The DPP applied for a priority hearing date at the Court of Criminal Appeal on Wednesday, but yesterday Mr Justice Aidan Hardiman heard from barrister Lorcan Steins that defence counsel Patrick Gageby has commenced a murder trial and may not be available on Dec 12, the date recommended by the court.
Counsel for the State, Kerida Naidoo, told the court submissions have been filed and a transcript of the trial can be available for the defence by Friday.
He said the State’s application will take a maximum of half an hour. Mr Steins said the defence application will take a maximum of two hours.
“This is a case in which it was a defence of involuntary intoxication which was not accepted by the jury,” said Mr Steins.
“There is also a voluntary intoxication aspect and there is significant medical evidence which is highly relevant.”
Mr Justice Hardiman noted that it is distressing for the applicant if counsel cannot be involved in the case.
Mr Lyons, of Griffith Avenue, Dublin, is due to be released from prison in mid-December after he was jailed for six months at the end of July for attacking and sexually assaulting a woman on Griffith Avenue over two years ago.
Lyons, aged 52, who owns an aircraft leasing company, originally denied attacking the woman when he was arrested near the scene on Oct 3, 2010.
However, 10 days later the father of four went back to the gardaí and claimed he attacked the woman because he was on cholesterol medication, a defence that was rejected by the jury.
Mr Justice Desmond Hogan sentenced him to six years in prison but suspen-ded five-and-a-half years and ordered him to pay €75,000 to the victim.
Mr Justice Hardiman said it seems undesirable to leave an uncertainly around the appeal hearing.
“The State moved yesterday [Wednesday] to give priority to its application and no previous application has been made. The court is willing to see in that context, if Dec 12 is free,” he said.
He also said there were “very unfortunate cases to facilitate after sentencing has been complete due to resource difficulties”.
He noted that the unavailability of counsel was not a ground to adjourn the case. He noted that Mr Naidoo said “something may happen” that Mr Gageby may be available on Dec 12.
Mr Justice Hardiman said he was prepared to fix a date but would not on the context of the unavailability of defence counsel, but gave both parties liberty to reapply for a priority hearing.
“If either party thinks circumstances may change they have liberty to reapply.”