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S.T. v W.X. (overnight transcripts, oral evidence, cross-examination) (Approved)
Factual and Procedural Background
This is an ex tempore judgment of Judge Jackson delivered on 27 April 2026 in Family Law proceedings under section 173 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 between Applicant and Respondent. The Applicant sought a direction preventing the Respondent from having access to overnight transcripts of evidence during the course of his cross-examination. The evidence was at an advanced stage: the Respondent had completed his examination-in-chief and was several days into cross-examination. The application was brought late in the hearing and the Applicant had not previously been restricted from access to overnight transcripts when she gave evidence.
Legal Issues Presented
- Whether the Respondent should be prohibited from accessing overnight transcripts of evidence while his cross-examination is ongoing.
- Whether authorities permitting overnight transcripts for expert witnesses extend to witnesses of fact, and how the distinction between opinion evidence and factual evidence bears on access to transcripts.
- Whether access to overnight transcripts of a witness's own evidence risks coaching or improper revision of testimony such that access should be restricted.
Arguments of the Parties
Applicant's Arguments
- Attorney O'Riordan submitted an overarching fairness argument: the Respondent reviewing overnight transcripts of his own evidence could identify points to revise or recalibrate during ongoing testimony, producing an unfair advantage beyond ordinary memory refreshment.
- Distinction drawn between memory and a written transcript as an aide that could amount to near-perfect recall and thereby improperly influence ongoing evidence.
- Noted the lateness of the application and that the Applicant had an opportunity to access overnight transcripts during her evidence but did not do so.
Respondent's Arguments
- Attorney McCarthy resisted the application as tardy and relied on authorities (including O'Leary and Sweeney) that supported provision of overnight transcripts, particularly in the context of preparing evidence.
- Argued by analogy to expert practice that parties and their witnesses should be able to keep appraised of how the case is developing; noted no previous restriction on taking notes or discussing evidence with counsel.
- Emphasised that the Respondent had structured witness order (a "jigsaw" approach) and sought to prepare for his own evidence in light of prior witnesses' factual testimony.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| O'Leary v. Mercy University Hospital Cork Limited (2019) IESC 48 ('O'Leary') | Support for provision of overnight transcripts (noting utility where cases evolve during hearing); applied in authority concerning expert evidence. | The court noted O'Leary's approval of overnight transcripts but distinguished the present case because O'Leary concerned expert witnesses and the particular duties they owe to the court. |
| Sweeney and the Limerick Private Hospital v. VHI [2021] IESC 58 ('Sweeney') | Endorsement of O'Leary principle regarding overnight transcripts in context of expert evidence. | The court observed Sweeney cited O'Leary with approval but reiterated the distinction between experts and witnesses of fact in the present matter. |
| National Justice Compania Naviera SA. v Prudential Assurance Company Limited [1993] 2 Lloyd's Rep 68 ('The Ikarian Reefer') | Foundational principles concerning expert witness duties and conduct. | Referred to as the English authority informing the Supreme Court's approach to expert evidence; used to highlight the difference between experts and witnesses of fact. |
| R v Momodou (Henry); R v Limani (Beher) [2005] EWCA Crim 177/ 2005 WL 62320 | Dictum on risks of witness coaching and the need for witnesses to give evidence uninfluenced by others; danger of tailoring evidence. | Cited as instructive on the potential wrong (coaching/tailoring evidence); the court noted the dictum but observed that in the present case there was no risk of influence from others since access would be to the witness's own testimony only. |
| State (Healy) v. Donoghue [1076] IR 325 | Recognition of cross-examination as a constitutionally guaranteed right. | Relied on (via McGrath on Evidence) to emphasize the fundamental importance of cross-examination in the trial process. |
| R. v Richardson | Support for allowing witnesses to refresh memory prior to evidence and the impracticality of prohibiting such refreshing. | Quoted (through McGrath) as endorsing that refusing access to refreshing materials would militate against justice; informed the court's assessment of memory-refreshing authorities. |
| Lau Pak Ngam v R. | Authority accepting that witnesses may refresh memory from prior statements before trial. | Cited in McGrath and relied upon to show that pre-trial refreshing is unobjectionable and can aid truthful recollection; used to balance concerns about restricting access. |
| People (DPP) v Donnelly | Warning against witnesses memorising statements and giving rote evidence rather than truthful recollection. | Quoted in McGrath and noted by the court as an authority cautioning against attempts to learn statements by heart; influenced consideration of risks from transcript use. |
Court's Reasoning and Analysis
The court began by noting the lateness of the application and that the hearing was advanced with no prior restriction on access to transcripts for the Applicant. The court separated two distinct questions: (a) access to transcripts of prior witnesses' evidence and (b) access to overnight transcripts of the witness's own evidence while cross-examination continues.
On (a), the court reasoned from first principles that each party may decide how to present their case and order witnesses; where prior witnesses gave factual evidence in open court with parties and solicitors present (and able to take notes and discuss with counsel), the Respondent was entitled to see transcripts of that prior evidence in preparation for his own evidence. There was no prior restriction preventing this and the Respondent had in fact had copies.
On (b), the court considered the risk that a witness might use an overnight transcript to recalibrate or moderate ongoing testimony. It reviewed authorities and the academic text McGrath on Evidence concerning memory refreshment and coaching. The court accepted the potential for improper use (coaching or tailoring) but observed there was no suggestion of coaching here and no risk of influence by others if access were limited to the witness's own transcript. The court emphasized that the law permits witnesses to refresh memory and that the mere possibility of improper use does not justify a general prohibition. It also noted that a good memory is not penalised by law and that any subsequent changes in evidence would be subject to robust cross-examination.
Balancing these considerations and mindful of the tardiness of the application, the court concluded the application should be refused, while reserving costs.
Holding and Implications
APPLICATION REFUSED
Holding: The court refused the Applicant's application for a direction preventing the Respondent from accessing overnight transcripts during his cross-examination.
Implications: The immediate effect is that the Respondent may continue to have access to transcripts as previously available; any concerns about misuse (coaching or manufactured consistency) remain matters for cross-examination rather than a basis for a general prohibition. The court reserved the question of costs relating to the application. The decision does not purport to establish a new broader precedent beyond the facts and timing of this application.
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