The Court of Criminal Appeal has refused Thomas O’Regan’s application for a certificate that would have allowed an appeal to the Supreme Court over the refusal to admit fresh expert evidence.
In a judgment delivered on 16 June 2006, the court said the circumstances of his case did not raise a point of law of exceptional public importance, as required for a certificate under section 29 of the Courts of Justice Act 1924.
The application followed an earlier judgment on 27 April 2006, when the court refused to admit new evidence in O’Regan’s appeal. He proposed asking the Supreme Court whether the Court of Criminal Appeal had been correct to refuse fresh expert medical evidence concerning whether the rape occurred as alleged. His proposed questions included whether fresh evidence had to be unavailable before trial, whether unreasonable or negligent conduct by the defence had to be established, and whether the circumstances required the evidence to be admitted.
The court noted that the proposed evidence was expert opinion from two medical witnesses, rather than evidence of factual matters. It said O’Regan had had the opportunity to obtain such evidence at both of his trials, the first of which was aborted at a late stage. On both occasions, the defence decision not to rely on a medical-evidence case was considered and, in the court’s view, reasonable.
The court acknowledged that a Supreme Court ruling on the admissibility of evidence in a criminal appeal might be desirable, but said that was not the test for granting a certificate. It said it had rejected the appeal primarily because O’Regan should not be allowed a retrial to put forward a defence he had decided not to rely on at his earlier trial. The court refused the certificate.