The Court of Appeal has quashed W.I.’s conviction for sexual assault and ordered a retrial after admitting fresh evidence recovered from the complainant’s mobile phone. The court found that some searches could have had an important influence on the jury’s verdict.
W.I. was convicted on 19 April 2021 of one count of sexual assault relating to an incident in County Dublin on 1 December 2017. He appealed and sought leave to introduce digital forensic evidence recovered after trial from the complainant’s phone, identified in the judgment as GR5. His other grounds of appeal were not decided because the court considered the fresh evidence sufficient to resolve the appeal.
The Garda extraction disclosed 12,384 lines of information. A later analysis by VM Group recovered 43,415 lines. The Garda explanation was that software available in 2018 could not recover some material, and that shared equipment settings could also account for missing data. The Court of Appeal rejected any suggestion that Gardaí deliberately withheld evidence and found no culpable failure to disclose.
The court considered four categories of material raised by W.I. It found that searches about immigration and asylum added nothing significant to material already available to the defence. Searches relating to Clonskeagh Mosque were not substantial, as they were made after the complainant had arrived in Ireland. The court also found that the marriage-validity conversation did not determine the appeal.
The court reached a different conclusion about searches concerning sexual matters. At trial, the complainant said she had never had sexual intercourse and knew little about sexual matters. The newly recovered searches included questions about sperm transmission, pregnancy and pre-ejaculate fluid. Some dated from periods when she was staying with a friend, identified as MD. The judges said the searches did not themselves establish that she had had sex, but their timing could have supported a line of cross-examination.
The court held that the fresh evidence met the test for admission on appeal and could have had an important influence on the verdict. It said the material might have supported an application to question the complainant about prior sexual experience under the relevant legislation. The court did not determine whether such an application would have been granted.
The conviction was quashed and a retrial ordered. The judgment does not determine the allegation anew or state the outcome of any retrial.