Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

Section 40 provides for the conduct of oral hearings. Subsection (1) provides for what is referred to as an "oral hearing procedure" by the commissioner. If, in relation to a recommendation in the investigation report of the deputy commissioner, the commissioner's decision is not to accept the recommendation of the deputy commissioner and he or she does not refer the matter back to the deputy commissioner for further investigation, the commissioner will hold one or more sittings for investigating the matter, at which he or she may receive submissions and evidence.

Subsection (2) provides for oral hearings to be held in public or private at the discretion of the commissioner. Subsection (3) provides that a request by the person being investigated for a sitting to be held in public may be accepted or refused by the commissioner. Subsection (4) provides that the commissioner may end or postpone any proceedings by way of the oral hearing procedure.

Subsection (5) provides that the commissioner may receive evidence given orally, or by the means specified in subsection (9), or as otherwise directed, including by live video link, a video recording, a sound recording or any other mode of transmission. Subsection (6) provides that a witness who attends before the commissioner to give evidence may be required to give evidence on oath. Subsection (7) provides that the commissioner may administer any oaths necessary for the purposes of the oral hearing procedure.

Subsection (8) provides that the commissioner may arrange for the examination of a person anywhere in or outside the State and may receive the evidence of the person taken at the examination in a form determined by the commissioner, and the relevant rules of the court relating to evidence in proceedings of the High Court will apply with any required modifications.

Subsection (9) provides that a witness who gives evidence other than by attending in person or by means of a live video link will provide the commissioner with a sworn statement that the evidence was given by him or her voluntarily and is true and accurate. Subsection (10) provides that where the commissioner has received evidence from a witness who is required to provide a sworn statement under subsection (9), the commissioner may request additional information relating to that evidence. Subsection (11) provides that a witness must comply with a request under subsection (10) within the specified period. Subsection (12) provides that the requirements of subsection (9) relating to the provision of a sworn statement also apply to any additional information given under subsection (10).

Subsection (13) provides that the steps taken in the conduct of the oral hearing will be determined by the commissioner and will include notifying the complainant and the person who is the subject of the investigation of the date, time and place of a sitting; giving the person being investigated the names of the witnesses who it is intended will give evidence; enabling the person being investigated and the complainant to be present at the relevant sitting and enabling the first-mentioned person to present his or her case; enabling written statements to be admissible; enabling any signature on a document to be taken to be that of the person whose signature it appears to be; the examination and cross-examination of witnesses; and the making of a sufficient record of the proceedings.

This will ensure that fair proceedings are afforded to the person being investigated.

Subsection (14) provides that on conclusion of the oral hearing, and having considered the evidence given or presented, and any submissions made, the commissioner shall make such findings of fact in respect of the matter the subject of the investigation, as he or she considers appropriate.