Michael McDowell (Independent) | Oireachtas source

On the other matter that I have just raised, subsection (8)(c) refers to "relevant order". When one goes back to the definition of that on page 6 of the Bill, it states: " "relevant order" means an order as to the admissibility of evidence, including an order under or pursuant to section 16 of the Act of 1992;". I understand that that reference to section 16 of the 1992 Act is to video evidence, in certain circumstances. This raises a question as to the admissibility of evidence which is a point I wanted to explore with the Minister of State. If, for example, a person's defence is as follows: that he or she made a confession but that it was made under duress, that the person was threatened that his or her spouse would be arrested, that the person's children would be taken into care, or that the person was threatened with physical violence or with this, that, or the other. Is it envisaged that that issue could properly go to the jury, where it is admitted that it is the person's signature at the bottom of the statement and that the person did in fact use those words but these were effectively cajoled out of the person who was forced or felt compelled to say that because of "X" or "Y"?If that is decided at a preliminary stage by a judge having heard the accused person and, say, the interviewing garda who is supposed to have made these remarks in the corridor outside the interview room, as I understand our jurisprudence at present, the standard of proof to get such a statement in is that it be beyond reasonable doubt. If a trial judge was left in a state of reasonable doubt as to whether those words were uttered to the accused, that judge would normally say the standard of proof requires him or her to deem it inadmissible. The corollary of a finding that it is admissible is a rejection beyond reasonable doubt of the evidence tendered at the voir dire, as it is now, or the preliminary stage of the trial, that a judge is saying beyond reasonable doubt that it did not happen. Then there is the situation that a judge has said beyond reasonable doubt the evidence against the reception of this confession is false and he or she so finds it. The situation then is that the matter comes before the jury, which looks at it again and says it has a doubt about it. The judge has ruled it admissible on the basis he or she does not believe a word of what the accused is saying about the confession but then there is a trial before a jury on exactly the same point. In effect, the accused is given two bites of the cherry: one to convince the judge that there could be a reasonable doubt about it, and then to bring the same matter before the jury a second time and he or she signed the confession but only in the following circumstances.

Is it logical, in a case where it is perfectly clear that is the only defence, that it should be the subject of a trial before the judge alone? It would be a preliminary trial, effectively, in which the judge, in order to let it go to the jury to decide, has to effectively say, "I reject that evidence as untrue beyond reasonable doubt." It may be a philosophical question but it is one which troubles me about these preliminary trials. I can imagine myself as a trial judge saying to let the jury decide whether sergeant so-and-so uttered those words. The accused tells the judge it is his signature and he did use those words but only for the following reason. Is it right or reasonable in those circumstances that a judge, in order to let the jury decide that, has to determine beyond reasonable doubt that, in the accused's version of events given in evidence on a preliminary issue, he is lying through his teeth, that there is no truth whatsoever in it and there is no doubt that it is untrue? This raises a fundamental question about preliminary trials. If it is evident to a judge that the jury in the last analysis before going out to consider its verdict will have to consider whether sergeant so-and-so made that inducement or threat to the accused, why should there be as of right an application where, in order for the jury to consider that legitimate point, a trial judge has to throw out the version given by the accused on the criminal standard of proof beyond reasonable doubt?I may be mistaking something but I ask the question.