The Court of Criminal Appeal has refused two applications by M.S.: one for a certificate allowing an appeal to the Supreme Court, and another to quash his conviction on the basis of new evidence.
In a judgment delivered on 31 July 2007, the court said M.S. had not identified a point of law of exceptional public importance for certification under section 29 of the Courts of Justice Act 1924. It said his submissions repeated allegations about Garda misconduct and perjury but did not set out evidence in sufficient detail to support them. The court also said he had identified no qualifying legal question arising from its earlier decision of April 2006.
The section 2 application under the Criminal Procedure Act 1993 sought to reopen the conviction. M.S. relied on allegations concerning Garda conduct, two witnesses he said could have assisted at trial, and documents from the Department of Social Welfare that he said would support his account of where he was at the time of the alleged assaults.
The court said the allegations about pre-trial conduct and evidence at trial were known, or could have been discerned, at the time. It said the proposed witnesses and their likely evidence were also known before or during the trial. M.S. said they had not received adequate notice to attend and that he had not appreciated the significance of their evidence.
The judgment said there was no written indication from either witness describing the evidence they might give, and no affidavit from M.S. setting out what they would say. Nor was there supporting material from the Department of Social Welfare before the court. It concluded that the material presented did not establish new facts or show that the verdict was unsafe.
The court also noted that the issues had been considered in earlier applications and said the section 2 claim would ordinarily be barred because they had already been determined. It restated that proposed new evidence must not have been reasonably obtainable at trial, must be credible, and must have a material and important potential influence on the result when considered alongside the trial evidence.
M.S. had been convicted in 2000 on six counts of indecent assault and one count of sexual assault involving his daughter. The original two-year concurrent sentences were increased on a Director of Public Prosecutions application in 2003 to an effective four years. The present judgment made no order quashing the conviction and refused both applications.