Supporting Documents:
 168-18 AFL.doc 168-18 Resp Notice.pdf
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
DATE OF JUDGMENT OR RULING: 26th June, 2018 |
DATE OF ORDER: 26th June, 2018 |
DATE OF PERFECTION OF ORDER: 1st November, 2018 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 27th November, 2018 AND WAS IN TIME. |
1. This determination concerns a decision of the Court of Appeal made on 26 June 2018; [2018] IECA 196 in an appeal from a conviction of murder of Gerard Hayes, the accused, before the Central Criminal Court on 18 March 2003. The Court of Appeal upheld that conviction.
2. The victim of the murder was John Robinson. He was stabbed in the accused’s mother’s house by the accused in the early hours of 23 January 2000. That is not disputed. An issue of self defence, or lawful use of force, was specifically disavowed at the accused’s trial by his counsel. In any event, the force used could never have been proportionate. The accused received a cut on the head in consequence of an argument with the victim and this required 5 sutures or staples. The victim died in consequence of multiple stab wounds to the head and body inflicted with a knife which the accused took up from beside where the victim had been sleeping.
3. There was no doubt about the defence raised: provocation. The accused said in evidence at the trial that he “made a go for the knife”. He claims to have no memory of stabbing the victim but when asked “Do you accept that you did stab him?,” he answered “I do”.
4. There are two main points sought to be raised. The first relates to self defence and not leaving that to the jury. That point has no traction since it was ruled out on the accused’s own instruction. The second is that the direction of the very experienced trial judge Carney J was inadequate on the issue of provocation.
5. The case, however, is presented as a human rights violation. In an affidavit sworn on 12 December 2016, the accused asserts that after his trial he asked his solicitor to lodge a notice of appeal but that did not happen and nor was leave to appeal asked of Carney J. That is a mere assertion backed by nothing. The murder happened in January 2000. The lawyers for the accused were clearly intent on his defence since in October 2002 they made a pre-trial application to prevent witnesses being called. That was refused. After his conviction in March 2003, the accused wrote to the trial judge complaining that he had not received a fair trial. Nothing more happened for over 9 years.
6. Then there was the assertion that there had been a somehow undiscovered injustice and that the accused had been intent on appealing from the time of his trial. It should not be forgotten that every prisoner in the State has the right to apply to the High Court to rectify any injustice as to their detention. That ranges from medical treatment to education to allegedly illegal detention. There was a right to appeal and it was not exercised and nor was any letter written beyond that mentioned.
7. When the authorities were required to find the transcript, it was discovered that it had been destroyed along with any audio recording of the proceedings because of the massive delay in the accused appealing. A 7 year rule was being followed and the audio in any event was not the DAR now in use in all courts in the State. The audio back then was for the purpose of helping transcript writers. But as there was no appeal, it was not retained. This is said to be a breach of the Courts of Justice Act 1924 section 33, as amended, but that is not the point.
8. The accused thus asserts that this case raises a matter of general public importance as there is no clear procedure as to how a court should approach an appeal where no transcript or audio recording of the trial can be accessed. He submits that it is necessary that the Supreme Court give guidance as to what might be sufficient or adequate to allow an appellate court to make a decision in a criminal appeal in circumstances where all or part of the trial transcript is not available, and guidance regarding what materials may comply with section 33 of the Courts of Justice Act 1924. The accused further argues that the issue of whether a trial judge may charge a jury that it is not possible to find an accused person not guilty is a matter of general public importance. Similar grounds are advanced by the accused as being contrary to the interests of justice.
9. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
10. The application for leave filed, and the respondent’s notice thereto, are both published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in further detail.
11. The court is not one for the correction of error. No aspect of this ruling has precedential value as a matter of law. The Court is tasked under the Constitution with correcting injustices in the context of being a final appellate court and with considering cases of general public importance.
12. The Court of Appeal considered a reconstituted partial transcript and put together at least some of what was missing from daily transcripts notes typed up for the trial judge and from other notes. It is from that record that the accused should demonstrate some real point whereby it becomes realistically arguable that he did not receive a trial in due course of law as guaranteed by Article 38.1 of the Constitution.
13. No such argument is made in any persuasive way. Instead, the argument centres on the transcript, overlooking the astonishing delay by the accused and the bald assertions that he makes for not exercising appellate rights which were open to him from the instant of his conviction, rights which a substantial portion of those convicted exercise either as to conviction or as to sentence on a regular basis. It is beyond credibility that the accused did not know of this.
14. There is no point arising either under the European Convention on Human Rights, Article 6, since there was a fair trial on the face of all of the now available documents and the accused was represented and had further rights to seek a remedy from any judge of the High Court at any time. Accepting that appeal by way of application is the usual course, this was not exercised by the accused.
15. The accused also complains about the trial judge telling the jury that there could be no acquittal in this case. That is part of the charge. It is also correct. Self defence entitles an accused to be acquitted if force is used proportionately to a threat of violence. That defence was disavowed by the accused and this was confirmed by his counsel prior to charging the jury. He accepted inflicting multiple stab wounds to the victim. Hence, the only defence open to him, and the only one for which he argued was provocation; a killing that was intentional but which resulted from a complete loss of self-control due to the actions of the deceased person. That defence is a concession to human weakness and in Irish law reduces a murder charge to manslaughter. The jury rejected the accused’s account in evidence at his trial and convicted him of murder. Hence, there can be no complaint.
16. Further, on the issues as to transcripts, appeals, not appealing and other matters, there is nothing persuading this Court that the Court of Appeal erred or that these extraordinary circumstances of delay and not, for whatever asserted reason, exercising commonplace rights of appeal in a timely fashion give rise to any point of law of general public importance. Hence, the Court is not convinced that points of law of general public importance arise nor that any issue of injustice requires to be addressed.
The Court doth therefore decline the application for leave to appeal
AND IT IS HEREBY ORDERED ACCORDINGLY
|