Director of Public Prosecutions -v- Cooke, [2015] IECCA 5 (2015)

Docket Number:84/07
Party Name:Director of Public Prosecutions, Cooke


[CCA No. 84/2007]

MacMenamin J.

Hanna J.

Murphy J.






Judgment of the Court delivered on the 28th day of July, 2015 by Mr. Justice John MacMenamin

  1. On the 11th May, 2009 this Court dismissed the applicant’s appeal, which now, again, falls for consideration herein. The applicant had been convicted of a series of offences by a jury at the Dublin Central Criminal Court, presided over by Ms. Justice Maureen Harding Clarke on the 28th February and the 1st March, 2007. The offences in question, which occurred between the 14th May, 1974 and the 13th May, 1978, were against two complainants. 52 counts of indecent assault were in question. The first 26 counts on the indictment related to a complainant, AMK; the second remaining 26 counts related to the complainant, SK.

  2. The applicant had previously been convicted on the 18th December, 2002 of multiple counts of indecent assault in respect of the same two complainants. That conviction was quashed on the 29th May, 2006 by this Court, on the basis that the issue of delay had not been alluded to at all in the learned trial judge’s charge. What is in question here, therefore, was the retrial, and the decision of this Court upon that retrial.

  3. The application to seek certification to appeal to the Supreme Court is based on the following two points in the Notice of Motion:

    “(a) Having regard to the varying judgments of the Court of Criminal Appeal on the extent of the warning that should be given in delay cases and in particular sex delay cases, can an Applicant, whose counsel raised with the trial judge the inadequacy of her warning with which requisition the trial judge agreed to recharge but yet did not do so, be denied full consideration of this ground of appeal on the basis of the decision in People (DPP) V Cronin.

    (b) Can the proviso contained in section 3(a) of the Criminal Procedure Act, 1993 apply in a case where there has been a failure to direct the jury on an essential matter of law.”

    These are dealt with separately in this judgment.

  4. The first, and most obvious, matter which arises, on the face of things, is that a very considerable time has elapsed between the judgment of this Court and the application which is now made for a s.29 certificate, some 6 years later. Essentially, the applicant blames his then solicitor for the delay which occurred. It is said that he made various efforts to contact his solicitor, and then retained another solicitor, with a view to seeing whether his appeal had been expedited. It is unnecessary, at this stage, to go into the details of this question, save insofar as to point out what has become obvious, that, in a real sense, the question which this Court has been asked to determine is now moot, in that the applicant has now served the sentence imposed upon him for these offences. But, as will now be explained, other issues also arise which must be borne in mind in determining whether or not the application meets the test.

  5. Insofar as relevant, s.29 of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act, 2006, as amended by s.31 of the Criminal Procedure Act, 2010, provides:

    “29(1) Subject to s.9(A) of this section, no appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other matter except in accordance with this section.

    (2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.” (emphasis added)

    The Point of Law

  6. In considering the issues which are sought to be raised, it is important to bear in mind that it is not in dispute that the applicant must show that the questions which are sought to be raised transcend the specifics of this particular case, and constitute points of law which are genuinely important to the public at large, and where it is desirable in the public interest that an appeal should be brought to the Supreme Court. It is important to emphasise that what is in question in an application under s.29 of the 1924 Act, as amended, is the point of law involved in the decision. What is in question, therefore, must be the point of law in itself, rather than its application, in a particular context, or the determination this Court arrived at on the application of that point of law. That point of law must, itself, be of exceptional public importance. Consequently, the strength or otherwise of any grounds of appeal which were placed before this Court, which simply involve the point of law, is not relevant. Further, what is in question are not the strengths or weaknesses of any arguments against the correctness of the judgment of this Court, but rather, whether that point of law is of such a character as to come within the four walls of s.29 of the 1924 Act. The fact that a set of events or findings occur at one trial for the first time does not mean that what is involved is a question of exceptional public importance, or a matter of public interest. The facts of every trial are unique; what is essential is to look to the point of law and assess whether it comes within the section.

    “Exceptional Public Importance”

  7. Three High Court judgments are of assistance in identifying whether or not a question is one of “exceptional public importance”. The test, insofar as is applicable, to a s.29 application, is as follows:

     It is not enough that the case raises a point of law. It must be one of exceptional public importance.

     The jurisdiction to grant a certificate must be exercised sparingly.

     The issue of law involved must be uncertain, such as that it is in the common good that the uncertainty be resolved for the benefit of future cases.

     The uncertainty of the point of law must be genuine, and not merely a difficulty derived from the particular case.

     The point of law must arise out of the court’s decision, and not merely out of issues arising at the trial or appeal.

     The requirements of exceptional public importance, and the desirability of an appeal in the public interest, are cumulative.

    (These principles, suitably adapted, are abstracted from judgments of the High Court in IR v. Minister for Justice, Equality & Law Reform and the Refugee Appeals Tribunal, The High Court, Unreported, Cooke J., 26th November, 2009); Raiu v. Refugee Appeals Tribunal, The High Court, Unreported, Finlay-Geoghegan J., 26th February, 2003...

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