The Court of Appeal has rejected Noel O’Connor’s application to introduce two expert reports in his appeal against an assault conviction, finding that the issues raised could have been put before the jury at trial.
O’Connor was convicted on 18 October 2011, after a five-day trial at Kilkenny Circuit Court, of assaulting Sean Murphy, contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. He was acquitted of a separate assault charge involving a female person. His appeal against the conviction had not yet been heard.
The application sought leave to add reports by Professor Anthony Bustell, an emeritus professor at the University of Edinburgh, and Dr Colin Duncan Woods, described in the motion as a forensic pathologist. The judgment does not set out the reports’ full conclusions.
At trial, the defence relied on self-defence and argued that O’Connor had acted reasonably. The prosecution described the alleged assault as very severe and involving a potentially lethal lump hammer. The defence also relied on the absence of forensic evidence. O’Connor told the appeal court that his counsel had asked the jury where the blood would be, and referred to trial testimony that Murphy was bleeding. He argued that an assault as described would have left blood on the hammer and significant quantities on O’Connor’s person.
The court applied the principles for admitting new evidence after trial, including that exceptional circumstances must be shown, the evidence could not reasonably have been obtained at trial, and it is credible and could materially affect the result when considered alongside the trial evidence. It said there was no convention against calling forensic evidence in section 3 assault cases.
The judges considered that the blood and injury issues were already before the trial court and, as it appeared to them, the jury. The judgment said the trial had proceeded on the basis that there was no blood on the hammer, and that expert evidence about expected and actual wounds could have been presented before trial. The court concluded that nothing new had emerged and rejected the application to admit additional evidence. It did not decide the appeal against conviction.