The Court of Criminal Appeal refused an applicant’s request to introduce a statement attributed to his son, direct a retrial and grant bail pending that retrial, ruling that the statement was inadmissible hearsay.
In a judgment delivered on 29 October 2010, the court said the question was whether the son’s statement could be admitted as evidence. It answered: “The answer to that question must be an emphatic no.” The court concluded that, because the proposed evidence was inadmissible on appeal, it would also be inadmissible at a retrial.
The applicant had been convicted of possessing a controlled drug worth €13,000 or more for sale or supply, contrary to section 15A of the Misuse of Drugs Act 1977. He received a 12-year prison sentence. He was also convicted on three counts of possession under section 27 and received sentences of two years, two years and one year. All sentences were to run concurrently. The judgment says he sought leave to appeal his conviction.
The convictions arose after gardaí observed him get out of a car, go to the passenger side and remove a black refuse sack. The sack contained something described in the judgment as “boxed shaped”; its corners were visible at the bottom of the bag. He went to the rear of 94 Barron Park, Clonmel. During a search, gardaí found a bag they identified as the same one, containing drugs.
The fresh evidence application relied on an affidavit from the applicant’s solicitor. It recounted that, while in custody on another matter, Nigel Gartland had allegedly told the solicitor he had placed the bag containing drugs in the garage and that his father was not involved. The affidavit also said Nigel had made a statement to that effect. The court treated the proposed statement as hearsay: it was not evidence given orally in court, and its author would not be available for cross-examination or observation by a jury.
The court refused the requests for leave to introduce additional evidence and for a retrial. Since it would not direct a retrial, it said the application for bail pending retrial did not arise. The judgment did not reconsider the underlying convictions or sentence in this motion.