Documentary Evidence

Table of Contents

Admission of Documents

The Criminal Evidence Act 1992 provides for the admission of a range of documents and other evidence that would constitute inadmissible hearsay evidence, but for the legislation. They are admitted as proof/evidence in criminal cases.

Certain records and documents are admissible as proof of the facts in them in criminal proceedings as if verbal evidence was given provided that the document or record meets the following conditions.

It must have been compiled in the ordinary course of business by a person who had or might reasonably be supposed to have personal knowledge of the matters concerned

In the case of information in a non-legible form, it must be reproduced in a permanent legible form in the course of operation of a reproduction system. This refers both to electronic and manual records.

The information is admissible if it was supplied directly or indirectly. However, in the latter case, it is only allowed where each person to whom the information passed received it in the ordinary course of business.

Maps Drawings and Records

The following information is admissible under the legislation if the document containing the information is

a map, plan, drawing or photograph (including any explanatory material in or accompanying the document concerned),
a record of a direction given by a member of the Garda Síochána pursuant to any enactment,
record of the receipt, handling, transmission or storage of anything by the Forensic Science Laboratory of the Department of Justice, Equality and Law Reform in connection with the performance of its functions to examine and analyse things or samples of things for the purposes of criminal investigations or proceedings or both,
a record of the receipt, handling, transmission, examination or analysis of anything by any person acting on behalf of any party to the proceedings, or
record by a registered medical practitioner of an examination of a living or dead person.

Certificates

Evidence of relationships of person set out in a birth cert is admissible as proof. Other information would be available but is expressed in terms and less intelligible to an average person without explanation. An explanation of the information should be admissible in evidence. If it is given verbally by a person who is competent to do so, contained in a document proportionate to be signed by such a person.

A certificate may be given to the effect that the information is of the kind set out above is evidence of compliance with the above condition. Where an objection is taken to the evidence concerned of the matter said, then verbal evidence may be required as to the matters specified in the certificates.

Limits on Admissibility

Information that would not otherwise be allowed as evidence

because it would be privileged
information by a person who could not be compelled to be a witness by the party who wishes to proffer it

is not admissible under the legislation

Information compiled for a criminal investigation, civil or criminal proceedings, disciplinary proceedings or an investigation or enquiry is allowed where—

the information contained in the document was compiled in the presence of a judge of the District Court and supplied on oath by a person in respect of whom an offence was alleged to have been committed and who is ordinarily resident outside the State,
either the provision which deals with the taking of a deposition in the presence of such a judge and the accused, could not be invoked or it was not practicable to do so, and
the person in respect of whom the offence was alleged to have been committed either has died or is outside the State and it is not reasonably practicable to secure his attendance at the criminal proceedings concerned.

Procedure to Admit Hearsay

Information which otherwise would be hearsay, contained in documents, which qualify to be admitted as proof shall not be allowed unless copies of the documents or certificates have been served on the accused or a notice of intention to give information in such form together with a copy of the document or certificate is served by or on behalf of the other party.

A person on whom a notice has been served shall not without leave of the court object to the admissibility in evidence, unless not greater than seven days before the trial a notice objecting to the admissibility is served.

Written Statement

The court may admit evidence in the form of a written statement, unless either the prosecution or the defence objects. The Criminal Procedure Act 2021 allows the court to require the party objecting to the evidence being admitted in written form to give their reasons for doing so, and permit the court, having taken those reasons into account, to proceed to direct that the evidence be admitted, provided that this is not contrary to the interests of justice.

28 days’ notice must be given before calling an expert witness to testify, either at a trial or a preliminary hearing, to 28 days, from the current period of 10 days, in order to allow the other party to prepare for their testimony.

The court can allow an expert witness to testify without the required notice where it is satisfied that the notice was not possible, or that it is in the interests of justice to allow the notice period to be waived.

Discretion to Refuse

In criminal proceedings, evidence that is admissible under the above conditions is not to be admitted if the court is of the opinion that it should not be admitted in the interests of justice. In considering whether the interests of justice require that the evidence not be admitted, the court is to have regard to all the including

whether having regard to the contents and source of the information and the circumstances in which it is compiled, it is reasonable to infer that it is reliable
whether or not, having regard to the nature and source of the document containing the information and to any other circumstances that appear to the court to be relevant, it is a reasonable inference that the document is authentic, and
any risks, in particular having regard to whether it is likely to contradict the information where the person who supplied it does not give evidence, that the exclusion or admission will result in unfairness of the accused.

Weight of Evidence

In determining the weight, if any to be attached to information given in evidence by virtue of the above provisions, regard is to be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

Where such type of evidence is given, evidence has the credibility of the supplier of the information may be given. Evidence may be given with the consent of the court of any matter which could have been brought to challenge the credibility of the person supplying the information.

Competence of Spouse

In criminal proceedings, the spouse or former spouse of an accused may give evidence on behalf of the prosecution. This spouse of the accused may be compelled to give evidence against the accused, subject to the below conditions in cases involving violence or threats of violence to the spouse, a child of the spouse or person under age 18 years, a sexual offence, or any attempt conspiracy aiding abetting or counselling of any such offence.

A spouse or former spouse may be compelled to give evidence on behalf of the accused. A spouse may be compelled to give evidence on behalf of a person charged with the accused only in the above circumstances. A former spouse is compellable to give evidence on behalf of the person’s charge with the accused unless the offence charged is alleged to have taken place while the marriage was in force and unless it is one of the above types of offence, i.e., sexual offences or offences regarding violence against spouse or children.

The above provisions do not apply where a husband and wife who are charged in the same proceedings unless the person concerned is no longer liable to be convicted at the trial as a result of pleading guilty or otherwise. The above does not affect the right to marital privacy.

Evidence of Children

Children under 14 years may give evidence otherwise than under oath or affirmation if the court is satisfied that he or she is capable of giving an intelligible account of events that are relevant to the proceedings. A person whose evidence may be received as above, who gives evidence, which he knows to be false or does not believe to be true, is guilty of an offence. The same provisions apply to a person with a mental handicap.

The requirements that formerly existed that a jury must be warned about the danger of convicting the accused on the uncorroborated evidence of a child was abolished in relation to cases where the warning is required only by reason that the evidence is that of a child. However, the judge may in his discretion having regard to all the circumstances give the warning. No particular form of words is necessary.

In criminal proceedings, under the Extradition Act, a person other than the accused may with leave the court, give evidence through a live video link.

Where documents are allowed as evidence, information may be given regardless of whether the documents still exist by producing a copy of the material part of the authenticated in such manner as the court approves.