DPP v L(D) [Central Criminal Court]
2002 WJSC-CCC 2131
THE CENTRAL CRIMINAL COURT
CRIMINAL JUSTICE ACT 1999 PART III
CRIMINAL PROCEDURE ACT 1997 S4(F)
CRIMINAL JUSTICE ACT 1999 S9
SHERRY, STATE V WINE
Practice and procedure - Rape offence - Preliminary examination - District Court - Whether prosecutrix should give evidence by sworn deposition - Criminal Procedure Act, 1967 - Criminal Justice Act, 1999 (Central Criminal Court - Carney J - 19/7/02)
DPP v L (D)
Facts: The accused had been charged with an offence of rape and sought an order under section 4F of the Criminal Procedure Act, 1967 as inserted by Criminal Justice Act, 1999 that the complainant appear before the District Court to have her evidence taken by sworn deposition. Formerly under the 1967 Act the accused’s application would have been granted automatically. The accused contended that the purpose of the deposition would be to clarify certain aspects of the evidence of the complainant.
Held by Carney J in refusing the application. The onus of satisfying the court that it was in the interests of justice that the complainant be called to give evidence was on the accused. It appeared that it was intended to cross-examine the complainant notwithstanding the prohibition against doing so as set in the Sherry v Wine judgment. In the present statutory scheme there was no entitlement by the accused to “clarify” the complainant’s evidence and the order sought would be refused.
19th day of July 2002 by Carney J.
The Accused is due to stand his trial in this Court on February 10 th 2003 on charges that he did in January 2002 in the South of Ireland rape G. P. and also that on the same date and at the same place he assaulted her causing her harm.
The Accused has been sent forward to this Court for trial under the provisions of Part III of the Criminal Justice Act 1999which abolished the preliminary examination in the District Court which formerly preceded the return for trial.
The Accused seeks an Order under Section 4F of the Criminal Procedure Act 1967as inserted by Section 9 of the Criminal Justice Act 1999that the prosecutrix appear before a Judge of the District Court so that her evidence may be taken by way of sworn deposition.
Under the former preliminary examination procedure provided for in the Criminal Procedure Act 1967the Accused's application would have been granted as of right.
In that situation by reason of The State (Sherry) v. Wine it would have fallen to the accused through his legal team to examine in chief the person making an allegation of rape against him. This was a manifestly undesirable situation but was the procedure mandated by statute.
The application now falls to be determined under Section 4F of the Criminal Procedures Act 1967as inserted which provides:-
" 4F.- (1) At any time after the accused is sent forward for trial, the prosecutor or the accused may apply to the trial Court for an Order requiring a person to appear before a Judge of the District Court so that the person's evidence may be taken either-"
(a) by way of sworn deposition, or
(b) in case the person's evidence is to be given through a live televisions link pursuant to Part III of the Criminal Evidence Act, 1992, or Section 39 of the Criminal Justice Act, 1999, through such a link,
whether or not the person's name appears in the list of witnesses served on the accused under Section 4B or 4C.
(2) If satisfied that it would be in the interests of justice to do so, the trial Court may order a person who is the subject of an application under subsection (1) to attend before a Judge of the District Court district-
a) in which the offence was committed, or
(b) in which the accused was arrested or resides,
so that the Judge may take the person's evidence accordingly
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