The Court of Criminal Appeal has dismissed Gary Hanley’s application for leave to appeal his conviction for assault causing harm and threatening to kill or cause serious harm. The court rejected all four grounds of appeal, including complaints about prosecution questioning of a hostile witness, a photograph not disclosed to the defence, the jury charge and jurors’ smoking breaks.
Hanley was convicted by a 10-2 jury majority in the Dublin Circuit Criminal Court in May 2009. The charges arose from an attack on Martina Kelly in March 2007. The Court of Criminal Appeal delivered judgment on 27 October 2010.
Kelly initially told gardaí that Hanley had attacked her with keys and threatened her. At trial, she sought to retract her statement, said she could not remember the events and later said another person had assaulted her. She said she had falsely implicated Hanley because he had not helped her when she called to him. The trial judge allowed the prosecution to treat her as hostile and admitted her garda statement under section 16 of the Criminal Justice Act 2006. The appeal did not challenge admission of the statement.
The appeal court held that the prosecution’s questioning was directed mainly at getting Kelly to stand by her earlier account, and that this was a legitimate use of the hostile-witness procedure. It also found that the failure to disclose a photograph of Alan Mangan, whom Kelly identified at trial as the attacker, had not been shown to affect the proceedings or prejudice the defence. The photograph came to light after the prosecution had closed its case and the defence had indicated it would call no evidence.
The court rejected two complaints about the judge’s directions to the jury. It found the directions on reasonable doubt adequate. Although the judge may have overstated the extent to which the parties agreed Kelly was untruthful, the court said the jury had also been told that the benefit of the doubt applied even if it did not believe her.
The final ground concerned jurors seen smoking outside while deliberations were under way. The court said the law required a judge’s direction specifying any period when jurors could separate, and that a fresh direction after deliberations began, with a record made, would have been clearer. However, the trial judge had permitted smoking breaks; there was no suggestion of outside contact or deliberation in the absence of jurors. The court found no material irregularity and could not conclude that the breaks shortened the minimum period before a majority verdict was allowed.
The court dismissed the application for leave to appeal against conviction. It did not overturn the conviction.