Douglas v DPP

JudgeO'Donnell Donal J.,McKechnie J.,O'Malley J.
Judgment Date23 June 2016
Neutral Citation[2016] IESCDET 46
CourtSupreme Court
Date23 June 2016

[2016] IESCDET 46



O'Donnell Donal J.

McKechnie J.

O'Malley J.

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

This determination relates to an application brought by Jonathan Douglas, hereinafter referred to as ‘the applicant’, in which he seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 21st December, 2015, by Mahon J, Birmingham and Sheehan JJ concurring.


The Director of Public Prosecutions is the respondent, and is referred to as ‘the DPP’ or ‘the respondent’.


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


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; confers full original jurisdiction on 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 that:-

‘1° The Court of Appeal shall—

i save as otherwise provided by this Article, and

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.’


Article 34.4.3° of the Constitution provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from its decisions under Article 34.5.3°.


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. It does not feature on this application.


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:-

‘3° 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.’


Article 34.5.6° states that the decision of the Supreme Court shall in all cases be ‘final and conclusive’.


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 ‘in the interests of justice’ it is necessary that there be an appeal to this Court. Thus, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, it must demonstrate that either or both of these pre-conditions exist.


The statutory framework for the moving of an application seeking leave to appeal to this Court is to be found in the Court of Appeal Act 2014, and, in particular, the provisions of s. 44 of that Act, which amends, by insertion, s.7 of the Courts (Supplemental Provisions) Act 1961.


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


In summary, the Constitution has retained an entitlement of 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 and Ors [2015] IESCDET 32, ‘…it is a general principle that, save in exceptional circumstances such as those outlined in Fox v Mahon and Ors., the Court of Appeal is to provide the avenue for 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.’

The Proceedings

On the 23rd July, 2012, following a nine-day trial in the Central Criminal Court, the applicant was convicted by a jury (by a majority vote of 11 to 1) of murder, for which he received the mandatory sentence of life imprisonment. The prosecution case was based on the evidence of Stacey Douglas and her partner, Andrew Sheridan (‘the prosecution witnesses’), the former of whom is a step-niece of the applicant. On the 6th March, 2010, these witnesses made statements at the Bridewell Garda Station, Dublin 7, in which they supplied details of a visit by the applicant to their home on the night of the offence. The applicant contends that these statements should not have been admitted into evidence.


Ms. Douglas stated during a voir dire that her statement had not been made voluntarily and was untrue, and that she had been intimidated and coerced by the gardaí into giving the same. She also said that she had subsequently attended at the garda station and informed the gardaí that her statement was incorrect and that she wished to retract it and make a new statement; she stated that these requests had been denied. In relation to the offence, she stated that she could remember little about the occasion of the applicant's visit to her house on the night in question; what detail she could recall differed materially from what she had said in her statement to the gardaí. Counsel for the DPP made an application for the admission into evidence of her prior statement pursuant to section 16 of the Criminal Justice Act 2006 (‘section 16 of the 2006 Act’), which, despite objection from the applicant, the trial judge acceded to. The trial judge also admitted Mr. Sheridan's prior statement following a similar application by the DPP in respect of same; Mr. Sheridan had likewise contended that his prior statement was tainted in the same way as that of Ms. Douglas. These statements were crucial prosecution evidence in the case against the applicant.


Following his conviction, the applicant appealed to the Court of Appeal on a number of grounds, only some of which are of continuing relevance to the present application. Those grounds related to (1) the admission into evidence of the above statements pursuant to section 16 of the 2006 Act; (2) the trial judge's charge to the jury in relation to such statements; and (3) the trial judge's failure to hold that the prosecution witnesses were in fact accomplice witnesses, which if he had would have obliged him to caution the jury as to the danger of acting on the uncorroborated testimony of the prosecution witnesses. On all and on each of these grounds, the conviction was said to be unsafe and unsatisfactory.


In relation to the admissibility of the statements, the Court of Appeal held that although the trial judge's ruling in this respect had been brief, it was nonetheless abundantly clear that in arriving at his decision he had accepted the evidence of the garda witnesses over that of the prosecution witnesses. In such circumstances the Court would be slow to substitute its own view for that of the trial judge. Accordingly, it was satisfied that the trial judge did not err in admitting the statements, on the basis that they were a matter ultimately for the jury to decide as to their truthfulness and voluntariness. As regards the trial judge's charge to the jury, the Court of Appeal referred to the decisions of DPP v Murphy [2013] IECCA 1 and DPP v Campion [2015] IECA 274. It was satisfied that the jury was adequately charged and that, in the overall context of the trial, it was made aware of the issues regarding the truthfulness and voluntary nature of the unsworn statements.


Finally, in relation to whether Ms. Douglas and Mr. Sheridan could be regarded as accomplice witnesses and whether there was any need to caution the jury about the dangers of relying on their testimony, the Court of Appeal noted that although it would have been possible to charge them based on their statements, such an event was extremely unlikely. They were not accomplices in the sense that they had not been involved in the commission of the murder. Furthermore, they had taken steps to repudiate their statements and that diluted any suggestion that they could be considered accomplices. The jury was warned to assess the statements of such witnesses with a degree of caution and care and it also received a warning under section 10 of the Criminal Procedure Act of 1993. In these circumstances, the Court dismissed all of the applicant's grounds of appeal.

Application for Leave to Appeal to this Court

In this application the applicant seeks to appeal from parts only of the decision of the Court of Appeal. For this purpose he has set out what he says is a concise statement of ‘facts that are not in dispute’, but the respondent does not accept the entirety of this analysis. As the full argument advanced in the Application for Leave and Notice of Appeal and the DPP's response thereto are available on the Courts Service website together with this Determination, a brief and concise summary only of these arguments will be presented here.


The applicant will rely on three grounds of appeal if granted leave to appeal by this Court. For convenience these may be considered under two headings: first, those relating to section 16 of the Criminal Justice Act 2006; and, secondly, those relating to whether the prosecution...

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