The Admissibility of Previous Witness Statements
| Author | Niamh O'Sullivan |
| Position | BCL (Law and German), LLM Candidate, Trinity College Dublin |
| Pages | 63-79 |
THE
ADMISSIBILITY
OF
PREVIOUS
WITNESS
STATEMENTS
NIAMH
O'SULLIVAN*
Introduction
In
2003
the
refusal
of
six
witnesses to
give
evidence at
the
Liam
Keane
murder
trial led
to
its
spectacular
collapse.' In
July
of
2008 a
similar
scenario
unfolded
in
the
Dublin
Circuit Criminal
Court
trial
DPP
v
Duff
2
in
which ten
witnesses
to
a
serious
assault
refused
to
testify
at
trial against
the
accused.
3
In
both
cases the
witnesses had apparently
been
threatened
or
intimidated into
recanting
their
statements.
However,
while the
prosecution
in
the
Keane
trial
were
left
with
no
option but
to
enter
a
plea
of
nolle
prosequi,
the
prosecution
in
the
more
recent
case
managed
to
secure
a
conviction
and
the
accused
was
sentenced
to
ten years
imprisonment.
The
result
in
Duff
was largely
due to
the
significant
changes
made
to
the
law
of
evidence
by
Part
III
of
the
Criminal Justice
Act,
2006.
Section
16
of
Part
III
reformed
the law on
the
admissibility
of
previous
witness
statements
so
that the
statements given
by
witnesses to
Gardai
could be
read into
evidence
and
relied
on
by
the
jury
for
the
truth
of
their
content,
despite
the
refusal
of
witnesses
to
testify
in
court.
This article
will examine section
16,
its
purpose and
the
extent to
which
it
changes the
law
formerly governing
the
admissibility
of
previous
witness
statements.
The impact
of
section
16
on
the
rights
of
the
accused
will
then
be
considered
with
a
view to
determining
whether
an
adequate
balance has
been
achieved
between
those
rights and
the
need
to
ensure
that
the
criminal
justice
system
is
not undermined.
The
Purpose
of
Section
16
The
purpose
of
section
16
can
best
be
seen
in
light
of
the
events
that
prompted
its
creation. The images
of
Liam
Keane giving
two
fingers
to
the
BCL
(Law and German), LLM
Candidate,
Trinity
College
Dublin.
People
(DPP)
v
Keane,
30
October
2003
(CCC)
[hereinafter
Keane].
People
(DPP)
v
Duff,
17
July
2008
(Dublin
Circuit Criminal
Court)
[hereinafter
Dul.
3
"Assault
case
witness
treated
as
hostile"
The
Irish
Times,
18
July
2008.
©
2009
Niamh
O'Sullivan
and
Dublin
University
Law
Society
Trinity
College Law
Review
cameras
as
he
walked
free
from
the
Central
Criminal
Court
created
a
national
outcry
and
raised questions
as
to
the
ability
of
the Irish
criminal
justice
system
to
deal
with
this new
brand
of
criminal.4
Amid
calls
for
reform,
Michael
McDowell-then
Minister
for
Justice,
Equality
and
Law
Reform-stressed
that
it
would
be
an
overreaction
to
suggest that
our
criminal
justice
system
had
suddenly
become
ineffectual
purely
as
a
result
of
difficulties
in
one
particular
case.
5
Nevertheless,
a
full
review
of
the
law
governing
the
admissibility
of
previous witness
statements
was
subsequently
initiated.
This
resulted
in
the
introduction
of
new
legislation
to
ameliorate
the effect
of
uncooperative
witnesses
by
allowing
their
previous
statements
to
be
admitted
as
evidence
at
trial
in
certain
circumstances.
The
purported
necessity for
this
provision
is
based
on
the
importance
of
witnesses
in
our
criminal
justice
system
and
the
fact
that,
more
often
than
not,
a
just
result
in
a
criminal trial
is
dependent
upon
the willingness
of
a
witness
to
give
evidence.6
Unfortunately, however,
witnesses
are
not
always
willing
to cooperate.
There
are
a
number
of
reasons why
a
given
witness
may
recant their statement
or
refuse
to
testify
on
the
day
of
trial.
This
may occur, for
example,
where
a
witness
is
subject to
intimidation
or
is
fearful
of
the accused,
where
the
witness
is
uncomfortable
about
testifying
face
to
face
with
the accused
as
they
are
a
friend
or
family
member,
or
where
the
witness
has
had
a
prior
unfavourable
experience
with
the
Gardai and
is
reluctant
to
cooperate.7
In
recent times,
the
first
category
of
recanting
witness-a
witness
who
is
in
fear or
intimidated-
has
become
a
particularly pressing
issue.
Although
intimidation
of
witnesses may
also
occur
in
relation
to
victims
of
domestic
violence
or
children,
it
is
cases
involving intimidation
by
notorious
"gangland
criminals"
that
have
raised
the
profile
of
this
issue and
brought
it
into sharp
focus
in
the
public arena.
Prior
to
the
enactment
of
the
Criminal
Justice Act,
2006
the
legislature
had
made
some
provision
for
the
broadening
of
circumstances
in
which
a
vulnerable or intimidated witness
could
give evidence
without
having
to
attend court.
For
example,
under
the
Criminal
Evidence
Act,
1992
witnesses who
are
under
17
years
of
age
or
who
have
the
leave
of
the
4
"A
Challenge
for
Criminal
Justice"
The
Irish
Times,
4
November
2003.
573
DHil
Debates
col.
580
(4
November
2003).
6
Joint Committee
on
Justice,
Equality,
Defence and
Women's
Rights,
Report
on
a
Review
of
the
Criminal
Justice
System (Joint Committee,
2004),
at
11.
7
Bar
Council,
Submissions
to
the
Joint
Committee on
Justice,
Equality,
Defence
and
Women's
Rights,
1
December
2003,
at
2.
Available
at:
>
(visited
19
February
2009).
[Vol.
12
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