Dáil Éireann díospóireacht -
Wednesday, 13 Dec 1989

Vol. 394 No. 5

Private Members' Business. - Larceny Bill, 1989: Committee Stage (Resumed).

NEW SECTION.

Mr. McCartan

I move amendment No.9:

In page 4, before section 5, to insert the following new section:

"5.—Section 43 (1) of the Principal Act is hereby repealed.".

We had not started our discussion on this amendment the last day. This amendment simply proposes that section 43 (1) of the Principal Act should be repealed. If this amendment is accepted it will mean the deletion in its entirety of section 5 of the Bill as presently drafted. Like many of the amendments we have discussed on Committee Stage this amendment is on all fours with what has been recommended by the Law Reform Commission in their report. Having reviewed the arguments for and against this provision and discussed alternatives the commission came to the conclusion that it would be better if section 43 (1) was done away with.

I made this point on Second Stage and I understand that Fine Gael and the Labour Party made similar points. We asked the Minister — I hope he is in a position to answer this question tonight — to give us some indication of the role this section has heretofore played in the prosecution of receiving offences. If I recall the Minister's words correctly he indicated that this section was vital in the prosecution and pursuit of the receivers of stolen property. I sought to counter that argument, borrowing from the limited experience I have as a practitioner, by saying that, after almost 15 years in practice in this area, I had hardly come across one instance when this provision had been availed of. If my experience was a reflection on the use of this provision I wondered how the Minister could consider that this provision, which provides that the past record of an accused can be called in aid of the prosecution in proving knowledge and intent, could be described as a vital aspect of the armoury of prosecution.

One of the reasons this provision was so rarely if ever employed by prosecutions was that it had a huge constitutional question hanging over it. It is prudent for any prosecutor, director or member of the Garda Síochána in presenting a case to consider the prospects of walking into a mire of uncertainty, if one can call it that, of constitutional challenge to proof if the provision is relied upon and used, particularly in the wake of the King case. I think it was a prudent decision on their part to stay out of troubled waters and simply rely on the facts presented by the arresting officer.

Including this provision in the modified form proposed by the Minister will leave the same ambiguity and uncertainty about the future of the new section 5. For that reason I do not believe it will be borrowed upon at all in the future prosecution of this type of offence. The provision should abandoned at this stage. The most compelling reason we should not rely on this provision is the decision given by the High and Supreme Courts in the case of King versus the Director of Public Prosecutions where the Supreme Court reiterated the fundamental principle of criminal law that the character of an accused should never be called in aid of the prosecution in attempting to establish the factor of guilt in a trial. This provision basically allows the Garda at the trial of an accused to seek to put in as evidence a fact of a conviction within a specified period in advance of a trial where it is sought to use that proof of fact in establishing knowledge, guilt and intent. It is clear that this involves putting the character of an accused person at issue. There is absolutely no doubt that the Supreme Court would have very grave reservations about such a provision if asked to adjudicate upon it. The reason they have not had to do this to date is that the Garda as a matter of prudence in the prosecution and earnest pursuit of a receiver have not sought or elected to put themselves in the position where they might have a good conviction thrown into doubt.

I do not understand why the Minister is again ignoring the clear and unambiguous advice of the Law Reform Commission who believe that this provision should be repealed. I have argued both on Second Stage and Committee Stage that we should be firm in our resolution in terms of pursuing the handler, the man behind the scene of crime. By including this provision in the Bill the Minister is again introducing a potential constitutional loophole which could be exploited by a successful defendant or a person who wishes to pursue this constitutional ambiguity. Because this provision has not been of practical aid in the prosecution of such cases in the past and will not in the future, the Minister should simply acknowledge the wisdom of the commission and all parties in Opposition and let this matter rest at this stage.

Mr. Kavanagh

I do not want to unduly repeat the arguments which have been very well made by Deputy McCartan in favour of this amendment. Our amendment simply proposes the deletion of section 43 (1) of the Principal Act. This section has been very rarely used and it is considered by the Law Reform Commission to be constitutionally unsound. For these very good reasons it seems to me, and obviously to Deputy McCartan, that this provision should not be amended in the way proposed by the Minister. Therefore, we suggest that, because the Law Reform Commission and the eminent authors of that document have strongly advised that this provision should be repealed the Minister should take that advice and repeal the section rather than amend it. I will be interested in what the Minister has to say. I wonder if he will say that the Law Reform Commission erred in their advice. Has he a reason, other than that contained in the explanatory memorandum, for proceeding with this provision? The argument in favour of my amendment has been well made and there is no need to repeat it. The section should be repealed.

Mr. Flanagan

I do not intend repeating the arguments made by my colleagues in Opposition. We had a full discussion on section 5 on Second Stage when members of the Opposition parties suggested that an amendment along the lines of that put forward by Deputies Kavanagh and McCartan should be adopted by the House. The Minister in introducing the Bill said he was satisfied that evidence of this type had been vital in the past in helping to establish the mens rea of the accused in cases where it might otherwise have been impossible to do so. Having listened to the Minister I asked him if he intended to retain that section and if he was in a position to provide evidence of when that provision had been used in the past.

The Opposition parties have put forward arguments against retaining that section. The Minister should not ignore the advice of the Law Reform Commission. I should like to impress upon him the views of the commission in regard to this. They stated that in the light of certain misgivings they did not recommend an expansion of section 43 (1). Indeed, the Law Reform Commission pointed out, as Deputy McCartan did, that the section was rarely used.

I join with other Opposition Members in appealing to the Minister to leave that section out of the Bill because too many question marks hang over it. Perhaps the fact that my constituency colleague will be responding for the Minister will make a difference. No compelling argument has been advanced for carrying the section into the Bill. If the Minister is not in a position to show where the vital evidence has been successful in the past he should withdraw the section.

Mr. J. O'Keeffe

The case has been well made by my colleagues. In all our deliberations the Constitution must be the bedrock on which we build all our legislation. We cannot fly in the face of the letter and spirit of the Constitution. We are irresponsible as legislators if we so do. The case has been made by my colleagues in relation to the unconstitutionality of the old section 43 and I fear that the attempts made by the Minister to improve that section so as to bring it within the terms of the Constitution have not been successful.

I have taken some advice from leading criminal lawyers on the section largely because of my concern that we should observe the letter of the Constitution. It has been made clear to me that section 5 as it stands, or the old section 43, are almost certainly unconstitutional. The concept of the shield which can only be dropped by the accused by deliberate acts in the course of his trial is fundamental to our criminal jurisprudence. Furthermore, as mentioned by Deputy McCartan, criminal law experts say that the old section 43 was never used because of doubts on the part of the Director of Public Prosecutions, and prosecuting counsel generally, that it would not stand up.

Deputy McCartan made a relevant point when he stated that guilty people whose guilt could be proved otherwise might get away if the section is used by the prosecution. We do not want that to happen. The Minister has received all the advice from the legal experts and, of equal importance, has had the advice of the Law Reform Commission. They are categorical in what they said. They have made it clear that there is a reasonable doubt about the constitutional propriety of the old section 43. I have no doubt that, despite the amendments made under the new section 5, those constitutional doubts remain.

The Law Reform Commission must feel very aggrieved at the way the Bill has gone. They carried out tremendous research and did a lot of work to reform the law. Let us be honest and say that their recommendations have been virtually ignored by the Government. They might as well have thrown the report out the window as far as the Government are concerned.

Whatever about the decisions in regard to the other sections it is important to point out that in dealing with the most serious area of law we are talking about flying in the face of the Constitution. The recommendation of the Law Reform Commission in that regard must not be ignored. I welcome the Minister of State to this debate and I should like to point out to him that he is faced with the united voice of the Opposition who are concerned about upholding the Constitution. I am sure the Minister holds a similar view to ours. He should accept our amendment and delete this provision.

Minister of State at the Department of the Environment (Mr. Connolly)

At present, section 43 (1) of the Larceny Act, 1916, permits the giving, in receiving cases, of evidence that other property stolen within the 12 months preceding the offence charged was found or had been in the accused's possession, and of evidence of previous convictions for any offence involving fraud or dishonesty within the previous five years. Such evidence may be given only for the purpose of proving guilty knowledge. There is a requirement that seven days' notice must be served on the accused of the intention to adduce evidence of previous convictions, and such evidence may not be adduced unless the court has already been given evidence of the stolen property, the subject of the charge, having been, or been found in, the accused's possession.

This provision is one of the exceptions to the general rule that evidence of the accused's previous misconduct or convictions may not be adduced during the course of a trial, and its use is subject to the overriding discretion of the trial judge to rule it out on the basis that its prejudicial effect would outweigh its probative value in a particular case.

The replacement for section 43 (1) proposed in the Bill would re-enact that provision but with certain important safeguards for the protection of the accused. These are as follows.

The adduction of evidence of previous possession and previous convictions will be confined under the new provision to cases where the only charges on which the accused is being tried are for handling or receiving offences. Thus a person being tried for stealing and, in the alternative, handling, or for handling and, say, resisting arrest or obstructing the Garda, could not have such evidence adduced against him. This contrasts with the present position where such evidence may in theory, at least be brought in once receiving is one of any combination of charges for which the accused is being tried, even though it was held in an English case, when the 1916 Act was still in force there, that that should not be done. Where evidence of previous possession or previous convictions is given under the new provision, the only offence of which the accused may be found guilty will be that of handling or receiving. This contrasts with the present position where the accused may, after such evidence has been given, be convicted on any of the charges for which he was tried — even though he might be acquitted of the receiving offence itself. An important effect of this safeguard is that where such evidence is adduced in accordance with this provision, the power under section 8 of the Bill to find a person charged with handling guilty of larceny etc. cannot be exercised.

Before evidence of either previous possession or previous convictions may be adduced, it will be necessary to have given evidence of the accused having, or arranging to have, in his possession the property the subject of the charge, or of his having done any of the other things which would constitute a handling offence.

This is provided for in subsection (IA) of the new provision. At present this restriction applies only to evidence of previous convictions; evidence of previous possession of stolen property may be given at any stage in the proceedings.

The range of offences for which evidence may be given of previous convictions is narrowed considerably from the existing "any offence involving fraud or dishonesty" to "any offence of larceny, receiving stolen property or handling stolen property". Thus it will not — unlike under present law — be possible to give evidence of, say, a conviction for making a false tax return.

The existing requirement of seven days notice to the accused of the intention to give evidence of previous convictions is restated at subsection (IB) of the new provision.

The Law Reform Commission, when reviewing the existing law in their report, said of this section that there were doubts as to the constitutional propriety of the present section 43 (1) of the 1916 Act. In the light of those misgivings, they did not recommend any expansion of the provision, and in consequence of their view that it is rarely relied on in receiving cases, they recommend its repeal.

There is much to be said for the Law Reform Commission's view. However, it would be a pity to let the occasion pass without giving the House an opportunity to consider another approach to the matter which it may feel is more appropriate in the circumstances. First, whatever doubts may exist as to the constitutionality of the present provision — doubts as yet untested in our courts — they are, arguably, amply assuaged by the safeguards proposed in the Bill. Secondly, the Director of Public Prosecutions has indicated in discussions during the development of this Bill that he would find useful a provision even of the curtailed and restricted nature proposed here, as an aid in showing that the accused had guilty knowledge or belief.

Arguments can be made in favour of the new section. There is a general principle of evidence that the prosecution may not adduce evidence during the course of a trial of an accused's criminal disposition and this principle is subject to very few exceptions. There is a general exception at common law, referred to as similar fact evidence. Furthermore, in some cases it is inevitable that the accused's other misconduct has to be made known to the courts, for example, if he or she has committed an offence while in prison or if proof of an earlier conviction constitutes an element of the offence charged, such as, for example, driving while disqualified.

A further point which should be made is that the trial judge always has discretion to exclude evidence of the type in question where he or she considers that its prejudicial effect on the accused would outweight its probative value. The underlying philosophy behind section 43 is that in receiving cases in particular the accused's behaviour in relation to other incidents provides a useful indication as to his state of mind in relation to the offence charged. If he is charged with handling stolen property, the fact that he had handled other hot property at the same time or on another occasion is thought to provide a valuable clue as to his guilty knowledge in relation to the property that is the subject of the charge. The point is the improbability of coincidence of someone within a relatively short period unwittingly handling stolen property more than once. The old saying is that lightning does not normally strike in the same place twice.

Mr. McCartan

I do not want to hear this.

Mr. Connolly

I am glad that all sides of the argument have been ventilated in this debate. While it is worth considering this provision it is not one in keeping with the principle of the Bill on which all of us are agreed. It is clear that the House is in favour of accepting the amendment. I have no difficulty in principle with that. I will take advice between now and Report Stage to see how best we can ensure that section 43 (1) will have no further effect and whether it is possible to organise matters so that it will cease to have effect immediately and not be subject to the three month interval provided for in section 13 of the Bill. I hope I have explained the position clearly. I would like to be as helpful as possible.

Mr. McCartan

I thank the Minister for a very comprehensive and detailed response to the amendment and I am glad it is a matter he is putting before the House in an effort to allow us tease out the issues surrounding it to see if there are alternatives and so that we can come back to it on Report Stage. I have no difficulty with that, but I would make one or two points. First, the Minister for Justice in his Second Stage contribution said he had no difficulty agreeing with the commission that the provision as it stands may go too far in that it might tend to prejudice the rights of the accused. There is universal agreement even at the Minister's desk that there are problems with regard to creating prejudice, unfairness and unconstitutionality.

The Minister also said he was satisfied that evidence of this type has been vital in the past in helping to establish the mens rea of the accused in cases where it might otherwise have been impossible to do so. Will the Minister advise us on that so that I am better armed, lest we come back to this on Report Stage and I do not know the position? Is it possible from the statistics available to establish to what extent the existing provision has been relied upon in the past? I know, for example, that the Director of Public Prosecutions was consulted, and made submissions to the Commission about the range of the offence; and I have no doubt, as the Minister confirmed, that this issue was addressed by him and that the Director of Public Prosecutions is of the view that it would be a useful provision to have, even in the modified version presented in the Bill. Did the Director of Public Prosecutions give the commission any statistics to indicate how often he directed this provision to be relied upon during his term of office since its establishment in 1974? Is there anything there to put flesh on the Minister's statement that it has been a vital element available to the Director in the past?

The Minister of State indicated that protections that did not previously exist are available in the section. There are three basically, and rather than go into them now, I would make the general point that those protections are not everything the Minister makes them out to be and they would not represent a strong and as heavy a counterbalance against the unfairness element and the constitutional element that must be involved in this. There is a fundamental element here. Is it constitutionally proper to introduce evidence of the character of the accused in the circumstances allowed for under the existing law and repeated in substance in the Bill? The Minister of State talked about exceptions but let us remember that as a general rule that is not proper. The exceptions do not in any way compare with the exception the Minister is seeking to repeat in the Bill. The law is far closer to what was addressed by the Supreme Court in the King case on the vagrancy issue. There it was felt that the law as it stood since 1824 was not an exception, that it should be supported and continued and they struck it down. Those principles could be easily applied to this situation.

I am most disturbed with the Minister's reason for this provision. It is well worth ventilating the essence of the issue. The fact that a person has received property previously cannot and should not be of any assistance in attempting to establish a fact in a current trial. Is it to be argued that a person who has previously committed an assault, who in a current trial seeks to suggest justification or self-defence, should be presented with a proof of the prosecution being that the members of the jury should not listen to the defence being advanced in this case because the defendant previously offended in the same way and for that reason has a propensity to commit assaults? In a current larceny trial are we to suggest that a person standing trial will be faced with evidence that because he was convicted of shoplifting before, his defence that he forgot or inadvertently took an article out of a shop, must be disbelieved? There is no end to the argument and to the destruction of the criminal code of law as we know it if one pins one's argument to the last argument advanced.

I do not blame the Minister because that is the raison d'etre of the rule as incorporated in the 1916 Act. I would simply say that this Bill will be immensely improved by the deletion of the provision. I urge the Minister to take that point on board before Report Stage as opposed to any suggestion that this rule can be modified and made good for future use.

Mr. J. O'Keeffe

I would like full clarification from the Minister. As I understand it the Minister now indicates that while he thought the point should have been fully debated, he largely accepts the view of the Opposition on the constitutional query with regard to this section. Do I take it then that on that basis the Minister is suggesting that between now and Report Stage he will effect the necessary proposal to amend the Bill as he thinks proper, taking into account the time limit factor and that we have a virtual guarantee from him that on Report Stage this provision about which we are so concerned will be removed from the Bill? Can we put our weapons away in regard to this section on the basis that the Minister has largely accepted the Opposition's viewpoint?

Mr. O'Dea

I listened to what the Minister said as did Deputy O'Keeffe. I understood the Minister to say that this section is going to be carefully examined between now and Report Stage, the constitutional aspect of the section will be gone into in detail and we cannot say for definite whether the section is going to be removed. The arguments that were advanced here tonight will be considered fully and if the Minister feels deletion of the section is necessary I am sure he will act accordingly but there is no guarantee about that here tonight.

We are debating amendment No. 9 in the name of Deputy McCartan which seeks to repeal section 43 of the Larceny Act, 1916. The Fine Gael approach is simply to oppose the section. I take it there is unanimity among the Opposition on this. Even though Deputy Kavanagh has nothing here in his name alone I take it from his reaction that he supports the general approach of the Opposition.

As the Minister pointed out, there is a considerable difference between this section 5 and section 43 of the 1916 Act under which evidence could previously be given of any offence involving fraud or dishonesty that was committed within five years of the alleged offence for which the person was being prosecuted. Under this section the only evidence that can be given is evidence of specific types of offence which are outlined in the section. I raised the point on Second Stage as to whether, in view of the fact that there is now a new mens rea for larceny, this section was necessary any longer. I am inclined to have some sympathy with the Opposition's approach here. I am inclined to think that on balance perhaps it is not necessary to include this section, but I am prepared to take on board the Minister's suggestion that the matter be gone into in detail within the Department to see if it is necessary to retain this section.

Deputy McCartan raised the question of statistics, of how often this section had been used. I cannot anticipate the Minister's reply but I suspect the reply will be that there are no such statistics.

Mr. McCartan

I notice the nod from Fine Gael.

Mr. O'Dea

Deputy McCartan will be aware from his practical experience that section 43 has not been used very often. That is my experience also.

Reference has been made to the King case and I want to quote from the Law Reform Commission's report, page 40, paragraph 53:

King accordingly, cannot be regarded as authority for a general proposition that any law permitting the introduction of evidence of previous convictions of the accused, except in relation to sentencing, offends the constitutional guarantees of a trial in due course of law and of fair procedures in such such trials. It is, moreover, a feature of King that the impugned section renders the previous convictions one of the ingredients of the offence. In the section under consideration,

—section 43—

the introduction of the evidence is permitted solely for the purpose of establishing guilty knowledge. All that can safely be said, at present, is that King at least raises a doubt as to the constitutional propriety of the section which must be borne in mind when considering its retention in our law and, a fortiori, its possible extension.

Without going into the facts, of the judgement of the King case, the unanimous conclusion of the Law Reform Commission was that the King case is by no means authority for the proposition that section 43, much less the watered down section 5 of this Bill, is unconstitutional or vulnerable to constitutional challenge. Nevertheless, I come back to the earlier point I made, whether in view of the change in the mens rea provision necessary to establish an offence under this legislation the section should be continued in force.

I want to make one further point and I think the Minister of State, Deputy Connolly, adverted to this. The statutory provisions to some extent supplement the common law. There is a rule of evidence known as the similar facts rule of admissibility which would allow evidence of handling earlier then 12 months before the alleged offence. Even though this is less likely now it might in certain circumstances allow the admission of convictions of theft more than five years before the alleged offence. Section 5 applies certain restrictions to this; it applies certain limitations. If the Government's intention is to retain this section in the Bill I would like to pose a few questions to the Minister. Perhaps it would be more appropriate for him to respond on Report Stage.

First, under section 5 as I read it the actus reus, the fact of handling has to be proved before the evidence is admitted. Will that continue to be the position where this evidence is admitted in future at common law? Will these statutory restrictions which have been brought in here under section 5 apply when evidence which could be admitted under the Statute is admitted in future at common law because of the similar facts rule?

I want to address one further question to the Minister. I think the answer can be found in the text of section 5 but I am not quite clear on what it means. There is a case quoted in the Law Reform Commission's——

An Leas-Cheann Comhairle

Deputy O'Dea will be patient until we have dealt with the amendment. Then when we put the section there can be questions on it.

Mr. O'Dea

I will reserve my further questions until we consider the section per se.

An Leas-Cheann Comhairle

It seemed to me that the Minister indicated earlier that there was a certain sympathy with what had been presented by the Opposition and that it would be so dealt with on Report Stage. I thought I heard Deputy McCartan say something about moving away from this section so I thought he had exhausted any contribution and I was going to suggest that if Deputy McCartan is happy to take the assurance given by the Minister he withdraw his amendment and we can then discuss the section.

Mr. McCartan

Yes, I am happy to do that.

An Leas-Cheann Comhairle

I take it Deputy McCartan is not pressing his amendment now.

Amendment, by leave withdrawn.

Question proposed: "That section 5 stand part of the Bill."

An Leas-Cheann Comhairle

We will discuss section 5.

Mr. McCartan

The Minister can answer me in the context of the section.

Mr. Kavanagh

I had a similar amendment down and I suppose, Sir, you would like me to take the same advice.

An Leas-Cheann Comhairle

I am not presuming to give advice but I thought that at times a layman could interpret the mood and make a suggestion. It might be a matter for the House to decide how best it wants to employ its time without having too much refinement of the amendment when it seems to me that Deputy McCartan is happy enough with the assurance that has been given.

Mr. McCartan

We can tease it out in the context of the section.

An Leas-Cheann Comhairle

Deputy Kavanagh and Deputy O'Dea will be free to speak to their hearts' content on the section.

Mr. Kavanagh

I accept the arrangement that seems to be agreed to. Deputy O'Dea was not here when I spoke on the amendment proposing that this section be repealed. Having listened to the Minister's very long reply I have to say that as a layman I would like to take a look at what he has told us and perhaps get some advice on it between now and Report Stage so I can come back in here then with perhaps a more balanced opinion on what has been suggested.

Mr. Connolly

I should like to be as helpful as possible. My understanding of the wishes of Members is that we want to bring in a Bill which is effective. I am prepared to delete the section on Report Stage.

Mr. J. O'Keeffe

I do not think the Minister could be more unequivocal in his reaction. I indicated that we would be opposing the section but I appreciated that the Minister has to do things in this fashion. I think we can move on since the Minister has said he accepts the view of the Opposition.

An Leas-Cheann Comhairle

I must return to Deputy O'Dea.

Mr. O'Dea

I have allowed business to continue. I am happy to hear the Minister make this commitment because basically I am unhappy with section 5. I am delighted with the Minister's assurance.

Mr. Connolly

It is our intention to bring in good law. That is the aim of everybody here and I shall be as helpful as possible.

An Leas-Cheann Comhairle

I still must put the question.

Mr. J. O'Keeffe

On the basis of the Minister's assurance, we can agree.

Mr. Connolly

If I give an assurance in this House I never do so lightly.

Question put and agreed to.

NEW SECTION.

Mr. McCartan

I move amendment No. 9a:

In page 5, before section 6, to insert the following new section:

"6.—(1) In any criminal proceedings taken under this Act a statement contained in a document shall, subject to this section, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if:

(a) the document was compiled by a person acting under a duty from information which was supplied by a person acting under a duty who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information and which, if not supplied by that person to the compiler of the document directly, was supplied by him to the compiler of the document indirectly through one or more intermediaries each acting under a duty; and

(b) the conditions specified in subsection (2) below are satisfied as regards each of the following: the person who originally supplied the information, the person who compiled the document and any intermediaries through whom the information was supplied.

(2) The conditions referred to in subsection (1) (b) above are the following, namely:

(a) that the person in question has been or is to be called as a witness in the proceedings; or

(b) that the person in question, being competent to give evidence on behalf of the party desiring to give the statement in evidence, refuses to give evidence on behalf of that party; or

(c) that it is shown with respect of the person in question:

(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 which 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.

(3) (a) No statement shall be admissible in evidence by virtue of paragraph (a) of subsection (2) until the completion of the examination in chief of all witnesses to which the paragraph is applicable, except by leave of the court.

(b) Where by virtue of leave given pursuant to paragraph (a) of this subsection a statement has been received in evidence on the footing that any person or persons shall be called as a witness in the proceedings, then, if any such person is not subsequently so called the statement shall not be admissible by virtue of paragraph (a) of subsection (2) and (unless it is or becomes admissible otherwise than by virtue of that paragraph) shall be disregarded accordingly.

(4) Where a document setting out the evidence which a person could be expected to give as a witness has been prepared for the purpose of any pending or contemplated proceedings, whether civil or criminal, and that document falls within subsection (1) (a) above, then in any criminal proceedings in which that person has been or is to be called as a witness a statement contained in that document shall not be given in evidence by virtue of subsection (2) (a) or (c) (v) above without the leave of the court; and the court shall not give leave under this subsection in respect of any such statement unless it is of the opinion that, in the particular circumstances in which that leave is sought, it is in the interests of justice for the witness' oral evidence to be supplemented by the reception of that statement or for the statement to be received as evidence of any matter about which he is unable or unwilling to give oral evidence.

(5) Where, in any proceeding, a statement is given in evidence by virtue of this section, there may be given in relation to any person who compiled a document containing the statement, or who supplied information to that compiler, including any intermediary, and is not called as a witness—

(a) any evidence which, if that person had been so called, would be admissible for the purpose of destroying or supporting his credibility as a witness;

(b) with the leave of the court, any evidence which, if that person had been called, could have been put to him for the purpose of destroying his credibility as a witness, being a matter of which, if he had denied it, evidence could not have been adduced by the cross-examining party.

(6) A statement which is admissible by virtue of this section shall not be capable of corroborating evidence given by any person who compiled the document or supplied any information contained in it, including an intermediary through whom such information was supplied.

(7) In deciding for the purposes of this section whether or not a person is fit to attend as a witness, a court may act on a certificate purporting to be a certificate of a duly registered medical practitioner.

(8) For the purposes of this section, a duty includes a duty which is not legal or contractual.

(9) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and in particular to the question whether or not any person who originally supplied the information from which the document was compiled did so contemporaneously with the occurrence or existence of the facts dealt with in that information, and to the question whether or not any such person or any person concerned with compiling or keeping the document containing the statement had any incentive to conceal or misrepresent the facts.

(10) A statement shall not be given in evidence by virtue of this section (without the leave of the court) unless, at least fourteen days before the trial, a notice is served on each of the other parties to the proceedings stating the grounds on which it is claimed that the statement is admissible and the evidence to be given in support of this claim and having attached there to a copy of the document containing the statement.

(11) The court may give leave to give in evidence a statement admissible by virtue of this section notwithstanding the fact that notice has not been given in accordance with the last preceding subsection if the other parties to the proceedings have not been prejudiced by the lack of notice or it has resulted from factors outside the control of the party wishing to give the statement in evidence.

(12) Service of any notice pursuant to subsection (10) hereof shall be by prepaid registered post to the home of the accused if he is not represented and to the offices of his solicitor if he is represented.

(13) Where in any proceedings a statement contained in a document is admissible by virtue of this section it may be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document or of the material part thereof authenticated in such manner as the court may approve.

(14) For the purpose of deciding whether or not a statement is admissible in evidence by virtue of this section, the court may draw any reasonable inference from the circumstances in which the statement was made or otherwise came into being or from any other circumstances, including the form and contents of the document in which the statement is contained.

(15) This section shall not apply to any statement which is admissible by virtue of the common law or of any other statute.

(16) For the purposes of this section—

`computer' means any device for storing and processing information;

`document' includes, in addition to a document in writing, whether produced by a computer or otherwise:

(a) any map, plan, graph or drawing;

(b) any photograph;

(c) any disc, tape, sound-track, or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(d) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom;

`film' includes a microfilm;

`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.

`a copy' includes:

(a) in the case of a document falling within paragraph (c) but not (d) of the definition of `document' in this section, a transcript of sounds or other data embodied therein;

(b) in the case of a document falling within paragraph (d) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied therein, whether enlarged or not;

(c) in the case of a document falling within both those paragraphs, such a transcript together with such a still reproduction; and

(d) in the case of a document not falling within the said paragraph (d) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not;

and any reference to a copy of the material part of a document shall be construed accordingly.

I hope we can extract a similar assurance from the Minister in respect of this matter.

An Leas-Cheann Comhairle

I think the Minister said lightning does not strike twice.

Mr. Connolly

Do not take me for granted.

Mr. McCartan

This is on the face of it a very substantial amendment which runs to almost three-and-a-half pages on the amendment list and proposes to insert a further section. Imposing though it appears, it addresses a very simple issue. This cumbersome draft amendment is nothing to do with me. I have borrowed it almost in its entirety from the Law Reform Commission's report. There is no shorter cut to take.

The amendment addresses the issues raised by the famous Myers judgment in Britain in the sixties. It is a fact of life that manufacturing industry at all levels, retailing, warehousing and wholesaling, is conducted in a modern, electronically-controlled way. The Myers case related to car assembly where the worker on the floor has virtually disappeared. Robot machines which are computer-controlled are used in manufacturing production throughout the world.

The practical problem relates to proof of ownership. When an item is produced in a factory, delivered to a warehouse, stored, delivered on to the wholesaler and from there to the retailer and ultimately into the house of an owner, it is logged by document, number and computer record. If ever the issue of ownership has to be decided, under the existing law every person along the line can in some circumstances be required to prove the manufacture, the delivery, the warehousing, the retailing etc. Clearly that is a cumbersome and unnecessarily intricate procedure. The judgement in the Myers case indicated that, as a matter of law and proof, continuity would have to be maintained. The English Legislature promptly responded and brought in amending legislation to address the problem.

The Law Reform Commission are proposing an amendment to our law to bring us into line with the legislative response in Britain to the problem exposed in the Myers case. This is what my amendment seeks to do. Our law must keep abreast of change in the Community. The section provides a régime which I believe will cover all eventualities and provide a simple way of proving ownership.

I was reading today the report of a trial concluded yesterday in the Special Criminal Court. The officer prosecuting is a very fine member of the Garda Síochána who has been speedily promoted to the position of detective superintendent in the Dundalk area. He reminded me of a case in which I was involved ten or fifteen years ago when he was the investigating officer in Naas. The case involved the theft and receiving of trailers made by a reputable company. The officer in question had to travel the length and breadth of Ireland to interview about 19 separate witnesses in order to establish the proper provenance and origins of the trailer involved, partly because it did not carry a registration or manufacturing mark which could be traced back. The report of this case reminded me of the complexities which can be put on the shoulders of the prosecution in attempting to find proof when it could otherwise be a simple matter of extracting computer records or manufacturing files giving the relevant information.

There is a perennial problem in regard to receiving goods, particularly electronic goods and goods of mass manufacture where the immediate owner has not kept the advice given by the neighbourhood watch scheme of writing down the serial number or putting an identifying invisible mark on the object. The police in those circumstances must try to trace the chain of evidence through the shop, the wholesaler, the warehouser and the manufacturer in order to see if the records have been kept. If the person who made the record is deceased or has moved to another place of employment or emigrated, there is a difficulty under the current law. The Law Reform Commission provide a way around that difficulty. It not only allows for ease of producing records but also for situations where a witness is unable or unwilling for whatever reasons to testify.

For example, if a company had a disagreement with an employee and dismissed him but subsequently needed his assistance to prove their records because their goods were stolen and had ended up in the hands of suspected thieves or receivers, the former employee cannot be blamed if out of pique or annoyance he is not prepared to help. There must be a provision in the law to address this situation. A similar type of exception is made in the 1967 Criminal Procedures Act. Originally my amendment was not confined to receiving cases — and I do not think the Law Reform Commission wanted it to be confined to receiving cases — but in order to ensure that I was fitting full square within the terms of the legislation, I modified it to relate to criminal proceedings taken under this Bill. I have confined it artificially to receiving cases, or handling cases as they are now known.

This Bill is entitled an Act to amend the Larceny Act, 1916, ... and to provide for related matters. It is arguable that even if I had tabled the amendment to cover all areas of criminal law I would be in order, but rather than lose the opportunity to debate this matter, I sought to confine it to the narrower sense. The amendment is worthy of support and consideration. It is lengthy amendment but addresses a very concise, perennial and persistent problem.

The amendment does not simply originate from the Law Reform Commission report on stolen property but was fully explored and dealt with in their earlier working paper entitled The Rule Against Hearsay in Civil Cases. They recommended in the context of civil law that this type of régime should be introduced, and the report argues that it should be extended to handling cases of offences or proof of offences under the criminal law. The current Chief Justice of the Supreme Court, Mr. Justice Finlay over the years has advocated that this matter should be expanded and developed as a means of streamlining the administration of our law. Some ten years ago I remember he gave an address to the Law Society in which he asked that this type of a development be explored as much as possible. There is no doubt that many of the rules of evidence and of practice in the courts need to be updated and made to reflect modern life. For that reason I hope the Minister will accept this amendment and include it as a good working proposal that will make the Bill all the more effective and workable.

Mr. J. O'Keeffe

Clearly there is a lacuna in the law in regard to evidence. This was very clearly illustrated in the report of the Law Reform Commission. Under the laws of evidence, the owner of goods may be unable to identify the individual items which are the subject of the charge and would then try to bridge this evidential gap by producing invoices or delivery dockets of one kind or another, but he may come up against the objection that only the person who entered the invoice or dockets could prove ownership of the goods and they may not be available in court and the chain would then be broken. The Law Reform Commission came up with a recommendation to deal with this. Deputy McCartan has tabled an amendment based word for word on the recommendation of the Law Reform Commission. In principle, I am totally supportive of the view expressed by the Law Reform Commission and now in Deputy McCartan's amendment.

The Minister could resolve the problem of evidence possibly in the same way he dealt with section 5. Deputy McCartan touched on a point which I am concerned about. I want to see the recommendation of the Law Reform Commission put into effect quickly; however, I want to see it put into effect in relation to all criminal charges. As Deputy McCartan mentioned, his amendment deals with criminal proceedings taken under this Act. I invite the Minister to take on board the points raised by the Opposition. I cannot speak for Deputy McCartan, but I feel we would be of the one mind on this: if we got a guarantee that this provision would be introduced on a general basis in criminal proceedings, we would be happy when dealing with cases of receiving, etc. that the prosecution would be able to rely on the approach encapsulated in Deputy McCartan's amendment. The Law Reform Commission has recommended this approach.

I believe Deputy Kavanagh would be in favour of this amendment. We, in Fine Gael, would like to see a change made so that it would be applicable to all criminal proceedings. I, therefore, invite the Minister to give a guarantee that a Bill will be brought before the House quickly that covers this point in relation to all criminal proceedings. If I had that guarantee, it would resolve the issue so far as our stance is concerned.

Mr. O'Dea

I have some sympathy for the amendment proposed by Deputy McCartan. However, one has to point out that the Myers case was decided in the House of Lords by a majority of three: two, which considerably weakens its authority here. The Law Reform Commission report on stolen property states that in the Law Reform Commission working paper on The Rule Against Hearsay in Civil Cases doubts were expressed as to whether Myers represented the law in the jurisdiction. It was pointed out that a less restrictive approach to the admissibility of records prevailed in other common law jurisdictions. The Law Reform Commission went on to refer to two recent Irish decisions where the Irish courts took a somewhat ambiguous approach towards that. Having said that, one has to be sympathetic to the thinking which underlines the amendment.

Perhaps there are a number of issues relating to the law of evidence which need to be updated and modernised, such as the competence and compellability of spouses as witnesses. I understand the Minister has asked his Department to prepare legislation on this matter which will also take this issue into account. No doubt, the Minister will inform us further on that. In view of the uncertainty on the admissibility of evidence of this kind, I would like to see — I am speaking personally — something written into the legislation which would clarify the matter and put it beyond doubt. However, if we are updating the law on evidence, this is the most appropriate place to take on board Deputy McCartan's proposal, to which I have no objection in principle.

Mr. Kavanagh

Recommendation 9 in the Law Reform Commission's document has been translated into a scheme for a Bill to be produced by the Minister. Deputy McCartan has cleverly extracted the portion that brings recommendation 9 into operation in this Bill. Unfortunately, it is not in the Bill before us but the opportunity is given to the Minister to include it. What I and other people on this side of the House have been saying is that we would have hoped that the Minister would have taken the scheme of the Bill provided to him in the Law Reform Commission's document and made amendments to it rather than make so many amendments to the 1916 Act and approached larceny from a 1989 point of view, which would carry us through into the next century rather than attempting to amend a Bill that is now almost 80 years old.

We have all given figures as they relate to crime in this country. The increase in that type of crime that has occurred, particularly in the last ten years, has arisen in many cases with so much knowledge, new technology and modern methods in carrying out the crimes that were never envisaged when the 1916 Act was brought in. The 1916 Act was passed in a type of Gilbert and Sullivan period when people were singing about the burglar being out doing his duty and the policemen trying to catch him. We are now dealing with sophisticated methods of stealing very large sums of money. The people who are doing that — the godfathers and the handlers — benefited from crime last year to the extent of about £32 million. This amendment endeavoured to bring this Bill up to date as far as it goes. This amendment deals with the records, the methods of modern business and the usage to which modern technology in business is put to nowadays and how that can be used to defraud the owners of their property, property that can have immense value.

If the Minister is considering doing something on Report Stage, then all of us will await that. I hope he will do as he has already suggested he would do with the previous amendment and that he will come back having considered what attempts are being made by the Opposition, to try to give this Bill a more comprehensive approach to crime. All of us are interested in doing that. We are fed up hearing every morning from Gay Byrne and others the extent of crime that exists in Ireland. We all want to bring in legislation that can get to grips with the larceny end of that crime and to see a Bill that will be modern and up to date and which will give the Garda and the courts every facility to catch these people who are making enormous wealth out of crime. An amendment such as this attempts to do that. I hope that the Minister, being the sensible man he is, will take this amendment into consideration and sleep on it overnight and that when we come to deal with it on Report Stage he will have considered that it is well worthy of inclusion in this Bill.

Mr. Connolly

The principle is not opposed. I agree with the object which Deputy McCartan is seeking to achieve in this amendment, that is to facilitate the admission of evidence of certain business and administrative records in criminal proceedings. In fact, the Minister has a Criminal Evidence Bill in preparation which makes provision for the admissibility of these records as well as for the competence and the compulsion on spouses to give evidence in criminal cases. It would also be hoped to include in the final recommendations of the Law Reform Commission evidence of child sexual abuse cases if the commission's report, expected early next year, is received before drafting of the Bill is completed. The proposals in the commission's report on receiving from which the Deputy has taken his amendment were based on provisions in the British Police and Criminal Evidence Act, 1984. These provisions were replaced with modifications in a Criminal Justice Act last year and the Bill which is now on the stocks takes account of these modifications. I expect that in the next week or so the Minister for Justice will be furnishing the heads of the Criminal Evidence Bill to other interested Departments for observations, which is the usual procedure, as a preliminary to sending them to the Government for approval to have the Bill so drafted. As I said earlier, the principle is not opposed. It is the aim of all Members in this House to bring in as good a Bill as possible. I hope I have clarified some of the important matters.

Mr. McCartan

I thank the Minister again for the information he has afforded us here. It helps to update our information on the stage which work is at within the Department on this important point. The purpose in seeking to include this amendment in the Bill at this stage was simply to get the Minister to address the Law Reform Commission's report and its extensive work in this area. It was a pity that the Minister did not tell us on Second Stage what we have been told by the Minister of State, Deputy Connolly, who is deputising for the Minister. It would have saved a lot of difficulty but, nonetheless, I will not begrudge the good news he is telling us.

Mr. Connolly

I am coming good now on the day.

Mr. McCartan

I will not begrudge that good news. I am happy that it has happened. I hope it goes some way in assuaging the undoubted annoyance that is felt within the Law Reform Commission for the way this report has been handled generally. With the assurance that there are other development to be considered and other aspects of the criminal law to be addressed and that we will have, within the not too distant future, a comprehensive document on criminal evidence — a matter which is long overdue — I would be only too happy to withdraw the amendment. Putting down the amendment did not involve the staff great deal of work but it did involve the Law Reform Commission in exhaustive work and it certainly involved the staff of this House in considerable work in reproducing three and a half pages of an amendment when all of that could have been avoided if the Minister had told us on Second Stage what we have now been told. The Minister might take back to his colleague this point: when he is addressing a Bill and he has a document as excellent as this one, in his Second Stage speech perhaps he might consider addressing the issues it raises whether he is taking them on board or not. It would avoid a lot of the difficulties. I am sorry to introduce a small sour note. I welcome what we have been told and in those circumstances I am withdrawing the amendment.

Mr. Connolly

It would not be my intention to bring in anything on a sour note. I would like to be as helpful as I possibly can.

Amendment, by leave, withdrawn.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. McCartan

I welcome this section.

An Ceann Comhairle

Perhaps Deputy McCartan will now report progress.

Progress reported: Committee to sit again.