The Absent Witness and Section 16
A 24-year-old man is charged with sexual assault. The prosecution case depends heavily on identification by a 21-year-old woman who knew the accused casually. She gave a signed statement to Gardaí and identified him in a photographic process. She has since moved to Canada, says she cannot afford to return, and has told the prosecution she is anxious about giving evidence. The prosecution applies to adduce her signed statement under section 16 of the Criminal Justice Act 2006. Defence counsel objects: the accused denies knowing her, the identification is contested, and there has been no cross-examination. The statement is detailed and consistent with her earlier account. The trial judge must decide whether to admit the statement, allow video-link evidence, or refuse the application. The prosecution has given notice but the defence says the application is late.
1. What must the prosecution establish for the statement to be admitted under section 16, and how should the judge weigh the absence of cross-examination?
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Section 16 is not a general shortcut for absent witnesses. The prosecution must satisfy the statutory preconditions, including proper notice, that the witness is unavailable within the meaning of the section, that the statement is signed and identified, and that admission is in the interests of justice. The court should consider the importance of the evidence to the prosecution case, its reliability, whether it is disputed, the accused's ability to test it, the reasons for the witness's absence, and the prejudice to the defence. A central contested identification is precisely the kind of evidence that normally requires cross-examination. The witness's move to Canada and anxiety are relevant, but mere inconvenience or unwillingness may not be enough; the court should ask whether video-link, adjournment, or a formal request abroad could secure live evidence. Delay in bringing the application is a factor but not necessarily fatal. If the statement is admitted, the judge should ensure the defence can challenge the identification process and should consider redactions. The judge has a discretion to refuse even where the technical conditions are met.
2. If the statement is admitted, what directions or safeguards should the judge consider?
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If the statement is admitted, the judge should give the jury a clear warning that the evidence was not tested by cross-examination and that they must scrutinise it with that disadvantage in mind. The warning should focus on the specific weaknesses: the contested identification, the circumstances of the photographic process, the witness's absence and any inconsistency. The judge should not suggest that the statement is automatically reliable. The defence should be allowed to comment fully, and the prosecution should not be permitted to treat the statement as stronger than live evidence. If the judge concludes that the inability to cross-examine on identification makes the trial unfair, the correct course is to exclude the statement, not to admit it with a warning. The judge should also consider whether a video-link application should be granted before resorting to section 16.