DC Evidence General

Witnesses

Generally, the prosecution of the defence decides which witnesses are to be called. Generally, it is not the judge’s role to call a witness.  A judge may call upon a witness in court to give evidence.  He may recall a witness so that the fairness of the trial is ensured.

An accused is entitled to put the prosecution to its proof.  He need not admit the offence.

The rules of evidence provide the circumstances in which the accused may or may be compelled to give evidence.  Generally, there is no obligation on an accused to give evidence.  No adverse inference may generally be taken from the failure of an accused to give evidence.  This reflects the broad right to silence.

A witness appearing as such in court may be compelled to answer questions. He is guilty of contempt of court if refused to do so.

If a witness refuses to attend or fails to produce documents, the judge may adjourn proceedings for a period and may by warrant commit the person to prison until such hearing or until such time as he complies with the terms of the order.

Although the prosecution has a general obligation to disclose evidence helpful to the defence, it is not obliged to summons witnesses which may be helpful to the defence,  if it chooses not to do so.  The defence has no procedure to compel witnesses to answer questions or assist him with investigations. They may be summoned as a witness to court.  See generally, the sections on the competence and compellability of witnesses.

Testimony

Evidence must generally be given verbally in open court, on oath or under affirmation. In the case of a summary trial, no formal record of the hearing or evidence is kept.  Arrangements may be taken to take a note of evidence or a transcript.  A person may generally  obtain a stenographer where the judge is satisfied that it is not inconsistent with the hearing of the proceedings.An oath involves the witness stating as follows:

I swear by almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

As an alternative, a person may make an affirmation. A witness, who has no religious belief or if giving evidence on oath is contrary to his conscience, may give up evidence by affirmation.

The Criminals Justice Act 2006  allows for witness anonymity in certain limited circumstances.  An application must be made to the judge for an order.  An order may be granted where the person has a medical condition and identification would be likely to cause undue distress and the order would not be prejudicial to the administration of justice.  In such circumstances, it is an offence to breach anonymity .

Oaths and Affirmations

The Evidence of witnesses in the District Court is given verbally on oath or on affirmation.  An oath involves swearing,  that, “I swear by almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.”

An affirmation confirms “I do solemnly, sincerely and truly declare and affirm that the evidence that I shall give shall be the truth, the whole truth and nothing but the truth.”

In the case of an oath, the person taking the oath is to hold a New Testament or in the case of a person of Jewish faith, the Old Testament.

The fact that a person who took the oath has no religious belief does not invalidate the oath.  A person who has no religious belief may give evidence on affirmation.

A person may take an oath in any manner, which he declares to be binding on his conscience.  In this case, the court is to ascertain the basis of his objection to the standard oath, and provide for taking of the oath in an alternative form or affirmation.

Evidence of a person under 14 years of age may be taken other than on oath or affirmation, provided the Court is satisfied that he has the capacity to give an intelligible account of the matters concerned. A person’s age may be proved by production of a certified copy of his birth certificate

Perjury

Giving false evidence under oath or affirmation constitutes the crime of perjury.  The person must know the materiality of the evidence and its falseness.

The court may admit evidence of a recording or transcript of a recording of the questioning of a person in a Garda station or elsewhere in connection with the investigation of an offence, A statement made that is recorded may be admitted notwithstanding that it was not taken at the time or not signed.

Giving evidence on oath which is known to be false or which the person does not believe to be true, whether true or false constitutes the offence of perjury at common law.  Perjury may be tried summarily in the District Court.

Subornation of perjury is procuring that another shall take an oath or affirmation that constitutes perjury and is punishable as if it is perjury.

Recordings

The Criminal Justice Act 2007 provides that a Court may admit in evidence at the trial of a person in respect of an offence, a recording by electronic or other similar means or a transcript of such a recording or both of the questioning of the person by a member of An Garda Síochána at the Garda station or elsewhere in connection with the investigation of the offence.

A statement made by the person concerned that is recorded in a recording which is admitted may be admissible in evidence at the trial concerned, notwithstanding that it was not taken down in writing at the time it was made or that the statement is not in writing and signed by the person who made it or both.

This provision does not affect the admissibility of evidence at the trial of a person in respect of an offence, of any statement which is recorded in writing, made by the person during questioning, by a member of An Garda Síochána, at a Garda station or elsewhere, in connection with the investigation of the offence (whether or not the statement is signed by the person) and irrespective of whether the making of that statement is recorded by electronic or similar means.

Hearsay

In criminal proceedings, a written statement signed, and duly declared to be subject to prosecution if false, may be admitted in evidence subject to certain conditions.  The conditions are that a copy of the statement is served and none of the other parties or their representatives objects within 21 days.  The party may always agree that evidence be admitted, and this is commonly done in respect of matters that are not seriously contested.

Notwithstanding the service of notice of a statement, the party offering the evidence, or the judge may require the witness to attend.

Admissions may be made for the purpose of waiving the requirement for proof as hearing.  Admissions should be made in writing and signed by the person concerned.  It may be signed by a legal representative.  An admission may be admissible as such.

Apart from this type of admission,  evidence may be given generally that a person has made a prejudicial admission against his interest on particular occasions and this may be tendered as evidence of the truth of the matter admitted.

Conviction or Acquittal

In the case of many summary offences, the particular statute law in relation to the offence may apply. The statute may reverse the burden of proof or deem certain matters to be proved, if certain other facts are first proved.

At the conclusion of the prosecution’s case, the defence may make a submission that there is no case to answer.  This is in effect a submission that even if the evidence is uncontested, every element of the relevant offence has not been proved beyond a reasonable doubt. If the judge is sol satisfied, he may direct an acquittal and the defendant does not need to offer a defence in rebuttal or way of defence.

As with any other criminal offence, a person may be convicted of a summary offence only if it is proved beyond a reasonable doubt. If sufficient evidence is raised against the accused which, if believed, would be sufficient to convict,  then the accused must in effect rebut it by offering evidence to the contrary.

Generally, once acquitted or convicted,  a person may not be recharged with the same offence.  This is the longstanding principle against double jeopardy. See the sections in relation to sentencing fines and punishments.