|Director of Public Prosecutions -v- Cooke|
| IECCA 5|
Court of Criminal Appeal Record Number:
Date of Delivery:
|Court of Criminal Appeal|
Composition of Court:
|MacMenamin J., Hanna J., Murphy J.|
|Refuse Section 29 application|
Link to Judgment
COURT OF CRIMINAL APPEAL
[CCA No. 84/2007]
IN THE MATTER OF AN APPLICATION TO SEEK A CERTIFICATE PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of the Court delivered on the 28th day of July, 2015 by Mr. Justice John MacMenamin
1. On the 11th May, 2009 this Court dismissed the applicant’s appeal, which now, again, falls for consideration herein. The applicant had been convicted of a series of offences by a jury at the Dublin Central Criminal Court, presided over by Ms. Justice Maureen Harding Clarke on the 28th February and the 1st March, 2007. The offences in question, which occurred between the 14th May, 1974 and the 13th May, 1978, were against two complainants. 52 counts of indecent assault were in question. The first 26 counts on the indictment related to a complainant, AMK; the second remaining 26 counts related to the complainant, SK.
2. The applicant had previously been convicted on the 18th December, 2002 of multiple counts of indecent assault in respect of the same two complainants. That conviction was quashed on the 29th May, 2006 by this Court, on the basis that the issue of delay had not been alluded to at all in the learned trial judge’s charge. What is in question here, therefore, was the retrial, and the decision of this Court upon that retrial.
3. The application to seek certification to appeal to the Supreme Court is based on the following two points in the Notice of Motion:
These are dealt with separately in this judgment.
4. The first, and most obvious, matter which arises, on the face of things, is that a very considerable time has elapsed between the judgment of this Court and the application which is now made for a s.29 certificate, some 6 years later. Essentially, the applicant blames his then solicitor for the delay which occurred. It is said that he made various efforts to contact his solicitor, and then retained another solicitor, with a view to seeing whether his appeal had been expedited. It is unnecessary, at this stage, to go into the details of this question, save insofar as to point out what has become obvious, that, in a real sense, the question which this Court has been asked to determine is now moot, in that the applicant has now served the sentence imposed upon him for these offences. But, as will now be explained, other issues also arise which must be borne in mind in determining whether or not the application meets the test.
5. Insofar as relevant, s.29 of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act, 2006, as amended by s.31 of the Criminal Procedure Act, 2010, provides:
The Point of Law
6. In considering the issues which are sought to be raised, it is important to bear in mind that it is not in dispute that the applicant must show that the questions which are sought to be raised transcend the specifics of this particular case, and constitute points of law which are genuinely important to the public at large, and where it is desirable in the public interest that an appeal should be brought to the Supreme Court. It is important to emphasise that what is in question in an application under s.29 of the 1924 Act, as amended, is the point of law involved in the decision. What is in question, therefore, must be the point of law in itself, rather than its application, in a particular context, or the determination this Court arrived at on the application of that point of law. That point of law must, itself, be of exceptional public importance. Consequently, the strength or otherwise of any grounds of appeal which were placed before this Court, which simply involve the point of law, is not relevant. Further, what is in question are not the strengths or weaknesses of any arguments against the correctness of the judgment of this Court, but rather, whether that point of law is of such a character as to come within the four walls of s.29 of the 1924 Act. The fact that a set of events or findings occur at one trial for the first time does not mean that what is involved is a question of exceptional public importance, or a matter of public interest. The facts of every trial are unique; what is essential is to look to the point of law and assess whether it comes within the section.
“29(1) Subject to s.9(A) of this section, no appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other matter except in accordance with this section.
(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.” (emphasis added)
“Exceptional Public Importance”
7. Three High Court judgments are of assistance in identifying whether or not a question is one of “exceptional public importance”. The test, insofar as is applicable, to a s.29 application, is as follows:
(These principles, suitably adapted, are abstracted from judgments of the High Court in IR v. Minister for Justice, Equality & Law Reform and the Refugee Appeals Tribunal, The High Court, Unreported, Cooke J., 26th November, 2009); Raiu v. Refugee Appeals Tribunal, The High Court, Unreported, Finlay-Geoghegan J., 26th February, 2003; Glancré Teoranta v. An Bord Pleanala & Another  IEHC 250, MacMenamin J.; and Arklow Holidays Limited v. An Bord Pleanala, The High Court, Unreported, Clarke J., 11th February, 2008). They are also established principles in the jurisprudence of this Court, as is explained below.
It is not enough that the case raises a point of law. It must be one of exceptional public importance.
The jurisdiction to grant a certificate must be exercised sparingly.
The issue of law involved must be uncertain, such as that it is in the common good that the uncertainty be resolved for the benefit of future cases.
The uncertainty of the point of law must be genuine, and not merely a difficulty derived from the particular case.
The point of law must arise out of the court’s decision, and not merely out of issues arising at the trial or appeal.
The requirements of exceptional public importance, and the desirability of an appeal in the public interest, are cumulative.
A Clear Issue Liable to Arise in Further Cases – “Public Interest”
8. We now turn to a broader consideration of the test necessary for a certificate under s.29 of the 1924 Act. In People (Attorney General) v. Curran (Court of Criminal Appeal, Unreported, 19th February, 2013) O’Donnell J., speaking for this Court, laid emphasis on the necessity for the point of law to affect not only the decision in issue, but to be of a broader impact. He pointed out:
9. In DPP v. Patchell  IECCA 6, paras. 16 to 20, and DPP v. O’Connor  IECCA 4, para. 21, McKechnie J. again addressed the tests in the following way:
“Occasionally, indeed exceptionally, a point of law of importance will arise, which transcends the individual facts of the case, and can be said to present a clear issue which arises in the case and determines it and which is likely to arise in further cases in the same or related areas, and in which, unusually, it is desirable that the issue be resolved conclusively by an appeal to the Supreme Court. The very fact that this section requires not only that the point of law be of exceptional importance, but also that it is desirable in the public interest that an appeal be taken to the Supreme Court, reinforces the exceptional nature of the jurisdiction.” (emphasis added)
10. In McKevitt v. DPP  IECCA 19, this Court again affirmed that it can be in the “interests of justice” to grant leave on a point of law, in circumstances where, even were the applicant successful in bringing the point of law before the Supreme Court, it would not assist him in relation to his own particular case. The Court observed that it would not certify, because:
“16. As appears from the express wording of the section, for an application to be successful, the moving party, upon whom the onus of proof rests (D.P.P. v. Littlejohn  I.L.R.M. 147), must demonstrate that the point is a point of law and is one not only of exceptional public importance but also that it should be determined in the public interest. Both requirements must be established; it being insufficient to establish either one only (Kenny v. An Bord Pleanála (No. 2)  1 I.R. 704). Whilst indeed it may be true to say, as the Court of Criminal Appeal did in The People (D.P.P.) v. McCarthy & Ors.  I.E.C.C.A. 51 (“McCarthy”), that if a point satisfies the first aspect of the test, then it is most likely that it will also satisfy the other; nonetheless, it may well be that in certain situations – at a particular time or in particular circumstances – it would not be in the public interest to have it determined. Therefore, I feel that it is more responsive to the section to treat the requirements as being disjunctive.
17. In any event it is clear that the point of law cannot only be peculiar to the particular facts of any given case and that it must have the capacity of widespread application in its subject area. The point must have a gravity and importance to it which enables the Court to rightfully classify it as “exceptional”. Further, the jurisdiction must be considered as such and in no circumstances is it intended to displace the first level of appeal, or, outside of its express parameters, to permit a second strand of appeal. It is not designed to gain, and should not be used as, an opportunity of rerunning what was argued in the Court of Criminal Appeal. It must therefore only be on rare and very limited occasions that the certifying process can be invoked.
18. In addition it seems to the Court that when considering an application under the section, it is important to ascertain:
(i) what precise relevance the point of law in question has on the critical issue still pending in the case;
(ii) the necessity of obtaining the Supreme Court’s view on the suggested point; and, irrespective of that view
(iii) what effect would it have on the ultimate disposal of the case.
19. Quite evidently, if the suggested point of law is not at the heart of the argument, it is difficult to see how it could satisfy the requirements of the section. Likewise, there could be no question of seeking from the Supreme Court its opinion on some abstract, hypothetical or moot issue. Furthermore, if the point does not have a decisive influence on the ultimate disposal of the case, or at least a material bearing to that end, it is difficult to see how and why the exceptional jurisdiction of the section should in such circumstances be applied.
20. In the Court’s view these points are no more than an elaboration of the section’s true positioning within, as applicable in this case, the criminal process as a whole.” (emphasis added)
11. In DPP v. K (Unreported, Court of Criminal Appeal, 29th July, 2002) Murphy J. pointed out, that even where a point of law may be of public importance, or “benefit from judicial clarification”, but is moot with respect to the applicant, and such appeal would not benefit the applicant, a s.29 certificate will not be granted.
“Granting leave under s.29 in such circumstances would be futile.” (at para. 10)
12. In the case of The People (DPP) v. McCarthy & Others  IECCA 51, this Court also pointed out that:
13. None of these observations are new. A number of the passages just quoted can be found in the judgment of this Court in McNulty v. The Director of Public Prosecutions (CCA No. 270/2012, delivered on the 29th October, 2014).
Points which do not come within Section 29
14. One may, therefore, briefly summarise what does not constitute a point of law coming within s.29 by a range of tests, many of which overlap:
Application of Principles
15. Considering many of the submissions now made on behalf of the applicant, the Court is conscious that, even to discuss certain of them, is, in a sense, to trespass outside the s.29 criteria. However, in deference to counsel’s able submissions, but in order to show their frailty on the facts, the submissions are now considered in rather more detail. In fact, the application made falls on a number of the established criteria concerning a s.29 certificate.
(1) A series of events or findings at one trial which are confined to that trial itself, and which have not arisen elsewhere, and which do not have future consequences for a range of further cases;
(2) A situation where the law is clear, and therefore not “uncertain”;
(3) A situation where the alleged “uncertainty” derives only from a particular trial;
(4) A point which is not, therefore, of “exceptional public importance”;
(5) A point which is futile, moot or not pending;
(6) A point which has no direct application in the appeal.
It follows, therefore, that:
(7) A s.29 application is not to be treated as merely a “second appeal”, and
(8) A certificate will not be granted simply where a court has applied well settled principles to the facts of a case.
16. For convenience, we set out hereunder the first of two points:
17. An objective analysis of point (a), now sought to be raised for a certificate, demonstrates that the “point” is, inextricably, interwoven in events said to have occurred at this trial, and no other trial. What is at issue, therefore, is not a point of law of “exceptional public importance”, but, in the view of this Court, a reiteration, or re-characterisation, of matters which were dealt with in the judgment of this Court, delivered herein on the 11th May, 2009. In that judgment the Court made two findings, relevant to the questions here. First it held that the judgment in DPP v. Cronin  3 ILRM, was applicable. But second, it also held that had the Court been required to consider the matter on the basis that there had been an inadequate charge on the issue of delay, the judge’s warning was sufficiently detailed by reference to the circumstances of the case (see page 26 and 27 of the judgment). The Court held that, even if it was of the view that the judge’s charge in the present case was not as full as other charges, it nonetheless outlined nine factors which, in the circumstances, made the Court “satisfied that, on balance, the charge of the trial judge was adequate in the circumstances of the present case” (see page 29 of the judgment). The extent to which the Court is now asked to re-traverse matters already explored can be shown by reference to the grounds of appeal to this Court in 2009. The observations which follow apply to both grounds of appeal.
“(a) Having regard to the varying judgments of the Court of Criminal Appeal on the extent of the warning that should be given in delay cases and in particular sex delay cases, can an Applicant, whose counsel raised with the trial judge the inadequacy of her warning with which requisition the trial judge agreed to recharge but yet did not do so, be denied full consideration of this ground of appeal on the basis of the decision in People (DPP) V Cronin.”
The Grounds of Appeal to this Court in 2009
18. Ground 4 in the notice of appeal was to the effect that the learned trial judge had insufficiently alerted the jury to the dangers which arose in cases of long delay, and the difficulties which such trials created for the defence. The applicant submitted the trial judge had insufficiently charged the jury as to which party was entitled to be given the advantage of such delay, and to bear the disadvantage, in cases of this type.
19. This is to be seen in the light of what the Court actually found, summarised above. This was not a case where there had been no warning to the jury, but rather complaint was made as to the adequacy of the warning, and an alleged failure by the judge to recharge after requisition. The judge then recharged, giving a warning. But, after the judge’s recharge, there was subsequently no further requisition made.
20. In fact, this Court decided that the application of the Cronin principles should not debar the applicant from raising the “delay warning” at the appeal. This was argued extensively in the appeal. It was dealt with extensively in the judgment. It was the subject of an explicit finding in the main judgment. The applicant was not prevented from raising the point on Cronin grounds.
21. In finding the warning was sufficient, in the circumstances of the case, the Court pointed out that the appellant had a “quite extraordinary and precise memory for details, including dates, people, places, events, happenings, and so forth, over a lengthy period of time, and stretching back many years, without being confused or unsure in any material respect” (see page 6 of the main judgment of this Court). Other distinguishing factors are identified later in this judgment. The Court, undoubtedly, also held that no reason had been advanced why skilled and experienced defence counsel had not raised further requisitions after the judge’s recharge, but this was especially remarkable in circumstances where the trial judge, after the recharge, had canvassed the possibility of whether counsel wished to make any further requisitions. No further requisitions were made.
22. Thus, the reference in (a), regarding ‘Cronin estoppel’, cannot arise. This Court’s decision did not only rely on the basis of Cronin, but rather, held in the alternative, that, had it been necessary to do so, the warning was, on the facts, adequate. In contrast to the assertion in question (a) in the proposed certificate, the issue was, in fact, “fully considered”.
23. It was further contended (at ground 5 of the notice of appeal) that the trial had been unsatisfactory by reason of an alleged failure by the trial judge to particularise during her charge the relationship of the problems of cases involving delay to the particular evidence of same, met by the applicant during the course of his trial. These again were issues which were specifically addressed by the judgment of this Court. It is suggested that the Court incorrectly observed in its judgment that no case law was invoked to the trial judge on the issue of delay. This point is somewhat misconceived. What this Court actually observed was:
24. In fact, two authorities were referred to the trial judge by counsel, but, in all other respects, the finding is correct. No specific oral submissions were made directed to the application of the particular precedents referred to in that passage to the facts at hand. Specifically, none were made even after the recharge. Furthermore, what occurred at the trial (again insofar as it is relevant at all), led the Court to conclude that the issue of the delay warning was not to the forefront of the appellant’s concerns, given the fact that even the brief submissions which were made on the delay warning were made in the context of an exchange concerning the issue of corroboration.
“What is also of note is that no case law was invoked on behalf of the applicant at any time in relation to the issue of delay, and, in particular, the judge was not addressed on, and there was no mention of, the earlier judgment of this court in relation to the absence altogether from the charge to the jury of any mention of delay, at the first trial of the applicant on the same charges, and which led to the earlier convictions being set aside. While it might not have been desirable for issues in that earlier trial to have been exposed to the jury, this court would expect that both the earlier judgment of this court in DPP v E.C. (unreported, Court of Criminal Appeal 29 May 2006), [i.e. the appeal from the first trial in this case] and perhaps also the decision in DPP v R.B., (unreported, Court of Criminal Appeal, 12th February 2003) would be specifically brought to the attention of the learned trial judge by counsel, if delay, and how it was dealt with in the charge, was considered to be such an important feature as is now suggested in the lengthy written submissions filed, and as part of counsel’s oral submissions. The court would also have expected counsel to have addressed the learned trial judge in much greater detail, and with far greater particularity, and by reference to the above, and other, relevant case law.” (Identification of EC decision and emphasis added)
25. In its judgment, this Court identified a range of “unusual factors” which distinguished this case from others, where a different form of warning might have been appropriate (see at page 30 of the judgment of this Court). These included the facts that both complainants gave evidence that the applicant had repeatedly indecently assaulted them as young children by, inter alia, inserting his finger into their vagina, performing oral sex upon them, and trying to insert his penis into them. Furthermore, both complainants gave evidence of incidents of simultaneous indecent assault, where each complainant witnessed the assault of the other as it happened. In relation to the specifics of the allegations, this Court observed that the evidence which was given at trial established several “islands of fact”, which made a warning concerning the difficulty of meeting the allegations less pertinent.
26. However, more directly, the question which arises in this application is best put simply, what does this application for a s.29 certificate concern? The answer to this, unavoidably, again comes down to the proposition that what is being sought is a reconsideration of issues, which were very specific to the trial.
27. Referring now to the “negative criteria” set out at para. 15 above, this Court would make the following observation, which demonstrate that this part of the application falls outside s.29 criteria. There was a series of events, and exchanges with counsel occurred, at this one trial (see (1), para. 15 above). In fact, the law on warnings is clear (see (2) above). What is now in question is the application of the law in the circumstances (see (3) above). The alleged “uncertainty” of the law derives only from the facts of the case (see again (3) above). It is not said the issue or point affects other cases, it cannot be said that the point is “exceptionally important” (see (4) above). The point is now moot, and futile for the applicant (see (5) above). He has served his sentence. The matter is no longer “pending”. The only basis is that the point is important for this application, in that he was subsequently sentenced to a life sentence on other offences, and that one of the basis for the rather lengthy sentence was the sentence imposed on him for these convictions. This is not a matter of exceptional public importance.
28. It cannot be said that the law relating to the desirability of warnings regarding delay is uncertain. This Court, and other courts, have, on numerous occasions, pronounced on that question. What was at issue, in the appeal, was whether “in the circumstances of the case”, the delay warning was adequate, and whether the judge, upon requisitions, should have furnished a further warning. These can only be seen as events at the trial, and not issues of law of public importance. This was not a situation where there had been a complete failure to address an essential direction of the charge. Nor was it a situation where direction had been given which mis-stated the law, and the applicant was debarred from arguing the point on the basis of the rule in DPP v. Cronin. Rather, it was accepted by the applicant throughout, that the delay warning which was given was correct in what it did say, but it was suggested that it should have addressed certain specific issues, which it did not, namely, the apparent destruction of a written statement given by one of the complainants, and the loss of video taping of the young girls, which had been retained by the accused for some time. The substance of this complaint was considered by this Court in its judgment, and was found to be unsustainable. An additional point on delay, viz. the alleged loss of two items of evidence, did not cause specific prejudice. The invocation of the judgment in DPP v. Cronin, and the rationale behind that case, underlined the insignificance of the issues sought to be raised in the appeal at the actual trial. In fact, the estoppel question, which arose in DPP v. Cronin, was not held to be an absolute, but the ground concerning the delay warning was ventilated fully, albeit to a conclusion which was not favourable to the applicant.
Conclusion on Point (a) in the Notice of Motion
29. The assessment which this Court made was one which fell within the decided legal principles. The extent of the delay warning, or the amount of case specific detail which it should contain, may well vary from case to case. The Court is obliged to assess whether, in a given case, the warning was adequate by reference to the established law, and by reference to the facts. This exercise was carried out by the Court in the present case. In the view of this Court, any certified reference to the Supreme Court would effectively amount to an appeal on the substantive question determined by the Court (see (f) in the summary of tests above). There is no basis for a certificate.
30. We turn then to the second point sought to be certified:
31. This point is, in fact, moot. It is also based on an incorrect premise because the “proviso” was applied in the judgment of the Court, but “in the alternative”. To reiterate, in its main judgment the Court held that the delay warning which was given was sufficient in its own terms, notwithstanding that it might have been preferable had the judge revisited the issue, having said in requisitions she would do so. But the finding of this Court with regard to the adequacy of the delay warning stands. It is true that the Supreme Court has held that the proviso should not be relied on, in the event there is a possibility that a miscarriage of justice occurred. It is true also that a miscarriage might arise where an error consisted in a technicality which went to the essence of the trial (see DPP v. Meleady  2 I.R. 517). . But this was not what happened here. Thus, the formulation of the point, with reference to the proviso, is, in effect, an artificial exercise, where the determinations which were genuinely in issue concerned the application of the principles set out in DPP v. E(C)  1 I.R. 749, and DPP v. C(C), to the present case. These principles are well settled, and were fully accepted by this Court. Thus, a reference to the Supreme Court would, in reality, concern the application of the established law to the facts, and thus the invocation of s.29 would, in such circumstances, amount to a circumvention of the restrictions contained in the section, notwithstanding the apparent point of law concerning the application of the proviso (see (7) and (8) in para. 15 earlier).
“(b) Can the proviso contained in section 3(a) of the Criminal Procedure Act, 1993 apply in a case where there has been a failure to direct the jury on an essential matter of law.”
32. There is little doubt that the decision in DPP v. E(C)  1 I.R. 749 provides authority for the view that the complete omission of a delay warning may be fundamental, and should not ordinarily be addressed by way of application of the proviso. However, the circumstances of this case are distinct. In EC the omission of the delay warning was total. Here the position is quite different; insofar as an admissible complaint was made at the appeal, the warning was said to be incomplete. Second, in EC there were four separate complainants who made allegations covering two distinct time spans This was specifically identified by Kearns J. in the judgment as a factor adding to the prejudice suffered by the accused. Finally, all of the allegations in that case took place in the same classroom, and the court found that there were no islands of fact which might mitigate the risks created by non-specific allegations.
33. Moreover, there are instances where the proviso may be utilised, even where the defect concerns an aspect of the trial which may be very significant (see DPP v. Ceka  IECCA). There is no suggestion here that the jury could have been under a misapprehension as to the fundamental constituents of the offence; the issues not specifically addressed in the delay warning were tangential to the allegations, at best, and their relevance and importance were amenable to assessment by the jury.
Conclusion on Point (b)
34. This Court was satisfied that it could rely upon the proviso, precisely because the delay warning was adequate by reference to the facts of the case. There was no fundamental error, or a miscarriage of justice. The applicant had no difficulties recollecting material facts. He was in a position to give the jury comprehensive evidence, in chronological order, of his movements and activities at all material times. His case was that both complainants colluded to make these allegations at the request of two persons, a John Leonard and a Brendan Brophy, who, the applicant alleged, embezzled sums of money from a radio station operated by him. The applicant agreed that he had a clear recollection of an incident involving him video taping children. The effect of delay in this case was mitigated, both by the strength of the accused’s recollections, by the islands of fact, and the unusual factors identified by the Court in its judgment, and reiterated here. In essence, the established law was applied.
35. Although the facts of this case may not be the same as others previously decided, there was no controversy or conflict in relation to the applicable law. The fact that the law evolves in an incremental way, is quite distinct from suggesting that there are conflicting judgments on the issues involved here. Finally, the Court would observe that, even if the mootness of the case was not personally the fault of the applicant, such a point cannot be seen as in itself determinative, on the facts of this case, where the application fails on the range of other grounds identified. The application, therefore, will be refused.