Michael McDowell (Independent) | Oireachtas source

This is a technical amendment. I ask the Minister of State to consider it. The appeal provision in section 7(2) states an appeal referred to in this section shall lie only where the relevant order concerned made by the trial court erroneously excluded evidence which is reliable and such that when taken together with the other relevant evidence would be of significant probative value in the minds of a reasonable jury. The language there says that the appeal only lies where the "erroneously excluded evidence" is of that character. The question is, and the amendment put down by myself and Senator Boyhan seeks, to make it clear that it is the prosecution that is asserting that that is the case. The present phraseology of subsection (2) seems to say there is no appeal unless it is of a particular character. It does not say who decides the character. Presumably it must be the appellate court, but it seems to me that it should be made clear that the prosecution has to assert that the evidence is of that character, and that this gives it the right to go to the Court of Appeal, and that the Court of Appeal would then determine whether the appeal is of that character or not. At the moment it is open to interpretation that the appeal does not lie at all unless the aspects of the evidence in question are, as a matter of fact, satisfied under subsection (2). It was intended to make it clear that this was a matter for the Court of Appeal to decide whether the evidence is of that character, and not for the trial court to determine that.