Witness Earlier Inconsistent Statements
Generally, pretrial written statements are not admissible in evidence in court proceedings. Pretrial statements would be hearsay being written statements not subject to cross-examination. There are also rules which limit the extent to which earlier consistent statements may be offered in evidence on behalf of the party who made the same.
There are several exceptions to this principle. A party may be challenged on cross-examination on the basis that he has made inconsistent prior statements. This is not for the purpose of making those statements admissible, but to challenge his credibility.
Other legislation allows written statements in place of oral evidence in the interests of efficiency. The Criminal Justice Act, 1984 allows statements of an uncontentious nature in relation to incidental matters which require proof on the part of persons who are unable to attend.
See the separate chapter on children’s evidence. Video evidence by a person under 14 may be admitted subject to certain conditions.
Challenging with Inconsistent Statement
The Criminal Procedure Act 1865 provides that on cross-examination where the witness has made a former statement relating to matters in evidence if he does not distinctly admit the same, proof may be given that he did make such statement. Before the proof may be offered, the circumstances of the alleged contradictory statements sufficient to designate the particular occasion must be mentioned to the witness and he must first be asked whether or not he made such a statement.
A witness may be cross-examined in relation to a previous statement made in writing or reduced to writing without such being shown to him. If it is intended to contradict the witness by the writing, his attention must be drawn to the parts of the writing which are to be used for the purpose of contradicting him. The Judge may at any time during the trial require the production of the writing for his inspection and he thereupon may make such use of it for the trial as he may think fit. The procedure applies to a witness and to the accused.
Challenging Own (Hostile) Witness
There is a similar procedure under the same legislation for challenging a so-called hostile witness if he gives evidence contrary to the expectation of the person who has called him. A hostile witness is one who gives evidence contrary to expectation.
The witness may be, but need not necessarily be hostile to the plaintiff’s case. Hostile in this context means, failing to meet expectations in terms of evidence. This can be due to forgetfulness or by a positive decision to be uncooperative and contradict and even damage the case of the party who calls him.
Where it is sought to treat a witness who has been heard as a hostile witness, an application must be made to the Judge to so determine. This is done outside the hearing of the jury. The judge will take into account whether previous statements have been made. It may be necessary to prove such statements. The Judge will determine whether the witness is hostile in the above sense or is genuinely mistaken or forgetful about the evidence concerned.
Once a witness has been treated as hostile, he may be cross-examined. The advocate who calls him must first before giving proof of the inconsistent statement mention the circumstances of the statement sufficient to designate a particular occasion. He must be asked whether he made the statement concerned.
Once a witness is declared “hostile” he may be cross-examined by the party who has called them. This includes undermining his credibility with the prior inconsistent statement.
Witness Refuses to Testify
The Criminal Justice Act 2006 allows statements to be admitted, where the witness is unprepared to stand over them in Court. The provision was introduced in the context of presumed witness intimidation. It does not however require that there be, in fact, witness intimidation.
Where a person has been sent forward for trial for an arrestable offence, i.e. a more serious offence, a statement relevant to the proceedings made by the witness may with the leave of the Court be admitted in accordance with this provision as evidence of any fact contained in it. If the witness although available for cross-examination refuses to give evidence, denies making the statement or gives evidence that is materially inconsistent with it the statement may be admitted
- if the witness confirms or it is proved that he or she made it or
- the court is satisfied that direct oral evidence of the fact concerned would be admissible
- that it was voluntary and is reliable and
- the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of her knowledge, information or belief or the Court is otherwise satisfied that when the statement was made, the witness understood the requirement, to tell the truth.
Admissibility of Earlier Statement
In deciding whether the statement is reliable, the Court shall have regard to whether it was given on oath, affirmation or was video recorded or whether by reason of the circumstances in which it was made, there is other sufficient evidence to support its reliability. It shall also have regard to any explanation by the witness for refusing to give evidence or giving evidence which is inconsistent with the statement or where the witness denies making the statement, any evidence given in relation to the denial.
The statement shall not be admitted in evidence if in the Court’s opinion, having regard to all the circumstances including any risk that admission will be unfair to the accused or if there is more than one accused, any of them, that in the interests of justice it ought not to be admitted or that its admission is unnecessary having regard to other evidence in the proceedings.
In contrast, under the traditional provision in relation to hostile witnesses, the witness statement is admissible as evidence of its truth. It is not merely available to undermine the credibility of the witnesses’ testimony.
Scope of Provision
The provision is not limited to so-called gangland type crime. It is available generally. The reason and motivation for failure or refusal to give evidence are irrelevant. A statement under the provision may be written, oral or by way of other express assertion. It may be a recorded statement, video recording, audio or in another form.
The provisions are available in respect of any witness whether called by the prosecution or defence. The provision applies where the witness refuses to give evidence, denies making a statement or gives evidence that is materially inconsistent with it.
The courts may allow the provision to be used where the witness appears to have amnesia or forgets his earlier statement through alleged lack of memory. It is not clear to what extent the provision would apply to amnesia, which is not contested by the prosecution. This may not meet that test in the legislation.
Conditions for Use
The witness must actually be available for examination. The provision cannot be used unless the witness is so available. This provision has been controversial as it may allow pure hearsay without an opportunity for examination. However, the Court may exclude the evidence and must do so, if it is satisfied the admission would be unfair to the accused and contrary to the interest of justice.
The statement made out of court must be proved. The judge must be satisfied that verbal evidence of the matters concerned would themselves be admissible if given in the proceeding. The statement must be voluntary. In this context, voluntary is used in the same sense as used in the context of confessions and admissions. Accordingly, where the original statement was obtained by unfair or oppressive action, it may be excluded.
The Judge must be satisfied that the statement is reliable having regard to factors set out. It may be under oath, affirmation, video recorded or there may otherwise be sufficient evidence in support of its reliability.
The Judge is to consider the witness’ explanation for the refusal to give evidence or for giving inconsistent evidence. If there is a good reason for the inconsistency, the Judge should exclude the evidence.
In considering its reliability, the Court will have regard to the circumstances and factors involved in the making of the statement. It will not look at the statement alone but its context. Where it is not sworn etc., the Court must be satisfied that the party was aware of the duty to tell truth on the occasion.
Even if the above tests are satisfied, the statement must be excluded if the Judge is of the opinion that it is in the interest of justice to do so. This includes if there is a risk that the admission will be unfair, the accused or any of them, it should be excluded. Similarly, the statement may not be admitted if its admission is not necessary having regard to other evidence. The evidence must be essential in the material respect. It is not enough that it is supportive.
The Minister for Justice may make regulations regarding the manners in which recordings are to be made and preserved and the period for which they are to be retained.
In considering the weight, if any to be attached to the statement, regard is to be had to all the circumstances from which any inference can be reasonably drawn as to its accuracy. The matter of considering the weight of the evidence and its credibility falls to the jury where there is a judge and jury. It is a matter for the jury to consider the reliability and the weight to be attached to it.
Declaration / Statement of WItness
A person who makes a statement to the Garda Síochána in the course of investigation of an offence not being a suspect may make a declaration that the statement is true to the best of the person’s knowledge. The declaration may be admitted and treated as a statutory declaration if taken by a member of An Garda Síochána. Alternatively, it may be taken on oath or affirmation.
A statement may be made by certain persons in public authority including immigration officers, officers of departments of Government, Commissioners of Public Works, HSE, Harbour Authority, State-owned companies.
The Minister for Justice may make regulations in relation to statements of witnesses which may be video recorded or taped by members of the Garda Síochána The regulations may make provision for the manner in which the recordings are to be made and preserved and the period of retention.
A failure to comply to with the regulations is not to make the member of An Garda Síochána liable to civil or criminal proceedings. It is not to render inadmissible in evidence anything said during the recording concerned.