Brian Lenihan Jnr (Dublin West, Fianna Fail)

On the relaxation of the hearsay principle, Deputy Costello expressed concern about the use of the formula "in the interests of justice" that the courts will use to decide in their discretion. That is the canonical formula used in the Criminal Evidence Act 1992. The common law developed the rule that evidence is not admissible if the person submitting it is not available to give the evidence on oath and be subjected to cross examination. It is generally in the interests of justice that this should be so when persons are giving accounts of transactions of events from memory, but the application of that rule to the proof of documents has occasioned great inconvenience over the years.

In the proof of a document, the rule requires not alone that the original be produced in all cases but that the maker of the document or the person who kept it in the course of his business or calling should be available to prove it. If the document has been out of the possession of the person in the intervening period, the continuity of possession must be shown to the satisfaction of the court. The successive keepers or handlers of the document must be available to give evidence. There was a famous decision in Britain in the 1960s, Myers v. the Crown, where a prosecution of a stolen car ring collapsed because counsel was not in a position to call the makers of the records for the manufacturers who installed the relevant chassis numbers on the cars and could match them to registration details.

In the Criminal Evidence Act 1992, the Oireachtas provided for a substantial relaxation of the rule regarding documentary matters in the general law of evidence. In that legislation we also provided that ultimate discretion must exist for the courts because it is a matter of evidence. The formula "in the interests of justice" is included because in all these matters relating to the proffering of evidence, some residual or ultimate discretion must be left to the court to do justice between the parties in a particular case.

This procedure will empower the Criminal Assets Bureau to trace assets corruptly acquired. It will allow the bureau to deal with unexplained affluence.

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