Court dismisses miscarriage of justice application, restricting grounds to newly discovered evidence only.

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 244 Record Number: 198CPA/24

McCarthy J. Butler J. Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

WI APPLICANT

JUDGMENT of the Court delivered on the 4th day of November, 2025 by Ms. Justice Tara Burns.

1. This is an application brought by the respondent seeking to strike out portions of the submissions made by the applicant in support of his miscarriage of justice application.

2. On 19 April 2021, the applicant was convicted before the Central Criminal Court of one count of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended. The jury disagreed with respect to other charges which had also been proffered against the applicant. A nolle prosequi was entered in respect of those charges on 31 January 2022.

3. The applicant appealed against his conviction on the sexual assault count. This appeal was successful and the applicant’s conviction was quashed on 22 May 2023 (DPP v. WI [2023] IECA 148 (‘the conviction appeal judgment’)).

4. On 1 December 2017, the applicant and the complainant participated together in a nikah/marriage ceremony arranged through the Clonskeagh Mosque after which the complainant alleged that she had been sexually assaulted by the applicant.

5. The circumstance giving rise to the quashing of the applicant’s conviction was that newly discovered evidence had come to light after the conviction when an analysis of extracted material from the complainant’s mobile phone was carried out by experts engaged on behalf of the applicant. The entire extracted material from the complainant’s phone had been provided to the applicant prior to his trial. However, a download from this extracted material had also been disclosed to the applicant by the investigating guards which was of a narrower subset to the material subsequently discovered by the expert. The manner in which this material came to light and why it had not been identified by the investigating guards is explained in the conviction appeal judgment at paras. 5 – 11 as follows:-

“5. In January 2018, An Garda Síochána extracted materials from a number of telephones including the complainant’s phone (GR5). This material was provided to an expert retained by the defence on a USB key/disc.

6. Upon coming on record for the appellant in July 2021, the appellant’s solicitors directed that all phones involved in the trial be further analysed to ascertain whether the disclosure provided by An Garda Síochána in 2018 was complete. In September 2021, VMGroup conducted an analysis of the phones and concluded by way of report in November 2021 that the data set collected by VMGroup from GR5 was greater than that presented by the prosecution. These experts extracted additional information from the device.

7. In January 2022, the Director entered a nolle prosequi in respect of the counts upon which there was disagreement at the appellant’s trial.

8. By way of email dated 9th February 2022, the Garda who conducted the initial analysis of GR5, provided a statement that he could not have obtained the data subsequently obtained by VMGroup in 2021 with the software version of Cellebrite that was available in January 2018.

9. In July 2022, VMGroup were asked by the appellant’s solicitors to further analyse GR5. The initial analysis carried out by the Gardaí in January 2018 used a logical extraction method which does not extract hidden or deleted files, as opposed to a physical method which would have extracted a bit for bit or exact copy of GR5. An analysis conducted by VMGroup of the phone using the software immediately prior to that available to Gardaí in January 2018 was capable of extracting both physical and logical images of GR5. VMGroup concluded that a total of 29 data types could be recovered, compared to 15 data types presented in disclosure at trial. Of the 15 data types recovered by An Garda Síochána, VMGroup recovered more information for each date and time recorded.

10. The information recovered in the second analysis of GR5 included inter alia internet searches for information regarding asylum and immigration issues and a text conversation concerning the validity of the marriage ceremony between the complainant and the appellant.

11. As averred in Ms McCumiskey’s [the applicant’s then solicitor] affidavit, following the second report, the Garda explanation was that the 2018 analysis was conducted on a shared device and some data types may have been unselected by a previous user and not reselected.” Content of the Newly Discovered Evidence

6. The content of the newly discovered evidence and the importance which the applicant asserted it had in the context of his trial, is summarised in the conviction appeal judgement at paras. 27 – 32 as follows:-

“I. Immigration and Asylum

27. The fresh evidence includes internet searches by the complainant in July 2016 for information regarding immigration and asylum in Ireland. It is submitted that this is of significance as it was the complainant’s evidence at trial that the idea of seeking residence in Ireland had only come to her when she attended a conference at the University of Limerick during the week of the 21st November 2017 and that she had not completed any research prior to her arrival in the jurisdiction.

Specifically, in cross-examination when asked the extent of her research she responded “I never researched anything, never, really, I just arrived…”

28. It is submitted that had this evidence been available to the defence at trial, a much more specific cross-examination would have been possible. Further, this evidence would have lent support to the defence contention that the complainant’s allegations were motivated by her desire to gain permanent residence in Ireland.

II. Clonskeagh Mosque

29. VMGroup further recovered internet searches by the complainant as to the mosque in Clonskeagh made on the 21st November 2017. It is submitted that this is of significance as the complainant gave evidence in cross-examination that the first time the mosque was mentioned to her was by a friend she was staying with at the time of her attendance at the conference in Limerick. The complainant participated in a nikah ceremony with the appellant at the mosque on the 1st December 2017. It is submitted that this information which was not available at trial would have greatly assisted the defence in terms of testing the credibility of the complainant.

III. Sexual Experience

30. During both direct and cross-examination, the complainant gave evidence that she had not had sex before and that she knew nothing of sexual matters. VMGroup recovered internet searches for “hot kisses and sex” in October and November 2017, messages of a sexual nature during her stay with a friend in Limerick in March 2017, and an internet search as to the effect of diabetes on an erection during her stay with the same friend in July 2017. It is submitted that all of this information was relevant to the complainant’s credibility.

IV. Marriage Validity

31. The information recovered by VMGroup includes a conversation between the complainant and another person concerning the validity of the nikah/marriage ceremony between the complainant and the appellant which took place at Clonskeagh Mosque on the 1st December 2017. It is noted that this conversation occurred on the evening of the 3rd December 2017, this person reassures the complainant that the marriage she has entered into is valid. At trial, the complainant refused to accept that a marriage had occurred between her and the appellant.

32. It is the appellant’s position that the complainant was determined to remain in Ireland and that when it became clear to her that the nikah/marriage ceremony with the appellant was not going to provide her with a basis for remaining in Ireland, she instead made a complaint of sexual assault against him.”

Court of Appeal’s assessment of the materiality of the Newly Discovered Material

7. The grounds on which the appeal was successful related to the newly discovered evidence from the complainant’s phone regarding internet searches of sexual matters which are detailed under the heading of “Sexual Experience” in the conviction appeal judgment. The Court considered this material and its materiality on the trial of the applicant at para 68 –

85 of it’s judgment as follows:-

“68. The complainant gave evidence that she had never had sexual intercourse before and that she knew nothing of sexual matters. The new material discloses internet searches for “hot kisses and sex” in October and November 2017, whether it is normal to bleed when the hymen is ripped, which search is dated the 3rd December 2017, whether oral sex causes AIDS, the solution for vomiting during pregnancy, whether sperm can be transmitted by hand touch, whether sperm can be transmitted through clothing and how is the sperm transmitted to the egg. The last three lines coinciding with a visit to her friend MD in March 2017. Further internet searches related to the effect of diabetes on an erection, whether pregnancy can occur directly after a period and, finally, a search enquiry as to what is the pre-ejaculate fluid, again during her stay with the same friend in July 2017.

69. It is submitted that this information was relevant to the complainant’s credibility where the complainant’s contention was that she had never had sexual relations previously and knew nothing of sexual matters. It is argued on behalf of the appellant that the complainant is not a reliable historian, and that this material would have been of assistance in impugning her credibility.

70. The evidence on this issue of sexual inexperience was first mentioned in direct evidence. When describing one of the incidents the complainant said:-

“It was painful because I never had sex before, never.”

71. The following was said by the complainant in cross-examination:-

“I never had sex before, I don't even know how it happens, if it just -- for a sexual education, I don't know how it happens in reality….”

72. At a later stage she said:

“[I] don’t know how much, I don’t know how much even a girl would bleed because I was a virgin. No one touched me before.”

73. It was put to the witness in cross-examination that a conversation took place between her and the appellant following an occasion of sexual contact that she said that:-

“…every time I try this it doesn’t work?”

74. The complainant vehemently denied saying those words and responded:-

“[I] was a virgin. I never, ever had sex in my life. Never.”

75. This fresh material must be viewed in light of the other evidence at trial. The memoranda of interview with the appellant makes reference to the complainant telling him she was a virgin. He also made reference to the production of a tissue with blood on it which she showed to him after intercourse. He also stated that the complainant sent him a text message relating to the difficulties he said they encountered in having sexual intercourse as follows:- “Question: "At any stage did [the complainant] ever complain?"

Answer: "About?" Question: “The sexual intercourse?” Answer: “Sorry, complain in which way?" Question: "Did she ever make any complaints? Did she give out?" Answer: "She just texted me saying sorry, that she want to talk about it and that she had this problem before, that she can't have sex before.

She said she was a virgin, then says this. So that putting something in my mind." (our emphasis).

76. This, it appears to us is the height of the appellant’s contention, that while the complainant said she was a virgin, she also said, according to the appellant, that she had had sexual difficulties previously. The new material, it is said would have served to assist the defence in attacking her credibility on this issue, demonstrating that she had sexual experience.

77. It must be noted that the appellant’s contention in interview of this text message is not reflected in the device download before the court of trial or in the new material. The question is whether the new material could raise the possibility that she had sexual intercourse on a previous occasion, thus potentially damaging her credibility.

78. When we examine the material, it seems that none of the searches point directly to sexual intercourse, but many are indicative of a curiosity regarding sexual issues. The search relating to the question “Is it the normal to bleed when the hymen is ripped”, is perhaps the most significant, but that is dated the 3rd December 2017, a time coincident with the allegations before the court and so could be said to be of greater assistance to the respondent and of potential concern to the appellant.

79. The fresh material does not necessarily show that the complainant engaged in sexual intercourse, rather, it could be said that the material is indicative of a person who is somewhat ignorant of matters sexual and is making enquires in that regard. This is supported by the range in the searches, queries of various kinds ranging from – “does oral sex cause AIDS”, “what cause a less period”, “how is the sperm transmitted to the egg.”

80. Having said that, the defence argument bears careful consideration, that is that the material would assist in impugning the complainant’s credibility. In that regard, it must be acknowledged that there are some concerning coincidences regarding the timing of certain of the messages, those being while the complainant was staying with her friend, MD. These searches could have provided a fruitful line of cross-examination. Indeed, it seems from a perusal of the transcript that some attempts were made to proceed down this line of enquiry, certainly by way of insinuation regarding the complainant’s visits to MD, notwithstanding the absence of an application under s. 3 of the Criminal Law Rape Act, 1981. However, no such application could have been made on foot of the material available at the time of trial.

81. Those searches in respect of which we have a concern relate to queries about sperm transmission, in particular, whether sperm can be transmitted by hand, through clothing and how the sperm reaches the egg. While not directly indicative of queries relating to sexual intercourse, they are potentially indicative of some kind of interest or perhaps even engagement in sexual activity. Those searches were in March 2017, at a time when the complainant was residing with her friend. The second sequence of searches are dated July 2017, and relate to searches about pre-ejaculate fluid, whether diabetes can impair sexual ability and whether pregnancy can happen right after a period. The last search causes us concern in that it is clearly suggestive of a concern regarding pregnancy. The issue of diabetes is difficult to fathom but would certainly seem to be something which a legal team might pursue by way of pre-trial disclosure.

82. It might well be that the complainant could offer an explanation for the searches if asked, perhaps the enquiry was made on behalf of someone else or perhaps there may be some other explanation, but where the complainant asserted that she had never had sexual intercourse before and had in effect no sexual experience, and where the searches took place at a time when she was staying with her friend MD, this material could well be said to be significant.

83. We do not consider the searches in and of themselves to meet the threshold required, but the timing is significant. The dates of some significant internet searches coincide with the times when the complainant resided with her friend MD, and we believe consequently that the fresh material could have had an important influence on the outcome of the trial.

84. We are persuaded that the fresh material of sexual experience, when viewed in the context of the evidence at trial, is sufficient to satisfy the test and we admit the evidence for the purpose of the appeal.

85. There must be a possibility that if the material had been available to the trial judge, that an application to cross-examine the complainant on prior sexual experience under s. 3 of the Criminal Law Rape Act, 1981, as amended, would have been made and possibly granted in circumstances where the complainant asserted that she had never had sexual intercourse or knew anything of matters sexual.”

8. The other newly discovered material from the complainant’s phone considered by the Court under headings of “Immigration and Asylum” and the “Clonskeagh Mosque” was found not to be material to the applicant’s appeal.

9. In relation to “Immigration and Asylum”, the conviction appeal judgment sets out at paras 59 – 66:-

“59. The complainant was cross-examined regarding internet searches in July 2016 concerning immigration and asylum. It is said that in her direct testimony, the complainant’s evidence was to the effect that the notion of seeking residence in Ireland only came to her when she attended a conference at the University of Limerick in November 2017. Her evidence on this decision in direct testimony was as follows:-

“Q. And can you tell us were you due to go back to [North Africa] the following week?

A. Yes. My visa was expiring, like, in five days so 20th was the last date when I was meant to go back home.

Q. Okay. So, the visa expired on the 20th, so that would be the Monday; is that right?

A. Yes. Okay. And can you tell us then did you make any decision at that stage about whether or not you were going to go home? Yes. I was thinking of not going back home and it was a considerable thought, like I would say like 70%, just 80% I was making my mind I'm not going back.

Q. Yes.

A. And I remember I discussed this with my friend and he honestly advised me that it's not the best thing to do. He told me that it would be better if I could go back to my family and be with my mother and my parents anyway but I didn't listen to him. I was determined that I'm not going back home.

Q. And can you tell us, broadly speaking, why you didn't want to go back home?

A. I wasn't, I don't know, I wasn't happy with so many things.

Q. Yes.

A. My family circumstances, I had all the time to fight with my brothers who were living in the big house with us with their kids and I wasn't happy with my job either. It was too long a journey for me, the salary, the toxic environment around, lots of problems, administrative issues, the corruption and my family was also trying to force a marriage on me. So, I had to argue all the time, sometimes I'd get into fights with my eldest brother or the youngest. So, I wasn't happy with the way I was treated.

Q. All right. And did you make a decision then in Limerick not to go home?

A. Yes.”

60. The appellant contended at trial that the complainant was motivated into making what was suggested to be a false complaint by her desire to seek asylum and/or otherwise remain here.

61. In cross-examination on the extent of her research into international protection and asylum, the following exchange took place:-

“Q. […] So, the thing is you didn't Google her, you in fact mentioned in your own words that it wasn't part of your researches, the mosque?

A. No, no.

Q. Your researches were directed to the IPO office and all the asylum conditions and so on?

A. I never researched anything, never, really. I just arrived. I was torn if I should go or not and I came to Dublin on that day, whatever, Monday I think, and I researched the IPO office and I went there. I submitted an application. Well, I say IPO now, it's because I lived in that system and I know what it is but before I don't know anything about seeking asylum, anything about the refugee system or nothing, I didn't research anything. I did everything myself just Googling like to find the place and I didn't know the process. So, there was guidance all over. There was officers that would guide you what to do. It was very strange to me. I never was in one.”

62. An examination of the ‘Autofill’ category of the new material reveals that the complainant had carried out some internet searches regarding residence, marrying an Irish resident, visa applications in Ireland. These searches were carried out in 2016 and 2017. She also researched visa UK tourist visa requirements in January 2017 and whether officials could check for illegal entry to Ireland. The appellant’s contention is that if the material was available at trial, a more specific crossexamination would have been possible. Moreover, it is pointed out that the defence were stopped from continuing with this line of cross-examination regarding her intentions to remain here before she departed from North Africa.

63. In assessing whether the absence of this material impacted upon the quality of cross-examination that took place, it must be recalled that a number of matters became clear in evidence. The complainant had in fact been in the UK for a period of some months prior to November 2017 and had travelled to Ireland twice before November 2017, once in March and once in July at a time when she did not realise she was not entitled to cross the border. She did not include this in her asylum application. She had said that she had stayed in a B&B in Limerick, and she subsequently acknowledged that she had stayed with her friend, MD. She accepted that she had not initially told the Gardaí of her previous trips to Ireland, and that an additional statement had to be taken to clarify this.

64. The absence of the new data cannot be considered in isolation. The appellant contends that had the material been available at trial, the information would have lent support to the appellant’s contention that the motivation behind the complaint was that the complainant was determined to remain in this jurisdiction and that when she realised the “nikah” ceremony would not provide her with a basis to remain here, she made a false complaint.

65. When one looks to the internet searches on residency and asylum, a limited number were made in 2016, and concerned residence in this jurisdiction, and immigration rules concerning marriage here, some concern visa requirements in the UK and Ireland and transit visas from the UK to Ireland. Clearly the latter signal her concerns with travel from the UK to Ireland.

66. There was, in our view, material with which to seek to impugn the complainant’s credibility on the issues where the complainant had been less than forthright with the authorities. The additional new material would not have added anything of significance in our opinion. The argument is advanced that the material demonstrates a willingness to be disingenuous on the complainant’s part, however, we do not see that the new material would have advanced that proposition over and above that already available to the defence at trial. The material does not reach the threshold for admissibility.”

10. In relation to the “Clonskeagh Mosque”, the conviction appeal judgment set out at para.

67 as follows:-

“II. Clonskeagh Mosque

67. The complainant was cross-examined about her knowledge of the Mosque at Clonskeagh and stated that the first time the Mosque was mentioned to her was by her friend, MD. The appellant refers to searches in the “Autofill” category on the 21st November 2017 concerning the Islamic Centre, Clonskeagh and contends that this is material. We cannot agree, it is not a matter of any substance at all and moreover, the searches were conducted at a time when the complainant was already in the State and staying with MD, having arrived on the 16th November 2017.”

11. Grounds of appeal not relating to this newly discovered evidence were not considered in the conviction appeal judgment. A retrial was ordered by the Court.

12. The matter was returned before the Central Criminal Court the following day, 23 May 2023 and a trial date in respect of the sexual assault charge was assigned. On 24 May 2023, a nolle prosequi was entered in respect of this charge. An affidavit of Margaret Moran, filed on behalf of the respondent, avers:-

“A decision was made to enter a nolle prosequi due to the overall circumstances of the case, and in particular due to the lack of willingness of a key witness to give evidence in the case.”

Miscarriage of Justice Application

13. On 12 July 2024, the applicant brought an application before this Court seeking a certificate that a newly discovered fact shows that there has been a miscarriage of justice.

The grounds for the application, having recited paras 68 – 85 of the appeal decision, set out as follows:-

“The Applicant will contend that the new analysis of the mobile phone constitutes a newly discovered fact. The Applicant will contend that this newly discovered fact, together with the decision of the Respondent to enter a Nolle Prosequi in relation to the matter when it was returned for retrial shows that there has been a miscarriage of justice in this case. The applicant will contend that he does not need to show fault or blame, and that by reason alone of a miscarriage of justice due to the newly discovered fact, he is entitled to a certificate pursuant to Section 2 of the [the 1993 Act].”

14. As an aside, whilst the papers grounding this application refer to the certificate being sought pursuant to s. 2 of the Criminal Procedure Act 1993 (‘the 1993 Act’), the appropriate section to seek certification of a miscarriage of justice is s. 9 of the 1993 Act.

We will return to this issue later.

15. Thereafter, the applicant swore a grounding affidavit in respect of his application. In reply, Ms. Moran swore an affidavit on behalf of the respondent, asserting that what had led to the applicant’s conviction being overturned did not amount to a miscarriage of justice but rather was a ‘correction’ of the criminal justice system within the meaning of DPP v. Abdi [2022] IESC 4.

16. Having applied to come off record on 11 April 2025, the applicant’s solicitor was granted this permission on 2 May 2025. The applicant did not engage new legal representatives.

17. On 12 May 2025, the applicant filed submissions on his own behalf which substantially widened the grounds upon which he sought a certificate that there had been a miscarriage of justice. The grounds now sought to be replied upon by the applicant are as follows:-

1. “Ground 1: Substantial Newly Discovered Evidence and the DPP responsibility for unsafe prosecution.

2. Ground 2: The Gardaí Investigation Team whether they conducted a fair investigation or Not.

3. Ground 3: Right to Verify the Complainant’s True Identity in the context of Miscarriage of Justice.

4. Ground 4: Denial of the Right to legal Representation of Choice, Resulting in an Unfair Trial.

5. Ground 5: Inappropriate Cross-Examination of My 14-Year-Old Daughter.

6. Ground 6: Failure by My Defence Counsel to Disclose Complete Garda Interview – Undermining the Integrity of My Defence and the Trial.

7. Ground 7: Trial Judge Restricted Defence and Denied Jury Discharge.”

18. With respect to ground 1, the newly discovered evidence which the applicant refers to in his submissions, relates to all of the newly discovered material found on the complainant’s phone, to include the material detailed in the conviction appeal judgment under “Immigration and Asylum” and “Clonskeagh Mosque” which the Court of Appeal determined not to be of materiality to the applicant’s conviction appeal.

19. On 18 June 2025, the respondent brought a motion seeking to: strike out a portion of the submissions made in relation to ground 1, on the ground that it had already been determined by the Court of Appeal that the newly discovered material relating to “Immigration and Asylum” and the “Clonskeagh Mosque” was not of materiality to the applicant’s conviction; strike out ground 2 on the basis that this issue had already been determined against the applicant in the appeal court judgment; and strike out grounds 3

– 7 on the basis that these grounds did not relate to any newly discovered fact. It was asserted that the grounds which the respondent sought to have stuck out were frivolous, vexatious and were bound to fail. It is this motion which this judgment relates to.

20. It should be noted that an application has not been brought by the applicant to amend and/or add to the grounds originally filed. For that reason, we are somewhat confused as to why the respondent felt the necessity to bring the motion seeking to strike out the new grounds 2 -7 and the expanded ground 1 as they are not properly before the Court.

The 1993 Act

21. Section 9 of the 1993 provides, inter alia:-

“9.—(1) Where a person has been convicted of an offence and either—

(a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and

(ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice,

…

the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.

…

(6) In subsection (1) “newly-discovered fact” means—

(a) where a conviction was quashed by the Court on an application under section 2 … , or has been acquitted in any re-trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings, and

(b) where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial.”

22. Section 2 of the 1993 Act provides, inter alia:-

“2.—(1) A person—

(a) who has been convicted of an offence either—

(i) on indictment, or

---

who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction …, may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction … .

…

(3) In subsection (1) (b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.

(4) The reference in subsection (1) (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.

(5) Where—

(a) after an application by a convicted person under subsection (1) and any subsequent re-trial the person stands convicted of an offence, and

(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent retrial shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,

he may apply to the Court for an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection.”

Jurisprudence to Strike Out a Miscarriage of Justice Application

23. In DPP v. Buck, [2020] IESC 16, the Supreme Court considered the jurisdiction to dismiss a miscarriage of justice application on the grounds that it was bound to fail. Charleton J., delivering the judgment of the Court, confirmed the availability of such a remedy to the respondent, whilst cautioning that it should be used “sparingly and only in clear cases”.

He sounded a word of warning in relation to the use of the procedure in light of the rigorous assessment which much be engaged in with respect to an application to dismiss and the high standard which must be met for such an application to be successful. He questioned whether, having regard to the level of analysis required, the bringing of such an application could be in aid of the efficient use of court resources. Nonetheless, certain matters were identified by Charleton J as not falling within the definition of “newly discovered fact”, meaning that a miscarriage of justice application which relied on such matters was bound to fail. He identified these matters at para 39 of his judgment as:-

“[A] ruling of law is not a newly discovered fact, nor is a fresh argument on a fact and nor is an opinion on fact a newly discovered fact, unless there has been an advance of scientific knowledge that in reality changes the nature of a fact… Similarly, where the same fact has been brought forward and has been analysed on a prior occasion or has been disposed of in the same form on an appeal, it cannot be said that there is a new fact and hence an application asserting a miscarriage of justice is bound to fail.”

Discussion and Determination

24. The applicant seeks a certificate to the effect that “a newly discovered fact shows that there has been a miscarriage of justice”. Whilst s. 2 of the 1993 Act is referred to in his Notice of Appeal, the certification of a miscarriage of justice is provided for by s. 9 of the 1993 Act.

25. Section 2 of the 1993 Act relates to a situation where a conviction remains in being after an appeal and any retrial. The section permits a convicted person, who asserts that a new or newly discovered fact establishes that there has been a miscarriage of justice in his or her case, to apply to the Court to seek to have the conviction overturned. This application is permitted to be made if no other proceedings are pending in relation to the appeal.

26. Section 9 of the 1993 Act relates to the situation where a conviction has already been quashed whether on foot of the normal appeal process or pursuant to a s. 2 of the 1993 Act application; and if a re-trial was ordered in either process, the outcome of the re-trial is an acquittal. In such circumstances, a person can seek certification from the Court of Appeal, or the court of re-trial, that a newly discovered fact shows that there has been a miscarriage of justice.

27. Accordingly, the s. 9 procedure relates to the certification of a miscarriage of justice in a situation where the conviction no longer is in existence. This differs from the s. 2 procedure where the conviction is in existence and the purpose of the application is to seek to have the conviction overturned because of the new or newly discovered fact.

28. To obtain a certificate, pursuant to s. 9(1)(ii) of the 1993 Act, an applicant must establish

a) that a newly discovered fact is in existence and b) that this newly discovered fact shows that there has been a miscarriage of justice. Any other complaint regarding the conduct of the original trial, which does not relate to the “newly discovered fact” is not of relevance to the question of certification.

29. Applying this analysis to the relief sought by the respondent, the following is our view:-

Ground 1

30. The newly discovered material in the instant matter is the extended analysis of the complainant’s phone discovered by the experts engaged on his behalf after his conviction.

Whilst this material related to “Immigration and Asylum” issues; the “Clonskeagh Mosque”; and matters categorised as “Sexual Experience”, the Court of Appeal has already determined that the material categorised under “Immigration and Asylum” and the “Clonskeagh Mosque” was not of materiality to the applicant’s conviction appeal.

Accordingly, applying Buck, this material has already been considered, analysed and disposed of in the applicant’s appeal against conviction and cannot be considered to be a newly discovered fact. Therefore, reliance by the applicant on these aspects of the analysis of the complainant’s phone is bound to fail. We therefore are prohibiting reliance on this material in the course of the s. 9 application, as it is not of relevance to our determination.

Ground 2 – Police investigation

31. The applicant in the course of the hearing before us indicated that he was prepared to withdraw reliance on this ground for the purpose of the s. 9 application. This was an appropriate concession for him to make in light of the determination by the Court of Appeal in his conviction appeal that fault did not lie with the investigating guards with respect to the more limited analysis of the complainant’s phone which was provided to the applicant prior to his trial.

32. Kennedy J stated at paras. 49 and 50 of the conviction appeal judgment:-

“49. It is apparent that the proposed fresh evidence came to light post-conviction.

It is the position that the complainant’s device was available for inspection by the defence prior to trial as was the USB key/disc with the extracted data. However, it seems that an examination of the device itself was not conducted. The report by the expert retained by the first legal team and exhibited to Ms McCumiskey’s affidavit sets out the history of analysis whereby the instructions were received to carry out a limited analysis of handset content. Following trial, an examination of the device itself was conducted and further material extracted by the experts retained utilising updated software.

50. First, we say that are not at all satisfied that there was any attempt on the part of the Gardaí to deliberately withhold relevant evidence. Two explanations were offered on behalf of the respondent for the discrepancy in information; first that Cellebrite software is constantly updated which is not within the respondent’s control and second, that a situation may arise whereby another user of the software may have set the equipment so as to exclude certain categories of information. We are satisfied that there was no question of culpable failure to disclose on the part of the Gardaí.”

33. Accordingly, Ground 2 as set out in the applicant’s submissions will not be pursued by him and we are in any event prohibiting it.

Grounds 3 – 7

34. The remainder of the grounds set out in the applicant’s submissions do not rely on any newly discovered fact. They raise disclosure issues (demand for sight of the complainant’s immigration file) and conduct of trial issues (complaints about legal representation; cross examination of his daughter; the manner in which his garda interviews were adduced in evidence; and the trial judge’s conduct of the trial). These are appeal ground matters and do not fall within the jurisdiction of the Court when considering certification of a miscarriage of justice pursuant to s. 9 of the 1993 Act. Accordingly, they are grounds which are doomed to fail in the applicant’s s. 9 application and we will prohibit reliance on them.

35. We will therefore grant the respondent the relief sought in paras 1 – 7 of the respondent’s Notice of Motion and further direct that the applicant is restricted to relying on the newly discovered evidence as set out at paragraphs 68 – 85 of the conviction appeal judgment.

Approved No Redaction Needed