DPP v O'Brien
2000 WJSC-CCA 2854
COURT OF CRIMINAL APPEAL
COURTS OF JUSTICE ACT 1924 S33
Judgment of the Court ex-tempore delivered on the 29th day of January 1990 by McCarthy J .
This is an application under Section 33 of the Courts of Justice Act1924for leave to adduce new or additional evidence in respect of a conviction of rape after a trial before Judge Moriarty and a jury in February 1989 and in respect of which the applicant was sentenced to a term of imprisonment of 16 years. Part of the evidence for the prosecution concerned the visual identification by the prosecutrix, the victim of the assault, of the accused Kevin O'Brien from seeing him in a motor car at a funeral to which she was brought by the Gardai for the purpose of seeing if she could identify anybody, the Gardai believing that the guilty individual was to be found at the particular place in Dundalk on the particular day. Much of the trial concerned the credibility, so to speak, of that visual identification by the prosecutrix. The evidence also adduced included proof of the finding of a fingerprint of the accused in the flat in which the prosecutrix was assaulted and to which he claimed he had never been. There was some other evidence tying him into the event, a sweat shirt and the calling of his name by his accomplice or by his alleged accomplice. However, it is clear that apart from the fingerprint the trial to a large extent turned upon the visual identification.
This application is based upon the proposition that at the time of the trial, unknown to the accused, although known to his sister, Ellen O'Brien, another man, one Bernard Duffy had been partly, at least, or to some degree identified by the prosecutrix as being the individual concerned or one of the individuals concerned in the assault. There is some controversy on the affidavits as to the exact nature of what the prosecutrix said in respect of such identification. Mr. O'Higgins on behalf of the Director of Public Prosecutions has submitted that the Court should look to three criteria as to whether or not such evidence should be admitted as fresh or new evidence. Firstly, that the existence of such...
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