating, because of lack of resources, and in bringing cases before the courts, we should make sure that once a case comes before the courts people are given a fair go.

I look forward to reading the amendment which the Minister will bring forward. On that basis, I am prepared to withdraw amendment No. 20. When the Minister's amendment comes forward we will decide whether it is acceptable to us.

Amendment, by leave, withdrawn.

Question proposed: "That section 8 stand part of the Bill."

Mr. McCartan

There has been a significant development since we spoke here on 8 April, when, as the Minister will recall Deputy Shatter and I made some caustic remarks — although I endeavoured to save some grace — about the Incorporated Law Society for their failure to respond to the Bill in any meaningful sense. Since then no doubt the Minister will have received their detailed, reasoned submission on the Bill. Perhaps the break was of some benefit.

The Incorporated Law Society made some useful points to which the Minister might respond in relation to section 8 (1) which reads:

8.—(1) In any criminal proceedings information or any part thereof that is admissible in evidence by virtue of section 5 shall not be admitted if the court is of opinion that in the interests of justice the information or that part ought not to be admitted.

Can the Minister indicate how he envisages such an inquiry would be conducted? For example; will the onus be on the court, of its own motion, to inquire into all applications or will the onus rest on either party, the party moving or the party opposing? For example, the Incorporated Law Society suggest that, if there was a specific clause inserted in section 7 suggesting that the onus be on the moving party to show clearly the admissibility of the document, that would overcome this difficulty.

The other point they make is that this provision may well lengthen rather than shorten the duration of a criminal trial because of its complexity and the extent to which a judge, in his consideration may have to range over so many matters.

Mr. Cotter

I might make one observation on the manner in which section 8 has been drafted and in which its provisions are intended to operate. My information is that it is unclear whether the party objecting. to the admission of a document has the onus to establish its inadmissibility. Perhaps that could be clarified before we leave the section since such clarification is warranted. For example, perhaps the onus should be on the party producing the document to satisfy the court as to its admissibility.

Mr. O'Dea

In relation to the points made by Deputy McCartan — I will look into them — my understanding is that the court on its own motion, can inquire into this matter. The court can also do so at the request either of the prosecution or of the defence, as the case may be. The Deputy has said, and I agree with him, that this may well add to the duration of criminal trials. That is the price we must pay for this necessary change in the law of evidence. I was slightly preoccupied and did not quite follow the point Deputy Cotter was making.

Mr. McCartan

It was much the same.

Question put and agreed to.

SECTION 9.

Mr. McCartan

I move amendment No. 21:

In page 9, between lines 30 and 31, to insert the following:

"(d) evidence may be admissible under this section by means of the rules set out in this Part, subject to the conditions herein as shall be applicable.".

The provisions of section 9 deal with evidence with regard to credibility of a witness. Whenever a witness is giving evidence with regard to fact before the court or is of the opinion, his or her credibility is a matter that can often arise. It is a legitimate procedure, particularly in the case of opinion evidence in the case of experts, to be able to tackle their expertise by testing their credibility or otherwise. Section 9 applies the general principles of the Bill allowing documentary evidence to be adduced dealing with issues of credibility. For example, if the prosecution produce a certificate or report from a witness, the opposing party, the defence, can introduce evidence relating simply to the credibility that could have been tested had the witness been in the witness box giving testimony viva voce.

My amendment merely suggests that that evidence that can be produced or adduced under section 9 can also be produced or adduced in the same way as all other testimony in that Part of the Bill, namely, by the use of documentary evidence. If one can give one's evidence in chief and in rebuttal there is no reason — if one wants to challenge either evidence and can do so conveniently by document in regard to credibility — one should not be allowed and entitled to do so. That is what my amendment attempts to do. It may not be properly drafted or constructed for the purpose and it may not give the sense of what I seek to do in its wording. In such a technical Bill it may well be covered but, in my view, it is not and should be so stated. I tabled this amendment for the sake of clarity.

It is some weeks since we last discussed Committee Stage. When I looked for my handwritten notes I had prepared at the time to explain why I had tabled this amendment I found they suggested that it was simply on the basis of what is good for the goose should be good for the gander. If one wishes to introduce evidence challenging credibility it is sensible, and within the spirit of the Bill, that it can be done by way of documentary evidence provided the other conditions stipulated in sections 7 and 8 are complied with.

Mr. O'Dea

I have to confess that, when I saw this amendment this morning, I did not quite know what Deputy McCartan had in mind. Having heard him I want to clarify exactly what he has in mind.

This Part deals with documentary evidence. Obviously, a document has to be prepared by somebody. If I follow Deputy McCartan correctly what he is saying is that, if evidence is to be adduced to challenge the credibility of the person who originally compiled the document, or the person who supplied the information contained in the document, that credibility should be allowed to be challenged by way of document.

Mr. McCartan

Not absolute, may be.

Mr. O'Dea

I see, that it would be possible, in certain circumstances, to admit it presumably under the same conditions as documentary evidence itself is admissible. I take the point Deputy McCartan made. I will ask the drafts people in my Department to examine that between now and Report Stage to ascertain whether it is feasible.

Mr. McCartan

On that basis, I withdraw my amendment awaiting that report.

Amendment, by leave, withdrawn.

Section 9 agreed to.

NEW SECTION.

An Leas-Cheann Comhairle

We now move to amendment No. 21a, in the name of the Minister. Amendment No. 24, in the name of Deputy McCartan, is an alternative amendment. Therefore, it is proposed, for discussion purposes, to take amendments Nos. 21a and 24 together.

Mr. McCartan

Agreed.

An Leas-Cheann Comhairle

I should advise the House that amendment No. 21a is in substitution of amendments Nos. 22 and 23 on the original list, neither of which will now be moved.

Mr. O'Dea

I move amendment No. 21a:

In page 9, before section 10, to insert the following new section:

"10.— The Criminal Procedure Act 1967, is hereby amended—

(a) by the substitution, for paragraphs (d) and (e) of section 6 (1) of that Act (which provides for the service of documents on an accused), of the following paragraphs:

‘(d) a statement of the evidence that is to be given by each of them,

(e) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act, 1992,

(f) where appropriate, a copy of a certificate pursuant to section 6 (1) of that Act, and

(g) a list of exhibits (if any)',

and

(b) by the substitution, for section 11 of that Act (which provides for service of additional documents on an accused after he has been sent forward for trial), of the following section:

‘11. (1) Where the accused has been sent forward for trial the Director of Public Prosecutions shall cause to be served on him a list of any further witnesses whom he proposes to call at the trial, with a statement of the evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be given by any witness whose name appears on the list of witnesses already supplied, any notice of intention to give information contained in a document in evidence pursuant to section 7 (1) (b) of the Criminal Evidence Act, 1992, together with a copy of the document and any certificate pursuant to section 6 (1) of that Act, and copies of any statement recorded under section 7 and any deposition taken under that section or under section 14.

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

As the Chair rightly said, this amendment is in substitution of amendments Nos. 22 and 23, and makes two changes in section 10 by incorporating the additions to section 10 proposed by amendments Nos. 22 and 23. It also re-enacts, with amendments, section 11 of the Criminal Procedure Act, 1967.

First, with regard to the additions to section 10, as the section stands, it provides that the book of evidence served on an accused person before the preliminary examination must include any documents which it is proposed to give in evidence under this Part and any certificate given pursuant to section 6 (1). Of course, it is not the intention of my Department or of the draftsman, that the original documents or certificates should be served on the accused as these will have to be available for production by the prosecution in court. Indeed, section 7 (1) recognises this. Therefore, the effect of the amendment is that copies of the documents, rather than the originals, in question can be served.

The second change being made by the amendment is to section 11 of the Criminal Procedure Act, 1967. That section provides for the service of various documents on an accused after he has been returned for trial. Examples of such documents would be statements by any further witnesses, etc. It is necessary to provide also for the service of notice of any additional documentary evidence that the prosecutor may wish to adduce at the trial and of any supporting certificate under section 6 (1) of the Bill. This is achieved by the second part of the amendment. For convenience of reference the parliamentary draftsman has repeated section 11 of the 1967 Act with the amendments, which I think is more satisfactory then amending by reference. To sum up, the changes proposed in this amendment are consequential on the procedural amendments being made in the law of evidence by the earlier provisions of this Part of the Bill.

Mr. McCartan

I have no difficulty with the Minister's amendment. As he said, it is entirely consequential on the need to expand the procedures for preliminary investigation, etc. under the 1967 Act. My amendment No 24 simply proposes to correct what I believed was an error in the original text of the Bill. However, the Minister has repeated this error in his amendment. Paragraph (f) states that "where appropriate, a copy of a certificate pursuant to section 6 (1) of that Act...". I am concerned about the term "that Act". Section 10 seeks to amend the Criminal Procedure Act, 1967. As I understand it, the term "that Act" is intended to mean the 1992 Act. While, as the Minister said, reference is made to the 1992 Act in paragraph (e) of his amendment I believe that from the point of view of clarity the title of the Act should be repeated in paragraph (f). That is what I sought to do in my amendment No. 24.

Mr. O'Dea

I understand the point Deputy McCartan is making. Paragraph (f) of my amendment is immediately preceded by paragraph (e) which refers to "a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act, 1992. Paragraph (f) states that "where appropriate, a copy of a certificate pursuant to section 6 (1) of that Act...". I do not think that the question of the production of certificates, etc. arises under section 6 (1) of the Criminal Procedure Act, 1967. Therefore, the Act referred to must be the Criminal Evidence Act, 1992.

Mr. McCartan

The Minister should say that that is all he means.

Mr. O'Dea

I will ask the parliamentary draftsman to look at the paragraph again to see if it is clear which Act is being referred to.

Amendment agreed to.

Amendments Nos. 22 to 24, inclusive, not moved.

Question proposed: "That section 10, as amended, stand part of the Bill."

Mr. McCartan

The Law Society make a very useful point in relation to section 10. Perhaps I am moving too quickly, as this point may be dealt with in a later amendment. They suggest that the law should be amended to provide for the service of notice of any of these documents after the return to trial stage as well. Can the Minister advise me if he will address this point in a later amendment?

Mr. O'Dea

I am advised that the Law Society's submission is met by the terms of the amendment I am proposing.

Question put and agreed to.

NEW SECTION.

An Leas-Cheann Comhairle

We now come to amendment No. 25. Amendments Nos. 25 to 31, inclusive, form a composite proposal. I propose, therefore, for discussion purposes to take amendments Nos. 25 to 31, inclusive, le chéile. Is that agreed? Agreed.

Mr. Cotter

I move amendment No. 25.

In page 10, before section 11, but in Part II, to insert the following new section:

"PART III

BLOOD TESTS IN DETERMINING PARENTAGE IN CRIMINAL PROCEEDINGS

11.—In this Part—

‘blood samples' means blood taken for the purpose of blood tests;

‘blood test' means any test carried out under this Part and made with the object of ascertaining inheritable characteristics;

‘excluded' means excluded subject to the occurrence of mutation;

‘the Minister' means the Minister for Justice".

I wish to read the other amendments into the record. Amendment No. 26 reads:

In page 10, before section 11, but in Part II, to insert the following new section:

"12.—(1) In any criminal proceedings before a court in which the parentage of any person is in question, the court may, either of its own motion or upon application being made to it, give a direction for the use of blood tests for the purpose of assisting the court to determine whether a person is or is not a parent of the person whose parentage is in question, and for the taking, within a period to be specified in the direction, of blood samples from the person whose parentage is so questioned, from any person alleged to be a parent of that person and from any other person or from any of those persons.

(2) The court may at any time revoke or vary a direction previously given by it under this section.".

Amendment No. 27 reads:

In page 10, before section 11, but in Part II, to insert the following new section:

"13.—(1) Subject to subsection (3) of this section, a blood sample which is required to be taken from any person for the purpose of giving effect to a direction under section 12 of this Act shall not be taken from that person except with his consent.

(2) Where for the purpose of giving effect to a direction under section 12 of this Act a blood sample is required to be taken from a person who is not of full age and the court considers that he is in the circumstances capable of giving or refusing the necessary consent, any consent given or refused by him shall be as effective as it would be if he were of full age.

(3) For the purpose of giving effect to a direction under section 12 of this Act——

(a) a blood sample may be taken from a minor, other than one to whom subsection (2) of this section relates, if the person having charge of or control over the minor consents:

Provided that where more than one person has charge of or control over the minor and they disagree as to whether consent should be given, the minor shall be treated as not having consented;

(b) a blood sample may be taken from a person of full age who is, in the opinion of the court, incapable of understanding the nature and purpose of blood tests if the person having charge of or control over him consents and any medical practitioner in whose care he may be has certified that the taking of a blood sample from him will not be prejudicial to his proper care and treatment:

Provided that where more than one person has charge of or control over the person concerned and they disagree as to whether consent should be given, the person concerned shall be treated as not having consented.".

Amendment No. 28 reads:

In page 10, before section 11, but in Part II, to insert the following new section:

"14.— (1) Where blood samples are taken for the purpose of giving effect to a direction of a court under section 12 (1) of this Act, they shall be tested under the control of such person (including a person to whom subsection (6) of this section relates) as the court shall direct.

(2) The person under whose control blood samples are to be tested by virtue of subsection (1) of this section shall make to the court by which the direction was given a report in which he shall state—

(a) in relation to each person from whom blood samples were so taken, the results of the tests, and

(b) in relation to each person (other than the person whose parentage is in question) from whom blood samples were so taken—

(i) whether the person to whom the report relates is or is not excluded by the results from being a parent of the person whose parentage is in question, and

(ii) if the person to whom the report relates is not so excluded, the value, if any, of the results in determining whether that person is a parent of the person whose parentage is in question,

and the report shall be received by the court as evidence in the proceedings of the matters stated therein.

(3) A report under subsection (2) of this section shall be in the form prescribed by regulations.

(4) Where a report has been made to a court under subsection (2) of this section, the prosecution or the accused, with the leave of the court, or shall, if the court so directs, obtain from the person who made the report a written statement explaining or supplementing any statement made in the report, and that statement shall be deemed for the purposes of this section (other than subsections (3) and (6) ) to form part of the report made to the court.

(5) Where a direction is given under section 12 (1) of this Act in any proceedings and the blood samples to which the direction relates have been tested by virtue of this section, the accused, unless the court otherwise directs, shall not be entitled to call as a witness the person under whose control the blood samples were tested for the purpose of giving effect to that direction, or any person by whom any thing necessary for the purpose of enabling those tests to be carried out was done, unless within 14 days after receiving a copy of the report he serves notice of his intention to call such person as a witness and, where that person is so called, the accused shall be entitled to cross-examine him.

(6) (a) The Minister may, for the purpose of subsection (1) of this section, appoint a person or category of persons under whose control blood tests may be carried out.

(b) The Minister may at any time amend or revoke an appointment under this subsection but such amendment or revocation shall not affect any blood test carried out, or the testing of any blood sample for the purpose of this Part which was submitted for testing, before such amendment or revocation.

(c) Notice of an appointment, or the amendment or revocation of any appointment, shall be published by the Minister in the Iris Oifigiúil.”.

Amendment No. 29 states:

In page 10, before section 11, but in Part II, to insert the following new section:

"15.— (1) The Minister may make regulations for the purpose of giving effect to this Part.

(2) Without prejudice to the generality of subsection (1) of this section, regulations made under this section may in particular—

(a) regulate the taking, identification and transport of blood samples;

(b) require the production at the time when a blood sample is to be taken of such evidence of the identity of the person from whom it is to be taken as may be prescribed by the regulations;

(c) require any person from whom a blood sample is to be taken, or, in such cases as may be prescribed by the regulations, such other person as may be so prescribed, to state in writing whether he or the person from whom the sample is to be taken, as the case may be, had during such period as may be specified in the regulations suffered from any such illness as may be so specified or received a transfusion of blood.

(d) prescribe the form of any report to be made to a court under this Part.

(3) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

Amendment No. 30 states:

In page 10, before section 11, but in Part II, to insert the following new section:

"16.— (1) Where a court gives a direction under section 12 of this Act and any person fails to take any step required of him for the purpose of giving effect to the direction, the court may draw such inferences, if any, from that fact as appear proper in the circumstances.

(2) Where in any criminal proceedings in which the parentage of any person falls to be determined by the court hearing those proceedings there is a presumption of paternity relating to an accused, then if a direction is given under section 12 of this Act in those proceedings, and the accused without good cause fails to take any step required of him for the purpose of giving effect to the direction, such failure may be treated as corroboration of the presumption of parentage.".

Amendment No. 31 states:

In page 10, before section 11, but in Part II, to insert the following new section:

"17.— If an accused in respect of whom a direction has been made under section 14 without good cause fails or refuses to comply with such direction, he shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or to both;

(b) on conviction on indictment, to a fine not exceeding £2,500 or to imprisonment for a term not exceeding two years, or to both.".

I think the Minister will appreciate why that list of amendments has been introduced by Deputy Shatter. It goes back to what the Minister described as a hard case — the Waterford case — giving the court the power to order blood tests to be taken or forensic evidence to be supplied in a case such as the one referred to so often during this debate. The amendments have been put down to ensure that a person brought before a court will not easily have his case dismissed by making a simple statement that, as in this case, he is not the father. The court should have the ability to ensure that the case can be proceeded with. I will comment on this matter later when the Minister has made his submission.

Mr. O'Dea

I find it a little surprising that Deputy Shatter should put forward provisions of this kind when the matter of taking blood samples has been already adequately provided for in the Criminal Justice (Forensic Evidence) Act, 1990, which, admittedly, has not yet been brought into operation. I suspect that Deputy Shatter may be trying to put psychological pressure on us to bring that legislation into operation. I am glad to inform the Deputy that I have made urgent representations in this regard and we are trying to have that legislation brought into operation as a matter of urgency. That is not just parliamentary speak; I envisage that it will be in operation within a very short period of time.

Under the Criminal Justice (Forensic Evidence) Act, 1990, the consent of the accused is required for the taking of a DNA test, which will establish paternity. If the accused refuses to consent to the test, because incest, which presumably is the offence Deputy Shatter had in mind when drafting this amendment, is one of the offences for which a person may be detained under section 4 of the Criminal Justice Act, 1984, then under the terms of that Act certain inferences can be drawn. That is exactly the same as the provision in the Criminal Justice (Forensic Evidence) Act, 1990. Therefore, the provisions in the 1984 Act apply to that offence and those will be the consequences for a person refusing to take a DNA test if requested to do so in proceedings for incest.

The proposals in the name of Deputy Shatter are extremely complex and I should like more time to study them between now and Report Stage. If I were to ignore the fact that the Criminal Justice (Forensic Evidence) Act, 1990, is about to be brought into operation and take the route suggested by Deputy Shatter in his amendment, I would not be accepting the amendments as proposed here. For example, I would need clarification on amendment No. 31 in which Deputy Shatter proposes to insert a new section 17, whereby a person who without good cause refuses or fails to comply with a direction to have a test taken, will be subject to some pretty severe penalties. It seems to be ludicrous that if a person refuses to take the test, then only certain inferences can be drawn, but if he consents to take the test and then baulks before the test is taken, he is liable to be prosecuted and he is a criminal and can be convicted. That seems somewhat unreal. In considering whether or not to go along the road some distance with Deputy Shatter's proposed amendments I would need clarification on that.

Mr. Cotter

I am glad the Minister has not dismissed this out of hand. When the Minister was speaking earlier, he referred to the Criminal Evidence Bill, 1990, and assured the House that DNA testing will soon become a reality. I assume that one of the things to which Deputy Shatter was trying to draw attention was the fact that it is not a reality. We had a few embarrassing cases which would probably not have occurred had DNA testing been put in place. For example in what has become known as the Phoenix Park case people are of the opinion that certain individuals got off very lightly because of difficulties with identification. Had DNA testing been available in that instance things might be a bit different.

Mr. O'Dea

I would not agree.

Mr. Cotter

It is a possibility. The process of producing legislation here because of public demand and then letting it sit and gather dust is likely to bring this House into disrepute. There are plenty examples of that, for instance, there is the Child Care Act. Part III of that legislation, which is very important, has still to be ordered by the Minister and it seems that the Minister does not have any intention of doing anything because it would cost money to do so. We would do better not to produce legislation than having it lying about, giving the public the notion that we are only interested in window dressing. We can point to legislation and say that the House has done this work but because we are short some money it is not being implemented. When we are talking about the amendments Deputy Shatter has put down, that is one of the matters on which we must focus. I am happy the Minister has agreed to look at this proposal. Obviously this is quite complex and there are quite a number of amendments involved. I would be happy if the Minister looked at this to see whether it is possible to use the basic ideas involved in putting together amendments which we might find acceptable. We must keep reminding ourselves that this legislation will come under severe scrutiny in difficult circumstances and therefore it is extremely important to try to produce the best possible legislation that will stand the test in court.

Amendment, by leave, withdrawn.

Amendments Nos. 26 to 32, inclusive, not moved.

Section 11 agreed to.

SECTION 12.

Mr. Cotter

I move amendment No. 33:

In page 10, subsection (1), lines 11 and 12, to delete "unless the court sees good reason to the contrary" and substitute "unless the interests of justice otherwise require".

Mr. O'Dea

Section 12 proposes that evidence should be given through TV link by persons under 17, or by mentally handicapped persons, in physical or sexual abuse cases, unless the court sees good reason for the contrary. Deputy Shatter proposes to amend that to state that evidence will be given through television link unless the interests of justice otherwise require. I cannot accept that because the formula proposed by the Government seeks to make it the norm that a TV link should be used in such cases. That accords with the views of the Law Reform Commission who recommended that the use of closed circuit television or, if that is unavailable, a screen, should be the rule, unless the court for special reasons decided otherwise, and who said it was clear that in many cases the court would have good reason to direct otherwise. An example given is where a burly 16-year old has been the victim of common assault in a brawl. There would hardly be need for the provision of evidence through a television link in a case like that. We all wish to achieve that in any case where a witness would be traumatised by giving evidence in the court room, the witness should be facilitated by a live television link. If the Deputy has good reasons why we should change the formula, I will consider them.

I can see a certain logic in what Deputy Shatter is trying to do. The Deputy is trying to maintain a balance between the rights of the State and the rights of the accused. Deputy Shatter is not seeking to make it the norm that a television link will not be used. The Deputy recognises that we want it to be the norm that a television link will be used unless there is some obvious reason why it should not be used. The formula already in the Bill represents the Government's intentions in this regard better than the formula proposed by Deputy Shatter. Unless I can hear some good persuasive reason to the contrary, I am not inclined to go along with the Deputy's amendment.

Mr. Cotter

Part III of the Bill is likely to create a lot of difficulties for us. It has been brought to my attention that a live television link, for instance, has not been defined in the Bill. People say that it should be defined and that there should be no doubt about it. Section 12 which refers to a live television link, and other sections, will cause difficulties. We referred to this on Second Stage. It would be in our interests to try to foresee the difficulties at this stage. With regard to this whole procedure of giving evidence through a live television link, what procedures would be followed? Will the person giving the evidence be able to see the judge and others in the courtroom? One would presume that the judge and everybody else would be able to see and hear the evidence being given. The section is specific in some aspects, like the requirement that a wig and gown should not be worn by the judge or a lawyer, but it is loose in specifying how the system will operate. The intention is to make it easier for the immature person to give evidence. We sympathise with that but we are worried that section 12 is not complete in that it does not provide the definition in many cases. There is nothing to indicate how the oath is to be administered, for example. How will it be possible to ensure that a person is not in a position to prompt an individual giving evidence? Far too much of this section is somewhat mysterious. It should err on the side of being very specific rather than on the side of being loose and open to all sorts of interpretations.

Mr. Taylor

Looking at Deputy Shatter's amendment, and the original format of the section, I would have to come down on the side of the amendment. When one is, as in this Bill, introducing a new evidential format, these things are necessary. We have to recognise that special circumstances arise when changes in the arrangements for evidence have to be provided and this is one of them. However, when one changes long and well-tried systems of giving evidence, providing safety for an accused person that he is not wrongly convicted on dubious evidence under suspicious circumstances, one has to exercise a great deal of care and caution and examine the matter very closely.

The well-tried system has evolved over hundreds of years. The witness or the complainant is in the witness box for all to see. That person must take the oath and must be subject to cross-examination face to face by the solicitor or counsel for the accused. The judge, and the jury, if there is one, can monitor and see the demeanour of the witness in the witness box. They can see whether the witness is under pressure, sweating or fidgeting or discommoded in any way. What one can see on a television link is rather more limited. I am not arguing that it should not be brought in. I recognise that there are exceptional cases where the needs of justice will require it. We should not be glib and go to the other extreme by bringing in these measures without exercising care in the interests of justice.

The wording of the section in its original format leaves it subjectively the decision of the judge or court. Judges can be offhand or casual about these things. They can take a particular view without giving any explanation. The judge's decision may be right but he should be obliged to explain it and to put on record the basis of his decision that the television link should or should not be used. I have some fear about vesting in a subjective manner the complete and utter discretion for this new evidential procedure in the judge alone, unanswerable to anybody, particularly to a court of appeal as to what he did and why.

The essential distinction between the wording of the original section, which seems not unreasonable on first reading, and the amended wording proposed by Deputy Shatter is that the section as worded puts the test in a subjective manner whereas the amendment puts the test in an objective manner. We are not talking about what a judge sees fit or sees good reason for. We are talking about a more objective test, a broader spectrum, the interests of justice. That is something an appeal court would be entitled to look at. An appeal court can examine the overall test and decide whether it was proper that the television link evidential arrangement was included or excluded and whether that decision served the overall interests of justice. It might be very appropriate to do that.

Judges are a fine body of men and women who do a wonderful job. They get their decisions right most of the time, but they certainly do not get their decisions right all the time on any issue. If they did, there would be no need for courts of appeal and no judge would be overruled by a higher court, as they are every day of the week, from the District Court to the High Court. They can get it wrong and occasionally some judge might get a bee in his bonnet about the issue and allow or disallow the television link. His decision might be related to the overall interests of justice or it might not. It is fair enough to say that it should be open to be looked at objectively as to whether it matched the test of being overall in the interests of justice. That test might be excluded in the original wording of the section. That overall acid test ought not to be excluded.

Mr. Byrne

I want to record my appreciation of the fact that there is embodied in the Bill the facility to lessen the trauma and the agony that witnesses often have to go through in appearing in court. Where child sexual abuse is involved or other such delicate matters, children should not be obliged to experience the intimidatory ambience of a court with judge and jury and wigs and gowns. It is an adult world which is alien to many people. It is a step in the right direction that the Bill allows for evidence to be given from a more comfortable environment through a television link-up. It is difficult to discriminate between the amendment in the name of Deputy Shatter and what is embodied in the section. I have examined the terminology used in the Bill which reads: "unless the court sees good reason to the contrary" and the words which the amendment proposes to substitute: "unless the interests of justice otherwise require".

Progress reported; Committee to sit again.