The Court of Criminal Appeal has refused an application by Fergal McNulty for a certificate allowing him to appeal to the Supreme Court on questions about jury directions on alibi and recognition evidence.
The application followed the court’s rejection, in March 2014, of McNulty’s appeal against convictions for assault causing harm and intentionally or recklessly causing serious harm. He had been sentenced to eight years in prison in July 2012. The judgment says the convictions arose from an attack on his former partner, who recognised him as the assailant.
McNulty proposed three questions for a further appeal. They concerned whether a jury should be told that the prosecution must disprove an alibi; whether it must prove that alibi witnesses were untruthful; and whether rejecting an alibi can support prosecution recognition evidence.
The court said a certificate under section 29 of the Courts of Justice Act 1924 requires both a point of law of exceptional public importance and a finding that an appeal is desirable in the public interest. The applicant bears the burden of establishing both requirements. The legal point must extend beyond the facts of the individual case, be contested and material to the decision, and require clarification. Section 29 does not provide a further appeal simply to challenge how settled law was applied to particular facts.
In the earlier appeal, the court had concluded that the trial judge repeatedly and clearly told the jury the prosecution carried the burden of proving its case. It also found that the complainant’s evidence was recognition evidence because she knew McNulty, and that the visibility conditions and two sightings made it safe to leave that evidence to the jury.
In considering certification, the court said the central question was whether jurors should be told that rejecting an alibi does not automatically lend support to recognition evidence. It found that the trial judge had separated the alibi evidence from McNulty’s own evidence and had repeatedly emphasised the prosecution’s burden. The court said the proposed issue concerned the judge’s discretion in applying legal principles to the facts, rather than a legal point requiring clarification.
The court therefore concluded the case did not turn on the proposed points of law and that neither statutory requirement had been met. It refused the application. The ruling addressed only certification for a further appeal; the judgment records no change to the earlier convictions or sentence.