The Court of Appeal has dismissed Jonathan O’Sullivan’s appeal against his conviction for burglary, rejecting three challenges to the trial and leaving the conviction in place.
A jury convicted O’Sullivan after a two-day trial of burglary under section 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001. He was sentenced to three years in prison.
The main appeal ground concerned prosecution rebuttal evidence about O’Sullivan’s alibi. He had said he was in Little Island with his girlfriend at the time of the burglary, and she gave supporting evidence. After his evidence in chief, the prosecution called a garda who said he had seen O’Sullivan at home with his mother the previous evening. The prosecution also produced a curfew book showing O’Sullivan had previously been subject to a curfew order while on bail.
O’Sullivan argued that the prosecution should have disclosed this material before trial, particularly because notice of alibi had been served. The Court of Appeal held that fairness did not require advance warning that evidence could be used to challenge the credibility of the accused or an alibi witness. It said that where rebuttal evidence might affect the accused’s character, the prosecutor and trial judge must ensure it is presented fairly. The court concluded that, in this case, O’Sullivan had “dropped his shield” in conducting his defence, so prior disclosure of the rebuttal evidence was not required.
The appeal also challenged the trial judge’s summary of evidence about the height description given by Eric Geary, who had seen an intruder in a separate burglary. The judge misstated the range as 5ft 9in to 5ft 10in; the evidence was 5ft 10in to 5ft 11in. The Court of Appeal found the error insignificant in light of the evidence and dismissed that ground.
The final ground concerned the judge’s direction about statements by Geary and Matthew Neville, which had been disclosed to the defence but whose makers were not called as witnesses. The court said the judge had not told the jury to disregard what the men might have said; he had explained that only portions of their statements put in evidence formed part of the case. The appeal against conviction was dismissed.