The Court of Appeal has dismissed Anthony McNamara’s appeal against convictions for violent disorder, producing an article capable of causing serious injury and criminal damage, finding no unfairness in the trial judge’s refusal to discharge the jury.
The appeal concerned four applications made during the trial after evidence from prosecution witness Bridget Whelan. The defence argued that references to other incidents, threats against a baby and identification evidence introduced prejudice that jury directions could not cure.
The court considered each application and the cumulative effect of the disputed evidence. It said the reference to another house being smashed was not linked to McNamara and did not cause him prejudice. The trial judge had also noted that the matter appeared in material served in the book of evidence.
On the reported threat to kill a baby, the appeal court held that the words were spoken during the attack and formed part of the alleged offence. Although they were hearsay, the court said they fell within the res gestae exception to the hearsay rule. It also noted that Whelan did not identify McNamara as the person who made the threat.
A separate exchange referred to an earlier interaction outside another house. The court found that the evidence did not link McNamara, or any particular person, to that interaction or to the attack. It concluded that the trial judge did not err by refusing to discharge the jury.
The judgment said the prosecution’s primary identification evidence was Whelan’s recognition of McNamara, whom she said she had known for 10 years and saw holding a machete. The court also noted that a machete had been recovered from McNamara’s home; whether it was the same as the one described by Whelan was for the jury to assess. The trial judge had given strong directions about identification and the disputed evidence.
The court was not persuaded that the trial was unfair, whether the applications were considered separately or together, and dismissed the appeal against conviction.