Michael McDowell (Independent) | Oireachtas source

Senator Ward is totally correct that that is the current practice, but I wonder about its correctness. If we are trying to speed up proceedings, we should not have mini-trials in advance of major trials where the jury will be asked to consider that exact point. That the Constitution guarantees a trial "in due course of law" is one thing, but it also guarantees trial by jury. It is very difficult for a person charged with a serious criminal offence to be in effect branded a liar at a preliminary stage in the trial by the trial judge who is going to deal with the case, and then to expect the trial judge to sit there impartially and stare at the ceiling when the same evidence is presented to the jury.

Furthermore, although this question may not be for resolution during this debate, how could a judge be satisfied beyond a reasonable doubt that a Sergeant McDowell did not say to a Mr. Ward that if he does not make a confession, the sergeant will do X or Y to the man's spouse or have his children brought into care that evening? How could a judge state, beyond a reasonable doubt one way or the other, whether that remark was made on the way into an interview room? If one person says that is exactly what the sergeant said, and the sergeant says he would never do anything of the sort, that he is an honourable member of An Garda Síochána and that that is an outrageous suggestion, what is the judge to do? Is he or she to say it is beyond a reasonable doubt that what he or she is being told did not occur, that there is no reasonable doubt and that he or she is satisfied it is an invention? Is he or she to say, because one person has stated A and the other person has stated B, and because there is no corroboration either way, that he or she will hold against the person making the allegation and say that, beyond a reasonable doubt, the person has invented that evidence? That is the standard, effectively, of allowing a statement to go in.

It may be that today is not the day to decide this, but perhaps the Bill should be amended to make clear that if a judge anticipates, on the basis of the evidence before him or her, that an issue is going to be decided by a jury one way or the other if the evidence is admitted, he or she may decide not to take that evidence away from the jury or put it before the jury by branding the accused a liar beyond a reasonable doubt.My view of this matter is that it is one for the jury proper. That is the proposition that has been worrying me. This Bill does not create that worry and it cannot address that issue unless there is some deeper philosophical thought about it. It seems to me that if, for instance, a statement is produced, which is signed by the accused and in the words of the accused, and they see the video of it and the only issue will be whether it was induced by a circumstance of this kind, it is not entirely unfanciful. I think Senator Ó Donnghaile will agree with me that such inducements can and would be made. They have been alleged to have been made frequently in the past, although it may be an easy allegation to make. I am uncomfortable with the notion that the implication of such a statement going to the jury is that the trial judge has already disbelieved the accused on his or her oath and has rejected the evidence, not simply as unlikely to be true on the balance of probability, but incapable of being true to the standard required of a reasonable doubt that nobody hearing it could believe it to be true. That, to me, is the wrong standard to apply to that kind of situation.