Supporting Documents:
83-17 AFL.doc83-17 Rspndt Notce.doc

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 judgment and order of the Court of Appeal

REASONS GIVEN

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Sheehan, Mahon and Edwards JJ.) delivered on the 21st March, 2017, and from the resulting Order of that Court which was perfected on the 28th April, 2017.

2. Mr Stephen Egan, referred to in this Determination as “the accused” or “the applicant”, moves this application for leave, which is opposed by the Director of Public Prosecutions, who is referred to as “the DPP” or “the respondent”.

Jurisdiction

3. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and from the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

4. Any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for consideration is whether the facts and legal issues as presented meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues if and when such issue should further arise in a different case. Where leave is granted on any issue, that matter will in due course be disposed of in the substantive decision of the Court.

Procedural History

Background, Trial and Appeal

5. The full facts and background of the case are more fully recited in the judgment of the Court of Appeal and the parties’ respective documents on this application for leave, and accordingly a summary version only is presented here.

6. The applicant was responsible for the brutal killing of Gary Douch at Mountjoy Prison in the early hours of the morning of the 1st August, 2006. Both men were in a holding cell in the prison, together with five others. He was indicted before the Central Criminal Court on a charge of murder. He offered a plea of guilty to manslaughter by reason of diminished responsibility but the DPP took the view that such verdict could only be returned by a jury. His trial therefore proceeded before a jury (Birmingham J. presiding) on the 20th and 21st April, 2009.

7. At trial Mr Egan made a number of formal admissions through counsel, including that he attacked Mr Douch by punching, kicking and stamping on him; that Mr Douch died as a result of this attack; and that this killing was unlawful. He further admitted that at the time of these acts he had formed views concerning the deceased (in particular his view that Mr Douch was a sex offender) which were illusory and without foundation, and offered his underlying psychotic illness as the reason for such views.

8. There was no dispute between the parties that Mr Egan was suffering from diminished responsibility at the time of the offence. The accused accepted the opinion and conclusion in the report of Professor Tom Fahy, psychiatrist, who also gave evidence at trial, that the accused’s mental illness substantially impaired his responsibility for the said acts giving rise to the death of Mr Douch, and that he met the criteria for manslaughter on the grounds of diminished responsibility under the provisions of section 6 of the Criminal Law (Insanity) Act 2006 (“the 2006 Act”). At trial, Professor Fahy testified that there was clear evidence of, inter alia, psychotic symptoms, auditory hallucinations, persecutory beliefs, and paranoid delusions. His diagnosis was that the applicant was suffering from schizoaffective disorder, which qualifies as a mental disorder for the purposes of the said section 6. In the witness’s opinion, this illness diminished Mr Egan’s responsibility for the killing. The jury, which obviously accepted this evidence, returned a verdict of not guilty of murder but guilty of manslaughter by reason of diminished responsibility.

9. Of pivotal importance to the within application is the sentence imposed by Birmingham J. on the 29th June, 2009. He accepted that the accused’s responsibility was significantly diminished, but found nonetheless that it remained substantial. Even had his delusional beliefs been true, they would have offered no explanation or justification for the appalling violence visited on Mr Douch. The attack also involved a degree of calculation. Leaving aside the issue of diminished responsibility, this case was at the upper end of manslaughter cases.

10. In arriving at the appropriate sentence, the learned judge, having referred to the question of the protection of the public, consciously voiced a concern that the same could potentially merge into an impermissible form of preventative detention. He referred to Mr Egan’s mental disorder and his history of medication, as well as Professor Fahy’s view that there was a high risk of recidivism and that his condition was prone to relapse if, for example, he was exposed to illicit drugs. Birmingham J. was clearly troubled by the applicant’s own statement to the effect that he was likely to fall back into criminal behaviour and that he would find it difficult to maintain a sober, drug-free regime. There was thus a real apprehension regarding unsupervised release. Any release into the community would need to be structured, pre-planned, and would have to involve the parole board. In passing sentence, the learned judge referred to the case of DPP v. Crowe [2009] I.E.C.C.A. 57, which held that where a Court is imposing a maximum sentence, notwithstanding a plea of guilty, it is incumbent upon it to give reasons therefor, and continued:

“It seems to me that his re-entry into the community is going to involve rigorous supervision and it seems to be also that it’s going to have to be supervision that would be backed by this sanction of indefinite re-incarceration if he doesn’t comply. … [I]t seems to me that the extent of the danger to the public posed by Mr Egan, which seems to me is only capable of being dealt with by a structured and in all likelihood a phased released into the community, does mean that this case falls fairly and squarely into the category of special and exceptional cases … It seems to me that in terms of protecting the public, that the sentence which is best calculated to achieve that is a sentence of life imprisonment and accordingly I impose that sentence.”

11. Mr Egan appealed his sentence to the now defunct Court of Criminal Appeal (“the CCA”). He alleged, inter alia, that the term imposed failed to adequately reflect the jury’s finding of diminished responsibility under the 2006 Act, and that it amounted to inadmissible preventative detention. The appeal was heard on the 29th October, 2010. In relation to his diminished responsibility, the applicant highlighted, in particular, the medical mismanagement of his mental illness in the weeks leading up to the killing of Gary Douch, including the fact that he was without his medication in the days before the assault. The Court of Criminal Appeal rejected his complaints and dismissed his appeal in an ex tempore judgment of Hardiman J. delivered on the 29th October, 2010. He endorsed the “lengthy and very impressive” sentencing remarks of Birmingham J., stating that the learned trial judge had “approached this matter correctly and not merely correctly but thoughtfully and even ingeniously”. The Court concluded that there was “absolutely no ground to consider the sentence wrong in principle”.

12. Following the killing of Mr Douch, a Commission of Investigation was established to enquire, inter alia, into the circumstances surrounding his death (see also para. 21, infra). Its investigations were initially stayed so as not to prejudice the trial and appeal of Mr Egan; it circulated its draft report in April, 2012, and on the 1st May, 2014, it published its final report entitled the Report of the Commission of Investigation into the Death of Gary Douch (“the Report of the Commission of Investigation”). Following its publication, the accused brought an application to the Court of Appeal pursuant to section 2 of the Criminal Procedure Act 1993 (“the 1993 Act”) seeking a review of his life sentence on the grounds that certain of the Report’s findings constituted new or newly-discovered facts showing that the sentence imposed was excessive.

The Judgment under Appeal

13. The judgment of the Court of Appeal ([2017] I.E.C.A. 95) on that section 2 application was delivered by Edwards J. (with whom Sheehan and Mahon JJ. concurred) on the 21st March, 2017. The Court dealt, as a preliminary matter, with the issue of whether the material upon which the accused sought to rely constituted a new or newly-discovered fact or facts; if it did not, the accused would have no entitlement to re-ventilate the complaints that were previously rejected by the CCA.

14. Both parties accepted that the principal authorities on the proper application of section 2 of the 1993 Act are The People (DPP) v. Willoughby [2005] I.E.C.C.A 4 and The People (DPP) v. O’Regan [2007] 3 I.R. 805, in which the Supreme Court approved the Willoughby decision. The second limb of the test states that the evidence “must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial.” The Court of Appeal agreed with the respondent that the accused had failed to satisfy this requirement. It noted at paragraph 48 that “all of the evidence underpinning [the relevant findings in the Report of the Commission of Investigation] was available, or certainly was discoverable and obtainable with reasonable due diligence, at the time of the applicant’s trial and sentencing.” The Court went on to note that many of the core issues discussed in the Report were in fact ventilated before Birmingham J. The Court also alluded to other “ostensibly strong” arguments raised by the DPP but found that it was unnecessary to decide them in light of its conclusion on the second limb of Willoughby. Thus the application for leave to rely on further evidence was refused and the Court did not permit the applicant to re-open his appeal against the severity of his sentence.

Appeal to this Court

15. The applicant, in moving this application, seeks an Order setting aside the Order of the Court of Appeal and the Order of the Central Criminal Court. The respondent consented to an extension of time within which to seek leave to appeal, but opposes the application and intends to ask this Court to dismiss the appeal if leave is granted. The applicant is not seeking to have a provision of any Act of the Oireachtas declared unconstitutional or incompatible with the European Convention on Human Rights, nor does either party seek to ask this Court to depart from or distinguish one of its own decisions or to make a reference to the Court of Justice of the European Union. Neither party is seeking a priority hearing.

16. The reasons submitted by the applicant in support of his application are set out in detail in his Application for Leave and Notice of Appeal document. The DPP’s reasons for opposing the granting of leave are likewise set out in her replying document. These documents are available together with this determination on the Courts Service website; accordingly, the parties’ reasons are set out here in summary form only.

Application for Leave and Notice of Appeal

17. The applicant states that despite his shocking crime, he himself has been the victim of a miscarriage of justice in that he was given a life sentence despite not bearing full responsibility for the crime. He submits that he seeks to rely on new or newly-discovered facts arising from the Report of the Commission of Investigation; these facts demonstrate that the situation in which he found himself was not one of his own making but rather that he was medically mismanaged and deprived of necessary anti-psychotic medication. He submits that the Court of Appeal has misconstrued the meaning of “new” or “newly-discovered” for the purposes of section 2 of the 1993 Act, and in so doing has placed too high a burden on the applicant, as he would effectively have had to carry out his own fact-finding exercise equivalent to that carried out by the Commission if he was to meet the test as espoused by that court. It is said that the scope of section 2 is a matter of exceptional public importance.

18. Mr. Egan claims that the trial judge’s decision to impose a life sentence notwithstanding the jury verdict of diminished responsibility, and to impose a life sentence based in large measure on preventative detention, are matters of general public importance. He also suggests that whether a jury finding of ‘not guilty of murder but guilty of manslaughter by reason of diminished responsibility’ can effectively be nullified by the imposition of a life sentence is also a matter of general public importance. Another matter said to meet this threshold is whether the findings made by a Commission of Enquiry are sterile of legal effect and cannot therefore constitute “new or newly discovered” facts for the purposes of section 2 of the 1993 Act.

19. The applicant submits that there are a number of factors which have the effect that it is necessary in the interests of justice that this Court should hear his appeal. In this respect he says that the trial judge, in imposing a life sentence, delegated his sentencing function to the Parole Board, which is impermissible in light of the constitutional separation of powers; he also submits that his mental health has stabilized, and thus it is in the interests of justice that he be given an opportunity to adduce medical evidence of his up-to-date medical condition to show that the imposition of a life sentence was not necessary or fair.

20. Finally, it is submitted that it is in the interest of justice that this Court should consider whether the life sentence is excessive. The applicant relies on what he calls a “statutory quirk” which led to procedural difficulty in seeking to advance his appeal to the Supreme Court. This quirk arose from the abolition of the Court of Criminal Appeal, and the fact that the new Court of Appeal does not enjoy the jurisdiction which the former court exercised under section 29 of the Courts of Justice Act 1924 (“the 1924 Act”). The applicant brought an application to the CCA seeking to appeal under the said section 29, but was compelled to withdraw the application as that Court no longer had jurisdiction to entertain same, section 29 having been repealed by the Court of Appeal Act 2014 (“the 2014 Act”). He submits that he then consulted the Supreme Court Office, which told him that it would not be possible to file an application for leave to appeal against the decision of the CCA refusing his appeal against sentence. The applicant refers to section 79 of the 2014 Act, which states that the continuity of the administration and enforcement of justice shall not be interrupted by the coming into force of any provision of that Act. Mr Egan submits that this is the end of the road for him and that if this Court shares the view that the sentence imposed was presumptively excessive, it should grant the present application for leave.

Respondent’s Notice

21. The DPP submits that the applicant expressly agreed in the Court of Appeal that the Willoughby principles were the applicable test in the context of an application under section 2 of the 1993 Act. The general principles of law in this area are well-settled and there is no general public importance in revisiting them, nor is it in the interests of justice to do so. The rationale behind the test is an established one and has not been altered by the Court of Appeal in this case, and it has long been recognised that the burden on an applicant is a heavy one. The matters referred to in the Report of the Commission of Investigation pertain to the administration of prisons generally and not to the kernel of Mr Egan’s case, which concerns the imposition of a life sentence. Moreover, it is submitted that the material upon which the applicant seeks to rely was reasonably available to him at the time of sentencing. None of these matters are of general public importance.

22. The respondent submits that it is evident from his remarks that the sentencing judge did not impose a life sentence on preventative grounds; this was affirmed by the Court of Appeal. The sentence was specifically framed to deal with the confluence of factors referable only to the applicant’s personal history. Moreover, there is no question of the life sentence “nullifying” the jury verdict as the legislature has not restricted the sentencing powers of a trial judge where section 6 of the Criminal Law (Insanity) Act 2006 applies. No point of public importance arises from these grounds. Moreover, the DPP submits that no issue as to the interests of justice arises from the alleged stabilisation of the applicant’s mental health. The Parole Board plays a vital role in the administration of long-term prison sentence and that is the appropriate route for the applicant to pursue.

23. It is submitted that the Court of Appeal’s conclusion that the findings in the Report do not constitute new or newly discovered evidence relates solely to the circumstances of this case; there is point of no general public importance arising from this ground of appeal. Similarly, nothing approaching that threshold arises from the imposition of a life sentence in this case: the law (including the Criminal Law (Insanity) Act 2006) is clear and unambiguous in not restricting the power of a sentencing judge to impose a life sentence where the verdict is one of manslaughter by reason of diminished responsibility. Such cases are rare and case-specific. Additionally, in light of the applicant’s failure to satisfy limb (b) of the Willoughby test, the Court of Appeal was not required to make a finding on whether the Commission’s findings were sterile of legal effect. The law on sterility of effect is well-settled and no issue of general public importance arises in this regard.

24. As to the procedural “quirk” alleged by the applicant, the DPP submits that the chronology of the case indicates that his submissions in this regard are not well-founded. The CCA heard his appeal against the severity of sentence and refused same on the 29th October, 2010. Between that date and the establishment of the Court of Appeal on the 28th October, 2014, the applicant did not seek to advance any further appeal pursuant to section 29 of the 1924 Act. It was not until December, 2014 that there was any correspondence from his solicitors in this regard, and no motion for a section 29 application was actually lodged until the 31st March 2015, some five months after the establishment of the Court of Appeal. The motion was not therefore covered by the transitional provisions of section 78 of the 2014 Act, which concerned proceedings initiated before the establishment day or proceedings heard in full or in part. The matter was listed before the CCA for June, 2015, but the parties agreed that it should have been before the Court of Appeal instead. The applicant did not lodge his application under section 2 of the 1993 Act before the Court of Appeal until nine months later.

25. Moreover, the respondent submits that this “quirk” has not caused the applicant any prejudice in any event: the threshold for a hearing before this Court is now “general public importance”, a lower threshold than that which pertained under the old section 29 regime. The applicant may also seek to avail of the “interests of justice” limb of Article 34.5.3° of the Constitution. Thus on the facts he has not been disadvantaged by the alleged procedural quirk, nor has section 79 of the 2014 Act been offended.

26. Finally, it is submitted that the circumstances of this case were exceptional, with its seriousness at the very uppermost level. All of the relevant factors were carefully weighed and reflected appropriately in the sentence of life imprisonment.

Decision

27. It should be said at the outset that many of the applicant’s proposed grounds of appeal and the reasons advanced in support of this application do not arise directly out of the judgment under appeal, which concerned a straightforward application of the Willoughby principles, but rather relate back further to the sentence originally imposed and also to the subsequent review of that sentence carried out by the CCA. In many respects therefore the main thrust of this application is unrelated to the decision of the Court of Appeal delivered on the 21st March, 2017; rather, as stated, the applicant seeks to impugn the ruling and sentence imposed by Birmingham J. and to challenge the rejection of his appeal therefrom on the 29th October, 2010, via the judgment of Hardiman J.

28. In such circumstances it is not at all clear why the applicant should now be entitled to rely upon many of the reasons advanced on this application, which do not actually relate to the judgment sought to be appealed. It would seem that the reason for the inclusion of these grounds, which relate to the imposition of the underlying sentence, is the alleged statutory “quirk”, above described, which prevented the applicant from appealing the judgment of the CCA to this Court. On this basis, it is said that it is in the interests of justice that the Court should hear the appeal. The Court is not convinced by this argument. The CCA gave its judgment in October, 2010. The Commission’s draft report was circulated in April, 2012; its final report followed on the 1st May, 2014. Notwithstanding this, the applicant did not in any way indicate that he would seek to advance his appeal under section 29 of the Courts of Justice Act 1924 until the 23rd December, 2014, and no motion to that effect was in fact lodged until the 31st March, 2015; this despite the fact that the impending establishment of the Court of Appeal, the transfer of functions from the CCA to that Court, the transitional provisions of that Act and the repeal of section 29 of the 1924 Act must all have been known to the applicant’s legal advisers from at least the promulgation of the Court of Appeal Act 2014 in July 2014, if not significantly earlier. It is clear, therefore, that the so-called “quirk” could readily have been avoided. Be that as it may, however, the Court is satisfied in any event that none of the matters raised by the applicant, arising out of the either the October, 2010 judgment of the CCA or the March, 2017 decision of the Court of Appeal, are sufficient to satisfy the constitutional threshold for an appeal to this Court from the Court of Appeal.

29. First, the clear reason for the Court of Appeal’s decision to dismiss the application was that all of the evidence underpinning the findings in the Report of the Commission of Investigation which might have been relevant to Mr. Egan was available, or reasonably discoverable, at the time of the applicant’s trial: indeed most of those matters were in fact ventilated at that hearing. This conclusion was inherently tied to the particular facts of this case and the specific findings made by this particular Commission of Investigation. It was reached by applying agreed principles to the findings arising out of this particular Report. The Court of Appeal, though noting that the DPP’s “ostensibly strong” submissions regarding the ‘sterility of effect’ of the Commission’s findings and the fact that they constitute ‘opinions’ rather than ‘facts’, was not required to decide either of those points in light of the decision reached on the application of prong (b) of the Willoughby test. It is difficult to see how the rather narrow basis for the decision made could have any application beyond the facts of the instant case, given that the Report in question was concerned only with the particular killing at issue and the systemic failings which surrounded it. The Court is not satisfied that this submission raises an issue of general public importance such as to sustain an appeal to this Court.

30. The Court is similarly not persuaded that the constitutional threshold is satisfied by the Court of Appeal’s interpretation of the phrase “new or newly-discovered fact” and Mr Egan’s suggestion that that court placed too high a burden on an applicant under section 2 of the 1993 Act. This provision has been considered by the Court of Criminal Appeal and this Court on several occasions. The authorities and guiding principles are well-known and indeed were accepted by both sides in this case. The decision of the court below is in line with these authorities. It merely amounted to an application of Willoughby and in any event the Court did no more than give the relevant words of the section their ordinary and natural meaning. It is not of general public importance that the same be further reviewed by this Court.

31. The applicant says that the imposition of a life sentence notwithstanding the jury verdict of diminished responsibility is a matter of general public importance. The Court does not agree. The sentence imposed by Birmingham J. was self-evidently and expressly based on the specific nature of the facts in this case, and the concerns which they cumulatively gave rise to, and is therefore of limited relevance in a wider sense. That sentence was one which the learned judge was entitled to impose, as there is no bar to the imposition of a life sentence where a verdict of diminished responsibility is returned. Moreover, it cannot be said that it is in the interests of justice that this Court review Mr Egan’s sentence in circumstances where it was fully considered and indeed wholeheartedly endorsed by the old Court of Criminal Appeal, particularly given that the decision in the judgment under appeal was that there are no “new” facts to be considered.

32. For similar reasons, the submission that the jury’s finding of diminished responsibility has been be “nullified” by the life sentence, and that this is a matter of exceptional public importance, cannot be accepted by this Court. Such a description of what occurred is inaccurate. A life sentence is permitted by the relevant legislation, notwithstanding the verdict returned, and it is not of general public importance that this Court review the finding that this was one of those particular cases, which admittedly will be rare, in which such a sentence was appropriate.

33. Mr Egan also says that the imposition of a life sentence based in large measure on preventative detention is matter of general public importance. This is to mischaracterise the basis on which the life sentence was imposed. It is entirely accepted that there is a general prohibition on preventative detention and indeed this fact was recognised by the trial judge in his fully reasoned remarks at the time of passing sentence. The argument that the instant sentence was based on preventative grounds was reviewed and rejected by the CCA in October, 2010. This point cannot satisfy either of the Article 34.5.3° criteria. Likewise, a review of the comments of the learned judge upon sentencing reveals that there was no impermissible delegation of the sentencing function to the Parole Board, whose role in relation to the administration of long-term prison sentences is well-understood and not a matter which could satisfy either of the criteria necessary to bring a further appeal to this Court.

34. Finally, the Court does not consider that the submission regarding the stabilisation of the applicant’s mental health is capable of meeting either of constitutional criteria for an appeal to this Court. Any such change may or may not be relevant to the ongoing administration of the sentence but it has no bearing on the sentencing judge’s entitlement to have imposed a life sentence in this case in the first instance. It is not a function of this Court to review individual sentences based on changes in a prisoner’s personal circumstances.

35. In conclusion, as the constitutional threshold has not been met, this Court will refuse leave to appeal under Article 34.5.3° of the Constitution.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.