The Court of Criminal Appeal has quashed Mark Lacy’s conviction for assault causing harm following an altercation outside a nightclub in Leixlip, Co Kildare, after finding that the prosecution’s treatment of a key witness was unfair.
Lacy had been convicted in Dublin Circuit Criminal Court on January 28, 2005 over an incident on Maynooth Road, Leixlip, in the early hours of January 5, 2003. He was sentenced on February 4 to three years’ imprisonment, with the final 12 months suspended.
The prosecution case was that Lacy head-butted John Tansey without provocation, causing an injury requiring five sutures. Lacy admitted being involved in an altercation but maintained that Tansey had head-butted him and was the aggressor.
That account was supported by Darragh O’Regan, whose statement appeared in the book of evidence. O’Regan had been called by the prosecution during Lacy’s first trial, which ended when the jury could not agree.
At the retrial, however, the prosecution obtained permission not to call or tender O’Regan, arguing that he was unreliable because Lacy had identified him to Gardaí and because his account conflicted with other prosecution witnesses. The defence subsequently called O’Regan itself and he was cross-examined by the prosecution.
The appeal court held that prosecutors retain discretion over whether to call witnesses listed in a book of evidence, but that discretion must be exercised fairly and in the interests of justice.
It found the reasons given for excluding O’Regan insufficient. His account had remained consistent from his original statement through the first trial and supported Lacy’s version. The court said presenting him as a defence witness rather than a prosecution witness may also have affected how the jury perceived his evidence.
The court granted leave to appeal, treated the application as the appeal itself and held the conviction unsafe and unsound.
It declined to order another retrial, noting that Lacy had already been serving his sentence since February 4, 2005 and had spent a week in custody before sentencing.