Supporting Documents:
An Chúirt Uachtarach
The Supreme Court
DETERMINATION P B APPLICANT AND
The Director of Public Prosecutions RESPONDENT
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
RESULT: The Court declines an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 20th day of April 2015 by Sheehan J, Birmingham and Mahon JJ concurring; [2015] IECA 81.
REASONS:
1. This determination concerns an application brought by the applicant, in which the applicant seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 20th day of April 2015 by Sheehan J, Birmingham and Mahon JJ concurring.
2. The applicant was the accused in Bill number CEPD 59/2011 of a large number of counts of sexual assault, some called because of the age of the offences indecent assault, occurring while he was a teacher between September 1964 and June 1985. The applicant was by the time of his trial before the Circuit Criminal Court an elderly man and is now in his 80s. On the 11th of July 2014 he was convicted by a jury of 59 counts on that indictment and was sentenced to 5 years imprisonment with 6 years suspended thereafter. The applicant himself did not give evidence at his trial but called a number of witnesses. These testified that unlike those who complained that they had been subjected to sexual assaults from him, nothing untoward had occurred and that classes were normal and decent and his conduct as a teacher and as an adult had been proper. Upon conviction, he appealed to the Court of Criminal Appeal, a function now taken up by the Court of Appeal under the new constitutional arrangements.
3. In the judgment of the Court of Appeal of 20th April 2015, 12 separate grounds of appeal were considered as to why the conviction was unsound. That entire judgment is sought to be appealed against. That, in itself, is contrary to the scheme under Article 34 of the Constitution since leave to appeal to this Court depends upon identifying a matter of general public importance or demonstrating why the interests of justice require a further appeal. Thereafter, however, 1 ground seems to be isolated and argued to be a matter of general public importance. This is the particularisation of the indictment in respect of the multiple offences. The applicant states:
During the cross-examination of the second complainant to give evidence, counsel for the appellant complained to the trial judge about the lack of particularisation and absence of specificity in the indictment and the difficulty for the defence arising from the evidence of different incidents and the lack of clarity as to which of the allegations related to the counts on the indictment. At the conclusion of the prosecution case counsel for the appellant applied to have the charges withdrawn from the jury on the basis that the appellant was prejudiced by the lack of specificity in the indictment in that it was impossible to distinguish what complaint as to conduct alleged to constitute sexual assault related to which count. The learned trial judge, despite acknowledging the different categories of offending given in evidence, refused to accede to the application on the basis that the book of evidence alleged the conduct of the accused towards each of the complainants and therefore he knew the nature of the conduct which it was being alleged constituted the charges of indecent assault and moreover that the trial judge could address the issue in his direction to the jury.
4. It is claimed, however, as two additional points, firstly that contact information for other pupils should have been given to the defence and that the trial judge’s charge to the jury was inadequate in failing “to contextualise the manner in which the delay [in prosecution] gave rise to specific difficulties for the appellant”. The Director of Public Prosecutions opposes the application. But, regrettably, that opposition is limited to claiming that the judgement of the Court of Appeal is correct. Some reference to the issue as to whether a point of general public importance has been raised would have been both expected and helpful.
5. The judgment of the Court of Appeal rejected the indictment ground, holding:
Framing an indictment in old cases involving serious child sexual abuse is often fraught with difficulty. In particular, when the drafters attempting to ensure, on the one hand, that the indictment reflects the behaviour complained of and, on the other, ensuring that the indictment does not become so unwieldy that it contains numerous counts resulting in unnecessary difficulties for a jury. In this case, where the defence was that no wrongdoing occurred and that where there was also a degree of consistency between the wrongdoing alleged by all the complainants, this Court considers that the appellant was not hampered in his defence by the failure of the prosecution to further particularise counts on the indictment.
6. On the issue of the adequacy of the charge to the jury by the trial judge, the Court of
Appeal rejected that ground stating:
The trial judge gave a detailed delay warning and partially contextualised the present case by referring to the fact that the jury had to consider events alleged to have occurred between 30 and 50 years ago. On being requisitioned by the defence to further contextualise and emphasise the delay warning because of the number of complainants, the trial judge pointed out that the degree of prejudice to a defendant was greater where there were multiple complainants and the fact that teachers from the adjoining classroom were deceased. It is the Court’s view that the trial judge was correct in refusing to direct the jury that specific prejudice was caused to the appellant by the death of Mr A, the unavailability of Garda Wrenn and the absence of Garda notes. … This Court finds no fault with the trial judge’s charge on delay, nor for that matter does this Court finding fault with the said charge insofar as it related to the presumption of innocence and an explanation as to what constitutes reasonable doubt. The trial judge’s charge in respect of these latter matters was fair and balanced, as also was part of the charge were explained to the jury that no adverse inference could be drawn from an accused person’s decision not to give evidence.
7. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; under Article 34.2 establishes the Court of Appeal; and under Article 34.5.3° sets out its appellate jurisdiction. This reads:
4 1° The Court of Appeal shall—
i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
8. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to come directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:
3° The Supreme Court shall, subject to such
regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.
9. The decision of the Supreme Court under Article 34.5.5° is in all cases “final and conclusive.”
10. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
11. The Constitution has retained the entitlement of one appeal as of right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.
12. On the question of an issue or issues of general public importance, the applicant implicitly, though not expressly, argues that indictments are important and that particularising what charge relates to what particular piece of evidence is important. It has been necessary to imply arguments as to general public importance as they are not stated in the application or in the reply thereto. A similar tacit argument might be taken from the documents of the applicant in relation to delay and to the issue as to adequate access to defence witnesses. This latter ground seems completely to have fallen away in the application.
13. The respondent, the Director of Public Prosecutions, in meeting the case seems not to appreciate the constitutional framework. All of the argument is directed to whether the Court of Appeal was right or wrong. The question of general public importance and the interests of justice are not touched on. Nonetheless, the application will be considered on its merits.
14. From the standpoint of the tests whereby this Court may assume jurisdiction to allow an appeal from a judgment of the Court of Appeal under Article 34.5.3° of the Constitution, the applicant has not met these. Twelve grounds of appeal were argued before the Court of Appeal. Of these, 3 have been chosen apparently, but not explicitly, on the grounds of general public importance. Were there any deficit in the case law as to how an indictment is framed in accordance with the rules on indictments made law by the Criminal Justice (Administration) Act 1924, were those rules unclear as to the nature of the information that should be given in an indictment, some point as to general public importance might possibly be argued. There is no lack of clarity, however, therein. Further, an accused has the benefit of a book of evidence in order to relate the charges to evidence. On the point in relation to witnesses, the Court of Appeal took the view that witnesses were capable of being contacted through the gardaí should they have anything useful to say on behalf of the defence. On the point concerning the charge, there is clear law as to the necessity for a warning but it is also been the law that the nature and extent of a warning should be tailored to the particular circumstances of the case and is within the remit of the trial judge as to content. This is within the discretion of the trial judge.
15. On neither ground as set out in Article 34.5.3° does this Court have an entitlement under the Constitution to allow an appeal from the Court of Appeal in this case.
16. It follows that the applicant is not entitled to a further appeal.
AND IT IS HEREBY ORDERED ACCORDINGLY
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