The Court of Criminal Appeal has ordered a retrial for Noel Hayes and William O’Leary after setting aside their convictions for forgery over an alleged will.
The court had previously allowed their appeals because a document that was not evidence in the case had been placed in the jury room, and there was evidence the jury had considered it. The court said that made the convictions unsafe, but did not mean either man necessarily should have been acquitted.
The men had been convicted at Wexford Circuit Court on 29 January 2013 of forging a document purporting to be the will of Matthew Hayes, a first cousin once removed of Noel Hayes. The alleged forgery was said to have occurred between 25 December 1998 and 5 January 1999. The appeals were allowed and the convictions set aside in December 2013. The later hearing addressed only whether a retrial should be directed.
The DPP argued that the jury-room document was a procedural irregularity and that sufficient evidence had been heard at trial to allow a jury to convict. The defence argued that a retrial would be unfair, citing the time elapsed and, in O’Leary’s case, the strength of the evidence against him. His brother, Charles O’Leary, was an admitted participant in the alleged forgery and gave evidence implicating him. A prosecution handwriting expert had accepted there was a possibility that the disputed witnessing signature was not O’Leary’s handwriting. The court said the brother’s evidence remained evidence for a jury to assess, and declined to give the alleged weaknesses of the case weight in deciding on a retrial.
The court considered the lapse of time, but said no specific prejudice had been identified and found no significant or material blame attributable to the prosecution or the courts system. It said the delay had to be understood in the context of the alleged offences being covert, the criminal process involving O’Leary’s brother, and the Circuit Criminal Court’s workload.
The court concluded that the seriousness of the alleged offences, the explanation for the lapse of time and the absence of identified specific prejudice meant the balance of justice favoured a retrial. It did not decide whether either man was guilty; that question remains for the criminal process.