O'Sullivan v. Hamill [1998] IEHC 35; [1999] 2 IR 9 (25th February, 1998)

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 (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, . 3. It is common case today that four of the five grounds on which the reliefs were sought were based on a misapprehension of the state of the law at the relevant time. Apparently it was not adverted to that by virtue of the provisions of Section 16 (f) of the Criminal Justice (Miscellaneous Provisions) Act, 1997 an offence under Section 5 of the Criminal Law (Sexual Offences) Act, 1993 is made a " sexual offence " for the purpose of the Criminal Evidence Act, 1992 . I am told by Counsel that the Act came into effect a day before the proceedings in the District Court. The Applicant has therefore abandoned grounds one to four and the sole remaining ground is as follows: '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: Sections and of the Criminal Evidence Act, 1992 provide 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. Section of the Act provides as follows:- 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. Section of the Act is as follows: 19.- The references in Sections 13 (1)(a), (1)(b), (1)(b) and (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. Section (1) of the Act provides that "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 7. Subsection (3) of Section 27 provides that 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 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 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII