Court of Appeal dismisses application to add expert forensic evidence on appeal due to lack of exceptional circumstances.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

40/12

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Noel O’Connor

Appellant

Judgment of the Court (ex tempore) delivered on the 18th March 2016, by

Mr. Justice Birmingham

1. This is an application pursuant to the Rules of the Superior Courts seeking leave to introduce additional evidence on the hearing of

the appeal and specifically it is sought to introduce two reports that have been prepared by experts. One by Prof. Anthony Bustell

Emeritus Professor, at the University of Edinburgh and the other by Dr. Colin Duncan Woods, who is described in the notion of motion

as a forensic pathologist.

2. The principles that this Court applies when considering whether to admit new evidence are what are sometimes described as the

Willoughby principles, which were adopted by the Supreme Court in the case of The People v. O’Regan [2007] 3 I.R. 805 at 826 and

see also Willoughby [2005] IECCA 4.

3. Those principles are these:

1. That given that the public interest requires that a defendant bring forward his entire case at trial, exceptional

circumstances must be established before the court should allow further evidence to be called. That onus is particularly

heavy in the case of expert testimony having regard to the availability generally of expertise from multiple sources.

2. The evidence must not have been known at the time of the trial and must be such that it could not reasonably have

been known or acquired at the time of the trial.

3. It must be evidence which is credible and which might have a material and important influence on the result of the

case.

4. The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not

in isolation.

4. This application to admit additional evidence arises in circumstances where on the 18th October, 2011, following a five day trial

that had taken place at Kilkenny Circuit Court, the applicant Mr. O’Connor was convicted of one count of assault contrary to s. 3 of

the Non Fatal Offences Against the Person Act 1997. The allegation being and the conviction being in respect of an assault on one,

Sean Murphy. He had faced trial in respect of another assault on a female person and on that case, had been acquitted.

5. Mr. O’Connor appealed against his conviction, but the appeal has yet to come on and it seems that in part that is because of the

inquiries that Mr. O’Connor was conducting that have eventually given rise to the application to admit the reports to which reference

has been made. At trial the defence was essentially one of self defence and one that the applicant acted reasonably in the

circumstances in which he found himself.

6. This was a s. 3 assault and Mr. O’Connor seems to believe that there is a convention that parties do not call forensic evidence.

There is no such convention. It is true that the nature of s. 3 assaults are such that there would be many s. 3 cases where there is

no forensic evidence, but there is nothing whatever to prevent either side putting evidence before the court. It is clear that at trial

the prosecution case was that there had been a very, very severe and indeed vicious assault involving a potentially lethal weapon, a

lump hammer. It is also clear that at trial that the defence were saying that the absence of forensics was highly significant.

7. Mr. O’Connor has told us that his counsel addressed the jury on the basis of asking where was the blood that one would expect to

find and today he has read to us extracts from the transcripts of a witness who refers to the injured party bleeding and he says that

if the alleged injured party had been bleeding in the manner described, not only would there have been blood on the hammer but there

would have been significant quantities of blood on his own person. He says that the absence of blood is inconsistent with an assault

of the nature described ever having taken place.

8. In the view of the court, these were issues that were all before the trial court and were all matters that were eminently capable of

being put before the jury and indeed as it would appear were put before the jury. It is the view of the court that nothing new has

emerged. It appears that the trial proceeded on the basis that there was no blood on the hammer. Insofar as Prof. Bustell has now

expressed views as to the nature of the wounds that were to be expected and the nature of the wounds that actually resulted, there

was nothing whatever to prevent evidence of that nature being put before a trial.

9. There is, as the Willoughby principles makes clear a heavy onus on somebody seeking to adduce expert evidence post trial, which

could of course have been accessed pre-trial.

10. In the circumstances the court is not of the view that this is a case for admitting additional evidence at this late stage and the

court will reject the application.