VIDEO evidence by child victims is not unfair to an accused person in rape and sexual assault trials, the President of the High Court, Mr Justice Costello, has held.
His decision, dismissing the contention that an accused man has a constitutional right to confront an accuser face to face in court, is being appealed to the Supreme Court.
The appeal was brought by Mr Michael Fehan SC on behalf of a man who had been sentenced in 1994 to five years' imprisonment for sexually assaulting children. He has been on bail since.
The judge said that the application challenged the constitutional validity of certain provisions of the Criminal Evidence Act of 1992, which permitted the reception of evidence in certain circumstances by means of a live television link.
He said that the witness had been seen at all times by judge, jury and counsel on monitors. She had given evidence from a specifically furnished room nearby and had a monitor on which, when being questioned, she could see the questioner. The system was under the control of the trial judge and, while the witness need not see the accused man, she could be cross examined.
The Act provided that video evidence may be given by a person under 17, unless the court saw good reason to the contrary, and in any other case with the leave of the court.
The Act did not require the trial judge to examine each young witness to see whether he or she would be traumatised. The trial judge was required to assume this would be so, and only if there was good reason to do so would videolink evidence be refused.
He said it was also accepted that the initial decision to use the procedure was that of the Director of Public Prosecutions.
The constitutional provisions referred to were Article 38 (1): "No person shall be tried on any criminal charge save in due course of law"; Article 38 (5): ". . . without a jury"; Article 40 (3): ..... respect and ... defend personal rights of the citizen"; and Article 40 (1): "all shall ... be held equal before the law."
Mr Justice Costello said the applicant had submitted that his right of confronting his accuser was an essential part of his right to due process because it was the means of effectively testing the veracity of the evidence and the credibility of the character of his accuser.
It was submitted that this could not effectively be achieved unless a witness was physically in the presence of the accused person. His right to confrontation was to be inferred as a distinct and separate constitutional right and was part of the right to cross examine.
The DPP had submitted that the Supreme Court had already stated the basic requirements to be afforded to every person accused of a serious offence that he be furnished with a copy of the evidence against him; that he be allowed to cross examine by counsel his accuser; that he be allowed to give rebutting evidence; and that he be permitted to address the court by counsel in his defence.
It had been submitted that nowhere did the Supreme Court suggest there was to be an implied right to a face to face confrontation between an accuser and the accused, by virtue of the Constitution, and that such a confrontation was not an essential part of his right to due process.
It had been further contended that live television did permit an effective cross examination. The procedures met the standards of constitutional justice in that they included an approximate physical presence, the oath, cross examination, notification of the case against the accused person and observation of the demeanour of the accuser by the jury.
Mr Justice Costello said there had been in recent years a growing concern for the victims of crime and a desire to minimise the trauma associated with giving evidence in a criminal trial. This had been most particularly focused on the victims of sexual assault. This had led to consideration as to how to minimise the trauma which children went through.
The applicant, in his Circuit Criminal Court trial, had the benefit of all the procedures which the Supreme Court identified as being necessary to constitute a fair trial.
What had to be determined, therefore, was whether the trial was unfair because the children who accused him of the crime did not give evidence in his presence.
The judge said he felt that the existing procedures were fair to the accused man.
"It may well have been considered necessary at the end of the 18th century, when criminal procedures were very different to what they are today, to require a face to face confrontation between the accused and his or her accuser.
"I do not think that in modern Ireland a criminal trial becomes unfair if there is not such confrontation. It seems to me that the absence of a physical confrontation will have no significant effect on the ability of a false accuser to mislead a jury and I do not think the jury's assessment of the credibility of a witness will be compromised by the fact that the witness does not see the accused when giving evidence."