Supporting Documents:
108-17 Rspndt Notce.pdf108-17 AFL.pdf

THE SUPREME COURT

DETERMINATION

BETWEEN

Result: The Court does not grant leave to appeal.

Reasons Given:

Jurisdiction

1. This is an application for leave to appeal against the judgment and order of the Court of Appeal, by which that Court upheld the refusal of the High Court (O’Regan J.) to grant an order of certiorari quashing the applicant’s conviction for the offence of handling stolen property.

2. 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.

3. 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 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.

Background

4. The applicant was tried before the first named respondent on the 23rd September 2014 on a charge of handing a stolen bag, knowing or believing it to be stolen, contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001. His partner, with whom he resided in the apartment where the bag was found, had pleaded guilty to the same charge on an earlier occasion. In the course of his evidence the Garda investigating the offence said that he suspected that the applicant had stolen the bag.

5. The applicant applied for a direction at the close of the prosecution case, making two separate submissions for that purpose. Firstly, it was contended that on the basis of the officer’s evidence the applicant had been involved in the theft and could not, therefore, be convicted of handling. The complaint made on behalf of the applicant in this respect is that the judge did not engage with this submission and rejected it without giving reasons. The second submission was that, since the applicant’s partner had pleaded guilty, it was necessary for the prosecution in the applicant’s case to give evidence of common design or joint enterprise. Again, it is complained that the judge did not engage with the argument made and simply stated that the applicant had a case to answer. When asked by counsel to give reasons, he stated that he did not have to. He then read out part of the definition of the offence of handling.

The proceedings

6. The applicant instituted judicial review proceedings with a view to quashing the conviction for failure to give adequate reasons. It appears that a transcript of the District Court hearing was put in evidence and was considered by both the High Court and Court of Appeal judges. In the High Court the trial judge (O’Regan J.) gave an ex tempore judgment in which she held that the principles set out by this Court in Kenny v. Judge Coughlan [2014] IESC 15 and O’Mahoney v Ballagh [2002] 2 I.R. 410 were satisfied by the respondent’s reference to the statutory definition of the offence.

7. This decision was upheld by the Court of Appeal (see Connors v District Judge Faughnan [2017] IECA 196). The principles to be found in the case-law on the extent of a District Judge’s obligation to give reasons are summarised at paragraph 14 of the judgment of Hedigan J. – the applicant does not suggest that any part of this summary was incorrect. One of these principles is that legal submissions considered to be weak or unstateable, particularly when assessed in the light of the evidence, may be answered adequately by a simple statement that they are rejected. Hedigan J. noted (correctly) that the respondent’s statement that he “did not have to enlighten counsel” was too broad, but in circumstances where, in the view of the Court of Appeal, the submissions made on behalf of the applicant were “very weak” no reasons were required.

Discussion

8. As is clear from a range of determinations made by this Court since the 33rd Amendment of 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, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law, 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 it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 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 interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests 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.

9. It is against that background that it is necessary to consider the basis on which it is said that the constitutional threshold is met in this case.

Decision

10. The judgment delivered in the Court of Appeal is based on well-established case law. The applicant complains that the decision of this Court in Oates v Judge Browne [2016] IESC 7 is not discussed, but there is no suggestion that Oates laid down a new test or added any new element to the existing principles.

11. The question whether a legal submission made on behalf of a litigant is so weak as to permit rejection without the giving of reasons will always be case-specific to the point where it will rarely give rise to an issue of general public importance. In this particular case the Court agrees with the characterisation of the applicant’s arguments as “very weak”. The first point made depends upon a conflation of Garda suspicion with evidence of guilt and is simply wrong. The second is also misconceived – any number of people may, in a given set of circumstances, be guilty of handling a stolen item without there being any element of joint enterprise.

12. In the circumstances the application does not meet the constitutional criteria. Leave to appeal to this Court will accordingly be refused.

And it is hereby so ordered accordingly.