The Court of Appeal has dismissed Sean Carraher’s appeal against his conviction for harassing Sergeant Conor Gilmartin, ruling that the absence of Carraher’s outgoing phone records did not make his trial unfair or the verdict unsafe.
Carraher was convicted in the Circuit Criminal Court on 14 June 2016, after a six-day trial, of one count of harassment under section 10 of the Non-Fatal Offences Against the Person Act 1997. He received a five-year prison sentence on 27 July 2016. The Court of Appeal judgment, delivered by Mr Justice Mahon on 10 May 2018, addresses the conviction appeal only; it does not decide the separate appeal against sentence.
The appeal concerned whether the prosecution’s use of Carraher’s former wife’s phone records, without Carraher’s own outgoing-call records being available to the jury, prejudiced his defence. His counsel argued that the missing records could have helped challenge the complainant’s account of calls allegedly made from Carraher’s phone. Carraher denied making the calls. He admitted making internet posts about Gilmartin but said they were an exercise of his freedom of expression.
The judgment recounts that Garda Clancy had sought records of calls from Carraher’s phone during an earlier investigation. The provider instead supplied records of incoming calls to his phone. When outgoing-call records were later sought, the provider could no longer supply them. The court said gardaí had never possessed the relevant outgoing-call records, and that the records were no longer obtainable by the time their absence became an issue in the appeal.
The court applied the disclosure test in DPP v McCarthy: an omission must materially disadvantage the defence so as to render the trial unfair or the verdict unsafe. It concluded the prosecution had not breached its disclosure duty because it did not have the records, they were available for Carraher to seek himself, and they were unlikely to provide useful information for his defence. It also noted that no issue had been raised at trial about the absence of his records, and no application or request was made to the trial judge about them.
The judgment described the case as involving alleged abusive calls and 58 internet postings. It said the postings were the more serious allegations and had been made public, while the calls were heard by Gilmartin or colleagues at his station. The Court of Appeal was satisfied the conviction was fair and dismissed the appeal against conviction.