Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court refuses leave to the appellant/applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal delivered on the 15th February, 2016, the order made on the 15th February, 2016, and perfected on the 3rd June, 2016.

2. Timothy Rattigan, the appellant/applicant, referred to as “the applicant”, seeks leave to appeal to this Court from the judgment of the Court of Appeal.

3. The People (at the suit of the Director of Public Prosecutions), the respondent, is referred to as “the respondent”.

4. The applicant seeks a priority hearing of the appeal.

Jurisdiction

5. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave to appeal, that it be established by the applicant that the decision sought to be appealed either involves a matter of general public importance, or that it is necessary in the interests of justice that there be an appeal to this Court.

6. Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues 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.

Procedural background

7. The applicant was convicted before the Central Criminal Court of the murder of Joan Casey on the 8th July, 2005. A sentence of life imprisonment was imposed on the applicant, by Carney J., on that date.

8. At his trial in the Central Criminal Court the admissibility of evidence obtained on foot of search warrants issued under s. 29 of the Offences Against the Act, 1939, was challenged. A voir dire was conducted on the issue. The learned trial judge held that the warrants were lawfully issued in accordance with law.

9. The applicant did not pursue this issue as a grounds of appeal to the Court of Criminal Appeal.

10. The applicant appealed against his conviction, which appeal was dismissed by the Court of Criminal Appeal in an ex tempore judgment by Kearns J. on the 9th March, 2006.

11. The applicant subsequently brought an application pursuant to s. 2 of the Criminal Procedure Act, 1993, in relation to his conviction for murder on the 8th July, 2005.

12. The respondent brought a motion seeking to dismiss the application as one not based on any new or newly discovered fact and therefore as unstateable and unarguable and bound to fail.

13. The Court of Appeal (Birmingham J., Mahon J., Edwards J.) granted the motion brought by the respondent and dismissed, as an abuse of process, the application of the applicant, pursuant to s. 2 of the Criminal Procedure Act, 1993, for an order quashing his conviction.

Application for Leave

14. The applicant seeks leave to appeal from the judgment of the Court of Appeal (Birmingham, Mahon, Edwards JJ.) delivered on the 15th February, 2016, and the order of the Court of Appeal which was perfected on the 3rd June, 2016.

15. The applicant is seeking: (i) to set aside the decision of the Court of Appeal; (ii) a declaration that the applicant’s conviction is a miscarriage of justice; and, (iii) an order directing a re-trial of the applicant’s case.

16. The applicant is not seeking a declaration of unconstitutionality of an Act of the Oireachtas, nor a declaration of incompatibility with the ECHR, nor is the applicant asking that the Supreme Court depart from or distinguish one of its own decisions; nor is the applicant seeking to make a reference to the Court of Justice of the European Union.

The reasons put forward by the applicant as to why the Supreme Court should grant leave to appeal

17. The reasons submitted by the applicant are set out in detail in his application for leave and notice of appeal documents, which are available with this determination on the Courts Service website.

In essence, the applicant submitted: -

(i) Warrants issued under s.29 of the Offences Against the State Act 1939 (as amended) were ruled admissible by the learned trial judge. Section 29 warrants were subsequently ruled inadmissible by the Supreme Court in the Damache case. It is in the interests of justice that this Court should explore whether or not the applicant’s conviction is a miscarriage of justice.

(ii) It is a matter of public importance that there is certainty in the Law. In circumstances where the applicant has challenged the lawfulness of the s.29 search warrant during the currency of his trial, and said warrants are subsequently ruled unconstitutional by this Court; it is essential to the administration of justice, that a person’s rights are not violated by an incorrect decision by a trial judge.

18. The reasons submitted by the respondent for opposing the granting of leave to appeal are set out in detail in the respondent’s notice, which is available with this determination on the Courts Service website.

19. The respondent submitted that the decision of the Court of Appeal does not involve a matter of general public importance and/or that it is not in the interests of justice that there be an appeal to the Supreme Court. Inter alia it was submitted:-

(i) The applicant ignored the presumption of constitutionality that applied in respect of s.29 of the Act of 1939 at the time the learned trial judge adjudicated upon applicant’s trial.

(ii) The applicant ignored the fact that he did not challenge the lawfulness of issuing section 29 warrants in his appeal against conviction, nor did he seek to impugn the constitutionality of the provision in separate proceedings.

(iii) Even if this court were to “explore” whether the applicant’s conviction is a miscarriage of justice, the plain and clear meaning of s.2 of the Criminal Justice Act 1993 does not permit a “newly discovered fact” being interpreted to include a judicial judgment on the law that is rendered after a person has been convicted of a criminal offence.

(iv) There is certainty in the law as it stands. The appellant asserts that one who objects to the admissibility of the evidence at the trial itself and nothing more may claim the benefit of a third party having successfully challenged that statutory regime on constitutional grounds.

(v) The applicant ignores the certainty that the law requires as stated by the Supreme Court in A. v. Arbour Hill Prison [2006] 4 I.R 88.

(vi) There is no stateable basis for an appeal made by the applicant. While the Supreme Court has not previously adjudicated upon the meaning of “fact” in s.2 of the 1993 Act, it cannot possibly be interpreted in a manner that would avail the applicant.

20. At issue on the motion brought by the respondent is whether a decision of the Supreme Court is a “new or newly discovered fact” pursuant to s. 2 of the Criminal Procedure Act, 1993.

21. The Court of Appeal has delivered a clear judgment setting out the principles and the law.

22. There is certainty in the law, as stated in the judgment of the Court of Appeal.

23. The issue for the Court is whether the Court is satisfied that the decision of the Court of Appeal involves a matter of general public importance, or that it is necessary in the interests of justice that there be an appeal to this Court.

24. In all the circumstances, the Court is satisfied that the applicant has not met the criteria established under the Constitution by which the Court may grant leave to appeal.

25. Consequently, the Court will refuse the application for leave to appeal.

And it is hereby so ordered accordingly