Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

Result: The Court grants leave to the Applicant, Gary Campion, to appeal to this Court from the decision of the Court of Appeal of the 31st July, 2015. Leave is limited to the certified points of law.

Reasons given:

1. In this application the applicant seeks leave to appeal against the order and judgment of the Court of Appeal dated the 31st July, 2015, by virtue of which his conviction for murder was upheld. The core complaint concerns the evidence of the principal witness for the prosecution.

Jurisdiction

2. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.

3. 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; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states:

“1º The Court of Appeal shall –

(i) Save as otherwise provided by this Article,

(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 also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”

5. Under Article 34.5.4˚ it is possible for a decision of the High Court to be directly appealed to the Supreme Court, bypassing the Court of Appeal. This type of appeal is sometimes referred to colloquially as a “leap-frog” appeal.

6. The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.5.3°, which states:

“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.”

8. 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.

9. The statutory framework for the exercise of the right to appeal 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.

10. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.

11. Persons convicted on indictment retain a statutory right of appeal to the Court of Appeal. What is sought here is a second appeal. In both civil and criminal matters 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. It is not the function of this Court to review decisions of the Court of Appeal for error.

12. It is necessary to stress that the Court’s jurisdiction in criminal matters under Art. 34.5.3° is not based on the same criteria as those set out in s.29 of the Criminal Justice Act 1924. A decision of the Court of Criminal Appeal on an application for a certificate under that Act is thus of extremely limited precedential value in considering whether leave to appeal to this Court should be granted under the new Constitutional provisions.

The Notice of Application

13. The first notice of application in the case was seriously deficient and the Court permitted the applicant to file an amended notice. The amended notice, together with the amended notice of the respondent, are available on this website and will not be set out in detail here.

14. The Court wishes to point out that the applicant’s amended notice is also deeply unsatisfactory. It contains what appear to be material misstatements as to what actually transpired in the trial, including the incorrect statement that the defence was “prohibited” from calling certain evidence, and has necessitated considerable effort on the part of the Court to discover the actual course of events from the various transcript excerpts. It also fails to engage with the necessary process of identifying a point of law of general public importance, which is the fundamental basis for this Court’s jurisdiction. It is foreseeable that in some cases shortcomings such as this may lead to a refusal of leave on the ground that no such point has been identified.

Decision

15. 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 any precedential value 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.

16. The ground sought to be raised in relation of the refusal of the trial judge to grant a direction at the conclusion of the prosecution case does not in itself raise a point of law of general public importance. As already noted, it is not the function of this Court to review decisions of the Court of Appeal for error, and the principles according to which a direction application should be dealt with are well settled.

17. Similarly, the issue raised as to the reference in the judgment of the Court of Appeal to the applicant’s eyebrows could not in any circumstances be considered a point of law of general public importance, being entirely case-specific. Moreover, the Court notes that it arose in circumstances where the evidence in question had not been challenged by counsel in the trial.

18. However, there is sufficient material before the Court to ground a determination that it is in the interest of justice that an appeal should be brought before the Supreme Court and that the case raises an issue of general public importance. This is in relation to the procedure to be followed where there is material before the court giving rise to an issue as to the mental competence of a significant witness and/or the possibility that the reliability of that witness’s testimony may be affected by mental illness; and the role of psychiatric evidence in relation to that issue.

19. In a key passage in its judgment, the Court of Appeal said (at paragraph 32):

“…The scope for expert professional evidence on whether a witness is reliable or indeed capable of telling the truth will be very limited. The decision making process will normally not be enhanced by the prospect of professional witnesses intervening and offering conflicting and competing opinions that is so quintessentially one for a jury. The situation may well be different in cases involving disputed confessions where appropriate professionals may be able to offer assistance on issues such as whether an individual is particularly prone to succumb to psychological pressure, is unusually compliant or particularly suggestible, or more dramatically still, on issues such as whether an individual suffers from a syndrome involving a compulsion to make false confessions.

A judge who has observed a witness such as Mr. Cahill give his direct evidence, and then be subjected to several lengthy cross examinations is particularly well positioned to decide whether the evidence is so unreliable that the case should be withdrawn from the jury or whether the evidence of the witness, together with all the other evidence in the case should be left to the jury for consideration.”

(i) In a criminal trial, is expert evidence admissible in relation to a) the competence and b) the credibility of a witness if there is material before the court indicating a real possibility that the reliability of that witness’s testimony may be affected by mental illness?

(ii) If the answer to Question (i) is Yes, and the witness refuses to undergo examination, or is for some other reason unavailable for examination by the parties, should the trial judge stop the trial?

(iii) If the answer to Question (ii) is No, is it a matter to be taken into account by the trial judge in considering an application for a direction?

(iv) If no expert evidence has been adduced, is an appellate court entitled to review the decision of the trial judge to permit the case to go to the jury on the basis of his own assessment of the reliability of the witness?

And it is hereby so ordered accordingly.