James Browne (Wexford, Fianna Fail) | Oireachtas source

I know what the Senator is seeking to do with this amendment. The concern is that evidence given at a preliminary hearing might somehow be inconsistent with the evidence given at a trial and, therefore, there should be a facility for the court to allow these inconsistencies to be brought into the open and challenged and interrogated. Clearly, such situations can arise from time to time, whether at a preliminary hearing or in various scenarios that already exist in trials at present. Let us say, for example, that an expert witness gives evidence during a voir direwhich is not consistent with the version he or she gives later during the main trial. This can already happen and moving the voir direto the preliminary hearing does not change that fact. In such a scenario, such inconsistencies, if not adequately explained, could clearly be used to undermine a witness's credibility. Of course, where evidence is ruled inadmissible it will not arise during the trial, as is currently the case.

We have carefully examined the issue the Senator raises and, although I agree that the courts must be able to deal with this type of scenario, I am satisfied that it is nothing it cannot deal with already. In fact, I am concerned that to pin it down in this way in a statute might interfere with the existing powers of the courts to deal with these situations effectively in their own discretion or using the flexibility already built into the statutory provisions which govern the various types of orders which may be dealt with at a preliminary hearing. I emphasise that the facility of a preliminary hearing merely moves the timing of these matters rather than changing the applications themselves. I should also mention that there is a discretion in the Bill in section 6(15) which allows a trial court to vary or discharge an order made at a preliminary trial hearing where the court is satisfied that it is in the interests of justice to do so. Furthermore, there is nothing in the Bill that would prevent additional applications during the trial itself, notwithstanding that there has been a preliminary hearing, where the court permits. As Senator Ward correctly pointed out, section 6(12) says it shall be the same judge who will deal with the matter both in the preliminary and the main hearings. Section 6(20) provides that the court in the preliminary hearing shall have all the powers it would have during the trial, while section 6(5) deals in particular with the timings of hearings with admissibility.

Finally, in the event that the prosecution or defence feels that the court has not dealt with matters in a way that is fair and just, there is always the right of appeal. That is the ultimate safety net where one side feels that the usual safeguards have not worked as they should in the hearing. In summary, we must rely on the judges to conduct trials fairly, and they have the necessary powers at present to do so. That faith in those judges to run those trials is very important.

Senator Martin raised an important point, which is the increasing disrespect that may be offered to the oath. The Perjury and Related Offences Bill 2018, which was initiated in the Seanad by the former Senator, Pádraig Ó Céidigh, and supported by Independent Senators, went to the select committee last week on Committee Stage. We should have it on the Statute Book as soon as possible to address Senator Martin's and other Senators' concerns in that respect.

I understand Senator McDowell's concerns, but we are satisfied they are addressed in the current law and in section 6. However, we will keep how it works in practice under review.