The Court of Criminal Appeal has refused an application by M. S. to quash his convictions, finding that he had not established grounds for relief under section 2 of the Criminal Procedure Act 1993.
M. S. was convicted in the High Court on 11 December 2000 of six counts of indecent assault against his daughter, relating to 1982 to 1988, and one count of sexual assault on 24 October 1989. The judgment says she was aged between seven and 12 during the earlier offences. The trial was presided over by Mr Justice Carney. He imposed concurrent two-year prison sentences on each count.
The Director of Public Prosecutions later sought a review of the sentences as unduly lenient. In November 2003, the Court of Criminal Appeal increased the sentence. M. S.’s subsequent application for a certificate to pursue an appeal to the Supreme Court was refused in December 2004.
The present application was heard on 10 March 2006. Representing himself, M. S. argued that new evidence was available from his two sisters, identified in the judgment as Mrs L and Mrs C. He said they could testify that premises in Dublin where the complainant said some assaults occurred had already been sold on the dates in question. He also alleged Garda misconduct, improper conduct at trial and that acquittals on rape counts in the same indictment should have been considered when assessing the convictions.
The DPP argued that the proposed testimony was not new evidence, but evidence from witnesses who could have been called at trial. The prosecution also submitted that the allegations of Garda misconduct and trial impropriety were not supported by specific material, and that the acquittals concerned different allegations and evidence.
The court concluded that M. S. had not explained why evidence about the sale of the premises could not have been obtained before trial; it noted that the sale had occurred well before trial. It found no material facts or evidence supporting the allegations of misconduct or improper trial conduct, and was not satisfied that the acquittals were a relevant factor for the trial judge or jury to consider.
The court refused the motion. It did not quash the convictions. The judgment addressed an application under section 2, which allows an application to quash a conviction or review a sentence on the basis of a new or newly discovered fact said to show a miscarriage of justice or excessive sentence.