DPP v Buck

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 24 April 2020
• Neutral Citation: [2020] IESC 16
• Docket Number: S:AP:IE:2019:000067 2019/219 [2013] IECA 59 CCC 2019 no 0009
• Date: 24 April 2020
• Court: Supreme Court

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

- AND -

ANTHONY BUCK

ACCUSED/APPELLANT

[2020] IESC 16

O'Donnell J.

McKechnie J.

MacMenamin J.

Charleton J.

O'Malley J.

S:AP:IE:2019:000067

[2020] IESC 000

2019/219

[2013] IECA 59

CCC 2019 no 0009

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Miscarriage of justice – Criminal Procedure Act 1993 s. 2 – Conflict of interest – Appellant seeking to appeal a decision dismissing his application to claim a miscarriage of justice – Whether there was a conflict of interest

Facts: The appellant, Mr Buck, by a determination issued by the Supreme Court on 30 January 2019, was granted leave to appeal a decision of the Court of Appeal dismissing his application to claim a miscarriage of justice under s. 2 of the Criminal Procedure Act 1993. The issue of law of general public importance which arose on appeal concerned the correct interpretation and application of ss. 2(3), 2(4) and 2(5) of the 1993 Act. The terms ‘new fact’ and ‘newly discovered fact’ appeared to the Court to have been used interchangeably in connection with Mr Buck’s s. 2 application and in particular in connection with the dismissal of that application on foot of a motion issued by the respondent, the Director of Public Prosecutions, asserting that there was no possible basis for his claim of miscarriage of justice to succeed. In consequence, the Court found it necessary to consider: firstly, the correct interpretation of the miscarriage of justice provisions in the 1993 Act; secondly the applicability of any jurisdiction to strike out an application under that legislation as hopeless; and, thirdly, the merits of Mr Buck’s application.

Held by the Court that, having considered the chronology of events, the arguments of the appellant, his statements as to when matters were realised, and the counter arguments of the respondent, the conflict of interest point at ground 1 was insubstantial. As regards ground 2, the Court noted that this was sought by the appellant to be raised in a prior application and his awareness, supposing the point to have validity which was not the case, was to be identified with his advisors. As regards ground 3 and what was claimed to be an evidential point, the appellant stated he was aware of it and that it was a point the significance of which was “fully appreciated by me since 1998-1999”. As regards the meeting or confrontation, the appellant said he had “sought for the matter to be dealt with at the Court of Criminal Appeal”, as far back as his first appeal. The Court held that time had thus run. In point 5, there was a claim of failure to pursue DNA evidence, but the Court noted that this was again a point appreciated at earlier applications; supposing the point to have substance, which it did not. As regards corrections or alterations to witness statements, points 6 and 7, the Court held that it was correct that central witnesses at first gave a different story, but this was canvassed at trial. As regards the custody record of Mr Ahearne and the recording of a threat by the appellant, the Court noted that this was also, on the appellant’s account “a fact known to and the significance [of which was] fully appreciated by me since 1998-99”. Grounds 9, 10 and 11 concerned alleged mistakes by the trial judge. Of this the appellant said: “For the purposes of the current section 2 appeal, the facts remain facts the significance of which wasn’t fully appreciated by my former legal representatives – yet a fact known to and the significance fully appreciated by me since 1998-99”. Regarding ground 12, the Court held that the point about a witness possibly leading to other witnesses was insubstantial unless it could be demonstrated to have a practical effect on the trial. Finally, a Garda gave a laconic statement but referred to the custody record but nothing that had happened in his actual witness notice. The court held that this was not a substantial point and in addition was, on the appellant’s account, canvassed at trial and “fully appreciated by me since 1998-99”.

The Court held that the application should be struck out as having no reasonable prospect of succeeding.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Friday, 24th April 2020

1 By a determination issued by this Court on 30 January 2019, the applicant Anthony Buck was granted leave to appeal a decision of the Court of Appeal dismissing his application to claim a miscarriage of justice under s 2 of the Criminal Procedure Act 1993. The issue of law of general public importance which arises on appeal concerns the correct interpretation and application of sections 2(3), 2(4) and 2(5) of the 1993 Act. The terms ‘new fact’ and ‘newly discovered fact’ appeared to this Court to have been used interchangeably in connection with the Anthony Buck's section 2 application and in particular in connection with the dismissal of that application on foot of a motion issued by the Director of Public Prosecutions asserting that there was no possible basis for his claim of miscarriage of justice to succeed. In consequence it is necessary to consider: firstly, the correct interpretation of the miscarriage of justice provisions in the 1993 Act; secondly the applicability of any jurisdiction to strike out an application under that legislation as hopeless; and, thirdly, the merits of Anthony Buck's application.

Chronology

2 Anthony Buck was convicted by a jury on 20 February 1998 of the murder of David Nugent on 9 July 1996, and of robbery, Quirke J presiding. The trial lasted some three weeks. He was subsequently sentenced to 12 years imprisonment for robbery to run concurrently with the life sentence imposed on the murder conviction and backdated to run from 11 November 1997. By judgment delivered by Lynch J on 6 December 1999, the Court of Criminal Appeal dismissed his application for leave to appeal against conviction. Several issues were raised in the context of that application for leave, but the grounds run on appeal essentially centred on the validity of Anthony Buck's arrest and also the ruling by the trial judge that admissions made by him in the course of his detention were voluntary. An appeal was certified to this Court pursuant to the provisions of s 29 Courts of Justice Act, 1924. In a judgment delivered by Keane CJ this Court dismissed the appeal. Central to that appeal were the circumstances in which an accused could be questioned by gardaí after he had claimed to have requested the presence of a solicitor, but before a solicitor had arrived, and also on the right of reasonable access to a solicitor; see The People (DPP) v. Buck [2002] 2 IR 268, [2002] IESC 23.

3 In essence, the course of events then becomes so complex with applications under the 1993 Act and responses thereto, that matters are best understood in chronological sequence:

9 July 1996 – The murder and robbery of the victim happens.

20 February 1998 – In the Central Criminal Court, Anthony Buck is convicted of murder (life sentence) and robbery (12 years running concurrently), Quirke J presiding.

6 December 1999 – The Court of Criminal Appeal dismisses Anthony Buck's application to appeal his conviction, but permits him to bring a matter of law of exceptional public importance to the Supreme Court.

17 April 2002 – The Supreme Court dismisses Anthony Buck's case, finding that every effort was made by the gardaí to provide him with a solicitor, that his constitutional rights to access a solicitor had not been breached and that the evidence taken during the course of the gardaí interviews was admissible.

10 September 2014 – Anthony Buck applied to the Court of Appeal contending that there were new, or newly discovered, facts pertaining to his case, amounting to a miscarriage of justice.

11 December 2015 – The Court of Appeal dismisses Anthony Buck's appeal in which he argued that the Supreme Court decision in The People (DPP) v Gormely and White [2014] 2 IR 591, on access to legal advice while in custody, constituted a newly discovered fact. Birmingham J found this claim to be without substance or 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 motion to strike the application out as having no reasonable chance of success.

13 July 2016 – Anthony Buck writes to the High Court as a prisoner, under the informal procedure enabling those detained to seek redress, and complains that his constitutional and human rights were infringed in his trial and raising points about his solicitor and about the admissions he made; Buck v DPP [2016] IEHC 402. McDermott J dismisses the application stating at paragraphs 19-20:

I am not satisfied that the applicant has established an arguable case that his trial was in any way unfair or set out facts from which the court could conclude that his conviction was based on any evidence procured during the course of his detention at a time when he did not have access to a solicitor. This is simply not the case. I am not satisfied that there is any basis for a complaint based on the provisions of the European Convention on Human Rights or the European Convention on Human Rights Act 2003.

25 October 2016 – Anthony Buck initiated a second application to raise new or newly discovered facts. The grounds for this application were added to on 16 February 2017 and 11 October 2017.

20 January 2017 – Anthony Buck applied to the Supreme Court for leave to appeal, claiming that the decision of the Court of Appeal in the judgment of 11 December 2015 involved an issue of law of general public importance, but leave was not granted.

23 February 2018 – The Court of Appeal accepted the Director of...