DPP -v- Thomas Hughes, [2012] IECCA 69 (2012)

Docket Number:141/12
Party Name:DPP, Thomas Hughes
Judge:Hardiman J.
 
FREE EXCERPT

THE COURT OF CRIMINAL APPEAL

Hardiman J. 141/12

Moriarty J.

Hogan J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

THOMAS HUGHES

Applicant

JUDGMENT of the Court delivered the 2

nd

day of July, 2012, by Hardiman J.

This is the applicant’s application for an enlargement of time within which to appeal against conviction. The sequence of events in relation to those convictions is of critical importance.

On the 1st November, 2011, in the Special Criminal Court (Butler J. presiding) the appellant pleaded guilty to counts 14 and 15 in the Indictment preferred against him and a co-accused. These counts were as follows:

(1) Count 14 Statement of Offence

Possession of an explosive substance contrary to s.4 of the Explosive Substances Act, 1883 as amended by s.15(4) of the Offences Against the State (Amendment) Act, 1998.Particulars of Offence.

You, Thomas Hughes, on the 26th day of January, 2011 at Hundred Acres, Monivea, Athenry in the County of Galway had in your possession an explosive substance to wit Ammogex containing ammonium nitrate, in such circumstances as to give rise to a reasonable suspicion that you did not have it in your possession for a lawful object.

(2)

Count 15.

Statement of Offence

Possession of a firearm without a firearm certificate contrary to s.2 of the Firearms Act, 1925 as amended by s.27 of the Criminal Justice Act, 2006.

Particulars of offence.

You, Thomas Hughes, on the 26th day of January, 2011 at 28 An Tuairin, Dublin Road, Tuam, in the County of Galway had in your possession or under your control a firearm being a six millimetre m.e. Flobert calibre Alfa-Proj Model 640 revolver bearing serial number 6640001003 without a firearm certificate granted under the Firearms Acts, 1925-1990 and for the time being in force.

The applicant received a five year sentence on Count 14 and a two year sentence to run concurrently on Count 15. These sentences were imposed on the 6th December, 2011.

The applicant did not appeal either conviction or sentence within the time limited for such appeal, that is, within 21 days.

Legal Development.

On the 23rd February, 2012 Denham C.J. gave the judgment of the Supreme Court in the case of Ali Charaf Damache v. DPP, Ireland and The Attorney General.

At para. 59 of that judgment it is recited that, for the reasons set out in the judgment:

“The Court would grant a declaration that s.29(1) of the Offences Against the State Act, 1939 (as inserted by s.5 of the Criminal Law Act, 1976) and referred to as s.29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.”

Relevance to present case.

The relevance of the last mentioned development to the present case is that the searches of the two premises which led to the finds of materials which form the basis of Counts 14 and 15 were issued under s.29, and by a person who could not be described as independent. The second of these counts relates to material found in a search of the applicant’s home. The first of the counts, apparently the more serious, relates to premises which were not his home or “dwelling” within the meaning of the Constitution.

Failure to appeal.

The applicant did not take any step to appeal his conviction or sentence either within twenty-one days of his conviction on his own plea of guilty, or within twenty-one days of his sentence. Instead, outside the time limited for appeal, on the 26th April, 2012, he filed an application for the enlargement of time to appeal. He stated that the ground on which he applied for such enlargement was:

“I intended to appeal the sentence initially but I did not instruct my solicitor in time as I was incarcerated in Portlaoise prison”.

It must be said that, considered as a statement of the reasons why no appeal against the appellant’s conviction was lodged within the time limited for such appeal, the above statement is hopelessly inadequate. Firstly, it relates wholly to an alleged intention to appeal sentence, whereas the present application relates to conviction. It then states that the reason why no appeal, as was allegedly intended, was in fact lodged was that “… I did not instruct my solicitor in time as I was incarcerated in Portlaoise Prison”.

Although this Court has experience of appeals against conviction in cases where a custodial sentence was not imposed, it remains the case that the great bulk of...

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