The Court of Criminal Appeal has refused Darragh Small’s application for a certificate to appeal to the Supreme Court, finding that his case raised no point of law of exceptional public importance and that an appeal was not desirable in the public interest.
The ruling, delivered by Denham J on 17 February 2011, concerned the court’s earlier refusal of leave to appeal Mr Small’s conviction. He had been convicted on 6 November 2009 of possessing diamorphine worth at least €13,000 for sale or supply. The judgment records evidence that the drugs found in a bag had a market value of €97,000. Mr Small said he had not seen the bag and it was not his.
At trial, the defence learned that gardaí had visited Mitsubishi Ireland months earlier and asked about a key said to have opened and started a white van. The defence sought an adjournment or discharge of the jury so that service manager Nick Halligan could give oral evidence. The trial judge refused to discharge the jury, but adjourned overnight to allow Mr Halligan to provide a letter. The prosecution consented to the defence reading it to the jury, and the trial judge also read it during her charge. A defence witness separately gave evidence that the key was compatible with being a Renault key.
The appeal court said there had been no bad faith by the prosecution and that the defence had not learned of the visit until the trial was underway. It noted that Mr Halligan’s unavailability was through no one’s fault, that the trial judge had considered the evidence’s relevance, and that the letter supported the defence witness’s evidence. The court also noted that the van could no longer be tested because it had been destroyed with the defence’s consent before the first trial.
The court concluded that the trial judge had managed the trial fairly and acted within her discretion in refusing to discharge the jury. It found that admitting the letter in the circumstances was not unfair and that the procedure was not “patently unfair”. The certificate application was refused. The ruling addressed only whether a certificate should issue for a Supreme Court appeal; it did not determine a new appeal against the conviction.