The State (Sherry) v Wine
| Jurisdiction | Ireland |
| Court | Supreme Court |
| Judge | McCARTHY J. |
| Judgment Date | 01 January 1985 |
| Neutral Citation | 1984 WJSC-SC 1702 |
| Date | 01 January 1985 |
| Docket Number | (115-1983) |
1984 WJSC-SC 1702
THE SUPREME COURT
Griffin J.
Hederman J.
McCarthy J.
Subject Headings:
CRIMINAL LAW: return for trial
JUDGMENT delivered the 7th day of June 1984by McCARTHY J. [NEM DISS]
These proceedings arise out of a preliminary examination of indictable offences pursuant to the Criminal Procedure Act, 1967. This was an Act passed expressly "to establish a new procedure for the preliminary examination of indictable offences and for this and other purposes to amend criminal law and administration". In doing so, it repealed the provisions of the Indictable Offences (Ireland) Act, 1849, which referred to the Dublin Metropolitan District, and of the Petty Sessions (Ireland) Act, 1851, relevant to the remainder of the country, as well as provisions of the Criminal Justice Administration Act, 1914, the Courts of Justice Act, 1936, and the Criminal Justice Act, 1951. The original procedure was examined by Lavery J. in The People v.Boggan (1958) I.R. 67, byDavitt P. in The State (Shanahan) v. The Attorney General (1964) I.R. 239 and authoritatively identified as the exercise of the judicial power of the State by the District Court in The State (C) v. Minister for Justice (1967) I.R. 106. The effect of the Act of 1967 was not, in anyway, to alter the judicial quality of the proceedings in the District Court, but, rather, as the Act said, to establish a new procedure. That procedure is contained in Part II of the Act which, so far as relevant to this case, provides as follows:-
2 "5. - (1) Where an accused person is before the District Court charged with an indictable offence, then, unless the case is being tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination of the charge in accordance with the provisions of this Part.
(2) References in any enactment to the preliminary investigation of an indictable offence shall be construed as references to the procedure set out in this Part.
6. - (1) The prosecutor shall cause the following documents to be served on the accused...
(c) a list of the witnesses whom it is proposed to call at thetrial,
(d) a statement of the evidence that is to be given by each of them...
(4) The prosecutor may cause to be served on the accused and furnished to the Court a further statement of the evidence to be given by any witness a statement of whose evidence has already been supplied.
7. - (1) The justice shall consider the documents and exhibits, any deposition or statement taken in accordance with this section and any submissions that may be made by or on behalf of the prosecutor or theaccused.
(2) The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition.
(3) A witness under subsection (2) may be cross-examined and re-examined on his evidence. His deposition shall be taken down in writing, read over to him and signed by him and by thejustice...
8. - (1) If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial...
2 12.- (1) The accused may waive the preliminary investigation and elect to be sent forward for trialwith a plea of not guilty, unless the prosecutor requires the attendance of a witness under section 7(2) ...
14 - (1) Where, on the application of the prosecutor or an accused person, a justice of the District Court is of opinion that a prospective witness may be unable to attend or be prevented from attending to give evidence at the trial of the accused and that it is necessary in the interests of justice to take his evidence by way of sworn deposition, he may order accordingly.
(2) The deposition shall be taken in the presence of a justice of the District Court and of the accused. It shall be taken down in writing, read over to the deponent and signed by him and by thejustice.
(3) Before the deposition is taken, the justice shall inform the accused of the circumstances in which it may be read as evidence at histrial.
(4) The deponent may be cross-examined and re-examined on hisevidence.
15. - (1) A deposition taken under section 7 or 14 may, subject to subsection (2), be read as evidence at the trial of the accused if it is proved that-
(a) the deponent is dead or unable to attend or prevented from attending to give evidence atthe trial, and
(b) the deposition was taken in the presence of the accused,and
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