THE SUPREME COURT
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT, PURSUANT TO ARTICLE 34.5.3° OF THE CONSTITUTION.
Result: The Court grants leave to the Applicant, Alan Wilson, to appeal to this Court from the decision of the Court of Appeal of the 5th November, 2015.
1. This determination concerns an application for leave brought by the applicant in relation to the judgment of the Court of Appeal in DPP v. Wilson & anor.  IECA 275.
2. The applicant was convicted by the Dublin Circuit Criminal Court on 21st February, 2013 on a single count of burglary. A sentence of 7 years imprisonment was imposed. The appeal is from the entire decision of the Court of Appeal dismissing the applicant’s appeal against conviction.
3. The applicant requests a priority hearing as he is serving the sentence imposed.
4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.
5. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states:
6. Article 34.4.3° of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from its decisions under Article 34.5.3°.
“1º The Court of Appeal shall –
(i) Save as otherwise provided by this Article,
(ii) With such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
7. The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.5.3°, which states:
8. The decision of the Supreme Court under Article 34.5.6 is, in all cases, “final and conclusive”.
“The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that –
(i) the decision involves a matter of general public importance, or
(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.”
9. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied, either that the relevant decision of the Court of Appeal “involves a matter of general public importance”, or, alternatively, that it is “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that, “in the interests of justice, it is necessary that there be an appeal” to this Court.
10. The statutory framework for the exercise of the right to appeal to this Court for such leave is to be found in the Court of Appeal Act, 2014, and, in particular, the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961.
11. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
12. Persons convicted on indictment retain a statutory right of appeal to the Court of Appeal. What is sought here is a second appeal. In both civil and criminal matters the jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there be a further appeal to this Court. It is not the function of this Court to review decisions of the Court of Appeal for error.
13. The alleged offence arises out of an incident on 3rd June, 2009, when two men entered a dwelling house in Blanchardstown. One of the occupiers was hit over the head with a meat cleaver and shortly thereafter two shots were fired. Witnesses at the scene named the applicant and his co-accused as being the two men involved. The applicant is said to have been named as the man with the meat cleaver while the co-accused was said to have had the gun.
14. The applicant was arrested pursuant to s. 30 of the Offences against the State Act, 1939, as amended, on suspicion of having been involved in the unlawful discharge of a firearm.
15. While the applicant was being interviewed in custody the gardaí invoked the “adverse inferences” provisions of section 19 of the Criminal Justice Act 1984 (as inserted by section 29 of the Criminal Justice Act 2007). The applicant had the opportunity to consult with his solicitor before questioning continued.
16. The applicant was subsequently charged with burglary contrary to section 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001 – that is, that having entered the building as a trespasser, he committed the arrestable offence of assault causing harm
17. The trial took place in February, 2013, before the Dublin Circuit Criminal Court. During the trial the prosecution proposed to rely inter alia upon the provisions of s.19. In opposing this course of action the defence referred to the fact that the interview questions in issue all related to the discharge of the firearm, with no reference to the assault. It was argued that by its terms the section relates to questioning in relation to “the offence” with which an accused person is charged and tried. It was submitted that it had no application where the accused was charged with an offence other than that about which he had been questioned.
18. It was also pointed out that s.30 of the Offences Against the State Act had been amended by insertion of a requirement that the consent of the member in charge be obtained before a suspect could be questioned in relation to an offence other than for which he had been arrested.
19. The trial judge ruled in favour of the prosecution on the issue. The applicant appealed on a number of different grounds.
20. In its judgment delivered on 5th November, 2015, the Court of Appeal dismissed the applicant’s appeal. On the issue now under consideration the Court held that the offences of possession of a firearm and burglary were, on the facts of the case, “inextricably linked”. The Court referred to the decisions of the Court of Criminal Appeal in DPP v Liam Bolger (No.1)  IECCA 6 and DPP v Liam Bolger (No.2)  IECCA 1 as clearly upholding the proposition that evidence giving rise to the drawing of adverse inferences was admissible in a situation where the accused had been arrested for possession of firearms but charged with and convicted with the offence of murder.
The application for leave to appeal
21. The reason advanced on behalf of the applicant as to why this Court should grant leave to appeal is that the admission of evidence under s.19 of the Criminal Justice Act 1984 (as amended) in a trial for an offence other than the offence for which the appellant was questioned amounts to a form of judicial legislation which is impermissible.
22. The grounds of appeal which will be relied on if leave to appeal is granted are as follows:
1) The conviction was in part based on “no comment” answers given in interview.
2) Adverse inference provisions in s. 19 of the Criminal Justice Act 1984 (as inserted by s.29 of the Criminal Justice Act 2007 were deployed.
3) The section provides that inference provision can be deployed on a trial for the offence for which he was questioned in interview.
4) The appellant was questioned in relation to firearms offences and tried for an offence of burglary. The provisions could not be deployed in those circumstances.
5) The Court of Appeal in refusing the appeal on this ground relied upon the decision of the Court of Criminal Appeal in DPP v Liam Bolger (No.1)  IECCA 6 and DPP v Liam Bolger (No.2)  IECCA 1, at paras. 44 to 59. The Bolger decisions do not directly address the issue.
6) The admission of the evidence in the circumstances was contra legem and necessarily involved judicial legislation in permitting the interviews to be used in a trial for an offence other than the offence for which the appellant was interviewed.
23. The respondent opposes the application for leave to appeal.
24. The respondent submits that the admission of “inference evidence” in the particular circumstances identified by the appellant has been considered by the Court of Criminal Appeal in DPP v Liam Bolger  IECCA 4, in the context of an application pursuant to section 29 of the Criminal Justice Act, 1924 as amended. In that case the Court refused a certificate of leave to appeal to the Supreme Court on the basis that the questions raised did not meet the statutory criteria.
25. The respondent submits that in the instant case there is an “inextricable link” between the discharge of the firearm and the burglary. The respondent refers to the finding of the Court of Appeal that there was no question, in the context of the facts of the case, of the prosecution seeking to invoke the statutory provision by “piggy-backing an offence” other than one which the appellant was charged.
26. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having any precedential value in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
27. It is necessary to stress that the Court’s jurisdiction in criminal matters under Art. 34. 5. 3 is not based on the same criteria as those set out in s.29 of the Criminal Justice Act 1924. A decision of the Court of Criminal Appeal on an application for a certificate under that Act is thus of extremely limited precedential value in considering whether leave to appeal to this Court should be granted under the new Constitutional provisions.
28. The Court considers that the applicant has raised a point of general public importance as to the proper interpretation of s.19 of the Criminal Justice Act 1984, as amended. Leave will be granted on the question whether the section may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked.
And it is hereby so ordered accordingly.