Expert Evidence
CRIMINAL PROCEDURE ACT 2010
Giving of Evidence
Amendment of Criminal Justice (Evidence) Act 1924.
33.— The Criminal Justice (Evidence) Act 1924 is amended—
(a) in section (1)(f)—
(i) in subparagraph (ii)—
(I) by the substitution of “questions of any witness” for “questions for the witnesses for the prosecution”, and
(II) by the substitution of “person in respect of whom the offence was alleged to have been committed” for “prosecutor”,
and
(ii) by the insertion of the following subparagraph after subparagraph (iii):
“(iiia) the person has personally or by the person’s advocate asked questions of any witness for the purpose of making, or the conduct of the defence is such as to involve, imputations on the character of a person in respect of whom the offence was alleged to have been committed and who is deceased or is so incapacitated as to be unable to give evidence; or”,
and
(b) by the insertion of the following section after section 1:
“
Evidence of character.
1A.— Where a person charged with an offence intends to adduce evidence, personally or by the person’s advocate, of a witness, including the person, that would involve imputations on the character of a prosecution witness or a person in respect of whom the offence is alleged to have been committed and who is either deceased or so incapacitated as to be unable to give evidence, or evidence of the good character of the person—
(a) the person may do so only if he or she—
(i) has given, either personally or by his or her advocate, at least 7 days’ notice to the prosecution of that intention, or
(ii) has applied to the court, citing the reasons why it is not possible to give the notice, and been granted leave to do so,
and
(b) notwithstanding section 1(f), the person may be called as a witness and be asked, and the prosecution may ask any other witness, questions that—
(i) would show that the person has been convicted of any offence other than the one wherewith he or she is then charged, or is of bad character, or
(ii) would show that the person in respect of whom the offence was alleged to have been committed is of good character.”.
Expert evidence adduced by defence.
34.— (1) An accused shall not call an expert witness or adduce expert evidence unless leave to do so has been granted under this section.
F12[(2) Where the defence intends to call an expert witness or adduce expert evidence, whether or not in response to such evidence presented by the prosecution, notice of the intention shall be given to the prosecution at least 28 days prior to—
(a) the scheduled date of the start of the trial,
(b) the scheduled date of a preliminary trial hearing (within the meaning of Part 2 of the Criminal Procedure Act 2021), where the defence intends to call the expert witness or adduce the expert evidence, as the case may be, at that hearing, or
(c) such earlier date as the court may direct.]
(3) A notice under subsection (2) shall be in writing and shall include—
(a) the name and address of the expert witness, and
(b) any report prepared by the expert witness concerning a matter relevant to the case, including details of any analysis carried out by or on behalf of, or relied upon by, the expert witness, or a summary of the findings of the expert witness.
(4) The court may grant leave to call an expert witness or adduce expert evidence even if no report or summary of the findings are included as required by subsection (3)(b), if the court is satisfied that the accused took all reasonable steps to secure the report or summary before giving the notice.
(5) The court shall grant leave under this section to call an expert witness or adduce expert evidence, on application by the defence, if it is satisfied that the expert evidence to be adduced satisfies the requirements of any enactment or rule of law relating to evidence and that—
(a) subsections (2) and (3) have been complied with,
F12[(b) where notice was not given within the period specified in paragraph (a), (b) or (c), as the case may be, of subsection (2) —
(i) it would not, in all the circumstances of the case, have been reasonably possible for the defence to have done so, or
(ii) it is otherwise necessary in the interests of justice that the expert witness give evidence or the expert evidence be adduced,
or]
(c) where the prosecution has adduced expert evidence, a matter arose from that expert’s testimony that was not reasonably possible for the defence to have anticipated and it would be in the interests of justice for that matter to be further examined in order to establish its relevance to the case.
(6) The prosecution shall be heard in an application under subsection (4) or (5).
(7) A notice required by this section to be given to the prosecution may be given by delivering it to the prosecutor, or by leaving it at his or her office or by sending it by registered post to his or her office.
(8) Where the court grants leave under this section, the prosecution shall be given a reasonable opportunity to consider the report or summary before the expert witness gives the evidence or the evidence is otherwise adduced.
(9) In this section—
“expert evidence” means evidence of fact or opinion given by an expert witness, and
“expert witness” means a person who appears to the court to possess the appropriate qualifications or experience about the matter to which the witness’s evidence relates.
Annotations:
Amendments:
F12
Substituted (28.02.2022) by Criminal Procedure Act 2021 (7/2021), s. 18(a), (b), S.I. No. 79 of 2022.
Return or disposal of property to be used as evidence.
35.— (1) This section applies where property that is to be entered in evidence in a criminal trial is to be—
(a) returned to its owner, or
(b) disposed of,
before the trial begins.
(2) Where the prosecution proposes to dispose of property that is to be entered in evidence or return it to its owner before the scheduled date of the start of the trial, the prosecution shall serve a notice under this section (the “prosecution notice”) on the accused at any time that is at least 23 days prior to that date.
(3) The prosecution notice shall contain a description of the property in sufficient detail to identify it and a statement as to the relevance of the property to the proceedings, together with—
(a) one or more photographs of the property, and
(b) any report that the prosecution proposes to enter in evidence arising from the analysis of the property, including analysis of any materials found in or on the property (the “prosecution report of evidence”).
(4) Not later than 7 days after service of the prosecution notice under subsection (2), the defence shall serve on the prosecution a notice in writing (the “defence notice”) that indicates one of the following:
(a) that the defence accepts the prosecution notice and agrees to the return or disposal of the property;
(b) that the defence wishes to provide to the prosecution a report that conforms with subsection (3) (the “defence report of evidence”);
(c) that the defence requires the property to be available as an exhibit at the trial.
(5) Where the defence notice served under subsection (4) is a notice mentioned in paragraph (b) of that subsection, then, notwithstanding section 34, the defence shall, not later than 7 days after service of that notice, serve the defence report of evidence on the prosecution.
(6) Where a defence report of evidence is served on the prosecution under subsection (5), the prosecution shall, not later than 3 days prior to the scheduled date of the start of the trial, provide to the defence and the court a notice stating whether it accepts or rejects that notice (the “prosecution notice of reply”).
(7) If the defence notice under subsection (4) is made under paragraph (a) of that subsection or is made under paragraph (b) of that subsection and a defence report of evidence is served under subsection (5) and accepted under subsection (6), then—
(a) a member of the Garda Síochána not below the rank of inspector shall, on receipt by him or her of a copy of the notice referred to in subsection (4) or (6), cause the property to be returned or disposed of, as the case may be,
(b) the member referred to in paragraph (a) shall keep a written record of the return or disposal of the property, and
(c) where the property is returned to its owner, the owner shall acknowledge in writing the receipt of the property.
(8) The following rules apply to admissibility of evidence:
(a) where subsection (4)(a) applies, the prosecution report of evidence is proof of the facts stated therein, unless the contrary is shown;
(b) where subsection (4)(b) applies and a defence report of evidence is served on the prosecution under subsection (5) and accepted under subsection (6), the defence report of evidence is proof of the facts stated therein, unless the contrary is shown;
(c) where subsection (4)(c) applies, the property may be admitted as evidence in any trial in which the property is otherwise admissible;
(d) in any other case, a report prepared under subsection (3) or (5) may be admitted as evidence in any trial in which the property is otherwise admissible.
(9) Any person who prepares information contained in a report under subsection (3) or (5) may be called to give evidence in relation to all or any part of the report, and may be cross-examined on that evidence.