Special Measures in General/Videolink

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Donnelly v Ireland [1998]  1 IR 321

• Challenge to use of videolink under Criminal Justice Act 1992

• No right under the Constitution to personal cross -examination

• Manner of cross-examination may be modified subject to the right of the Defendant to a fair trial under Art.38.1

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‘It is well established in our constitutional jurisprudence that an accused person's right to a fair trial is one of the most fundamental constitutional rights accorded to persons and that in so far as it is possible or desirable to construct a hierarchy of constitutional rights it is a superior right.’

Chief Justice Hamilton

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O’D v DPP and Judge Patricia Ryan  [2010] 2 IR 605

• The Defendant challenged the use of video link under s.13 (1)(b) Criminal Evidence Act 1992, where he was charged with s.5 Criminal Law (Sexual Offences) Act 1993. (That section provided for the offence of having sexual intercourse with mentally impaired persons - the relevent provision is now s.21 Criminal Law (Sexual Offences) Act 2017 - 's. 21 Sexual act with protected person') The High Court granted an order of certiorari quashing the order of Ryan J allowing the use of video link for witnesses under s.13 of the Criminal Evidence Act 1992. The court stated the trial judge had not administered the test correctly i.e. to evaluate whether the use of the support measures would mean more than just that the witnesses would be saved an inconvenience or unpleasantness.

• It went on to say that the court should only permit the giving of evidence by video link where it was satisfied by evidence that a serious injustice would be done, in the sense of a significant impairment to the prosecution's case, if evidence had to be given in the normal way, viva voce, thus necessitating evidence by video link in order to vindicate the right of the public to prosecute offences of this kind. The court granted an order of certiorari to quash the order providing for the use of video link and remitted the matter back to the Circuit Criminal Court for a rehearing of the application under s. 13 of the Act of 1992.

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An appeal was made to the Court of Appeal in respect of the use of video link where the risk of prejudice was live as there was a challenge to the finding that the complainant had an intellectual disability.

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 DPP v O'D (D) [2015] IECA 273 

 

The Court ultimately found that while there was a risk whether evidence given under s.13(1)(a) or s.13(1)(b) Criminal Evidence Act 1992 might carry a risk of pre-determination of the issue of intellectual disability, this was less so under the latter section. With the direction of the trial judge (who had referred to the special measures and  stated that giving evidence by videolink was common procedure) there was no unfairness to the Appellant and the appeal was dismissed.

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O’Sullivan v Hamill [1998] 2 IR 9 – Judgment of O’Higgins J

 

In a case similar to D.O’D v DPP, the Defendant challenged the use of videolink where the use of the special measure for a person with an intellectual disability may have caused prejudice in respect of a pre-determination of the charge which was also s.5 Criminal Law (Sexual Offences) Act 1993. The challenge in respect of video link failed and the case has become the basis for the test of competence in this jurisdiction. The ability to give an intelligible account of events which are relevant to the proceedings, under s.27 Criminal Evidence Act 1992, has emerged as the competency test in this jurisdiction.

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DPP v Ronald McManus (A.K.A. Ronald Dunbar) [2011] IECCA 32.

• use of video link under s.13 (1)(b) Criminal Evidence Act 1992 by a  female witness who had just turned 18 and who was to give evidence against the accused, her father, in a murder trial.

-           challenge  defendant that when a witness gives evidence in the ordinary course of events i.e. from the body of the court, a jury has the greatest possible opportunity to assess the demeanour, deportment and reaction of such a witness in examination and cross-examination.

-           challenge also that that departure from the standard procedure could be only be lawfully made on the basis of ‘strong evidence’. Application was based on evidence by a social worker who stated that the witness was afraid that she would freeze while giving evidence and that she would be unable to confront her father face to face. In addition, the witness did not wish to give evidence in front of a crowd.

-           Court of Criminal Appeal stated that, regarding s.13(1)(b) which allows the use of video link with the leave of the court, ‘no conditions are imposed in respect of that leave, and no restriction is set down in respect of the exercise by the trial judge of his discretion.’

-           The court outlined the factors which had warranted the use of the provision. These included

            (i) the witness had certain communication difficulties

            ii) she had only just turned 18 years of age

            (iii) she was giving evidence in a murder trial against her own father about events that occurred when                  she was 15 years of age and

            (iv) she was, on the evidence of her social worker, a vulnerable person.

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• The Court stated that the defendant was not restricted in his defence by the use of the support measure and had been able to cross-examine the witness at length in accordance with the principles in State (Healy) v Donoghue [1976] I.R. 325. Ultimately, the Court found that there had been no evidence adduced on behalf of the defendant on which it could be found that there had been a real or serious risk of an unfair trial by reason of the trial judge exercising his discretion to allow the use of video link. On that and other grounds, the appeal was dismissed.

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Competence 

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See O'Sullivan v Hamill above 

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DPP v  PP  [2015] IECA 152 - Judgment of Sheehan J 

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 - The Court of Appeal held that while it was preferable to hold an enquiry as to the competence of the witness before she gave evidence under s.16 (1)(b) Criminal Evidence Act 1992, it was not fatal in this instance. The Court also held that the fact that the  DVDS had gone to the jury room in this instance did not render the verdict unfair.

(It is suggested that this  judgment turns on the  individual facts. Subsequent trials have shown that, where there have been requests from the jury to re-watch the DVDS, it is done so in the courtroom.) 

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Recorded Testimony 

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DPP v TV (2017) IECA 200

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Court of Appeal had no difficulty with admission of recorded testimony under s.16 (1)(b) Criminal Evidence Act 1992  where there had been prompting by Specialist Interviewer, repetitive interviews and the complainant had been shown the first and second interview prior to recording the third interview after a delay of many months. Another challenge,on the basis that the delay between the recording of the evidence and the time of the trial meant that the complainant could not be effectively cross-examined, failed.  

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KD v DPP (2017) IECA 53 

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A child who had his or her testimony recorded when under 14 may still give evidence if between 14 and 18 when the matter comes to trial. 

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DPP v JD (2018) IECA 232 - Judgment of Birmingham P

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The recorded testimony of a 9 year old complainant was still admissible although the Specialist Interviewer had not warned her to tell the truth. The complainant had been able to demonstrate that she understood the difference between truth and lies and understood the consequences of telling lies.  The judgment also references Judge Hunt's ruling in DPP v FE, Central Criminal Court, November 2015 where he stated that the words 'shall be permissible' in s.16(1)(b) Criminal Evidence Act 1992 gave the provision a 'directory or mandatory flavour'. 

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DPP v SA 2020 IECA 60 - Judgment of Kennedy J 

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The Court of Appeal had no difficulty with admission of recorded testimony where supplemental documents made prior to interview by the complainant were used to prompt testimony during interview. 

 

 

 

 

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