Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court refuses leave to the applicant to appeal to this Court from the Court of Appeal on the grounds set out herein.

REASONS GIVEN:

1. This Determination relates to an application brought by the applicant, (Mr. Wayne Dundon), seeking leave to appeal to this Court from the Court of Appeal under Article 34.5.3 of the Constitution.

2. The Court considers it desirable to point out that a Determination of the Court on an application for leave, which is final and conclusive as far as the parties are concerned, is a decision in relation to that application only. The decision is whether the question, or questions, raised, and the facts underpinning them, meet the constitutional criteria for leave. Save in the rarest of circumstances, it will not be appropriate to rely upon a grant or refusal of leave as having a precedential value in relation to the substantive issues in the context of different cases. Where leave is granted, any issue canvassed in the application will, in due course, be disposed of in the substantive decision of this Court.

The Application

3. On the 16th March, 2012, the applicant, Wayne Dundon, was convicted by the Special Criminal Court on a series of counts relating to unlawful threats said to have been made to Alice Collins, to the effect that he (the applicant) would kill or cause serious injury to Alice Collins’ two sons, Gareth Collins and Jimmy Collins Jnr. These offences were contrary to s.5 of the Non-Fatal Offences Against the Person Act, 1997. The applicant was also convicted of intimidating a potential witness in criminal proceedings, one April Collins, thereby causing the course of justice to be obviated, perverted or interfered with, contrary to s.41 of the Criminal Justice Act, 1999.

4. Having been convicted, the applicant, Wayne Dundon, appealed to the Court of Appeal. As part of that appeal, an application was brought to the Court of Appeal (Birmingham J., Mahon J. and Edwards J.), concerning which the Court of Appeal delivered judgment on the 30th May, 2016. This application concerned, inter alia, leave to argue additional grounds on the appeal. Among other contentions, it was submitted that the applicant’s conviction was unsafe because of the prosecution’s failure to furnish to the applicant, prior to trial, with records of telephone conversations said to have taken place between Jimmy Collins, Snr., (then a convicted prisoner in detention), and his wife, Alice Collins. The Court of Appeal refused leave to adduce this new evidence, and also refused leave to argue additional grounds concerning these telephone transcripts. The application, and the response thereto, are placed on the Courts Website. On behalf of the applicant, it is now submitted that the decision of the Court of Appeal raises issues of general public importance, which in the interests of justice be considered by this Court. These issues are said to relate to the legal principles relevant to applications to admit new evidence on an appeal.

Factual Background

5. The application in question comes against a complex factual background. However, the issue surrounding this application is relatively simple.

6. Prior to his trial on these charges, Wayne Dundon, along with John Dundon, previously stood trial in June and July, 2014, before the Special Criminal Court, charged with the murder of Stephen Collins on the 9th April, 2009. During the disclosure that took place for that murder trial, the Special Criminal Court ordered that material should be discovered regarding recordings from two phone calls made from prison on the prison phone card of one Christopher McCarthy. This call was made to Lisa Collins, then the girlfriend of Christopher McCarthy. Lisa Collins was not available at the time the call was made, and thereafter the call proceeded as one between Jimmy Collins Senior (who was in prison), and his wife, Alice Collins.

7. Counsel for the applicant contended that the call-transcript was of significance to the instant prosecution for intimidation, because it allegedly recorded Alice Collins saying that she had not been threatened by Wayne Dundon. It was submitted to the Court of Appeal that there were question marks over the credibility of Alice Collins, and particularly her narrative that the events in question occurred at all. A second phone call, also on the phone card of Christopher McCarthy, again involved a conversation between Jimmy Collins Senior and Alice Collins. Counsel for the applicant contended that, in the course of the conversation, Ms. Alice Collins said that she was going to say to the applicant, Wayne Dundon, that she wanted her car fixed. It is said the defence could have made use of these statements to undermine the evidence of another witness, Bianca Collins, who had said that, at an earlier stage of the incident which occurred on the 30th September, 2010, Wayne Dundon had said he would get Alice Collins a new car.

8. In its judgment, the Court of Criminal Appeal found that the case presented by the defence, as one of non-disclosure, was lacking in reality. The conversations referred to took place in the course of calls made on the prison phone card of Christopher McCarthy. The court observed that it could not seriously be suggested that the prosecution would have been entitled to access phone conversations made by prisoners who had nothing to do with the threat to kill case then in question. For the same reason, the court did not accept as valid the argument made by the prosecution, that this was evidence that could have been sourced by the defence with reasonable diligence. While the defence might have contemplated that the difficulties the Collins family were experiencing with the Dundons, and with Wayne Dundon in particular, would have been discussed between Jimmy Collins Snr., and Alice Collins, as husband and wife, the court concluded it was asking too much to say that they should have contemplated that a call made by a prisoner to his girlfriend would then be handed over, and would be perceived as a conversation between Jimmy Collins and Alice Collins. Noting that at one part of the telephone conversation Alice Collins said that Wayne Dundon had not threatened her at all directly, the Court of Appeal concluded that the significance of the words was greatly reduced, if not extinguished, when one looked at the counts on the indictment in question. These counts did not concern a threat to Alice Collins directly, but rather, that the applicant had threatened Alice Collins that he would kill or cause serious harm to her sons, Gareth Collins, and Jimmy Collins, Jnr. While other statements were made, which might be of an unpleasant nature, the court also pointed out that the gravamen of the charge related to threats uttered to Ms. Alice Collins, but in a situation where the defence case had been that no incident of the sort described had happened at all. In such circumstances, the Court of Appeal concluded that the very fact of the telephone conversation actually offered comfort to the prosecution, rather than the defence. The court concluded that the threshold for the admission of new evidence derived from the telephone transcript had not been met, and the court refused leave to adduce the additional evidence, and argue the additional grounds. The applicant’s contention before the Court of Appeal was that these transcripts could be placed beside other evidence from Alice Collins, which might demonstrate inconsistencies as to the time and location of any threat.

Submissions in the Application

9. The applicant, through counsel, now criticises the finding by the Court of Appeal that what arose was not a point of real substance. Criticism is made that the court held that the threshold for admission of new evidence derived from the telephone transcripts had not been met. The applicant now contends that the decision of the Court of Appeal involves a point of law of general public importance, as to the threshold which should be applied in an application to adduce additional evidence, and to add new grounds to an appeal. It is said the Court of Appeal did not address the nature of the evidence. It is contended that the decisions in The People (DPP) v. O’Regan [2007] 3 I.R. 805, and The People (DPP) v. Willoughby [2005] IECCA 4 (Unreported, Court of Criminal Appeal, 18th February, 2005), do not address the precise legal issues which arose in this case, namely, as to the threshold required to show that new evidence could have a “material and important influence” on the result of the case (see the judgment of Kearns J. in O’Regan). It is said, the interpretation of this test, where it concerns the credibility and reliability of a witness, should incorporate the principle that, where new material opens a potential new line of cross-examination on a significant issue in the witness’s evidence, then the new evidence is both material and important. It is said that the Court of Appeal incorrectly focused on the response that might have been made by the prosecution, rather than the nature of the material itself. It is contended that a point of law of general public importance arises, as to whether the Court of Appeal, in considering an application to adduce new evidence, should properly consider the possible prosecution response to same. The applicant contends that the Court of Appeal has added a further ground to the O’Regan materiality and important influence factors, which was illogical, as it focused on the hypothetical or possible answers to the new evidence; that the Court of Appeal conclusion was infused with ex post facto reasoning regarding the subject matter of the threats; that the test applied was an improper one, as it paid insufficient regard to extraneous matters, and that there had been a failure to assess the potential value of the evidence in the context of the standard of proof in criminal trials, especially in the context of credibility.

The Response from the Director of Public Prosecutions

10. The Director’s response can also be seen on the Courts Website. The response seeks to lay emphasis on the proposition that the materiality and importance of the evidence has been mischaracterised by the applicant, and that the applicant has not fully quoted the totality of the court’s findings in relation to the potential materiality of the evidence.

11. It is further said that the reality of the application is that it does not raise any point of law, but, rather, is an effort to persuade this Court to reach a different conclusion from that reached by the Court of Appeal applying the O’Regan and Willoughby principles of materiality and importance. It is said there is no injustice. It is said the Court of Appeal correctly applied the authorities referred to earlier, particularly O’Regan. It is submitted that the applicant failed to address the manner in which the Court of Appeal examined new evidence, and married the evidence with other evidence which had emerged at the trial. It is contended that the applicant errs in asserting the Court of Appeal added a further ground to the principles enunciated in O’Regan. The respondent contends that the Court of Appeal did not apply a new threshold test, that the Court of Appeal correctly found on the facts that the alleged evidence was not material or significant, and that the Court of Appeal correctly assessed the value of the evidence in the context of the case as a whole. The respondents deny the matter raised is one of general public importance, or one necessary to entertain in the interests of justice.

Decision

12. The very specificity of the detail outlined earlier indicates the extent to which, in fact, this is an application based on a specific set of facts. This in itself militates against the proposition that what is in question is a matter of general public importance, which it is necessary for this Court to consider in the interests of justice. But there is a more profound difficulty. This Court is coerced to the conclusion that what is in question here is, in fact, a “dressed up” appeal against the decision of the Court of Appeal, seeking that this Court would reach a different conclusion, but applying the same principles of law A consideration of the application, and the points made, demonstrate that what is being sought is not that this Court consider a point of general public importance, but rather, a challenge to the manner in which the Court of Appeal applied the well-established tests in O’Regan and Willoughby. In fact, in the case of the applicant, the court carried out a detailed assessment of why the material could have a material or important influence on the trial, to quote these two authorities. The kernel of the issue was whether or not the items of evidence reached the threshold established in those two authorities. The Court of Appeal correctly held they did not. The approach adopted by the Court of Appeal was to assess the materiality and importance of the evidence sought to be admitted, by reference to other evidence at the trial. What is criticised is nothing more than an application of the established tests. When the application is seen in this way, this Court must reach the conclusion that the point raised is not one of new principle, but rather, simply the application of established principles in the particular circumstances of the case, using the various elements of the evidence, already in the case, as points of reference. This is precisely the test adopted by this Court in O’Regan. In the circumstances, therefore, the Court will decline the application. No issue of general public importance is raised. It is not in the interests of justice that the application be granted.

And it is hereby so ordered accordingly.