DPP v Carlisle
| Jurisdiction | Ireland |
| Judge | McKechnie J.,O'Donnell J. |
| Judgment Date | 20 December 2019 |
| Neutral Citation | [2019] IESCDET 302 |
| Date | 20 December 2019 |
| Court | Supreme Court |
| Docket Number | Supreme Court record no: S:AP:IE:2019:000194 Court of Appeal record no: 2018 No. 246 High Court record no: Bill No DUDP 1089/2019 |
[2019] IESCDET 302
THE SUPREME COURT
DETERMINATION
O'Donnell J.
McKechnie J.
Dunne J.
Supreme Court record no: S:AP:IE:2019:000194
Court of Appeal record no: 2018 No. 246
High Court record no: Bill No DUDP 1089/2019
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 28th June, 2019 |
| DATE OF ORDER: 28th June, 2019 |
| DATE OF PERFECTION OF ORDERS: 2nd October, 2019 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 23rd October, 2019 AND WAS IN TIME. |
This determination relates to an application for leave to appeal a decision of the Court of Appeal. Edwards J. delivered an ex tempore ruling on the 28th June, 2019 (Birmingham P. and McCarthy J. concurring) in which he dismissed the applicant's appeal from the Circuit Criminal Court. The appeal was based on a single net point of law from the applicant's trial, following which he had been convicted of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. In order for this Court to grant leave to appeal from a decision of the Court of Appeal, the Court must be satisfied that there are circumstances which have the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.
The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
It should be noted that any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
Furthermore, the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
In that context it should be noted that the respondent does oppose the grant of leave and neither party has requested the making of a reference to the Court of Justice of the European Union under Article 267 TFEU.
The story presented to the Circuit Court during the three-day trial which took place in July, 2018 was that the injured party, Mr. Mark Conway, was assaulted outside his home in Crumlin by five or six men. He was first struck on the back of the head with a glass bottle as he entered his house. Upon entering, he received a call from his brother, Mr. Derek Conway, who told him he would come to the house. Mark Conway then left his house again to meet his brother as he approached.
Derek Conway gave evidence at trial that when he came onto the road that his brother lived on, he saw five or six men. In an attempt to get a closer look at them he asked if they had a lighter. He then began walking towards his brother who was also walking towards him. However, Derek Conway was then knocked to the ground and when he got up he could see his brother on the ground getting kicked by the men. Derek got up and rang 999 which prompted most of the assailants to flee, bar one who remained and proceeded to deliver eight to ten more kicks to Mark Conway's head.
Derek Conway was able to describe the man who remained as being tall and thin and wearing a white top. He gave evidence that he had gotten “a real good look at him because he was there on his own”. The next week, Derek Conway attended Crumlin Garda Station where he was informed that there was a suspect in custody and was asked to view an informal identification parade. The format of this was to be that a number of people would walk separately along a corridor in front of him, and he would attempt to identify if any of them was his brother's assailant.
The issue raised by the applicant in this application relates to the manner in which this informal parade was conducted and the ruling by the trial judge which allowed it to be adduced as evidence. Sergeant Peter McBrien told the trial court that the applicant had refused to participate in a formal identification parade due to there being marks on his face but said he would be willing to participate in one on a later date. The solution of the Gardaí was to conduct on informal one instead. The sergeant went to a nearby college to gather appropriate volunteers to participate in the parade. He recruited nine such volunteers. The third person to walk down the...
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