The Court of Criminal Appeal refused Daniel Doherty leave to appeal his convictions, finding no basis to conclude that his trial was unfair or that the verdicts were unsafe.
Doherty had been convicted after trial on two counts of rape and one count of indecent assault on 31 May 2006. He sought leave to appeal against those convictions and sentences of seven years on each rape count and two years and six months on the indecent assault count. The judgment, delivered on 26 February 2009, dealt only with the conviction appeal; it did not determine an appeal against sentence.
The application raised complaints about the defence’s handling of evidence, the admission of witness statements and other material, the trial judge’s directions, and the jury’s viewing of part of a Garda interview video. Doherty’s counsel argued that trial counsel had failed to protect his interests by allowing prejudicial material before the jury and that the judge should have excluded evidence even though the defence had not objected.
The appeal court rejected the criticism of trial counsel’s strategy. It said the defence had deliberately used inconsistencies in the complainant’s accounts to support its case, and that this was a difficult tactical choice which could not be called irrational or incompetent with hindsight. The court also found no basis to say the defence had been disregarded or that the chosen defence was not put to the jury.
The court had earlier ruled during the hearing that statements from two prosecution witnesses, identified in the judgment as E.G. and E. McL., did not comply with section 21 of the Criminal Justice Act 1984. It nevertheless held that their admission did not, in the circumstances, make the trial unfair or the verdicts unsafe. The statements had been admitted without defence objection to support the defence strategy, and the court found that a particularly prejudicial passage was not read to the jury.
On the complaint that the trial judge should have excluded evidence on his own initiative, the court said the judge was not required to intervene where the defence had chosen to allow evidence in support of its case. It found no appealable error in the absence of an objection and ruling at trial.
The court also rejected the challenges concerning the jury direction on the indecent assault count and the date of the first alleged offence. The jury had returned an indecent assault verdict on the count in question, and the court found that the first count was sufficiently described as occurring “on or about” 21 December 1984. It declined to entertain the video evidence complaint, which had not been objected to at trial or raised by a requisition on the judge’s charge.
The court refused the application for leave to appeal. The judgment addressed the convictions only.