COURT OF CRIMINAL APPEAL

Fennelly J.

McGovern J.

Birmingham J.

3/07

The People at the Suit of the Director of Public Prosecutions

V

William Halligan

Applicant

Judgment of the Court (ex tempore) delivered on the 4^th day of July 2008 by Fennelly J.
This is an application for leave to appeal against a conviction for assault. It is a much adjourned case before this court, because it involves principally a ground of appeal based on the availability of new evidence. There was a second ground based on the charge regarding the issue of identification. Principally though it is concerned with the new evidence issue. In the decision of the Supreme Court of last year in D.P.P. v. O'Regan, consideration was given to the criteria regarding the admission of new evidence in criminal trials, though in effect and in reality the criteria long laid down have not been changed. They were summarised quite well in the judgment of Chief Justice Finlay in Murphy v. The Minister for Defence [1991] 2 I.R. 161. There are three criteria
1.	The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial.
2.	The evidence must be such that if given it would probably have an important influence on the result of the case though it need not be decisive.
3.	The evidence must be such as is presumably to be followed or in other words it must be apparently credible but though it need not be incontrovertible.

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In simple terms the trial in this case involved a complaint by Mr. O'Donoghue that the applicant Mr. Halligan assaulted him. The evidence that has been adduced through Mr. Kenny and his daughter Ms. Antoinette Kenny is in effect such that is inconsistent with the account given at the trial which the jury obviously accepted. It is inconsistent with the injuries suffered by Mr. O'Donoghue having been suffered as a result of an assault. Both of those witnesses have given evidence to this court of seeing Mr. O'Donoghue on what must have been the evening in question being in an intoxicated condition, getting into the front part of his own house apparently walking along part of the grounds of his own house, and then falling out over the wall of the house onto the footpath on his own face and suffering facial injuries.
It is unnecessary to go into the finer points of all this and there are parts of that evidence that have been contested by Mr. Delaney and there is evidence which is at least partly inconsistent from Ms. Lisa Colfer who is also apparently a witness and the court is quite satisfied a credible witness.
In view of the court this is all really a matter for the jury. The court is satisfied that it meets the criteria laid down in the cases already mentioned and therefore further comment on the evidence would probably be undesirable. In the result, therefore, the court has decided to treat the application for leave to appeal as the hearing of the appeal, to allow the appeal, quash the conviction but to order a new trial.
On the other hand as regard to the ground of appeal relating to the absence of the direction, on identification, the court notes that there was no requisition on that ground before the trial court and on that ground alone that might have been enough to defeat it but in any event it now becomes academic because the matter can be discussed and its relevance can be considered at the re-trial. The court therefore will make the order already indicated and will order a re-trial.