Barry Ward (Fine Gael) | Oireachtas source

Tuigim go soiléir an áit óna bhfuil an Seanadóir ag teacht. The provisions of section 6, which we have already approved, give fairly wide latitude to judges dealing with preliminary trial hearings to address issues like this. The proposed section 7(1) from Senator McDowell clarifies what the court may permit in terms of cross-examination but I am not sure it is necessary. The wide purvey that is available in section 6 of the Bill probably covers that and there is fairly wide discretion afforded to a judge in a preliminary hearing to deal with those issues. Perhaps more salient is the proposed section 7(2) in relation to whether the judge can provide information to the jury at the actual trial of the offence as to what was heard in that preliminary trial hearing and, for example, issues that may have changed between the time of the preliminary hearing and the trial itself.We have to look at these things from the point of view with which we would look at a voir dire hearing, a hearing in the course of a trial in the absence of a jury. The jury is excluded in order that the judge and the parties to the case can discuss an issue and decide, for example, whether evidence is admissible. The jury is excluded because the law takes the view, I believe correctly, that if it was to hear evidence that was subsequently decided to be inadmissible, it could not simply forget that it heard that evidence. It knows the evidence is there and even though the court has deemed it inadmissible it is quite difficult for a person, who is expected to act dispassionately in a case, having heard the evidence to then forget it and move on as if her or she had never heard it.

The provisions of the Bill already cover the notion that a trial judge would deal with decisions made at a preliminary trial hearing in the same way as he or she would deal with decisions made in a court's voir dire. The good and progressive aspect of this legislation is that it allows those hearings to be done in advance. Everyone would agree that to be able to do that in advance is an advantage, from the point of view of getting business done and not having juries sitting in windowless rooms in courthouses throughout the country while lawyers are arguing points. It allows trials to run more efficiently and quickly and to be completed in a shorter period of time. As the Bill stands, it is already in the power of the trial judge simply to view the decisions of a preliminary trial hearing in the same way as he or she would view decisions made in the course of a voir direhearing during the trial. On that basis, I also suggest that the proposed insertion of subsection (2) is unnecessary because we have to look at it from the point of view of a parallel with a voir direhearing. In that regard, trial judges must have regard to whether the evidence adduced there is probative or prejudicial and create that balancing exercise that they have to do all the time at present. The big advantage with this Bill is that they get to do it in advance of the trial and thereby shorten the trial, short-circuit many of the legal issues and avoid the waiting around for witnesses, complainants, defendants and jurors.