The Court of Criminal Appeal extended the time for John Paul Buck to bring an application under section 29 of the Courts of Justice Act 1924, but refused to certify his proposed point of law for appeal to the Supreme Court.
The judgment, delivered by O’Donnell J. on 20 October 2011, concerned the test for admitting additional evidence on appeal when that evidence relates to events during the trial itself. The court concluded that the materiality requirement in the established Willoughby/O’Regan test applied to that kind of evidence too. It found the proposed issue was not a point of exceptional public importance warranting a Supreme Court appeal.
Buck had been convicted on 25 February 2009 of one count of murder and one count of arson. His application for leave to appeal those convictions was still pending when the court considered this application. The court dealt together with his request for more time to seek a section 29 certificate and his request for the certificate.
The proposed question asked whether someone seeking to adduce additional evidence about matters arising during the trial had to show that the evidence might have a material and important influence on the case’s result. The question followed an earlier refusal to admit further evidence on three appeal grounds. The court said no complaint was made in this application about its decision on the first ground, which concerned the timing of a consultation between gardaí and prosecuting counsel and evidence about an inculpatory statement.
The other two grounds concerned events during the trial. In one, Buck argued that the trial judge should have recused himself after saying Buck’s name rang a bell: Buck had been a witness in an earlier case in which the judge had acted as defence counsel. The proposed evidence included Buck’s statement from that case and a Garda statement concerning his treatment as a hostile witness there.
The other ground concerned publicity on the day of trial about an attempted jail escape by a person with the same surname as Buck, reported to have been convicted of a stabbing offence. After the trial judge asked the jury whether they knew of anything that might bear on the case, jurors responded that they did not. Buck argued that the jury should have been discharged and sought evidence about the radio programme’s listenership and newspaper circulation.
The court said the proposed evidence failed the materiality limb of the Willoughby test: even if admitted, it was not likely to have an important or material effect on the case’s outcome. It considered the arguments on alleged objective bias and prejudicial publicity and described those points as “at best flimsy” with or without the proposed evidence. The court said Buck remained free to argue his original grounds in his pending application for leave to appeal.
The court therefore granted an extension of time to bring the section 29 application but refused the certificate. It did not decide the pending application for leave to appeal the convictions.