Supporting Documents:

THE SUPREME COURT

DETERMINATION

Between:

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from two judgments of the Court of Appeal (Birmingham J., Mahon and Edwards JJ.) delivered on the 14th June, 2016, and the 21st July, 2016, respectively, and from the resulting Order of that Court made on the 22nd July, 2016, and perfected on the 4th October, 2016.

2. M.F., referred to as “the applicant”, seeks leave to appeal to this Court from the said judgments and Order of the Court of Appeal.

3. The Director of Public Prosecutions, who opposes the application, is referred to in this Determination as “the DPP” or “the respondent”.

Jurisdiction:

4. 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 several determinations made by this Court since the enactment of the Thirty-third Amendment, an applicant must establish, if he is to obtain leave for a further appeal, that the decision of the Court of Appeal involves a matter of general public importance, or that otherwise in the interests of justice it is necessary that there be an appeal to this Court.

Background and Procedural History:

5. In 2009, the applicant was tried, along with four others, in relation to offences arising out of a ‘tiger kidnapping’ which took place in March, 2005. Three of the five were convicted, including Mr. M.F., who received a twenty-five year sentence. The jury disagreed in respect of the other two, as it did on their re-trial. When a third trial was imminent those two, Mr. D.B. and his brother Mr. N.B., sought to prohibit its continuation. Eventually the Supreme Court dismissed this challenge and their trial is now set to commence in January, 2017.

6. With regards to Mr. M.F. and Mr. C.C., who was one of the five and was the applicant’s co-accused in the trial giving rise to this application, the Court of Criminal Appeal set aside their conviction on Damache-type grounds in April, 2012 and ordered a retrial. That first retrial took place in 2013 and resulted in a hung jury. A further retrial commenced in January, 2015, during which the learned judge made a ruling to the effect that certain evidence was inadmissible: as a result, and given the absence of other evidence sufficient to sustain a continuation of the prosecution, the jury, by direction, acquitted the applicant on the 22nd January, 2015. The ruling in question arose in the manner following.

7. At this third trial, evidence was heard in a voir dire relating to the admissibility of mobile phone evidence sought to be adduced by the prosecution. The DPP was seeking to introduce two broad pieces of such evidence, both relating to phone usage: one referable to what was described as cell site analysis (“C.S.A.”), and the other to what was termed call data records (“C.D.R.”). The purpose of the C.S.A. was to show that certain mobile phone handsets were in a certain location at a certain time. The C.D.R. would show various pieces of information relating to calls made between users of certain mobile phones.

8. The applicant argued that such evidence was unreliable because the record of the cell site was based on the phones’ proximity to a particular ‘cell’, i.e. a mast or rooftop antenna which consists of three sectors that provide 360 degree coverage to a certain area. It was uncontested, however, that if the nearest site was inoperative or overloaded, the mobile phone or handset would connect with a more distant cell. Further, it was acknowledged that the relevant witnesses could not give any evidence on the general functionality of the mobile phone network, which would include the operation of the relevant cell sites, on the day in question.

9. On the 21st January, 2015, the trial judge, in her ruling rejecting the admissibility of this evidence, said:-

“Of particular concern in this regard is the fact that, on a given day, there may be, within the system, whether due to maintenance reasons, weather or perhaps other technical reasons, a part or parts of the system which are non-operational. Thus, this raises the issue in the mind of the court to be addressed in evidence required as a result of the Cochrane decision. In other words, is there evidence before this Court as to the ‘authoritative evidence about the operation of the relevant machines?’ The telephone networks have grown considerably over the last few years. There clearly must be some reality in the necessary evidence required for the purposes of court cases. I have reviewed in full the evidence of the three relevant witnesses in this case and none of them could say, or proposed to say, that the relevant networks were fully operational on the relevant dates. It seems to this Court to be within the scope of the networks to have a witness available who can say that, on a given day, all cell sites were in functioning order, or if there were sites out of operation on that day or dates.”

10. In coming to this conclusion the learned trial judge relied upon The People (DPP) v. Colm Murphy [2005] 2 I.R. 125 (“Murphy”) and The People (DPP) v. Brian Meehan [2006] 3 I.R. 468 (“Meehan”): in particular the former, as Meehan did not add anything to that decision. In Murphy, which also involved the admission of telephone records, the Court of Criminal Appeal (“the CCA”) reviewed certain English authorities, all pre-dating 1993, which in its view applied in this jurisdiction. It then went on, however, to say that “such authorities must now be read subject to the decision in R. v. Cochrane (1993) Crim. L.R. 48 (“R. v. Cochrane”), in which it was held by the Court of Appeal that before the judge can decide whether computer printouts are admissible, whether as real evidence or as hearsay, it is necessary to call appropriate authoritative evidence to describe the function and operation of the computer”. It was the absence of such prosecution evidence which led the learned judge to rule as she did. There being otherwise insufficient evidence, the jury, as stated, acquitted the accused persons by direction.

11. In February, 2015, the DPP moved to appeal the acquittal of Mr. M.F. and Mr. C.C., on a “With Prejudice” basis pursuant to section 23 of the Criminal Procedure Act 2010, as amended (“the 2010 Act”). She sought a declaration that the trial judge erroneously excluded “compelling evidence”, as statutorily defined, an order quashing the acquittals as made, and a further order that both individuals be retried in respect of all charges.

12. The Court of Appeal delivered its judgment on the substantive evidential objection on the 14th June, 2016, expressing the view that the learned judge was influenced, perhaps unduly so, by Murphy’s reference to the decision of R. v. Cochrane. It stated that such decision was itself “heavily influenced” by a particular provision of the Police and Criminal Evidence Act 1984 (“the PACE Act 1984”), which had no equivalent in this jurisdiction. As that section had now been repealed, it quoted, with apparent approval, Archbold, Criminal Pleading, Evidence and Practice, 2010 Ed. (Sweet & Maxwell) at para. 9-14, where the authors state:-

“Prior to the repeal of s. 69 … it was necessary to prove the reliability of the computer before any statement in a document produced by a computer could be admitted in evidence … The repeal of s. 69 means that any issue pertaining to the reliability of a computer will go to weight. In the absence of any evidence to raise the issue of reliability it would seem that the maxim omnia praesumunter rite essa acta will apply.”

14. The judgment also dealt with an objection raised by the applicant with regard to s. 23(14)(c) of the 2010 Act. For the appellate court to be satisfied that the rejected evidence constituted “compelling evidence”, within the meaning of that provision, it would also have to be satisfied, inter alia, that such evidence “…when taken together with all of the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned”. Given the manner in which the voir dire was conducted, which involved only the giving of such evidence as was relevant to the contested dispute, the point being made was that as there was no further evidence given in the trial, it could not have been possible for the Court of Appeal to be satisfied that this requirement of the definition had been met.

15. The Court, when dealing with this objection, which it first described as a “procedural issue”, took the view that the reference within the provision to “…other evidence adduced in the proceedings concerned…” (emphasis added) allowed it to take into account the evidence which had been tendered in all previous trials where the jury had disagreed. By this route, it was therefore satisfied that “compelling evidence” had been erroneously excluded.

16. In its supplemental judgment of the 21st July, 2016, the Court concluded that by reference to the matters specified in subs. (12) and (13) of s. 23 of the 2010 Act, a re-trial was the appropriate order to make. Whilst conscious of the time gap between the date of the offences and the likely trial date, the Court nonetheless was satisfied that such a trial could be conducted fairly.

Application for Leave:

17. The applicant seeks leave to appeal both decisions of the Court of Appeal to this Court, and does so on three grounds, all of which are said to meet the requirements of the constitutional threshold, namely, that they are of general public importance or that it is in the interests of justice that a further appeal be pursued to this Court. The first such ground arises in the following manner.

18. The applicant submits that R. v. Cochrane still applies in this jurisdiction as per the Murphy judgment. However, following the Court of Appeal’s decision in the instant case, there now exists an ambiguity in the law governing the admissibility of electronic records, and clarity is required as to the minimum standard of evidence of operation and functionality which is required by this case law. The English case law was applied by the trial judge in conformity with Murphy, but the Court of Appeal took the view that she may have been swayed to an undue extent by the reference to R. v. Cochrane. It is said that as this type of evidence is now frequently tendered in the course of modern criminal trials, it is necessary as a matter of general public importance that the standard of reliability required to admit such evidence should be set by this Court.

19. The applicant further submits that it is of like public importance to have clarity on what constitutes “compelling evidence” in these circumstances. In particular, he submits that it is important to consider how section 23(14)(c) of the 2010 Act should be constructed and how the “compelling” aspect of such excluded evidence is to be assessed, in conjunction with all of the other evidence adduced, if any. He points out that the Court of Appeal acknowledged that the wording of the section “has the capacity to cause difficulty” and submits that clarity is needed.

20. Finally, the Court of Appeal held that the primary consideration on the issue of a retrial in the context of section 23(12) and (13) of the 2010 Act is that specified at subs. 12(a), namely, whether such trial could be conducted fairly. The applicant submits that this case raises the question of how many trials concerning the same incident, and involving evidence being given by the same principal witnesses, it is possible to hold without compromising the fairness of the trial, and that it is in the interests of justice that this question be resolved. There is a core group of witnesses for the prosecution in all of the trials which have arisen out of the underlying tiger kidnapping and they have been cross-examined by multiple counsel on multiple occasions. It is submitted that this gives rise to a real risk of an unfair trial as these witnesses’ recollection of the events may have been tempered by the passage of time or innocently contaminated by accounts given in previous trials.

21. The respondent opposes the application for leave and has asked this Court to dismiss the appeal. The respondent submits that neither judgment of the Court of Appeal raises a point of law of general public importance, nor is it in the interests of justice necessary that there be an appeal to this Court. In the event that the applicant is granted leave to appeal, the respondent will request a priority hearing.

22. In relation to the admissibility of the telephone records, the DPP says that there is no ambiguity in the law in this regard. It is submitted that the trial judge misapplied well settled law (Murphy and Meehan) and that the Court of Appeal judgment correctly sets out how that misapplication occurred and what level of evidence is required on the point at issue in any new trial. The respondent submits that the Court of Appeal’s explanation of this misapplication of this case law in no way gives rise to a point of law of general public importance.

23. The respondent further states that the issue of ‘compelling evidence’ is well settled by the clear wording of section 23 of the 2010 Act and DPP v. JC (No. 2) [2015] I.E.H.C. 50 (“JC (No. 2)”). Likewise, whether the applicant should be retried was a straightforward application of the test set out in section 23(12) of the 2010 Act and was also authoratively dealt with in JC (No. 2). It is therefore submitted that neither issue gives rise to a point of law of general public importance, nor is it necessary in the interests of justice that there be an appeal on these points.

Decision:

24. Since the passing of the Thirty-third Amendment, the Constitution has retained an entitlement to one appeal as of right from the High Court to the Court of Appeal, subject to any express statutory exception or regulation that may provide otherwise. What is sought in this case is a second appeal. As pointed out by this Court in Brennan v. Thomas Flannery & Ors [2015] IESC DET 32, “…it is a general principle that, save in exceptional circumstances [such as those] outlined in Fox v. Mahon & Ors [2015] IESC DET 2, the Court of Appeal is to provide the avenue of appeals from the High Court, and that its decision is to be final, save where there is a point of general public importance, or it is in the public interest that it should be determined further by this Court.”

25. This Court’s role under the new constitutional appellate structure is not simply to scrutinise each decision of the Court of Appeal so as to identify and then correct every potential misstatement of the law or misapplication of the law to the established facts. Equally so with some ostensible ambiguity which is said to exist, or perhaps even where an identifiable error in such judgment has been highlighted. If that was its role, it would have to be satisfied, before ever declining leave, on every aspect of the judgment, including peripheral remarks, obiter observations and even nuances within the phraseology as used. Such an interventionist approach does not sit with the existing constitutional framework. This is one of the main reasons why a decision on a leave application has no precedential value. It binds to finality the parties to the proceedings, but at a general level extends no further. Determinations by this Court are not designed or intended to endorse or reject the underlying judgment, which remains a judgment of that Court for the purpose of stare decisis, but not of this Court.

26. In addition, this Court has made it clear (see, for example, Lyons v. Ireland & Ors [2015] IESC DET 38, and Minister for Equality v. O’Connor [2016] IESC DET 26) that even where the underlying point may involve an issue of general public importance, the necessary yardstick nonetheless will not necessarily be met unless the case is also a suitable one for a further appeal to this Court. It may be that the parties have failed to identify with sufficient precision what the underlying point of law is, or have not phrased it in such a way as to permit a proper examination of the point by this Court, or as to allow the Court to pronounce on the point in a manner which reflects the inherent requirements of a leave application. It may be that the underlying issue is still in its infancy in terms of legal development and that further exploration via the Court of Appeal is required, or would be beneficial, before this Court should embark upon a review of the point. These are but examples of situations which at that point in time may prevent the case from being an appropriate one in which to grant leave. Where that occurs it may well be that at some future date, in some other case, the same or a similar point will satisfy the threshold.

27. Both the issues canvassed in this application, and those possibly arising but which have not been raised, are a good illustration of the basic point above made. Firstly the latter.

Invoking Section 23 of the 2010 Act:

(i) Ever since section 34 of the Criminal Procedure Act 1967, it has been possible for the Attorney General and, since its establishment, the DPP, to obtain an opinion from this Court (now the Court of Appeal) on an issue of law arising out of, inter alia, a criminal case in which either has been the prosecutor. Such an application has no adverse consequences for the accused. He had been acquitted by reference to the point at issue. This has been the standard and mainstay route by which this Court has been reached for many years.

(ii) The legislative changes enacted in 2010 have seen a dramatic shift in consequences for an accused where the provisions of that Act are being used to engage with this Court. It is arguable that it was not the intention of the Oireachtas that section 23 would become the routine vehicle of proceeding. If that was so, it may be that above and beyond a desire to continue with the prosecution of an accused person, there would have to exist a compelling reason why a ‘With Prejudice’ appeal was decided upon rather than a ‘Without Prejudice’ appeal.

(iii) However, such an issue has not been raised on this application and thus the Court would express no view on it.

(i) The Court notes that no issue has been raised, and no indication of an intention to so do has been given, of any challenge that either or both the invocation or application of Part 4 of Chapter 1 of the 2010 Act or one or more of its provisions is inconsistent with the Constitution.

(i) What has been challenged, however, is the operability of this section, that is in the context of the appellate court being satisfied that, by reference to the ruling of the trial judge, “compelling evidence” has been erroneously excluded.

(ii) This Court notes how the Court of Appeal addressed this issue, and in particular how it felt capable of referring to previous trials so as to make a positive finding that the requirement specified in section 23(14)(c) (para. 15, supra) had been satisfied.

(iii) It is unclear how the Court could have any knowledge of what evidence had been given in those trials, and, even if it had, how that could have been relied upon in the instant case which, at the level of principle, should be regarded as a separate, distinct and self-contained trial.

(iv) However, this is an issue specific to the instant case, in particular given the prosecutorial background to this prosecution and the number of criminal trials already conducted.

(v) In addition, despite concluding as it did, it is striking to note that the Court of Appeal was very much mindful of a potential problem when it said:-

“By any standards, that is not a satisfactory situation, and is a matter which calls for legislative intervention.” (Judgment of the 14th June, 2016, para. 11)
(vi) In the Court’s view, given the difficult and complex statutory structure of a ‘With Prejudice’ appeal, it is a matter, at least in the first instance, for the prosecuting agency and for accused persons, if so minded, to engage with the Court of Appeal so that the variable and diverse issues which arise from that part of the 2010 Act, in particular from section 23, can be addressed and worked through. This is an evidence-specific point and is more appropriate for determination at that level, rather than elsewhere.

(vii) Consequently, the Court is not satisfied that either limb of the constitutional threshold has been met with regard to that particular issue.

28. In his application, the applicant suggests that when one considers both the CCA’s decision in Murphy and the Court of Appeal’s decision in the instant case, there now exists uncertainty about the legal requirements for the reception into evidence of telephone records. In particular, he relies on the passage above quoted from R. v. Cochrane to suggest that evidence, at least with some level of probity, must be given so as to establish that as of the relevant date, the apparatus in question was properly functioning.

29. As previously set out, the Court of Appeal doubted the continuing relevance of R. v. Cochrane, given the repeal of s. 69 of the PACE Act 1984. If its view is correct, that in any event there was never an equivalent in Irish law, then neither the repeal of the section nor its enactment in the first place would appear to have been as decisive as suggested. Be that as it may, the Court went on and applied R. v. Cochrane and concluded that the ruling so made by the trial judge went in any event in excess of what was even demanded by that decision.

30. If the passage above quoted from Murphy, dealing with Cochrane, was the pivotal reason for the ruling of the learned trial judge in evidentially rejecting what the DPP intended to offer with regard to telephone evidence, it seems to this Court that much of the subsequent legal debate may not have been necessary. This in light of the concession by the applicant and/or the agreement of all parties that the evidence intended to be proffered was in fact real evidence, and should be so regarded. The alternative potential classification of it being an aspect of hearsay did not arise. Accordingly, it seems that what Murphy had in mind in its reference to Cochrane simply did not arise in the case.

31. It is somewhat unclear, however, if this was the reason which prompted the Court of Appeal to suggest, first, that any issue with telephone records was a matter of weight rather than admissibility, and, secondly, that in the absence of an issue being identified as such, it should be presumed that the underlying apparatus was effectively functioning at the relevant date. It is thus uncertain as to how these observations feed into the ratio of the decision, or whether they were intended to have more far reaching implications than simply apply to the process by and through which these telephone records were generated and produced. If there is any uncertainty, such is clearly capable of being addressed and resolved in a case where the matter properly, and necessarily, arises for determination

32. This is therefore a case which must rest at appellate level and is not an appropriate one in which the jurisdiction of this Court should be invoked for the purposes of offering guidelines which would have general applicability to matters not central to this case.

33. Accordingly, the constitutional threshold has not been met, and therefore leave will be refused.

Re-Trial:

34. The final limb of the leave application centres on the Court of Appeal’s decision to order a re-trial having had regard to subs. (12) and (13) of section 23 of the 2010 Act. This Court cannot see any legal issue arising under this heading. Whilst remaining ever so conscious of the necessity that there should be a fair trial with attendant due procedures, it is quite sufficient to note that at the commencement of any trial there is and there remains throughout its duration the continuous obligation of the trial judge to ensure that a trial is so conducted and that if, despite whatever corrective measures might be available, the same is not achievable, then it must be terminated.

35. In conclusion, as the constitutional threshold has not been met, and as for other reasons this is an inappropriate case, this Court will refuse leave to appeal.

IT IS HEREBY SO ORDERED ACCORDINGLY.