Supporting Documents:
 50-18 Redacted Resp Notice.pdf 50-18 Redcated AFL.pdf
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 Criminal Appeal.
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Criminal Appeal |
DATE OF JUDGMENT OR RULING: 25th June, 2015 |
DATE OF ORDER: 25th June, 2015 |
DATE OF PERFECTION OF ORDER: 11th December, 2017 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 9th April, 2018 AND WAS NOT IN TIME. |
General Considerations
1. 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 delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
2. Furthermore the application for leave filed and the respondent’s notice are 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.
3. In that context it should be noted that the respondent does oppose the grant of leave.
Decision
4. This application concerns an order of the Court of Criminal Appeal made on the 25th June, 2015. The background to this matter insofar as it is necessary to set out is that on the 22nd March, 2010, M.J., (hereinafter referred to as the Applicant) was convicted of four counts of indecent assault in respect of his daughter. He was sentenced to six years imprisonment with the final three years suspended on terms. On the 18th June, 2010, he applied to the Court of Criminal Appeal seeking leave to appeal. He was released on bail on 28th June, 2010 pending the appeal. On the 3rd June, 2014, the Court of Criminal Appeal rejected his appeal. The Applicant, then acting as a lay litigant, made an application to the Court of Criminal Appeal seeking leave to appeal to the Supreme Court. This application was filed on the 23rd June, 2014. Subsequently, the Applicant sought an enquiry into the legality of his detention pursuant to Article 40.4.2° of the Constitution. His application in this regard made before Barrett J. on the 10th October, 2014 was refused. This decision was the subject of an appeal to the Court of Appeal. This application for leave is not concerned with those separate proceedings.
5. New grounds were added to the application for leave to appeal to the Supreme Court on the 19th November, 2014. At this stage, the Applicant was once again legally represented. Ultimately, the Applicant's application for a certificate of leave to appeal to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924 (as amended) was heard on the 10th December, 2014. Before the Court was the original motion issued by the Applicant personally on the 23rd June, 2014 together with the further motion issued on behalf of the Applicant seeking to add additional grounds. Judgment was delivered on the 25th June, 2015 rejecting the application for leave to appeal to this Court. The judgment of the Court of Criminal Appeal in respect of the application of a certificate of leave to appeal is available on the Courts Service website.
6. The Court of Criminal Appeal in its judgment set out the reliefs sought in the original notice of motion and in the notice of motion seeking to add additional grounds. Reference was made also to the provisions of s. 29 of the Act of 1924 and the basis on which such an application is considered. Thus the Court of Criminal Appeal noted:
"In order to succeed in an application under s. 29 of the 1924 Act, an applicant must show that arising out of the decision, there is a point of law involved, that the point is not only important but is of public importance: this means that it must transcend the individual interests of the particular parties, no matter how critical the issue is for them (Irish Press Plc v. Ingersoll Irish Press Publications Limited [1995] 1 ILRM 117): that a decision from the Supreme Court on the point so identified is warranted in, and by, the public interest. These requirements are cumulative and nothing short of their combined satisfaction will suffice."
The judgment of the Court then considered the matters raised in the original s. 29 application and concluded that no point of any sufficient importance within the provisions of s. 29 of the Act of 1924 had been articulated which would merit the application of that section. The Court of Criminal Appeal then went on to consider the points raised in the second notice of motion seeking to add additional grounds. The Court of Criminal Appeal identified some difficulty in understanding and clarifying the points raised. It was noted that the first issue concerned an allegation that the Court of Criminal Appeal erred in not directing a full hearing regarding the unconstitutionality/unlawfulness of s. 29 of the Act of 1924. Secondly, an issue concerning the Court of Criminal Appeal's refusal to afford the Applicant an opportunity of applying by way of case stated to the Supreme Court regarding the constitutionality/unlawfulness of s. 29 of the Act of 1924 and thirdly an issue raised in relation to s. 29 of the Act of 1924 within the context of the European Convention of Human Rights and European Treaty provisions. The Court of Criminal Appeal in its judgment explained that the Court of Criminal Appeal was a statutory court and that issues as to the constitutionality or otherwise of s. 29 of the Act of 1924 was not within the competence of the Court of Criminal Appeal. It was further pointed out that there is no process other than by means of s. 29 of the Act of 1924 by which the Supreme Court could be asked for an opinion on an issue arising out of a decision of the Court of Criminal Appeal. Accordingly, the Court concluded that it was not clear at a level of principle how such points could be raised on an application pursuant to the provisions of s. 29 of the Act of 1924. It was further pointed out that no argument was addressed to the Court of Criminal Appeal in the substantive appeal about the constitutionality or unlawfulness of s. 29 of the Act of 1924 and accordingly the Court was satisfied, leaving aside altogether the question as to whether such arguments could have been raised in the proceedings, that they could not now be the subject of a certificate under s. 29. Therefore, the Court of Criminal Appeal concluded that none of the grounds advanced on behalf of the Applicant met the necessary threshold for a certificate under s. 29 of the Act of 1924.
7. The Applicant in his application for leave has set out a number of grounds which he says necessitate an appeal to this Court in the interests of justice and on the grounds of general public importance. In essence, those in relation to the interests of justice concern the obligation to have a fair trial and the refusal by the Court of Criminal Appeal to entertain additional grounds which were not argued at an earlier stage in the proceedings. The grounds in respect of the requirement that the appeal should involve a matter of general public importance are similar in that they also raise issues as to the circumstances in which the additional grounds of appeal were not considered to be such as to warrant a certificate of leave to appeal pursuant to s. 29 of the Act of 1924 and a number of other matters relating to the right to an effective remedy, a fair trial and fair procedures. It should be said that the grounds set out by the Applicant are expressed in very general terms and do not engage with the specific terms of the judgment of the Court of Criminal Appeal insofar as it explains why the additional grounds cannot be the subject of a certificate of leave to appeal pursuant to s. 29 of the Act of 1924.
8. The respondent in its notice opposed the application for an extension of time for making this application for leave pointing out that there was no explanation for the delay in bringing this application save for the reference to a "procedural conundrum" following the perfection of the order of the Court of Criminal Appeal up to the time of filing of this application. The respondent is critical of references to "related proceedings" by the Applicant and points out that the only order which is the subject of this application is the order refusing to certify a further appeal to this Court under the provisions of s. 29 of the Act of 1924. It is contended that an appeal to this Court is not now open to the Applicant. The respondent contends that this is a case arising out of the s. 29 procedure and therefore is one initiated before the establishment of the Court of Appeal thus precluding an application for leave to appeal to this Court other than in accordance with the s. 29 procedure. Further, it is pointed out that an argument as to the constitutionality of s. 29 of the Act of 1924 had not been made in the Court of Criminal Appeal in the course of the substantive appeal and therefore could never have been the subject of an application under s. 29 and in any event, issues as to the constitutionality of s. 29 of the Act of 1924 could never have been properly ventilated before the Court of Criminal Appeal. Finally, the point is made that the issues which were properly before the Court of Criminal Appeal and which related to the trial of the Applicant did not meet the constitutional threshold of being matters of general public importance.
Discussion
9. There is no proper explanation for the delay in bringing this application for leave to appeal. The order sought to be appealed was one made on the 25th June, 2015 and this application for leave was not filed until the 9th April, 2018. A delay in obtaining the perfected copy of the order of criminal appeal does not explain or justify the delay in seeking to apply for leave to appeal. The "procedural conundrum" referred to by the Applicant is not a sufficient basis to justify the extension of time within which to seek leave to appeal. On that basis alone, the application should be refused.
10. Leaving aside the question of delay, there is a more fundamental issue. Can the Applicant now seek leave to appeal to this Court given that this is a case which was heard and determined in the Court of Criminal Appeal in accordance with the provisions and procedures in being prior to the establishment of the Court of Appeal.
The Court of Appeal Act 2014 (the Act of 2014) provided for the establishment of the Court of Appeal following the Thirty Third Amendment to the Constitution. Appeals to the Supreme Court must now meet the constitutional threshold provided for in Articles 34.5.3° and 34.5.4° of the Constitution. Section 78 of the Act of 2014 contains transitional provisions in relation to the Court of Criminal Appeal and it is provided as follows in s. 78(1):
"(1) The Court of Criminal Appeal shall, as regards any proceedings before it that have been -
(a) initiated before the establishment day, and
(b) heard in full or in part by that Court before that day,
continue to have jurisdiction in respect of the proceedings and accordingly the Court of Criminal Appeal may determine and pronounce judgment in respect of those proceedings."
11. The appeal before the Court of Criminal Appeal was initiated on the 18th June, 2010. That appeal was heard by the Court of Criminal Appeal and determined in its judgment delivered on the 3rd June, 2014 prior to the establishment of the Court of Appeal. Thereafter, on the 23rd June, 2014, leave to appeal to this Court was sought in accordance with the provisions of s. 29 of the Act of 1924. This was the only basis upon which such an application could have been brought at that time. No application of any kind could have been brought to this Court other than in accordance with the provisions of s. 29 of the Act of 1924 as the Court of Criminal Appeal was at that time the only Court which had jurisdiction to hear and determine an application for a certificate of leave to appeal. Therefore, in accordance with the jurisdiction of the Supreme Court at the dates of the decision of the Court of Criminal Appeal refusing a certificate pursuant to s. 29 of the Act of 1924 (25thJune, 2015)and application for leave filed by the applicant (9th April, 2018):
(i). The Supreme Court has no jurisdiction to entertain an appeal from the Court of Criminal Appeal according to its current constitutional appellate jurisdiction pursuant to Articles 34.5.3 and 34.5.4 which commenced on the 28th October, 2014; and
(ii) Such statutory jurisdiction as may have continued by reason of the prior Article 34.4.3 and s.78 of the Court of Appeal Act 2014 is only on a certificate granted pursuant to the Act of 1924 as substituted and amended. It had and has no jurisdiction to entertain an appeal from a refusal to grant such a certificate.
12. Accordingly, it is not necessary to consider whether the other issues now raised by the Applicant as to the constitutionality or lawfulness of s. 29, could in any event be raised now, not having been raised in the substantive appeal, assuming that they could have been raised in that appeal. Finally, it should be noted that the Applicant, had he wished to challenge the constitutionality or lawfulness of s. 29 of the Act of 1924 could have done so by the issue of plenary proceedings at an earlier stage.
13. For the reasons set out above, the Court will refuse this application for leave to appeal.
And it is hereby so ordered accordingly.
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