Donnelly v Ireland

JurisdictionIreland
CourtSupreme Court
JudgeChief Justice
Judgment Date22 January 1998
Neutral Citation1998 WJSC-SC 1346
Date22 January 1998
Docket Number[1995
DONNELLY v. IRELAND & AG

BETWEEN:

ANTHONY DONNELLY
Plaintiff/Appellant

and

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondents

1998 WJSC-SC 1346

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

BARRINGTON J.

MURPHY J.

11/97

THE SUPREME COURT

Synopsis

Constitutional

Legislation; challenge; validity; right to trial in due course of law; evidence; whether giving of evidence via live television link in sexual offence cases constitutional; whether giving of such evidence infringes right of confrontation and cross-examination; whether breach of constitutional and natural justice and fair procedures; whether legislation discriminatory; ss. 12, 13 (1) & (2) and 18 Criminal Evidence Act, 1992; Art. 38.1 & 34.4.4 of the Constitution

Held: Legislation not repugnant to Constitution ( Supreme Court: Hamilton C.J.,* O'Flaherty J., Denham J., Barrington J., Murphy J.22/01/1998(*Decision of the Court delivered by Hamilton C.J.))

Donnelly v. Ireland

[ 1998 1 IR 338 - [1998] 1 ILRM 401

Citations:

CRIMINAL EVIDENCE ACT 1992 S12

CRIMINAL EVIDENCE ACT 1992 S13(1)

CRIMINAL EVIDENCE ACT 1992 S13(2)

CRIMINAL EVIDENCE ACT 1992 S18

CRIMINAL EVIDENCE ACT 1992 PART III

CONSTITUTION ART 38.1

CONSTITUTION ART 38.5

CONSTITUTION ART 40.3

CRIMINAL EVIDENCE ACT 1992 S13(3)

CONSTITUTION ART 6

CONSTITUTION ART 34

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

WHITE V IRELAND 1995 2 IR 268

HAUGHEY, IN RE 1971 IR 217

D V DPP 1994 1 ILRM 435

HEALY, STATE V DONOGHUE 1976 IR 325

COY V IOWA 487 US 1012

MARYLAND V CRAIG 497 US 836

KENTUCKY V STINCER 482 US 748

KIRBY V UNITED STATES 174 US 47

DOWDELL V UNITED STATES 221 US 325

CALIFORNIA V GREEN 399 US 149

PENNSYLVANIA V RITCHIE 480 US 39

CRIMINAL EVIDENCE ACT 1992 S13

1

Judgment of the Supreme Court delivered on the 22nd day of January, 1998 by the Chief Justice pursuant to the provisions of Article 34.4.5 of the Constitution of Ireland

2

This is an appeal brought by the above-named Anthony Donnelly (hereinafter called the Appellant), against the judgment of the then President of the High Court (Costello P.) delivered on the 9th day of December 1996 and the order made in pursuance thereof on that date whereby the Appellant's claims for:-

3

(1) A declaration that Sections 12, 13(1) and (2) and 18 of Part III of the Criminal Evidence Act, 1992are invalid insofar and to the extent that they are repugnant to the provisions of Bunreacht na hÉireann and in particular Articles 38(1), 38(5) and 40(3) thereof.

4

(2) A declaration that Section 13(3) of the Criminal Evidence Act is invalid insofar as the said provision is repugnant to the provisions of Bunreacht na hÉireann and in particular Articles 6,34,38.1 and 40.3 thereof.

5

(3) An order of certiorari in respect of the Appellant's conviction by the Dublin Circuit Criminal Court on the 18th day of March, 1994,

6

were dismissed.

7

The Criminal Evidence Act, 1992(No. 10 of 1992) will hereinafter be referred to as the Act.

Impugned Provisions
8

The provisions of the Act sought to be impugned provide as follows:-

Section 12
9

This part applies to -

10

(a) a sexual offence,

11

(b) an offence involving violence or the threat of violence to a person, or

12

(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).

Section 13
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 -

14

(a) if the person is under 17 years of age, unless the court sees good reason to the contrary,

15

(b) in any other case, with the leave of the court.

16

(2) Evidence given under subsection (1) shall be video recorded.

17

(3) While evidence is being given through a live television link pursuant to subsection (1) (except through an intermediary pursuant to section 14(1)), neither the judge, nor the barrister or solicitor concerned in the examination of the witness, shall wear a wig or gown.

Section 14
18

(1) Where -

19

(a) a person is accused of an offence to which this Part applies, and

20

(b) a person under 17 years of age is giving, or is to give, evidence through a live television link,

21

the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.

22

(2) Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his age and mental condition the meaning of the questions being asked.

23

(3) An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such.

Section 18
24

Where -

25

(a) a person is accused of an offence to which this Part applies, and

26

(b) evidence is given by a person (in this section referred to as "the witness" through a live television link pursuant to section 13(1),

27

then -

28

(i) in case evidence is given that the accused was known to the witness before the date on which the offence is alleged to have been committed, the witness shall not be required to identify the accused at the trial of the offence, unless the court in the interests of justice directs otherwise, and

29

(ii) in any other case, evidence by a person other than the witness that the witness identified the accused at an identification parade as being the offender shall be admissible as evidence that the accused was so identified.

30

The effect of the foregoing provisions of the Act is that in proceedings for an offence to which they relate, viz. sexual offences, offences involving violence or the threat of violence to a person or offences consisting of attempting or conspiring to commit or of aiding, abetting, counselling, procuring or inciting the commission of such offences, the persons therein designated, may give evidence, whether from within or outside the State, through a live television link.

31

The persons therein designated are:-

32

1. a person under 17 years of age, unless the Court sees good reason to the contrary, and

33

2. any other person with the leave of the Court.

34

An accused person may not give evidence in this manner.

35

Persons permitted to give evidence through a live television link are not physically present in the Court where a judge is presiding, the jury assembled and the accused is present and are not required to give evidence in the presence of the accused person.

36

The Appellant challenged the constitutionality of the provisions of the Act which permitted the giving of evidence in this manner on the grounds that

37

(a) the giving of evidence in this manner constituted an infringement of his right through Counsel to cross-examine and/or confront the Complainant and his accusers in the presence of the jury;

38

(b) such provisions discriminated unjustly and invidiously against the Appellant in the conduct of his defence in that the prosecution was empowered to adduce evidence in the manner provided by reason only of the nature of the offence with which he was charged and the age of the witnesses to be called.

39

In the Statement of Claim delivered on his behalf he claimed -

40

(a) A Declaration that Sections 12, 13 and 18 of Part III of the Criminal Evidence Act, 1992, and each of them constitute an infringement of the Plaintiff's right to cross examine and/or confront the Complainant and his Accusers in respect of the Count in the Indictment laid against him in the presence of the jury; and constitute a breach of the Plaintiff's constitutional rights to trial in the course of law and/or natural justice and/or constitutional justice and fairness of procedures as guaranteed by Article 38.1, 38.5 and 40.3 of Bunreacht na hÉireann.

41

(b) A Declaration that Sections 12, 13(1) and (2) and 18 of Part III of the Criminal Evidence Act, 1992, and each of them, constitute an infringement of the Plaintiff's right as a human person to be held equal before the law guaranteed by Article 40(1) of Bunreacht na hÉireann and is an invidious discrimination and/or a breach of the Plaintiff's constitutional right to trial in due course of law and/or natural justice and fairness of procedures as guaranteed by Articles 38.1, 38.5, and 40.3 of Bunreacht na hÉireann.

42

(c) A Declaration that Sections 12, 13(1) and (2) and 18 of Part III of the Criminal Evidence Act, 1992, and each of them, constitute an infringement of the Plaintiff's right as a human person to be held equal before the law guaranteed by Article 40(1) of Bunreacht na hÉireann and is an invidious discrimination and/or a breach of the Plaintiff's constitutional right to trial in due course of law and/or natural justice and/or constitutional justice and fairness of procedures as guaranteed by Articles 38.1 and 40.3 thereof insofar as the said provision:

43

discriminate unjustly and unfairly against the plaintiff/accused in the conduct and prosecution of his defence by reason only of the nature of the offence with which the plaintiff/accused was charged and the age of the witness to be called on behalf of the third named Defendant.

Relevant Constitutional Proceedings
44

The provisions of the Constitution upon which the Appellant relies are:-

45

Article 38.1 which provides that:-

"No person shall be tried on any criminal charge save in due course of law."

46

Article 38.5 which provides that:-

"Save in the trial of offences under section 2,...

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