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O'Sullivan v. Hamill [1998] IEHC 35; [1999] 2 IR 9 (25th February, 1998)
THE
HIGH COURT
JUDICIAL
REVIEW
129JR/1997
BETWEEN
MICHAEL
O'SULLIVAN
APPLICANT
AND
DISTRICT
JUDGE HAMILL
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT
of Mr. Justice O'Higgins delivered on the 25th day of February 1998.
1. By
Order of Shanley J. dated 7th day of April 1997 the Applicant was given leave
to apply by way of application for Judicial Review for the reliefs set out in
paragraphs D(i) and D (ii) of the statement of grounds and to apply on five of
the seven grounds contained in the grounding statement.
2. The
reliefs sought were:
(i) An
Order of Certiorari directing the quashing of an Order made by the first named
Respondent and dated the 5th March, 1997 directing that a witness in the case
against the Applicant entitled Director of Public Prosecutions -v- Michael
O'Sullivan should be permitted to be called on deposition (pursuant to
Section
8(1) of the
Criminal Procedure Act, 1967) by means of a live television link
pursuant to
Section 13(1) of the
Criminal Evidence Act, 1992.
(ii) An
Order of Prohibition directing that the first named Respondent be precluded
from taking a deposition or depositions (pursuant to
Section 8(1) of the
Criminal Procedure Act, 1967) from a witness in the case against the Applicant
entitled Director of Public Prosecutions -v- Michael O'Sullivan by means of a
live television link pursuant to
Section 13(1) of the
Criminal Evidence Act,
1992.
'That
in making the said Order the first named Respondent acted without jurisdiction,
or alternatively exceeded his jurisdiction in that he heard no evidence that
the person sought to be called on deposition was a person with a mental
handicap'.
4. The
following are the uncontested or agreed facts:-
* The
Applicant was charged with having sexual intercourse with a person who was
mentally impaired contrary to Section 5(1) of the
Sexual Offences Act, 1993.
* All
the argument in the District Court was as to whether the offence alleged came
within the ambit of Part III of the
Criminal Evidence Act, 1992 - which allows
evidence by television link in certain circumstances.
* The
application to have the alleged victim of the offence called on deposition was
made by the Defence.
* There
was no argument directed to the Judge about holding an inquiry as to the
capacity of the witness to give evidence.
* The
Judge was not asked to inquire into the mental capacity of the alleged victim.
* There
was no refusal to hold such inquiry.
5. Counsel
for the Respondent argues that the Court had no jurisdiction to order that the
evidence be taken on live television link. He made two main submissions.
(1) If
a victim can give deposition by way of video link because she is mentally
handicapped then it must be proved that she was handicapped before allowing
such video link.
(2) Because
a person with a mental handicap can give an unsworn statement in certain
circumstances, and because that evidence may be used at a trial, there must be
an inquiry as to whether that person has a mental handicap, prior to allowing
video link evidence.
6. The
relevant legal provisions are as follows:
12.
This Part applies to -
(a)
a sexual offence,
(b)
an offence involving violence or the threat of violence to a person, or
(c)
an offence consisting of attempting or conspiring to commit, or of
aiding,
abetting, counselling, procuring or inciting the commission
of,
an offence mentioned in paragraph (a) or (b).
13.-(1) In
any proceedings for an offence to which this Part applies a
person
other than the accused may give evidence, whether from within or
outside
the State, through a live television link-
(a)
if the person is under 17 years of age, unless the court sees good reason
to
the contrary,
(b)
in any other case, with the leave of the court.
(2)
Evidence given under subsection (1) shall be videorecorded.
16.-(1)
Subject to subsection
(2)-
(a)
a videorecording of any evidence given by a person under 17 years of
age
through a live television link at the preliminary examination of
an
offence to which this Part applies, and
(b)
a videorecording of any statement made by a person under 14 years of
age
(being a person in respect of whom such an offence is alleged to
have
been committed) during an interview with a member of the
Garda
Siochana or any other person who is competent for the
purpose,
shall
be admissible at the trial of the offence as evidence of any fact stated
therein
of which direct oral evidence by him would be admissible:
Provided
that, in the case of a videorecording mentioned in paragraph (b),
either-
(i)
it
has been considered in accordance with section 15(2) by the judge of the
District Court conducting the preliminary examination of the offence, or
(ii)
the
person whose statement was videorecorded is available at the trial for
cross-examination.
(2)(a) Any
such videorecording or any part thereof shall not be admitted in evidence as
aforesaid if the court is of opinion that in the interests of justice the
videorecording concerned or that part ought not to be so admitted.
(b) In
considering whether in the interests of justice such videorecording of any part
thereof ought not to be admitted in evidence, the court shall have regard to
all the circumstances, including any risk that its admission will result in
unfairness to the accused or, if there is more than one, to any of them.
(3)
In estimating the weight, if any, to be attached to any statement contained
in such a videorecording regard shall be had to all the circumstances from
which any inference can reasonably be drawn as to its accuracy or otherwise.
(4)
In this section 'statement' includes any representation of fact, whether in
words or otherwise.
19.-
The references in Sections 13(1)(a), 14(1)(b), 15(1)(b) and 16(1)(a) to a
person under 17 years of age and the reference in Section 16 (1)(b) to a person
under 14 years of age shall include references to a person with mental handicap
who has reached the age concerned.
"Notwithstanding
any enactment, in any criminal proceedings the evidence of a person under 14
years of age may be received otherwise than on oath or affirmation if the Court
is satisfied that he is capable of giving an intelligible account of events
which are relevant to those proceedings"
and
Subsection
(1) shall apply to a person with mental handicap who has reached the age of 14
years as it applies to a person under that age.
8. It
is clear from the provisions of Section 13(1)(a) that in the case of a person
under the age of 17 (which, by virtue of the provisions of Section 19, shall
include references to a person with a mental handicap who has reached that age)
that person may give evidence through a live television link - unless the Court
sees good reason to the contrary. Likewise it is clear from the provisions of
Section 13 (b) that in any other case to which Part III of the Act applies,
evidence may be given through a live television link with the leave of the Court.
9. The
Court, therefore, has jurisdiction to allow evidence by live television link in
all cases to which Part III of the Act applies. Since Part III of the Act
applies to the case in question it follows that the Court has jurisdiction to
allow television link to be used.
10. The
jurisdiction of the Court in the present case to allow evidence to be given by
way of television link is not therefore based on a prior finding that the
person involved had a 'mental handicap'. Indeed, it might be possible to argue
that, since the issue of the mental handicap of a witness might be a vital
issue before the jury at the trial, it would be preferable to rely on the
provisions of Section 13(b) rather than 13(a) at the preliminary examination.
11. The
capacity or competence of a witness to give evidence (sworn or unsworn) is an
entirely different matter than the jurisdiction of the Court in relation to the
television link.
12. The
second argument of the Applicant relates to the capacity or competency of the
alleged victim to give unsworn evidence.
Section
16 of
the Act makes provision, inter alia, for a video recording of a person
with a mental handicap to be evidence of any fact stated herein of which
'direct
oral evidence'
would be admissible. Direct oral evidence is only admissible if a person is
competent to give evidence.
13. Unsworn
evidence is provided for from a person with a mental handicap "
where
the Court is satisfied that he is capable of giving an intelligible account of
events which are relevant to those proceedings
".
In my view, before that section comes into play there are two requirements on
which the Court has to be satisfied -
(1) that
the person has a mental handicap, and
(2) that
he is capable of giving an intelligible account of events which are relevant to
the proceedings.
14. Clearly
there must be an inquiry. However, in the proceedings in this case - there is
nothing to indicate as to whether the provisions of Section 27 of the Criminal
Evidence Act are to be invoked. Neither is there any evidence that, if the
provisions of the section are applied, that will be done incorrectly.
15. Accordingly
the reliefs sought by the Applicant are refused.
© 1998 Irish High Court
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