COURT OF CRIMINAL APPEAL
Application pursuant to Section 29 of the Courts of Justice Act 1924 as amended
The People at the Suit of the
Director of Public Prosecutions
Judgment of the Court delivered on the 29th of July 2015, by O’Donnell J.
1 The applicant herein applies for a certificate pursuant to s.29 of the Courts of Justice Act 1924 as substituted by s.22 of the Criminal Justice Act 2006 and as amended by s.59 of the Criminal Justice Act 2007 and s.31 of the Criminal Procedure Act 2010, that the decision of this Court of the 19th of February 2013 involved a point of law of exceptional public importance and that it is desirable in the public interest that the applicant should take an appeal to the Supreme Court. It was necessary to rehear this application due to the serious illness of one of the members of the Court. There are three points identified by the applicant, two relate to s.16 of the Criminal Justice Act 2006 and one relates to the trial judge’s charge to the jury.
Section 16 of the Criminal Justice Act 2006 (“the 2006 Act”)
2 This section introduced a significant statutory exception to the hearsay rule and provided for the admission in evidence of certain out of court statements in certain circumstances and in particular where the witness “although available for cross-examination” refused to give evidence, denied making the statement, or gave evidence which was materially inconsistent with it. As was observed by this Court in The People (Director of Public Prosecutions) v. Murphy,  IECCA 1:
The preceding events said to have given rise to the enactment of Part 3 of the 2003 Act, of which s.16 forms part, are well known and do not require repetition in this judgment. It can be said however that its provisions were largely intended to deal with gangland or organised criminality and criminals, many of whom prided themselves on being beyond the laws reach: in this regard recourse to the most violent means available so as to intimidate witnesses against doing their civic duty in giving evidence was common place. The Legislature, as is its right, responded inter alia with the section in question.” (paras. 21 and 22)
4 The first point sought to be certified by the applicant is derived from the fact that in this case, the relevant statements admitted under s.16 were made prior to the coming into force of the 2006 Act. Accordingly, the applicant asks the Court to certify the following question:
6 The second question proposed by the applicant in relation to s.16 is as follows:
8 The concept of making someone available for cross-examination is well understood in law: it means that a witness is present, and can be called and cross-examined if desired. Whether any such cross-examination takes place, or is useful, is normally a matter for the cross-examining party. It is in truth difficult to see what other interpretation can be given to the words “available for cross-examination” than that the witness is present and in Court, and can be called, and is therefore available. Perhaps more importantly, while the applicant complains about this process - and the Court does not in any way seek to underestimate the significance of the section, its impact on the trial, or the strength of the applicant’s objections - the applicant does not offer any other interpretation of the provision. The applicant’s contention appears to be that a witness to whom s.16 applies, and thus who does not give evidence or denies making the statement, or gives evidence which is materially inconsistent with it, and thus does not give oral evidence in accordance with the terms of the written statements sought to be admitted under s.16, is not “really” available for cross-examination. But this in fact amounts to a contention that either s.16 is unconstitutional, or should be interpreted in such a way as to be of no effect. It does not appear to this Court that any point of law arises from the Court’s decision in this regard, which could be certified under s.29 as substituted and amended. The applicant or anyone else affected by the section can seek to contend in properly constituted proceedings that the effect of s.16 on the trial process is such a departure from fundamental conceptions of justice in the adversarial system as to render it unconstitutional, but that is not a point of law arising on appeal in this case, which is capable of being certified under s.29.
The Trial Judge’s Charge