The Court of Criminal Appeal has refused Derek Hayes leave to appeal his conviction for assault causing serious harm, rejecting two challenges to the conduct of his joint trial.
Hayes was convicted at Limerick Circuit Criminal Court on 23 April 2010 on one of two counts and sentenced to five years in prison on 30 April. His application for leave to appeal argued that the trial judge should have discharged the jury after an exchange with a witness, and should have granted Hayes a separate trial from his co-accused.
The appeal arose from a June 2009 gathering at a house in Limerick whose garden backed onto Thomond Park, where a concert was taking place. The prosecution case against Hayes rested exclusively on Kenneth Hynes’s evidence. Hynes said co-accused Edward Kelly struck him with a bottle and Hayes stabbed him in the face with glass. Hayes denied the assault. Defence witnesses gave an account placing Hayes and Kelly outside in the garden and said Hynes had left before they returned to the house. The judgment records that Hynes required 24 stitches and suffered significant scarring.
During cross-examination, defence counsel put to Martina Kiely that she had previously stabbed Hayes and was capable of violence. When she began explaining the circumstances, the trial judge said she should be allowed to finish her answer. Hayes’s counsel applied to discharge the jury, arguing the judge had crossed into the jury’s role. The appeal court held that the judge was ensuring Kiely could complete an answer to the question asked, rather than conducting an independent inquiry. It found no legal error or unfairness and upheld the refusal to discharge the jury.
Hayes also argued that a separate trial was needed because Kelly could rely on his good character, while Hayes had previous convictions and could not put good character before the jury. He said Kiely’s account, including her description of him as violent, added to the disadvantage of a joint trial. The appeal court said the trial judge had discretion to refuse a late application for separate trials. It found the jury had been directed to consider each accused’s case separately and that the defence had a fair opportunity to challenge the evidence. The difference in the defendants’ records was not, in the circumstances, sufficient to require separate trials.
The court concluded that neither ground succeeded and refused leave to appeal. It did not allow an appeal or overturn the conviction.