Supporting Documents:

THE SUPREME COURT

DETERMINATION

Between

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the accused (“Mr. Dundon”) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Birmingham, Mahon and Edwards J.) delivered on 30th May 2016. The order appealed against was also made on the 30th May 2016 and perfected on the 29th June 2016. 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, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

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 a 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.

2. The Proceedings

Mr. Dundon was convicted after a trial before the Special Criminal Court in respect of the offence of threatening to kill contrary to s.5 of the Non-Fatal Offences Against the Person Act 1997. Mr. Dundon appealed that conviction to the Court of Criminal Appeal.

3. The Order appealed against

The Court of Criminal Appeal heard appeals against conviction brought by Mr. Dundon and also by his brother Wayne Dundon who had also been convicted as a result of the same trial in the Special Criminal Court. This application for leave, however, relates solely to Mr. Dundon and, therefore, the focus in this application must be on that aspect of the judgment of the Court of Appeal which dealt with his appeal. A central feature of the appeal concerned identification evidence which had been important to the prosecution case against Mr. Dundon. It was asserted on behalf of Mr. Dundon that the manner in which the Special Criminal Court had dealt with identification evidence, including the fact that the ruling of that court did not expressly state that the members of the Court had reminded themselves of the caution which must be exercised in respect of identification evidence, justified allowing the appeal. The Court of Appeal rejected that argument and dismissed Mr. Dundon’s appeal.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

It is suggested that an issue of general public importance arises in this case relating to the manner in which a non-jury criminal court must deal with the requirement, specified by this Court in People (AG) v. Casey (No. 2) [1963] I.R. 33, concerning the warning which must be given to a jury relating to the instances where visual identification has proved erroneous. It is said that this matter has not been the subject of previous determination.

The respondent (“the D.P.P.”) suggests that no issue of general public importance arises. In relation to the warning issue it is said that the proposition put forward on behalf of Mr. Dundon would, in substance, require experienced judges to warn themselves on the question of visual identification.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

The underlying reasoning of the Court of Appeal in dismissing Mr. Dundon’s appeal was that there was evidence on which the Special Criminal Court, as finders of fact, could find the case against Mr. Dundon proven. That underlying issue could not give rise to an issue of general public importance for it relates to the sort of question which arises on the facts of almost every criminal trial. Furthermore, there are no special features which would render it potentially in the interests of justice that a further appeal be pursued against that general finding.

It follows that it is necessary to turn to the very narrow point raised being the situation which pertains in the case of a non-jury court dealing with a criminal case in which visual identification or recognition is material, it being accepted that the general principles identified in Casey also apply to visual recognition.

Attention is drawn on behalf of Mr. Dundon to the provisions of s.41(4) of the Offences Against the State Act 1939 which provides that the practice and procedure of the Central Criminal Court is to apply to the Special Criminal Court only insofar as it is practicable but that the rules of evidence applied in the Central Criminal Court should also apply to the Special Criminal Court without any such qualification.

It is important to emphasise that the relevant issue which arose on the appeal to the Court of Appeal in this case was not to do with the admissibility or otherwise of evidence. The issue concerned the assessment of that evidence insofar as it related to visual recognition and also the applicability of the procedure to be followed in informing a jury, in a case before the Central Criminal Court, of the risks involved with such evidence. It does not seem to this Court, therefore, that s.41(4) is of any relevance to the narrow issue which arises in this case.

There are very many things which a trial judge conducting a criminal trial with a jury is required to tell the jury in order that the jury can fulfil their role as finders of fact in accordance with law. The trial judge is required to explain the burden and standard of proof and the elements of the offence alleged against the accused amongst other matters. It is fanciful to suggest that a non-jury court hearing a criminal trial has to set out in its ruling an account of each of the matters which a trial judge would require to explain to a jury, so as to make clear that the judge or judges conducting the non-jury trial understood the law. Clearly if it appears from a ruling of a non-jury criminal court that the judge or judges were in error as to the law then such would provide a legitimate basis for an appeal. But it is a very different thing to assert that the judges must demonstrate that they have understood and applied each and every element of the criminal law no matter how obvious the point might be.

The Court is not satisfied that there is any arguable basis for the novel proposition put forward on behalf of Mr. Dundon to the effect that professional judges are required to either warn themselves about identification evidence or to demonstrate in their rulings in each and every case that they have applied each and every element of the criminal law.

Shorn of that proposition there was nothing in Mr. Dundon’s appeal to the Court of Appeal which went beyond the application of well established principles to the assessment by a non-jury trial court to questions of fact. Given that the novel proposition advanced is, in the view of this Court, unstateable, it follows that there are no stateable grounds for appeal which involve any issue of general public importance or where it is in the interests of justice that a further appeal be pursued to this Court.

6. Conclusion

The Court, therefore, refuses leave to appeal under Art. 34.5.3.

And It is hereby so ordered accordingly.