The Court of Criminal Appeal has refused an application by Thomas O’Regan to introduce fresh medical evidence at his appeal hearing. It ruled that the expert evidence could have been obtained before trial and that the defence had deliberately chosen not to pursue medical evidence.
The court stressed that it was deciding only the motion to admit new evidence, not O’Regan’s application for leave to appeal. Its judgment was delivered on 27 April 2006 by Mr Justice McCracken, with Justices Lavan and Murphy on the court.
O’Regan was convicted of raping a 14-year-old girl after a trial in July 2003 and was sentenced to seven years’ imprisonment in December that year. The complainant had first reported the alleged rape about two years after it was said to have occurred. A doctor’s examination then found that the time lapse and other factors made it difficult to assess physical findings; the report also noted that normal findings can occur in cases involving penetration.
The prosecution had made the examining doctor and the doctor who referred the complainant available to give evidence at trial. The defence declined to call them. The court said experienced senior counsel in both of O’Regan’s trials knew about the medical report, and that a considered decision had been made not to call medical evidence because it could damage the defence case.
After sentencing, O’Regan’s new advisers obtained reports from Professor John Bonnar and Professor Anthony Busuttil. Neither expert had examined or spoken to O’Regan. The motion sought permission to admit their reports or oral evidence at the appeal hearing.
The court applied the established criteria for fresh evidence, including whether it could have been obtained with reasonable diligence at trial and whether it could materially affect the result. It distinguished an earlier case in which relevant bank records had emerged during trial after the defence had been led to believe none existed. Here, the medical evidence was known and available, and the decision not to seek it had been made before trial.
The court said an appeal would require exceptional reasons to revisit a deliberate defence choice. It found no claim that counsel’s decision had been negligent, irrational or irresponsible, and refused permission to adduce the new evidence. The judgment did not decide the application for leave to appeal.