Michael McDowell (Independent) | Oireachtas source

I move amendment No. 4a:

In page 11, between lines 10 and 11, to insert the following: “7.(1) The court of trial may permit any witness to be cross-examined in relation to evidence given by that witness in the course of any preliminary trial hearing where the court is satisfied that it would be in the interests of justice to do so.

(2) The court of trial may permit evidence of matters dealt with at a preliminary trial hearing having to be tendered in rebuttal of any other evidence adduced in the course of the trial where the court is satisfied that it would be in the interests of justice to do so.”.

This amendment seeks to insert a new section 7 into the Bill.What I intended with this amendment was to make it clear that although the preliminary hearing could take place prior to the trial and at a different time, what happened at the preliminary hearing would not be out of bounds for consideration, were it relevant, when the trial actually commenced. There are several possibilities as to how this would work. For instance, if a member of An Garda Síochána disputed a claim that he or she had intimidated a person into making a confession, that garda could be cross examined again in relation to the evidence he or she gave, before the jury, if the trial proceeded. Likewise, the jury could hear of what happened at a preliminary trial hearing where that was relevant to rebut any evidence given or proposed to be given in the course of the trial. What I want to make absolutely clear, by tendering this amendment, is that the separation of the preliminary trial hearing from the trial itself should not in any sense make it out of bounds for the matters dealt with to be rehearsed again before the jury. If this were not so, we would have the strange situation where people could say things at the preliminary hearing in order to make a confession or other evidence admissible, in terms of whether they had proper suspicions before they carried out a search, for example, but that might not be revisited in the course of the criminal trial itself.

The real underlying purpose of this amendment is to ensure that the accused is not prevented from fighting an issue again just because the judge has declared an exhibit or a confession, for example, to be admissible. The aim is to ensure that the accused is not prevented from disputing that again before the jury, as to whether a confession was voluntary or involuntary, for instance. Likewise, the prosecution authorities, for their part, should be permitted to tell the jury that at a preliminary trial hearing, the accused gave entirely contradictory evidence to that given in the trial. The purpose of this amendment is to ensure that what happens at a preliminary trial hearing is not declared out of bounds just because the court has ruled that evidence was admissible, an arrest was lawful or a confession was voluntary, for example, in the absence of the jury. The aim is to ensure that the jury is not effectively bound by such a determination and prevented from hearing the accused's version again in relation to these matters. That is the purpose of this amendment.