Irish Court of Criminal Appeal

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Cite as: [2006] IECCA 82

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Judgment Title: D.P.P.-v- Thomas O'Regan

Neutral Citation: [2006] IECCA 82

Court of Criminal Appeal Record Number: 240/03

Date of Delivery: 16 June 2006

Court: Court of Criminal Appeal

Composition of Court: McCracken J., Lavan J., Murphy J.

Judgment by: McCracken J.

Status of Judgment: Approved


Judgments by	Result
McCracken J.	Refuse Section 29 application

Outcome: Refuse Section 29 application

- 4 -

COURT OF CRIMINAL APPEAL

Appeal No. 240/2003

McCracken J.
Lavan J.
Murphy J.

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

.v.

THOMAS O’REGAN

APPLICANT

Judgment of the Court delivered on the 16th day of June 2006 by Mr. Justice McCracken

The court has already delivered judgment on the 27th April 2006 in relation to the substantive application in this matter. In that judgment the court refused to allow new evidence to be adduced. The court has now been asked to grant a certificate pursuant to section 29 of the Courts of Justice Act 1924 certifying a point of law of exceptional public importance allowing an appeal to the Supreme Court.
It is suggested by the applicant that the point of law to be certified is:-

“Whether in all the circumstances this honourable court was correct in refusing to admit the fresh expert evidence sought to be adduced by the applicant, to the effect that as a matter of certainty the rape did not occur as alleged by the complainant; and that as a matter of probability, no rape occurred; and in particular:-

(a) whether the criteria for deciding whether to admit fresh evidence to this honourable court includes a requirement that the evidence was not available to the applicant prior to the trial; or whether the said issue is merely an important factor in considering the requirements of justice in all the circumstances of the case.
(b) Where an application is made to adduce in this honourable court fresh evidence that was available prior to the trial, is it necessary to assert or establish unreasonable, irrational, illogical or negligent conduct of the defence of the trial?
(c) Where counsel representing the applicant in the trial were not aware of the nature of, or potential impact of the said expert evidence; and where the said evidence was likely to have led to an acquittal, must the circumstances be regarded as so exceptional as to require the admission of fresh evidence on appeal?”

While there have been a number of judgments in the Court of Criminal Appeal dealing with the admission of fresh evidence on the hearing of an appeal, it is strongly urged on behalf of the applicant that such decisions are not always consistent and, correctly, that the question has never been considered by the Supreme Court. However, as stated in the earlier judgment, the Supreme Court has set out the principles applicable to the introduction of new evidence in that court in civil actions.
The new evidence sought to be adduced in the present case is the evidence of two expert medical witnesses. It is not the evidence of factual matters, but evidence of opinion to be given by experts. In considering whether to grant a certificate the court must have regard to the background of the case itself.
In the present case there have already been two trials of the applicant, the first having been aborted at a late stage. On both occasions it was open to the applicant to obtain expert evidence such as is now sought to be admitted, and to conduct a defence based on medical evidence. In both cases the decision was made not to defend the case on that basis. This decision was a considered one, taken after assessing the possible damage to the applicant’s case, and it appears to this court that it was a very reasonable decision to have taken in the circumstances.
The court accepts that it might be desirable to have a Supreme Court ruling on the question of the admissibility of evidence on a criminal appeal, but that is not the test. It is for the applicant to show that the ruling sought is on a point of law which is of exceptional public importance. It is the view of this court that the facts of the present case would not bring it within that category. This court rejected the applicant’s appeal primarily on the basis that he should not be allowed a retrial in which he would put forward a defence which he had decided not to rely on in his earlier trial. In the view of this court the circumstances of this case do not raise a matter of exceptional public importance in relation to the admission of new evidence and accordingly the court refuses the certificate.

DPP v Thomas O’Regan

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