James Browne (Wexford, Fianna Fail) | Oireachtas source

Senator McDowell gave a very good example of where I would expect a judge would require somebody to be arraigned when he or she is going to challenge that type of evidence in sexual cases. I made a section 4E application once in a manslaughter by omission case. At that time there was no precedent and there was a question as to whether it was even an offence here. Sometimes, there are challenges around the book of evidence and admissibility. There are occasions when a court will decide that somebody should be arraigned before getting into the preliminary hearing. Another example that I was involved in, and it might be argued it could fall either way, was an application to transfer a case because of adverse local publicity and whether someone should be arraigned before a preliminary hearing was heard.

This section effectively leaves it up to the judge to make the call on when the preliminary hearing will be heard, the type of evidence that will be questioned, and the type of evidence that will have to be given as to whether somebody should be arraigned at that point. In those circumstances, we are putting our trust in the judges to make the right call. Therefore, unfortunately, I will not accept the amendment. I understand Senator Ward's intention but we will leave it up to the courts to make the call at the time.