Frank McCann, found guilty of murdering his wife by causing a fire in their home six years ago, is again to appeal his conviction on grounds that new evidence will establish his innocence.
The Circuit Court president, Mr Justice Esmond Smyth, heard yesterday that the new challenge would be made under legislation introduced a year after the fire in which Mrs Esther McCann, and the couple's foster baby, Jessica, died.
Mr Paul Carroll, counsel for McCann, said Section 2 of the 1993 Criminal Procedure Act had allowed persons who had exhausted the normal appeals procedure to apply for leave to appeal again where a newly discovered fact was alleged to show a miscarriage of justice.
The legislation allows McCann to apply again to the Court of Criminal Appeal despite the fact this court has already dismissed one appeal against conviction.
Mr Carroll said he was telling the court McCann did not murder his wife.
His client had instructed his solicitors to seek an application under the 1993 legislation on the grounds there was now evidence to suggest he was not the murderer of his wife.
The challenge was revealed during an application by the murdered woman's mother, 85-yearold Mrs Bridget O'Brien, to strike out parts of McCann's defence to her claim that she, and other relatives, were entitled to damages for loss and suffering.
Mr Feichin McDonagh, counsel for Mrs O'Brien, of Glenview Lawn, Tallaght, Co Dublin, said she was also seeking a declaration that she is entitled to a half beneficial interest in her daughter's former home at Butterfield Avenue, Rathfarnham.
Mr Justice Smyth said that McCann in his defences to both Civil Bills served by Mrs O'Brien had denied he unlawfully killed his wife.
"I am entirely satisfied this constitutes an abuse of the process of the courts and is an attempt to relitigate matters which have been finally determined by courts competent to do so within their jurisdiction," Mr Justice Smyth said.
He had been told new instructions had been given to proceed in the Court of Criminal Appeal to seek to persuade that court there was some new evidence which could cast doubt on the guilt of the convicted murderer.
It seemed to him that to entertain a stay of his decision pending the outcome of such proceedings, not yet before any court, could constitute an abuse of the process of the court and he granted the orders sought by Mrs O'Brien striking out McCann's denials to having committed the murder.
He said Mrs O'Brien's claims against McCann should now go to full plenary hearing.
McCann, a former international swimmer and swimming coach, was found guilty on August 15th, 1996, by a jury in the Central Criminal Court of the murder of his wife, Esther, on September 4th, 1992, by causing a gas explosion which set fire to their home.
His appeal to the Court of Criminal Appeal was dismissed in April this year.
The couple had married in 1987 and had fostered a baby, Jessica, who also perished in the fire and whom Esther had hoped to adopt.