DPP v O'Callaghan (No 2)

• Jurisdiction: Ireland
• Judgment Date: 16 January 2004
• Docket Number: [S.C. No. 132 of 2003]
• Date: 16 January 2004
• Court: Supreme Court

[2004] IESC 2

Supreme Court

[S.C. No. 132 of 2003]

The People (Director of Public Prosecutions) v. O'Callaghan (No. 2)

The People (at the suit of the Director of Public Prosecutions)

Prosecutor

and

Keith O'Callaghan, Accused (No. 2)

Cases mentioned in this report:-

Breathnach v. Ireland [1989] I.R. 489.

Corporation of Dublin v. Flynn [1980] I.R. 357.

Kelly v. Ireland [1986] I.L.R.M. 318.

The People (Attorney General) v. Giles [1974] I.R. 422; (1974) 110 I.L.T.R. 33.

The People (Attorney General) v. Griffin [1974] I.R. 416; (1973) 108 I.L.T.R. 81.

The People (Attorney General) v. Kennedy [1946] I.R. 517; (1945) 81 I.L.T.R. 73.

The People (Director of Public Prosecutions) v. O'Callaghan [2001] 1 I.R. 584.

The People v. (D.P.P.) O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

The People (D.P.P.) v. Quilligan [1986] I.R. 495; [1987] I.L.R.M. 606.

The People (D.P.P.) v. Quilligan (No. 2) [1989] I.R. 46; [1989] I.L.R.M. 245.

The People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 I.R. 305.

Ryan v. D.P.P. [1988] I.R. 232.

Courts - Supreme Court - Jurisdiction - Appeal from Court of Criminal Appeal - Conviction quashed and retrial ordered - Whether prosecutor can appeal to Supreme Court - Courts of Justice Act 1924 (No. 10), s. 29.

Criminal law - Appeal - Jurisdiction - Jurisdiction of Supreme Court to hear appeal from Court of Criminal Appeal - Entitlement of prosecutor to appeal decision of Court of Criminal Appeal to Supreme Court - Courts of Justice Act 1924 (No. 10), ss. 29 and 31.

Appeal from the Court of Criminal Appeal

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Keane C. J., infra.

The accused was tried twice at Waterford Circuit Court for arson. The jury failed to agree in the first trial and after the second trial a verdict of guilty was recorded and the accused was sentenced to four years imprisonment.

The accused, having been refused leave to appeal the conviction and sentence, made an application for leave to appeal to the Court of Criminal Appeal.

In an ex tempore judgment delivered on the 15th May, 2000, the Court of Criminal Appeal (Hardiman, O'Sullivan and O Caoimh JJ.) indicated it would treat the application for leave to appeal as the hearing of the appeal.

The appeal was allowed on one ground, the conviction was quashed and a retrial was ordered. Judgment was reserved regarding another ground of appeal. The judgment on the second ground of appeal was delivered on the 18th December, 2000 and is reported at [2001] 1 I.R. 584.

The prosecutor appealed to the Supreme Court pursuant to a certificate granted by the Court of Criminal appeal pursuant to s. 29 of the Courts of Justice Act 1924.

The appeal was heard by the Supreme Court (Keane C.J., Denham, Murray, McGuinness and McCracken JJ.) on the 2nd December, 2003.

Section 29 of the Courts of Justice Act 1924 provides:-

"The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive."

The accused was convicted of the offence previously known as arson. The accused appealed this decision to the Court of Criminal Appeal who quashed the conviction and ordered a retrial.

The prosecutor appealed to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924.

A preliminary issue arose in the Supreme Court regarding jurisdiction as to whether the court could hear an appeal pursuant to s. 29 brought by the prosecutor.

It was submitted on behalf of the accused that the prosecutor was not appealing the decision of the Court of Criminal Appeal in that the prosecutor did not dispute the correctness of the decision of that court to order a new trial. Instead, it was submitted that the Supreme Court was being asked to make a determination with regard to theres judicata issue, which was a matter for determination at the retrial in the Circuit Court.

On behalf of the prosecutor it was submitted that, provided the necessary certificate was granted, the Attorney General and the Director of Public Prosecutions had a right of appeal in every case where a conviction had been quashed and a retrial ordered.

Held by the Supreme Court (Keane C.J., Denham, Murray, McGuinness and McCracken JJ.), in dismissing the appeal, 1, that the Attorney General and the Director of Public Prosecutions had no right of appeal under s. 29 of the Courts of Justice Act 1924 in a case where a conviction had been quashed and a retrial ordered.

The People (Attorney General) v. Kennedy [1946] I.R. 517 considered.

2. That the instant case did not involve an appeal as the prosecutor did not seek to reverse the decision of the Court of Criminal Appeal. Neither did it arise from the determination or decision of that court and in the circumstances, the Supreme Court did not enjoy a consultative jurisdiction pursuant to s. 29 of the Courts of Justice Act 1924.

3. That, as a meaning of s. 29 of the Act of 1924 was ambiguous, it would be wrong to construe the section in a manner inimical to accused persons.

The People (Attorney General) v. Griffin [1974] I.R. 416followed.

Cur. adv. vult.

Keane C.J. 16th January, 2004

Introduction

1 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 certifying that its decision of the 18th December, 2000 (reported at [2001] 1 I.R. 584) involved a point of law of exceptional public importance. Unusually - it may be uniquely - the certificate was granted on the application, not of the accused, but of the prosecutor. The written submissions filed by the accused in response to those filed on behalf of the prosecutor 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 prosecutor 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 question.

2 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 to the prosecutor 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 its jurisdiction to hear the appeal, that issue must be resolved, albeit for the first time, by this court.

3 The factual background to the case is as follows. The accused was charged with the crime formerly known as arson at a house in Waterford on the 25th 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 accused was sentenced to four years imprisonment. The accused, having been refused leave to appeal against the conviction and sentence, applied for leave to appeal to the Court of Criminal Appeal.

4 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 evidence, was that she lived in the house in question from the 11th March, 1992, until about the middle of November, 1996 with her two children. The statement of her evidence recounted an incident on the 29th October, 1996, when a person, whom she subsequently identified as the accused, but who was at that stage a stranger to her, knocked on her front door. He told her that there were some people in her back garden and that he just wanted to let her know that. He then continued to talk to her, asked her for a drink of water and a cigarette, which she gave him, asked her to come out with him which she refused to do and then attempted to kiss her. Her statement further recounted that he eventually left, but that she saw him on subsequent occasions in the vicinity of her house and that, on another occasion, he knocked on her door.

5 The defence objected to the adduction of this evidence at the first trial on the ground that it was more prejudicial than probative. The prosecution submitted that the evidence should be admitted as indicating a link of a very distinct nature between the accused and the occupier of the house alleged to have been burnt. The trial judge ruled that the evidence was not relevant "in the context of the charge". He indicated, however, that the prosecution could renew their application to have the evidence admitted at any stage. On the second trial before His Honour Judge Matthews, the evidence was again objected to, but it would appear that the trial judge was not informed in any detail of the ruling on the first trial. He treated it as relevant on the ground that "it goes to possible motive". He also treated it as "relevant to the...