The Court of Criminal Appeal has refused Christopher Kearns a certificate to appeal to the Supreme Court over the wording of an indecent assault count.
The decision, delivered by Mr Justice Fennelly on 22 October 2009, concerned an application under section 29 of the Courts of Justice Act 1924, as amended. The court could grant a certificate only if the decision involved a point of law of exceptional public importance and an appeal was desirable in the public interest.
Kearns had previously been refused leave to appeal his conviction by the Court of Criminal Appeal on 16 December 2008. He was convicted in the Circuit Criminal Court in Wicklow on one count, number 49, in an indictment containing 49 counts of indecent assault alleged against one complainant. The other 48 counts resulted in acquittals.
Count 49 alleged an offence on an unknown date between 4 October 1974 and 3 October 1978, at or near Djouce Woods, County Wicklow. It was added during the trial and was the only count to specify a location. The proposed appeal question was whether, in light of a 1994 Supreme Court decision in DPP v EF, an indecent assault count spanning four years was legally defective for lack of specificity or potential duplicity.
In its earlier ruling refusing leave to appeal, the court had rejected the argument that the jury’s verdict was inconsistent. It said the jury could treat count 49 as distinct because it identified a particular place, and because evidence referred to a tug of war in Wicklow, a family outing and a lift home before the alleged assault. The court said the jury was entitled to acquit on the other counts while finding Kearns guilty on that count.
On the certificate application, the court said count 49 could not be considered separately from the other counts and derived its significance from the particular circumstances. It concluded the count did not raise a general point of law of exceptional public importance and that an appeal was not desirable in the public interest. The court therefore refused the certificate. This ruling determined only whether Kearns could take the proposed appeal to the Supreme Court; it did not reconsider his conviction.