DPP v Cauneze
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] IECA 345 |
| Docket Number | 232CPA/15 |
| Court | Court of Appeal (Ireland) |
| Date | 21 December 2015 |
Birmingham J.
Sheehan J.
Mahon J.
[2015] IECA 345
232CPA/15
THE COURT OF APPEAL
Conviction – Miscarriage of justice – Newly discovered facts – Appellant seeking to set aside conviction – Whether appellant produced new or newly discovered facts
Facts: The appellant, Mr Cauneze, was convicted in 2000, on a charge of aggravated sexual assault. The appellant was ordered by the Central Criminal Court to undertake 100 hours of community service. The respondent, the DPP, sought a review of that sentence on grounds of undue leniency. The Court of Criminal Appeal substituted a three year term of imprisonment, suspended in its entirety, for the community service order. Mr Cauneze lodged a notice of appeal, but that was withdrawn by him. After a failed attempt to re–open his appeal he brought an application pursuant to s. 2 of the Criminal Procedure Act 1993. Eighteen separate matters were advanced, each of which was said to involve new evidence or newly discovered evidence. In 2011, the Court of Criminal Appeal rejected the application commenting that it was satisfied that there was no basis upon which an order pursuant to s. 2 could be made. Mr Cauneze brought a further s. 2 application which was rejected and from there he appealed to a full court of the Court of Criminal Appeal, seeking to expand on his grounds. On the 17th February, 2014, the Court of Criminal Appeal dismissed Mr Cauneze's appeal. Mr Cauneze proceeded to another full court of the Court of Criminal Appeal. In the course of the judgment on the substantive matter by the Court of Criminal Appeal, reference was made to the scope of the application and to the fact that nine reliefs were sought, six of which were entirely outside the jurisdiction of the court. On the 15th September, 2015, Mr Cauneze brought a further application under s. 2 alleging that by reason of new or newly discovered facts his conviction ought to be set aside and declared to be a miscarriage of justice. Mr Cauneze contended that: 1) newly discovered facts arising from the 17th February, 2014, appeal showed that the transcript had been falsified to mislead the court; 2) the court erred in law in regard to the primary and second legislation referred to in ss. 1, 2, 3 and 9 of the 1993 Act; 3) interference by some members of the justice system itself in the administration of justice; 4) interference by the executive in the administration of justice; 5) the principles of Willoughby v DPP [2005] IECCA 4 applied to this application; 6) page 86 of the notice of application must be taken into account by the court in the context of the conspiracy; 7) the justice system itself must produce the original short notes from trial, Day 1 of the transcript and the word index from the transcript; 8) it was held in DPP v Meleady [2001] 4 IR 1 that the exercise with which the court is concerned under the Act of 1993 extended to the administration, in the given case, of the justice system itself.
Held by Birmingham J that the question of falsification of the transcript had its origin in a complete misunderstanding by Mr Cauneze of a single sentence in a 6th December, 2011, judgment of the Court of Criminal Appeal. Birmingham J held that there was no indication that the Court of Criminal Appeal erred when it came to dealing with ss. 1, 2, 3 and 9 of the 1993 Act. Birmingham J held that there had been no basis laid which would support the suggestion that there was interference by members of the justice system and the executive in the administration of justice. Birmingham J held that it was not clear how the Willoughby principles were applicable to the case as they concerned the admittance of new evidence on appeal and not a s. 2 miscarriage of justice application. Birmingham J held that there was no evidence adduced to support the suggestion that there was a conspiracy. Birmingham J held there was no substance in the criticism that the transcript was not a genuine one. Birmingham J held that the appellant's criticism of the justice system was vague and unsubstantiated.
Birmingham J held that nothing was produced which could be regarded as a new or newly discovered fact. The Court held that the appellant's attempt to re–litigate what has already been decided was vexatious and an abuse of process. The Court dismissed the application.
Appeal dismissed.
Mr. Cauneze has brought an application pursuant to s. 2 of the Criminal Procedure Act 1993, alleging that by reason of a new or newly discovered fact a conviction recorded against him ought to be set aside and declared to be a miscarriage of justice.
The background to this application is an extraordinarily convoluted one. After a lengthy trial, at this remove even the duration of the trial is a matter or controversy, Mr. Cauneze was convicted on 10th March, 2000, on count No. 3 of the indictment which had been proffered to the Court, a charge of aggravated sexual assault. He was acquitted on count No. 1 and count No. 2, those being charges of rape and rape under s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. The complainant in this case was the applicant's then wife. Following the conviction on the single count, the applicant was ordered by the Central Criminal Court (Carney J.) to undertake 100 hours of community service. The DPP sought a review of this sentence on grounds of undue leniency and that matter came before the Court of Criminal Appeal on the 20th November, 2000, which substituted a three year term of imprisonment, suspended in its entirety, for the community service order of the Central Criminal Court. At that stage Mr. Cauneze had lodged a notice of appeal, but that was withdrawn by him. One might have thought that the withdrawal of the notice of appeal against conviction would have meant that the conviction had become final; however, as far as Mr. Cauneze was concerned, that was far from the situation. It appears that the applicant sought to re-open his appeal and then brought an application pursuant to s. 2 of the Criminal Procedure Act 1993 when that attempt failed. At that stage eighteen separate matters were advanced, each of which was said to involve new evidence or newly discovered evidence. In a judgment of the Court of Criminal Appeal delivered on the 17th October, 2011, by Finnegan J. the Court rejected the application commenting that it was satisfied that there was no basis upon which an order pursuant to s. 2 could be made.
The comments of Finnegan J. in delivering the judgment of the court are of some significance for the present application. He commented:
'Having regard to the jurisprudence of this Court [these eighteen grounds advanced] are all matters which would not qualify either as new evidence or as newly discovered evidence or indeed in most cases evidence at all. What is even more significant is this. At the trial in evidence, the applicant gave a frank account of his recollection of the events of the evening which gave rise to him being charged. That account, as remarked upon at the trial, is such that there was ample evidence before the jury which would enable them and indeed if they believed him would require them in fulfilling their oath as jurors to convict him of this offence.
It is perhaps important to note that there were other more serious offences charged and that the jury, it would appear, had no difficulty in accepting Mr. Cauneze's account of the evening in that they found him not guilty of the other more serious offences, but taking him at his word found him guilty of the present offence.
To this Court it seems to follow inevitably from that, that there was no miscarriage of justice in this case.'
Subsequently, Mr. Cauneze brought a further s. 2 application. This was dealt with...
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