The Supreme Court rejected an application by Thomas O’Regan to admit alleged new evidence in a criminal appeal, agreeing that the material could have been discovered through reasonable diligence before or at trial.
In a judgment delivered on 30 July 2007, Justice Fennelly said he agreed with the order proposed by Justice Kearns and with his reasons for refusing the application. The judgment excerpt does not set out the underlying conviction or the court’s full order on the appeal.
Justice Fennelly said the Supreme Court had not previously laid down rules for admitting new evidence in criminal appeals. He considered a three-part test used in civil appeals: whether the evidence could have been obtained with reasonable diligence for trial, whether it would probably have an important influence on the result, and whether it was apparently credible.
He said the requirement that evidence must have existed at the time of trial had not been argued in this appeal and should not be treated as established for criminal cases. He noted that later scientific developments, such as DNA analysis, could produce relevant evidence after a trial.
For this application, however, Justice Fennelly said the proposed evidence failed the reasonable-diligence test. It could have been discovered before or during the trial, and counsel had made a considered professional decision not to seek it. He also said it did not come close to establishing with certainty that the crime could not have been committed.
Justice Fennelly added that courts should not ignore available new evidence that might correct an injustice. His judgment addresses the application to admit evidence and does not, in the supplied excerpt, specify the ultimate result of the criminal appeal.