DPP v Corbally

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 15 December 2000
• Neutral Citation: [2000] IESC 38
• Court: Supreme Court
• Docket Number: [S.C. No. 115 of 2000]
• Date: 15 December 2000

[2000] IESC 38

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Hardiman J.

Geoghegan J.

No.115/2000

115/00

DPP v. CORBALLY

IN THE MATTER OF AN APPEAL UNDER

SECTION 29 OF THE COURTS OF JUSTICE

ACT, 1924

AND IN THE MATTER OF AN APPLICATION FOR

BAIL PENDING APPLICATION FOR LEAVE TO APPEAL

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PATRICK CORBALLY

Citations:

COURTS OF JUSTICE ACT 1924 S29

DPP, PEOPLE V SWEETMAN 1997 3 IR 448

CRIMINAL PROCEDURE ACT 1993 S3(6)

COURTS OF JUSTICE ACT 1924 S32

DPP V CONNAUGHTON UNREP CCA EX-TEMP 17.12.1999

R V WATTON 1978 68 CAR 293

BLACKSTONES CRIMINAL PRACTICE

ARCHBOLD PLEADIND EVIDENCE & PRACTICE IN CRIMINAL CASES

DPP V RYAN UNREP CCA 12.7.1999

DPP V HIGGINBOTHAM UNREP CCA 17.11.2000

CRIMINAL JUSTICE ACT 1984 S25(2)

DPP V ACHEANPONG UNREP CCA 28.7.2000

Synopsis:

Criminal Law

Criminal; bail; appellant seeking bail pending the hearing of an application for leave to appeal against conviction; point of law certified as to the appropriate principles upon which the Court of Criminal Appeal should grant bail to a convicted person who has sought leave to appeal or being granted leave to appeal; whether there is a discrete ground of appeal in the case, the strength of which can be assessed in advance of a full hearing.

Held: Bail should be granted to convicted persons where the interests of justice require it; appeal dismissed.

DPP v. Corbally - Supreme Court: Keane C.J., Denham J., Murhpy J., Hardiman J., Geoghegan J. - 15/12/2000 - [2001] 1 IR 180 - [2001] 2 ILRM 102

The appellant had sought bail while awaiting an appeal against conviction and was refused. The appellant appealed the decision to the Supreme Court. The central issue before the court was what were the appropriate principles that should apply in the granting of bail in such an instance. Geoghegan J, delivering judgment, held that to grant bail in such a case there should be a strong chance of success in the appeal. The possibility that the sentence of imprisonment would expire before the hearing of the appeal was also a factor. Applying these factors the appellant's situation was not an appropriate case to grant bail. The appeal would be dismissed.

1 Judgment of Mr. Justice Geoghegan delivered the 15th day of December 2000 [Nem diss]

2 This is an appeal from a decision of the Court of Criminal Appeal refusing bail to the appellant, the above-named Patrick Corbally, pending the hearing of an application for leave to appeal against convictions in the Circuit Court. The appeal is brought with leave of the Court of Criminal Appeal, that court having issued a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, that its decision refusing bail involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on that decision. The certified point of law is:-

"What are the appropriate principles upon which the Court of Criminal Appeal should grant bail to a convicted person who has sought leave to appeal or being granted leave to appeal."

3 Particularly, in the light of amended legislation to which I will be referring there is no very clear decision of the Court of Criminal Appeal as to the correct principles to be applied though the closest to such a decision is The People (DPP) v. Sweetman [1997] 3 IR 448. There have been some other cases put forward by counsel but these are for the most part ex tempore judgments, not intended to lay down general statements of principle. Understandably they are not entirely consistent with each other as in some, bail appears to have been granted or refused on the basis of whether there was an arguable appeal and in others as to whether there was a strong appeal. As I will be pointing out, some of the difficulties flow from the wording of the relevant legislation combined with the system under which appeals to the Court of Criminal Appeal have been dealt with over many years.

4 Until the passing of the Criminal Procedure Act, 1993bail could not be granted by the Court of Criminal Appeal unless either the trial judge certified that the case was a fit case for appeal or that court had first granted leave to appeal. This settled jurisprudence arose from the wording of s. 32 of the Courts of Justice Act, 1924. That section was later amended by s. 3(6) of the Criminal Procedure Act, 1993, but in its unamended form it read as follows:-

"Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an order admitting the appellant to bail pending the determination of his appeal."

5 S. 3(6) of the 1993 Act reads as follows:-

" Section 32 of the Courts of Justice Act, 1924, is hereby amended by the addition after "pending the determination of his appeal" of "or application for leave to appeal"".

6 The form that the amendment takes gives rise to a slight problem of interpretation. It has been assumed (and I think correctly) that what was intended by the Oireachtas was quite simply to give the Court of Criminal Appeal power to grant bail pending an application for leave to appeal even though leave had not yet been granted. But if that is so, then where such bail is being granted pending determination of an application for leave, the order for bail can hardly be described as a "consequential order". On the contrary it is a pre-hearing order. But since there is no other meaning that makes sense I think that the interpretation which has been placed on the section by O'Flaherty J. in the Sweetman case and by the Court of Criminal Appeal generally, must be correct and that the problem is simply one of faulty draftsmanship.

7 But I think it reasonable to interpret s. 3(6) of the Criminal Procedure Act, 1993in the context of how the procedural jurisprudence of appeals to the Court of Criminal Appeal has developed over the years. I say this because a mere reading of the relevant sections would not of itself give rise to any understanding as to how the appeal procedure is worked out in practice. In the vast majority of cases the trial judges refuse certificates enabling the convicted defendant to appeal to the Court of Criminal Appeal. Accordingly, an application for leave to appeal is brought to that court. But usually the court, having given a full hearing to the application for leave to appeal, either refuses such leave or grants it but treats the hearing of the application for leave as the hearing of the appeal itself and goes on to make an order allowing the appeal. This telescoped procedure was probably not anticipated by the draftsman of section 32 of the 1924 Act as that section seems to envisage that leave to appeal might be granted well before the hearing of the appeal itself "where the court is of opinion that a question of law is involved" or in the other prima facie situations referred to in the section. Over the years the two staged procedure has in fact been invoked in a minority of cases and notably, and almost exclusively, where there is an application for bail. Before the 1993 amendment the Court could not grant bail without first granting leave and, therefore, it had to consider the question of leave separately from the appeal itself. As the procedure tended only to be used in cases where there was an obvious clear-cut discrete ground of appeal, an order for bail usually followed such leave. But in my view there is nothing in section 32 which would support the proposition that provided there are no other conventional impediments to bail, bail must automatically be granted once leave is given.

8 The court's inability to grant bail pending the hearing of an application for leave caused injustice from time to time. This was particularly so in relation to appeals against sentence where the sentence was relatively short and there was either no transcript yet available or the application could not be given a speedy listing. In...