Title:	Wansboro -v- The Director of Public Prosecutions
Neutral Citation:	[2018] IESC 63
Supreme Court Record Number:	112/17
High Court Record Number:	2016 319 JR
Date of Delivery:	12/20/2018
Court:	Supreme Court
Composition of Court:	O'Donnell Donal J., Dunne J., Charleton J., O'Malley Iseult J., Finlay Geoghegan J.
Judgment by:	Finlay Geoghegan J.
Status:	Approved
Result:	Appeal allowed
Judgments by Link to Judgment Concurring Dissenting O'Donnell Donal J. Link Charleton J., O'Malley Iseult J., Dunne J. Dunne J. Link O'Donnell Donal J., Charleton J., O'Malley Iseult J. Finlay Geoghegan J. Finlay Geoghegan J. Link

THE SUPREME COURT

Between

1. This appeal is from a refusal of the High Court (Faherty J.) delivered on 16 June 2017 ([2017] IEHC 391) of an application primarily for an order of certiorari quashing an order made by Her Honour Judge Mary Ellen Ring (as she then was) in the Circuit Court on 18 May 2015 on Bill No. 298/2012 and other consequential reliefs. The order made by the Circuit Court on that day was:-

“THE COURT HEREBY ORDERS in accordance with Section 99(10) of the above-mentioned Act [Criminal Justice Act 2006] that the suspension of the sentence of this Court aforementioned be revoked and that the accused shall serve “the entire of the period of imprisonment originally imposed by this Court” being a sentence of three years on Count No 1 and six months on each of Counts 6 and 7 such sentences to run concurrently and to date from the 27th day of January 2015.”

2. Dunne J. has set out in full both the factual and legal context in which this appeal arises. I adopt same with gratitude. I only wish to record in summary the following facts, which are relevant to my conclusion on the legal issues.

3. The appellant pleaded guilty to charges on Bill No. 298/2012 on 18 February 2013. He was sentenced by Her Honour Judge Ring on 14 November 2013. The custodial sentences imposed were suspended in full for 3 years. Unfortunately, on 29 May 2014, the appellant was the driver of a vehicle which was involved in a serious accident, as a result of which one of his passengers died and another was seriously injured. The appellant was subsequently charged in respect of that incident on Bill No. 99/2015 on two counts, the second of which was a charge of dangerous driving causing death and serious bodily harm.

4. The appellant was himself injured in the accident. Following charge, he went into custody on those charges on 27 January 2015.

5. On 22 April 2015, the appellant was arraigned before the Circuit Court (His Honour Judge Nolan) and pleaded guilty to Count 2 on Bill No. 99/2015. He was remanded in custody to appear before Her Honour Judge Ring on 18 April 2015 for the purposes of sentencing on Count 2 on Bill No. 99/2015. A nolle prosequi was entered on Count 1.

6. The Circuit Court was informed of the prior suspended sentences and an order made remanding him to appear before Her Honour Judge Ring on the following day on Bill No. 298/2012. Whilst not referred to in the Circuit Court order, it is not in dispute that this order was made pursuant to s. 99(9) of the Criminal Justice Act 2006 (“the 2006 Act”).

7. On 23 April 2015, Judge Ring adjourned the s. 99 matter to 18 May 2015 for “s. 99 re-entry”. The accused was remanded in custody.

8. The Court has had access to the transcript of the hearing before Judge Ring on 18 May 2015 and her ruling on the sentencing on Bill No. 99/2015 and on the re-entry of Bill No. 298/2012. I will refer in greater detail to this below as it is relevant to the conclusions which I have reached.

9. In summary, the position of the appellant before Judge Ring on 18 May 2015 was as follows:-

(i) He was in custody on the charges on Bill No. 99/2015 since 27 January 2015. Having been arraigned and pleaded guilty to Count 2, he had been remanded in custody to appear for sentencing before Judge Ring on Count 2 on Bill No. 99/2015.

(ii) He had also been remanded in custody to appear before Judge Ring under s. 99(9) of the 2006 Act for the re-entry of Bill No. 298/2012.

11. On 20 May 2015, the appellant, in person, lodged a notice of appeal against his sentence only. He refers to the sentence as being one of “eight and a half years”. It is clear that he was appealing against the sentences imposed in respect of Bills No. 298/2012 and 99/2015. The grounds of appeal are simply “I feel this sentence was to [sic] harsh as it was an accident and other sentences for the same charge have been a lot more lenient”.

12. On 19 April 2016, in Moore & Ors v. D.P.P. [2016] IEHC 244, Moriarty J. declared sub-ss. 99(9) and (10) of the 2006 Act to be unconstitutional.

13. Leave was granted in these judicial review proceedings on 9 May 2016.

14. The essential and simple point made on behalf of the appellant in the High Court and this Court is that the effect of the declaration of unconstitutionality of subss. 99(9) and (10) is that they are void ab initio and in consequence, Her Honour Judge Ring did not have the statutory power which she purported to exercise on 18 May 2015 to revoke the suspension of the custodial sentences imposed in respect of Bill No. 298/2012.

15. The High Court rejected the application for judicial review in reliance in particular upon the judgments of the High Court and Court of Appeal in Clarke v. Governor of Mountjoy Prison [2016] IEHC 278 and [2016] IECA 244 and in Foley v. Governor of Portlaoise Prison [2016] IEHC 334 and [2016] IECA 411 and upon other judgments of the High Court on applications affected by the declaration of unconstitutionality in Moore.

The Law
16. Dunne J. has set out with great clarity and detail the law in relation to the consequences of declarations of invalidity of statutes pursuant to Article 15 of the Constitution and in particular the consequences of such declarations for criminal proceedings.

17. The consequences for acts which are carried out pursuant to legislation declared unconstitutional have been considered most recently in judgments delivered by the Supreme Court in C. v. Minister for Social Protection [2018] IESC 57 on 28 November 2018, albeit in the context of a civil claim. In referring to this decision, I am not seeking to suggest that the consideration given in the majority judgments to the earlier cases relied upon by the parties in this appeal in relation to the consequences for criminal proceedings differs in any way from the law at the date of hearing the appeal, but I do believe that the judgments in C. helpfully summarise some aspects of the position. O’Donnell J. in his judgment (with which a majority of the Court concurred) commences a consideration of a number of prior decisions including The State (Byrne) v. Frawley [1978] I.R. 326 and A. v. The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, by stating at para 31:-

“31. In a number of important cases, this court has held that while the general rule is that a declaration of invalidity will also render null and void actions taken on foot of the impugned provision, the declaration of invalidity did not always necessarily nullify transactions or steps taken or even convictions arrived at on the basis of, or pursuant to procedures established, by legislation subsequently declared invalid.”

“…The case therefore established an important and more broad–ranging, principle. Although a person convicted must be able to challenge a conviction on the grounds of the unconstitutionality of the legislation creating the offence, or controlling the mode of trial, and if successful the conviction would be quashed. It did not follow that such a conclusion must be reached in all cases for all those affected, even those whose factual circumstances may be identical to those of the successful claimant. This was a far-reaching decision, the implications of which were not necessarily recognised at the time.”

“35. Although the decision that any person convicted by a jury empanelled under the 1927 Act could not challenge their conviction might now sit comfortably with the well-known decision of this court in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, that final convictions cannot be challenged on the basis of a subsequent determination of invalidity of a legislative provision, it is important to recognise it was not decided on that basis. Instead, it was treated as a case where the plaintiff was precluded from asserting, and could not benefit from, the invalidity even when such invalidity had already been established by the same court. It is notable that the proceedings in State (Byrne) v. Frawley [1978] I.R. 326 were State-side proceedings seeking an order of certiorari quashing the conviction, but that the conviction itself was separately under appeal. The decision of the court suggests emphatically, however, that if the point had been raised on the appeal, it would not have availed the applicant there either, even though the proceedings had not been concluded, and the conviction could not be treated as final, and thus falling within the principle established by A. v. Governor of Arbour Hill Prison. The decision of the Supreme Court in State (Byrne) v. Frawley is therefore clear authority that there is no absolute rule that once the constitutional invalidity of legislation is established, that all steps taken under it must be treated as a nullity.

36. The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, discussed in more detail in the judgment of MacMenamin J., is a more elaborate treatment of the issue generally. That case established that even in the area of criminal law, the finding that a criminal offence, in that case created by the Criminal Law (Amendment) Act 1935, was inconsistent with the Constitution, did not mean that a person imprisoned on the basis of the conviction for that offence, could assert the nullity of the conviction, and claim release.

37. These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues.”

20. As appears from the judgment of Dunne J., the identification of the question arises from the principles contained in the judgments of this Court in inter alia The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison and judgments of the Court of Criminal Appeal in The People (D.P.P.) v. Cunningham [2012] IECCA 64, [2013] 2 I.R. 631 (“D.P.P. v Cunningham”), The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 (“D.P.P. v Bolger”) and The Director of Public Prosecutions v. O’Connor [2014] IECCA 4 (“D.P.P. v O’Connor”).

21. Each of the above decisions of the Court of Criminal Appeal concerned whether the appellant in question was entitled to rely in his appeal upon the declaration of unconstitutionality of s. 29 of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976, issued by the Supreme Court in Damache v. Director of Public Prosecutions [2012] IESC 11, [2012] 2 I.R. 266 (“Damache”). The purpose of doing so in each appeal was to challenge the validity of a warrant issued under s. 29 and hence the admission at trial of evidence obtained thereunder. In each case, the appellant had pleaded not guilty to the offences, had been convicted in advance of the judgment in Damache and had an appeal pending against conviction at the time the judgment in Damache.

22. These proceedings are judicial review proceedings. However, I am in agreement with Dunne J. that the entitlement of the appellant to an order of certiorari in the judicial review proceedings is dependent on the answer to the question as to whether he would be entitled to challenge the order made by the Circuit Court that the suspension of the sentence imposed on the 14 November 2013 on Bill No. 298/2012 be revoked and that the appellant serve the entire of the period of imprisonment originally imposed by the Court, on the ground that the Circuit Judge had no jurisdiction to make the order by reason of the invalidity of subss. 99(9) and (10) of the 2006 Act. This appears to follow firstly from the fact that orders made under the invalid subsections are not automatically rendered null and void. Second, from the clear principle from A. v. Governor of Arbour Hill Prison that if criminal proceedings are finally concluded then final convictions (and sentences) cannot be challenged upon the basis of a subsequent determination of invalidity of a legislative provision. Third, from a comparison of the position of the appellant in these proceedings with a person in exactly the same position as at the date of the judgment in Moore, save that he had not lodged an appeal against the severity of sentence as the appellant had done. Such a person, if he commenced judicial review proceedings similar to those commenced by the appellant, would fail in accordance with the decision in A. v. Governor of Arbour Hill Prison.

23. Accordingly, it is the existence of the appellant’s appeal that permits him to argue that his criminal proceedings have not reached finality. The appellant pleaded guilty to the 2012 offences and the 2015 offences and obviously lodged no appeal against conviction and hence, his convictions have reached finality. It is only the custodial sentences imposed on 18 May 2015 which are not final.

24. The judgments of the Court of Appeal in D.P.P. v Cunningham, D.P.P. v Bolger and D.P.P. v O’Connor are helpful in identifying the extent to which the criminal proceedings which have been determined in the Circuit Court but where there is an extant appeal are not finally determined and also in identifying the principles according to which an appellant may be entitled in his appeal to rely upon a relevant declaration of invalidity of legislation made subsequent to the decision of the Circuit Court appealed against. D.P.P. v Cunningham is of particular assistance to the first of these questions.

25. In D.P.P. v Cunningham, the Court of Criminal Appeal (Hardiman, Moriarty and Hogan JJ.), in a judgment delivered by Hardiman J. on 11 May 2012, considered a submission made on behalf of the Director that the verdict of the jury convicting the applicant was itself final, notwithstanding the existence of an appeal and hence, in accordance with the judgments in A. v. Governor of Arbour Hill Prison, the Damache declaration of invalidity could not be relied upon as a ground of appeal. That submission was rejected. Hardiman J., having referred to A. v. Governor of Arbour Hill Prison and to the then relevant constitutional and statutory provisions relating to the Supreme Court and the Court of Criminal Appeal, stated at para. 51:-

“51. The courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Finlay C.J. in Dalton v. Minister for Finance [1989] 1 I.L.R.M. 519 expressed it, at p. 273,“subject to a proper right of appeal as provided by law”. It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so.”

27. On the facts of D.P.P. v Cunningham, the Court concluded ultimately that the appellant was not precluded from relying upon Damache in his appeal. The Court at para. 71, having referred again to A. v. Governor of Arbour Hill Prison and The State (Byrne) v. Frawley, then stated:-

“71. … None of these factors particular to cases such as Corrigan v. Irish Land Commission [1977] I.R. 317, The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison [2006] IEHC 169, [2006] IESC 45, such as election, acquiescence and estoppel by conduct, apply to the position of the present applicant. It can thus be said that the present applicant is not debarred by his own conduct from taking advantage of the finding of unconstitutionality.

29. The Court, having referred to the now well known passage from Murray C.J. in A. v. Governor of Arbour Hill Prison in relation to finality, then stated from para. 20:-

“20. The finality of a trial is at its conclusion. In this case the applicant's appeal was pending and so it had not reached finality. Thus, applying this principle the Court permitted the applicant to raise and argue the Damache case.

21. However, there is another relevant principle which is also applicable, that relates to the issues which may be raised on an appeal.

22. This court hears an appeal from a trial. After a trial an accused has a right of appeal. However, the issues which may be raised on appeal relate to those raised at the trial. That is the applicable general principle. However, as is clear from our jurisprudence, if there has been demonstrated some error of substance, such as to ground an apprehension that a real injustice has occurred, and an explanation as to why the point was not taken, then the Court may permit a point not made at trial to be argued on appeal.

23. In The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 I.R. 329, referred to as Cronin (No. 2), Kearns J. (as he was then) stated at 346, paragraph 46:-


"It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner."

There was re-enforcement of this point in State (Director of Public Prosecutions) v. O'Regan [2007] IESC 38, [2007] 3 I.R. 805 at 821, paragraphs 55 to 56, where Kearns J. stated:


24. Thus, in general, in deciding whether an issue may be raised on appeal, it is necessary to consider the trial to see if the matter was raised and, if so, whether there was a decision by the court of trial.”

31. In the third of the judgments of the Court of Criminal Appeal, The Director of Public Prosecutions v. Paul O’Connor (Unreported, Court of Criminal Appeal, McKechnie J., 4th February, 2013) the Court (McKechnie, DeValera and McGovern JJ.) refused permission to allow the appellant to rely upon the Damache point. The main points of that judgment are set out in a subsequent judgment of the same court in D.P.P. v O’Connor refusing a certificate under s. 29 of the Courts of Justice Act 1924. As appears from paras. 8 to 13 of the later judgment, the Court considered it rejected the application to argue the Damache point on appeal on two separate grounds, one that it had not been raised at trial and secondly, that a concession made by counsel on behalf of the accused that the search warrant had been applied for in accordance with law and granted in accordance with law precluded the applicant from taking an inconsistent approach on appeal.

Hearing of 18 May
32. I now turn to the approach taken by the appellant, through his counsel, at the hearing on 18 May 2015 before Her Honour Judge Ring. No challenge was made to the jurisdiction of Judge Ring to deal both with the re-entry pursuant to s. 99 of the matters on Bill No. 298/2012 and sentencing on Bill No. 99/2015. The appellant could not, of course, on the facts of his case, have raised the type of constitutional objection to s. 99(9) & (10) which was raised in Moore. However, in my view nothing turns on that fact in particular. In accordance with D.P.P. v Cunningham, if an objection had been made to the jurisdiction of the Circuit Judge to deal with both matters on the day or if there had been an objection to the fairness of procedures, then it may well be that the appellant should be entitled to raise grounds on appeal in relation to the decision to lift the suspension of the sentences on Bill No. 298/2012, which would include a lack of jurisdiction of the Circuit Judge by reason of the invalidity of subss. 99(9) and (10).

33. However, factually, matters went further than a simple absence of any objection. The High Court judge at para. 55 of her judgment concluded that the appellant had submitted to the jurisdiction of the Circuit Court and “acquiesced” in the exercise by the Circuit Court of its jurisdiction under ss. 99(9) and (10), either by the order of 22 April 2015, or at the hearing on 18 May 2015 and the order made on that day. I respectfully agree.

34. The appellant, through his counsel, expressly asked the Court to observe the principle of totality in dealing with both the s. 99 matter in relation to Bill No. 298/2012 and sentencing on Bill No. 99/2015 at the same hearing. His counsel set out a number of relevant facts in relation to the appellant and his circumstances and then stated (at p. 16 of transcript):-

“…I think that is as much as can be said. I would ask obviously the Court to balance the competing interest of doing justice as between the parties and also Mr. Wansboro. He is a young man. He is going to be released into the community at some stage. It is obviously the case that consequential orders will flow and the Court will be considering this in light of the section 99 matter. I am simply asking the Court to observe the principle of totality in that regard. It is clear that the Court can if it so minded impose all of the sentences of imprisonment previously imposed, … or the Court can, I suppose impose such element of it as it feels is appropriate and then marry that with the sentence will obviously impose in relation to this incident…”

35. The trial judge, in delivering her sentencing decision, dealt firstly with the facts pertaining to the charge on Bill No. 99/2015, Mr. Wansboro’s own injuries suffered in the incident and certain other prior convictions. Turning to Bill No. 298/2012 and, having referred to the sentences imposed, their suspension and the warning given to Mr. Wansboro in November 2013 that if she saw him again within the suspended period, she would impose the three years, the Circuit Judge stated that she was lifting their suspension.

36. She then turned to the sentence on Count 2 of Bill No. 99/2015 and initially stated:-

“..[t]he sentence on bill 99/2015 is required by law to be consecutive to the three year sentence. I must have regard, in imposing a consecutive sentence, to the totality principle, but it seems to me that in light of the short period of time before Mr. Wansboro offended, that regard is limited…”

37. She then referred to a number of other matters and returned to this towards the end of her decision, saying (at p.21 of the transcript):-

“…I have to have regard to the totality principle in the light of the matters on bill 298/2012 in sentencing. However, in this case I cannot overlook the fact that Eric Wansboro was fully aware of what was at risk and took the risk regardless. Had Eric Wansboro not pleaded not [sic] guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on Count 2 on bill 99/2015 is one of five and a half years. This will commence at the lawful expiration of the sentence imposed on bill 298/2012. …”

38. Having regard to the approach taken at the sentencing hearing on 18 May, I have concluded that the appellant has not established that he would be permitted to raise at his sentencing appeal any ground of objection to the manner in which he was brought before the Circuit Court under s. 99 or to the jurisdiction of the Circuit Judge to consider and determine the revocation of the suspended sentence under s. 99, unless, in accordance with the principles in Cronin (No. 2), if he were not permitted to do so would ground an apprehension that a real injustice had occurred. This is in accordance with the approach in D.P.P. v. Bolger and D.P.P. v. O’Connor.

39. Further, on the facts it may properly be considered that the appellant, not only in acquiescing to the jurisdiction of the Circuit Court in dealing with both the s. 99 re-entry of Bill No. 298/2012 and the sentencing on Bill No. 99/2015 together, but also in seeking to have the sentence on Bill No. 99/2015 reduced by reference to the totality principle and thereby obtaining some benefit, is now debarred on appeal from taking an approach inconsistent with that conduct. In so concluding, I am not suggesting that the factual position is similar to that in The State (Byrne) v. Frawley, given that it could not be concluded that the appellant acquiesced in a process which he knew or understood to be unconstitutional. Rather, he acquiesced in the process and jurisdiction of the Court and sought by his conduct to obtain some benefit for himself in terms of mitigating the sentence to be imposed in respect of the offence to which he had pleaded guilty on Bill No. 99/2015.

40. I do not consider that the facts give rise to an apprehension of a real injustice having occurred. This is principally for two reasons. First, the appellant was lawfully before the Circuit Judge having been remanded in custody on Bill No. 99/2015 for sentencing, pursuant to the order of the Circuit Court (His Honour Judge Nolan), made on 22 April 2015, following his plea of guilty to Count 2 on Bill No. 99/2015. Having so pleaded and been convicted on Bill No. 99/2015, it was open to inter alia the Gardaí to seek to have the Circuit Judge deal with the matter of revocation of the suspended sentences on Bill No. 298/2012 pursuant to s.99(13). Further, s. 99(17) gives a statutory jurisdiction to the Court to revoke a suspension which is not dependent on the procedures envisaged by s. 99(9). Hence, when the appellant was lawfully before Her Honour Judge Ring on 18 May 2015, having been remanded for sentencing on Bill No. 99/2015, the Circuit Judge could have considered and decided upon the suspension pursuant to s. 99(17). This provides:

“(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.”

42. For these reasons, I am unable to agree with the conclusion reached by Dunne J. that the appellant did not adopt any strategy or engage in a conduct in the course of the proceedings which would debar him from relying upon the declarations of unconstitutionality of sub-ss. 99(9) & (10) of the 2006 Act in his appeal against sentence imposed on 18 May 2015 on Bill No.298/2012. Accordingly, I would dismiss the appeal.