APPROVED JUDGMENT THE COURT OF APPEAL [2026] IECA 75 Record Number: 198CPA/2024 McCarthy J. Kennedy J. Meenan J. BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT/ - AND W.I. APPLICANT JUDGMENT of the Court delivered (electronically) on the 1st day of May 2026 by Ms. Justice Isobel Kennedy.
- This is an application brought by the applicant, W.I., pursuant to s.9 of the Criminal Procedure Act, 1993 (“the 1993 Act”) seeking a certificate that the applicant has suffered a miscarriage of justice. Background
- On the 19th of April 2021, the applicant was convicted before the Central Criminal Court of sexual assault and was sentenced on the 19th of July 2021 to 6 years imprisonment with 6 months suspended. The jury disagreed on other counts and a nolle prosequi was entered in respect of those counts on 31st of January
- The applicant appealed against his conviction and the conviction was quashed by this Court on the 22nd of May 2023 (DPP v WI [2023] IECA 148). The within judgment may be read in conjunction with the earlier judgment quashing the applicant’s conviction.
- A full factual background of the alleged offending is contained in the conviction appeal judgment and does not require repetition here for the purpose of this application.
- This Court quashed the conviction as the complainant’s handset/phone had been examined by an expert for the applicant after the trial and additional material was gleaned which revealed 43,415 lines of information on the handset, whereas the garda extraction file revealed 12,384 lines of information. This material contained references to sexual matters which in the judgment of this Court “could have had an important influence on the outcome of the trial”.
- A re-trial was ordered, and the respondent entered a nolle prosequi on the 24th of May
- An affidavit filed on behalf of the respondent provided that a “decision was made to enter a nolle prosequi due to the overall circumstances of the case, and in particular due to the lack of willingness of a key witness to give evidence in the case.”
- On the 12th of July 2024, the applicant brought an application before this Court seeking a certificate that a newly-discovered fact shows that there has been a miscarriage of justice. On the 18th of June 2025, the respondent issued a motion seeking to strike out certain grounds on which the applicant sought to rely, and in a judgment delivered on the 4th of November 2025 (DPP v WI [2025] IECA 244), this Court directed that “the applicant is restricted to relying on the newly discovered evidence as set out at paragraphs 68-85 of the conviction appeal”. Paragraphs 68-85 of the conviction judgment contained the Court’s consideration of the material from the complainant’s phone regarding internet searches of sexual matters, which were detailed under the heading of “Sexual Experience”. The following extracts from the conviction judgment are relevant to this application:
- …[t]he defence argument bears careful consideration, that is that the material would assist in impugning the complainant’s credibility. In that regard, it must be acknowledged that there are some concerning coincidences regarding the timing of certain of the messages, those being while the complainant was staying with her friend, MD. These searches could have provided a fruitful line of cross-examination. Indeed, it seems from a perusal of the transcript that some attempts were made to proceed down this line of enquiry, certainly by way of insinuation regarding the complainant’s visits to MD, notwithstanding the absence of an application under s. 3 of the Criminal Law Rape Act,
- However, no such application could have been made on foot of the material available at the time of trial.
- We do not consider the searches in and of themselves to meet the threshold required, but the timing is significant. The dates of some significant internet searches coincide with the times when the complainant resided with her friend MD, and we believe consequently that the fresh material could have had an important influence on the outcome of the trial.
- We are persuaded that the fresh material of sexual experience, when viewed in the context of the evidence at trial, is sufficient to satisfy the test and we admit the evidence for the purpose of the appeal.
- There must be a possibility that if the material had been available to the trial judge, that an application to cross-examine the complainant on prior sexual experience under s. 3 of the Criminal Law Rape Act, 1981, as amended, would have been made and possibly granted in circumstances where the complainant asserted that she had never had sexual intercourse or knew anything of matters sexual.” The Legislation
- The relevant portions of s. 9 of the 1993 Act provide as follows:9.—
(1)Where a person has been convicted of an offence and either— (a)(
- i)his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and (
- ii)the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice, or (
- b)(
- i)[ ] (
- ii)[ ] the Minister shall, subject to subsections
(2)and
(3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.”
- An application for a certificate pursuant to s.9 of the 1993 Act is a civil procedure where the onus rests on the applicant to prove on the balance of probabilities that a newly-discovered fact demonstrates that there has been a miscarriage of justice. For a certificate to be granted, this Court must be satisfied that there has actually been a miscarriage of justice.
- The authorities are clear that the quashing of a conviction in itself is insufficient to establish to the requisite standard that there has been a miscarriage of justice. In the present case, the applicant contends that the failure of the State to disclose the entirety of the lines of information subsequently retrieved by the defence expert from the complainant’s handset demonstrates a grave defect in the administration of justice so that the prosecution was fundamentally undermined. He says that the failure to provide this material amounts to a miscarriage of justice and that this Court ought to grant a certificate pursuant to s.9 of the 1993 Act. Newly-Discovered Fact
- A newly-discovered fact differs from that which may constitute a new-fact. Section 9 is triggered by a newly-discovered fact and section 9
(6)of the 1993 Act defines a newly-discovered fact as: “
(6)In subsection
(1)“newly-discovered fact” means— (
- a)where a conviction was quashed by the Court on an application under section 2 or a convicted person was pardoned as a result of a petition under section 7 , or has been acquitted in any re-trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings, and (
- b)where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial.” 12. Where a conviction is quashed on appeal or where an individual has been acquitted on a re-trial, this Court may then embark upon an enquiry as to whether a newly-discovered fact shows an actual miscarriage of justice. 13. The applicant submits that the legal basis for this application is that s.9 of the 1993 act permits a person whose conviction has been quashed and who was either acquitted or discharged at retrial, to seek certification that a newlydiscovered fact demonstrates a miscarriage of justice. The applicant contends that the conviction appeal judgment confirmed that the material relating to the sexual experience of the complainant could have influenced the trial outcome. 14. The applicant argues that the Director has a duty of disclosure and that she failed to properly disclose all material in this case, leading to a miscarriage of justice. 15. It is submitted that the applicant has suffered significant harm as a result of this miscarriage of justice, which he outlines in his submissions of the 14th of January 2026, however, this aspect is not relevant to the determination of this Court under s.9 of the 1993 Act. Submissions of the Respondent 16. The respondent contends that the quashing of the applicant’s conviction was a correction in the system and relies on People (DPP) v Abdi [2022] 2 ILRM 1. The test is whether there has been a grave or fundamental defect in the justice system so that the prosecution was fundamentally undermined. The Director contends that the applicant has failed meet the necessary threshold. 17. It is submitted that the applicant has failed to advance in clear terms what the material gleamed from the phone analysis subsequent to the trial establishes as a newly-discovered fact. It is also noted that in the conviction judgment, this Court found that the material “could have had” an important impact on the trial, but did not go so far as to suggest that the prosecution was “fundamentally undermined”, as was the case in Abdi. It is therefore submitted that the error, even if of significance, does not meet the threshold for a certificate to be granted by the Court in all the circumstances. Discussion 18. It is clear that the procedure under s.9 of the Act requires more than the quashing of a conviction, or on a re-trial, the acquittal of an individual. There must be a finding of an actual miscarriage of justice. This may arise where factual innocence is established or where there has been a serious malfunction in the system of justice. In People (DPP) v Wall [2005] IECCA 140, the court provided examples of circumstances which may constitute a miscarriage of justice to include:- “(
- c)Where there has been such a departure from the rules which permeate all judicial procedures as to make that which happened altogether irreconcilable with judicial or constitutional procedure. (
- d)Where there has been a grave defect in the administration of justice, brought about by agents of the State.” 19. Charleton J. in Abdi provides further assistance as to what may amount to a miscarriage of justice, saying at para. 46:“A miscarriage of justice can arise due to prosecution fault, as in the concealment, or material non-disclosure, of witness statements focused on a central issue in the prosecution case which tend to support an actual defence for the accused: People (DPP) v Conmey [2010] IECCA 105. This amounts not just to the justice system correcting itself but to the substantial failure of the system to administer justice in the first place.” And at para. 48:“Cases will depend on their own facts. But, if innocence is not demonstrated in consequence of an acquittal following on the discovery of a new fact, then for a certificate of a miscarriage of justice to issue, what is required is that the accused demonstrate such bad faith on the part of the State authorities (as in Wall or Conmey) that undermines the justice system, or such a failure in the administration of justice (as in Meleady or Hannon) due to error that the prosecution is fundamentally undermined. This goes beyond the system correcting itself and is not established merely by the acquittal of the accused. The matter is a civil application requiring the accused applying for a certificate to bear the burden of establishing a miscarriage of justice. Where the accused can demonstrate innocence, that case is made out (as in Hannon) despite the prosecuting authorities not being in any way at fault in terms of concealment or other grave wrong.” 20. In the present case, the applicant’s legal team were furnished with extracted material from various mobile phones including that of the complainant. As is stated at para. 42 onwards of the conviction judgment, the method of extraction deployed by the gardaí did not extract hidden or deleted files. Additional material was subsequently located on a further analysis by experts engaged on behalf of the applicant. The garda position was that more advanced software was available in 2021 than was available in 2018, and any contention of deliberate withholding of evidence was strenuously denied. 21. The primary evidence against the applicant at trial was that of the complainant who gave evidence inter alia that she had never had sexual intercourse prior to this and knew nothing of sexual matters. The new material disclosed internet searches of a sexual character. The applicant’s then legal team contended on appeal that the information was relevant to her credibility in this regard. 22. This Court determined that the timing of the internet searches was of importance and that the fresh material could have had an important influence on the outcome of the trial and that there was a possibility that an application to cross examine the complainant under s.3 of the Criminal Law (Rape) Act 1981 would have been made to the trial judge. 23. This Court rejected any contention of a deliberate failure by the State to retrieve the material in question. Decision 24. On appeal, this Court determined that the new material found on the complainant’s handset could have had an important influence on the outcome of the trial, and quashed the conviction and ordered a re-trial (which ultimately did not proceed). No finding was made by this Court on appeal of any deliberate wrongdoing on the part of the State. The facts of the failure to disclose in this case are far removed from that which occurred, for example, in People (DPP) v Meleady and Grogan (No. 3) [2001] 4 IR 16. 25. The respondent was entitled to rely on the evidence of the complainant, the new material may have enabled the applicant to move an application under s.3 of the Criminal Law (Rape) Act 1981, which if successful would have enabled cross examination on the issue of prior sexual experience. The new material found on the phone was only relevant to this limited extent, and the material could not be said to be of central significance. 26. We are satisfied that the failure to retrieve and thence disclose the additional material subsequently located on the complainant’s handset does not constitute a failure in the administration of justice so that the prosecution was fundamentally undermined. Whilst fault on the part of the State is not necessary under s.9, an actual miscarriage of justice must be established. It is clear in this case that the ordinary carriage of justice has operated with the system correcting itself through an appeal. 27. The failure to retrieve and disclose this material amounts simply to an error which was addressed on appeal. This is a classic example of the justice system correcting itself and does not constitute a miscarriage of justice. A certificate does not issue simply on the basis of the quashing of a conviction or an acquittal on a re-trial- an actual miscarriage of justice must be established. We are not persuaded that the applicant had reached the threshold required for the issuance of a certificate. 28. Accordingly, the application for a certificate is refused.