DPP v Buck

JurisdictionIreland
JudgeMr. Justice Birmingham
Judgment Date11 December 2015
Neutral Citation[2015] IECA 344
Docket Number209CPA/14
CourtCourt of Appeal (Ireland)
Date11 December 2015

[2015] IECA 344

THE COURT OF APPEAL

Birmingham J.

209CPA/14

Birmingham J.

Sheehan J.

Mahon J.

In the matter Section 2 of the Criminal Procedure Act 1993

The People at the Suit of the Director of Public Prosecutions
Respondent
v
Anthony Buck
Appellant

Conviction – Murder – Newly discovered facts – Appellant seeking to appeal against conviction – Whether application constitutes an abuse of process

Facts: The appellant, Mr Buck, on the 20th February, 1998, was convicted in the Central Criminal Court of the murder of a Mr Nugent between the evening of the 8th and the morning of the 9th July, 1996 at Clonmel, Co. Tipperary. The mandatory life sentence was imposed and he was also convicted on the same occasion of robbery and sentenced to twelve years imprisonment. He appealed that conviction to the Court of Criminal Appeal and that Court dismissed the appeal. It did issue a certificate pursuant to s. 29 of the Courts of Justice Act 1924 permitting the matter to be brought to the Supreme Court. The Supreme Court dismissed the appeal and answered the questions posed to it in the negative. Mr Buck invoked the provisions at s. 2 of the Criminal Procedure Act 1993 and contended that there had been a miscarriage of justice and that his conviction should be quashed by the Court of Appeal. He contended that the judgment of the Supreme Court in the case of DPP v Gormley and White [2014] IESC 17 constituted a newly discovered fact within the meaning of s. 2 of the Criminal Procedure Act 1993. He also contended that a new or newly discovered fact arose to the effect that Garda O'Connell, the member in charge of the station at the time of his arrest and detention, knew or must have known at the time that he first attempted to contact, on the appellant's behalf, his solicitor Mr Reilly, that Mr Reilly was conflicted and would not have been in a position to act for or advise the appellant. The respondent, the DPP, responded to the invocation of s. 2 by bringing a notice of motion which sought to dismiss the application, contending that the Supreme Court decision in Gormley and White cannot and does not constitute a new or newly discovered fact and therefore this was an application which was bound to fail and to that extent constituted an abuse of process.

Held by Birmingham J that, having considered McKevitt v DPP [2014] IECCA 19, it would be to do violence to language to suggest that a much later decision of the Supreme Court could under any circumstances be regarded as a newly discovered fact. In the Court's view, there was quite simply no newly discovered fact to be found in the judgment in White and Gormley. Birmingham J held that this would have been sufficient to dispose of the appeal. Birmingham J also drew attention to the fact that the facts of the case and the facts of Gormley were significantly different. In the Court's view, the fact that no admissions were made during the time that the Gardaí were seeking to secure the attendance of a solicitor and that all the admissions were made after there had been a consultation with a solicitor represented from Mr Buck's perspective an insuperable obstacle. It was the Court's view that all of the appellant's issues were canvassed very elaborately and very thoroughly at the trial; the question of the admissibility of the statements and the question of access to the solicitor were centre stage at trial, centre stage at the appeal to the Court of Criminal Appeal and centre stage in the appeal that was ultimately brought to the Supreme Court. Birmingham J held that those matters could not possibly constitute a new or newly discovered fact such as to lead to a conclusion that the conviction was unsafe and ought to be set aside.

Birmingham J held that he was satisfied that this was an application without substance and without merit. The Court dismissed the application.

Appeal dismissed.

Judgment of the Court (ex tempore) delivered on the 11th day of December 2015 by Mr. Justice Birmingham
1

The Court is in a position to indicate that it has reached a decision and to state now what that decision is.

2

The appellant, Mr. Anthony Buck was convicted in the Central Criminal Court following a lengthy trial presided over by Quirke J. on the 20th February, 1998. He was convicted of the murder of David Nugent between the evening of the 8th and the morning of the 9th July, 1996 at Clonmel, Co. Tipperary. The mandatory life sentence was imposed and he was also convicted on the same occasion of robbery and sentenced to twelve years imprisonment.

3

He appealed that conviction to the Court of Criminal Appeal and that Court dismissed the appeal. It did however issue a certificate pursuant to s. 29 of the Courts of Justice Act, 1924 permitting the matter to be brought to the Supreme Court. The matter came before the Supreme Court and in what is now a reported case, the case of DPP v. Buck [2002] 2 I.R. 268, that Court dismissed the appeal in a judgment delivered by Keane C.J. and answered the questions posed to it in the negative.

4

To put the matters in issue today in context, it is necessary to explain that the prosecution case at trial relied to a significant extent on incriminating statements that were made by the accused over the course of three interviews which were conducted with him following his arrest at Cahir garda station on the 14th July, 1996.

5

Mr. Buck has now invoked the provisions at s. 2 of the Criminal Procedure Act, 1993 and has contended that there has been a miscarriage of justice and that his conviction should be quashed by this Court. More specifically he contends that the judgment of the Supreme Court in the case of DPP v Gormley and White [2014] IESC 17 constitutes a newly discovered fact within the meaning of s. 2 of the Criminal Procedure Act 1993. He also contends, and it is fair to say it is very much a subordinate point, that a new or newly discovered fact has arisen to the effect that Garda O'Connell, the member in charge of the station at the time of his arrest and detention, knew or must have known at the time that he first attempted to contact, on the appellant's behalf, his solicitor Mr. Peter Reilly, that Mr. Reilly was conflicted and would not have been in a position to act for or advise the applicant.

6

The Director of Public Prosecutions has responded to the invocation of s. 2 by bringing a notice of motion which seeks to dismiss the application, contending that the Supreme Court decision in Gormley and White cannot and does not constitute a new or newly discovered fact and therefore this is an application which is bound to fail and to that extent constitutes an abuse of process.

7

First of all, it must be said that the Court undoubtedly has a jurisdiction to dismiss summarily applications brought under section 2. So much is clear from the decision of the Court of Criminal Appeal in McKevitt v DPP [2014] IECCA 19 and the decision of this Court in Joseph O'Reilly v DPP [2015] IECA 111. What is clear from the McKevitt case and also from the case of DPP v. Brian Meehan [2014] IECCA 10 is that it is a jurisdiction to be exercised sparingly.

8

In any event, the question of when it is appropriate to dismiss summarily is of limited relevance in the context of what is now before the Court, because before the Court today was the DPP's motion, but also Mr. Buck's application. In fact, the procedure followed today was that Mr. Buck's application was opened in the ordinary way and responded to by the DPP.

9

By way of background, it should be explained that Mr. Buck was arrested at his home in Clonmel at 2.54 pm on Sunday the 14th July, 1996 and he was brought to Cahir garda station in the custody of An Garda Síochána and on arrival he was detained under s. 4 of the Criminal Justice Act 1994.

10

It is of some significance that the 14th July in question, was the day of the...

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2 cases
  • Buck v Governor of Portlaoise Prison
    • Ireland
    • High Court
    • 13 Julio 2016
    ...that the decision constituted a newly discovered fact within the meaning of s. 2 of the 1993 Act. In the judgment of the Court of Appeal [2015] IECA 344 Birmingham J. noted that the facts of this case and that those of Gormley were strikingly different. The learned judge emphasised the nec......
  • DPP v Buck
    • Ireland
    • Supreme Court
    • 24 Abril 2020
    ...merit, essentially as what was involved was a plea of law and not the adducing of factual material within the meaning of the 1993 Act; [2015] IECA 344. This judgment was on foot of a response by the Director of Public Prosecutions to the s 2 miscarriage of justice application by way of moti......

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