DPP v O'Callaghan

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 16 January 2004
• Neutral Citation: [2004] IESC 2
• Court: Supreme Court
• Date: 16 January 2004

[2004] IESC 2

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

McCracken J.

132/03

DPP v. O'CALLAGHAN

IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924

BETWEEN

THE PEOPLE (at the suit of the Director of Public Prosecutions)

APPELLANT

AND

KEITH O'CALLAGHAN

DEFENDANT/RESPONDENT

Citations:

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL DAMAGE ACT 1991 S2(4)

CRIMINAL DAMAGE ACT 1991 S(5)

DUBLIN CORPORATION V FLYNN 1980 IR 357

KELLY V IRELAND 1986 ILRM 318

RYAN V DPP 1988 IR 232

BREATHNACH V IRELAND 1989 IR 489

AG V KENNEDY 1946 IR 517

DPP, PEOPLE V O'SHEA 1982 IR 384

CONSTITUTION 30.4.3

CRIMINAL PROCEDURE ACT 1993 S11(1)

DPP, PEOPLE V QUILLIGAN 1987 ILRM 606

DPP, PEOPLE V QUILLIGAN (NO 2) 1989 IR 46

DPP, PEOPLE V QUILLIGAN (NO 3) 1993 2 IR 305

AG V GILES 1974 IR 423

AG, PEOPLE V GRIFFIN 1974 IR 416

CRIMINAL PROCEDURE ACT 1967 S34

COURTS OF JUSTICE ACT 1947 S16

CRIMINAL JUSTICE ACT 1993 S3

EMERGENCY POWERS ACT 1939

CRIMINAL APPEAL ACT 1907 (UK)

COURTS OF JUSTICE ACT 1929 S31

COURTS OF JUSTICE ACT 1928 S5

COURTS OF JUSTICE ACT 1928 S5(A)

COURTS OF JUSTICE ACT 1928 S5(B)

COURTS OF JUSTICE ACT 1924 S31

COURTS OF JUSTICE ACT 1924 S63

CRIMINAL JUSTICE ACT 1993 S2

Citations:

LARCENY ACT 1916 S23

CRIMINAL LAW (JURISDICTION) ACT 1976 S5

FIREARMS ACT 1925 S2

FIREARMS ACT 1964 S15

FIREARMS ACT 1972 S3

ROAD TRAFFIC ACT 1961 S112

AG V CASEY (NO 2) 1963 IR 33

DPP, PEOPLE V STAFFORD 1983 IR 165

R V TURNBULL 1977 QB 224

DPP V O'REILLY 1990 2 IR 415

CRIMINAL PROCEDURE ACT 1993 S3(1)(a)

Synopsis:

CRIMINAL LAW

Arson

Point of law of exceptional public importance - Certificate - Jurisdiction - Section 29 of Courts of Justice Act, 1924 - Res judicata - Whether the DPP was entitled to appeal against an order quashing the conviction of an accused and ordering a retrial - Whether the DPP could grant a certificate certifying a point of law of exceptional public importance and subsequently apply to the court by way of appeal (132/2003 - Supreme Court - 16/1/2004)

People (DPP) v O'Callaghan - [2004] 1 IR 22 - [2004] 1 ILRM 438

Facts: The respondent was charged with the crime formerly known as arson at a house in Waterford on 25th November, 1996 and was tried twice at Waterford Circuit Court in relation to this charge. The jury failed to agree a verdict in the first trial and the second trial concluded in recording a verdict of guilty and the respondent was sentenced to four years imprisonment. During the course of the first trial the trial judge ruled that the evidence of the owner of the house that was the subject of the arson attack, that the respondent had stalked her was not relevant in the context of the charge. However, the trial judge indicated that the prosecution could renew their application to have this evidence admitted at any stage. On the second trial, this evidence was again objected to, but the trial judge was not informed in any detail of the ruling on the first trial. The judge treated the evidence as relevant on the ground that it went to possible motive and he also treated it as relevant to the res gestae. Accordingly the evidence was admitted but the trial judge did accept that it was more prejudicial than probative. The respondent successfully appealed this decision to the court of criminal appeal and a retrial was ordered on the basis that the question of the admissibility of the proposed evidence of the owner of the house was res judicata. Consequently the appellant applied for and was granted a certificate by the Court of Criminal Appeal pursuant to Section 29 of the 1924 Act on the basis that the court’s previous decision quashing the conviction of the respondent and directing a retrial involved a point of law of exceptional public importance. The point of law concerned was whether the Court of Criminal Appeal was correct in deciding that the question of the admissibility at the trial of the respondent of certain evidence was res judicata having regard to the ruling of the trial judge in an earlier trial that such evidence was inadmissible and that such evidence should not therefore have been admitted in evidence by the trial judge in the subsequent trial which resulted in the conviction of the respondent. The present appeal came before this court as a result of the certificate granted by the Court of Criminal Appeal.

The respondent raised a preliminary issue as to the jurisdiction of the Supreme Court to hear this appeal, which was brought by the DPP from a decision of the Court of Criminal Appeal quashing a conviction and ordering a retrial. However, the attention of the Court of Criminal appeal was not drawn to any possible difficulty that might arise in relation to the granting of a certificate by the DPP in the circumstances of the present case.

Held by the Supreme Court (Keane C.J., Denham, Murray, McGuinness, McCracken JJ) in determining the preliminary issue in favour of the respondent: 1. That although this court would normally be reluctant to consider and determine an appeal for reasons which were never the subject of argument or a decision in the High Court, where a serious question is raised as to the court’s jurisdiction to hear the appeal, that issue must be resolved, albeit for the first time, by this court.

2. That the giving of a certificate either by the Court of Criminal Appeal or the DPP is a necessary statutory precondition to the entertaining by the Supreme Court of an appeal which relates to a point of law of exceptional public importance, assuming Section 29 conferred the relevant jurisdiction on the Court. There is nothing in the wording of Section 29 to suggest that the DPP is precluded from granting a certificate in his own favour and then applying to the Supreme Court by way of appeal.

3. That the wording of Section 29 was obscure and ambiguous and accordingly it would have been wrong in principle to have construed it in a manner which was inimical to the accused. In interpreting Section 29 the intention of the Oireachtas was not to confer a right of appeal on the Attorney General in addition to the right of appeal conferred on accused persons. There would have been no particular difficulty in including a provision in Section 29 that the Attorney General was to have a right of appeal as provided for in Section 2 of the Criminal Justice Act, 1993.

4. That the Court of Criminal Appeal ordered a retrial on another ground not the subject of the appeal. Accordingly the DPP was inviting this court to affirm rather than reverse that order but to direct the Circuit Court to resolve the res judicata issue in a particular manner when the retrial took place. If the court adopted that approach it would not be acting as a court of appeal but would be exercising a form of consultative jurisdiction, which it did not possess.

That Section 29 did not confer on the Attorney General and the DPP the right of appeal in every case where a conviction had been quashed and a retrial ordered, provided the necessary certificate was granted.

Reporter: L. O’S.

1 JUDGMENT delivered the 16th day of January 2004 by Keane C.J.

Introduction

2 This appeal comes before the court as a result of a certificate granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act, 1924(hereafter "the 1924 Act") certifying that its decision of the 18 ^th December, 2000 involved a point of law of exceptional public importance. Unusually — it may be uniquely — the certificate was granted on the application, not of the defendant/respondent (hereafter "the respondent"), but of the appellant (hereafter "the D.P.P."). The written submissions filed by the respondent in response to those filed on behalf of the D.P.P. in relation to the certified question raised a preliminary issue as to the jurisdiction of this court to hear an appeal purportedly brought by the D.P.P. from a decision of the Court of Criminal Appeal quashing a conviction and ordering a retrial. This court was of the view that the preliminary issue should be considered and decided by the court before it embarked on a hearing in relation to the certified point.

3 It should be pointed out at the outset that the attention of the Court of Criminal Appeal does not appear to have been drawn to any possible difficulty that might arise in relation to the granting of a certificate by the D.P.P. in the circumstances of the present case and that, accordingly, the matter was fully argued for the first time in this court. However, while this court is normally reluctant to consider and determine an appeal for reasons which were never the subject of argument or a decision in the High Court, it is clear that where, as here, a serious question is raised as to their jurisdiction to hear the appeal, that issue must be resolved, albeit for the first time, by this court.

4 The factual background to the case is as follows. The respondent was charged with the crime formerly known as arson at a house in Waterford on the 25 ^th November, 1996. (The offence is now properly described as causing damage by fire to a dwelling house without lawful excuse contrary to s. 2(4) and (5) of the Criminal Damage Act, 1991.) He was tried twice at Waterford Circuit Court in respect of this charge. The jury failed to agree in the first trial before His Honour Judge McCartan and a jury and a second trial took place before His Honour Judge Matthews and a jury. That trial concluded in the recording of a verdict of guilty and the respondent was sentenced to four years imprisonment. The respondent having been refused leave to appeal the conviction and sentence, an application for leave to appeal came before the Court of Criminal Appeal.

5 In the course of the first trial, the prosecution indicated that they would be calling as a witness a lady named Patricia Purcell. Her evidence, as set out in the Book of...