The Supreme Court has refused an application by Michael McKevitt to set aside its earlier dismissal of his criminal appeal, ruling that a mistaken reference to photographic evidence could not have affected the outcome.
The Court dismissed the appeal on 30 July 2008. McKevitt later applied to have that decision set aside and the appeal reheard. His application, submitted on 2 December 2008, relied on an affidavit from his solicitor and concerned a passage in the earlier judgment about Garda surveillance sightings of McKevitt and Mr Rupert.
The passage referred to photographic evidence of the two men entering a house separately and leaving together. McKevitt’s solicitor argued that no such photographs had been tendered at trial. The Supreme Court said the Director of Public Prosecutions had conceded in correspondence that the reference to photographic evidence in its written appeal submissions was erroneous. The Court said the error had entered its judgment through those submissions.
The Court criticised the DPP for not correcting the error after McKevitt’s solicitor had raised it. It also said McKevitt’s solicitor and counsel should have brought the matter to the Court’s attention when it became apparent the DPP had not done so. The judgment said the primary responsibility rested with the party that made the erroneous statement, but other parties who knew of it also had a duty to raise it or say the fact was disputed.
The Court said its earlier discussion concerned the timing of disclosure of notes about Garda surveillance at McKevitt’s residence on 17 February 2000. It said the Garda sightings themselves were not in issue in the appeal. The earlier appeal decision had found that late disclosure of the surveillance material was not sufficiently prejudicial to call the fairness of the trial into question. The Supreme Court concluded that the mistaken reference to photographs had no material bearing on that assessment or on the other limited grounds of appeal.
The Court explained that it can exceptionally review a final decision where an applicant establishes circumstances requiring a remedy in the interests of constitutional justice. It said an application must raise a substantive issue of constitutional justice and objectively demonstrate a denial of justice. It found McKevitt’s application manifestly unfounded and refused it without hearing further submissions from either party. The ruling did not revisit the question of guilt or innocence.