The Court of Appeal has refused an application by M.A. to reopen the conviction part of his appeal after it had already dismissed that appeal in 2020.
The motion, dated 19 July 2021, sought permission to add a ground arguing that the trial judge should have held a voir dire—a separate hearing to assess admissibility—before admitting evidence from a Garda about a complaint made by the complainant. The Court of Appeal delivered its ruling on the motion on 21 June 2022.
M.A. was convicted of rape by an 11-1 jury verdict in May 2019. The jury disagreed on a separate sexual assault count, which the Director of Public Prosecutions later discontinued. He received an eight-year prison sentence, with the final 18 months suspended conditionally. His appeal against conviction was dismissed in December 2020. His separate appeal against the severity of his sentence remained outstanding when he brought the motion.
The proposed new ground focused on Garda [K.G.]’s evidence that the complainant had told her oral sex had occurred. The appellant’s solicitor said the Garda’s notebook contained only a brief note of their meeting, that the Garda was present when the complainant later told a nurse oral sex had not occurred, and that the Garda’s detailed statement was made months afterward. The defence had asked the trial judge to test the Garda’s account in a voir dire.
The Director’s submissions disputed the account that no voir dire had taken place. The Court noted that the trial judge had first considered admissibility on the basis of a witness statement. After that ruling, defence counsel sought to reopen the voir dire, pointing to the lack of detail in the Garda’s contemporaneous notes. The trial judge refused, treating that issue as a matter for cross-examination before the jury.
The Court of Appeal held that, although the sentence appeal remained pending, the conviction appeal had been fully heard and decided. It said reopening that part of the case required a clear and undisputed procedural error, new or newly discovered facts indicating a miscarriage of justice, or exceptional circumstances making reopening necessary to avoid manifest injustice. Such jurisdiction, the court said, should be exercised sparingly.
The court found that the Garda was not a witness to the alleged crime and that her complaint evidence was admitted only to show consistency. Her record-keeping could be—and was—tested in cross-examination before the jury, which the court considered no less equipped than the trial judge to assess her reliability. It found no basis to conclude the ruling caused injustice, no exceptional circumstances, and no adequate explanation for why the point had not been raised in the original conviction appeal. The motion was refused. The sentence appeal was not determined by this judgment.