Criminal Procedure Act 2010

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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.