DPP v Cunningham

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 29 July 2013
• Neutral Citation: [2012] IECCA 64
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 135 of 2009]
• Date: 29 July 2013

[2012] IECCA 64

THE COURT OF CRIMINAL APPEAL

Hardiman J.

Moriarty J.

Hogan J.

135/09

DPP v Cunningham

Between:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor/Respondent

and

TIMOTHY (TED) CUNNINGHAM

Appellant

OFFENCES AGAINST THE STATE ACT 1939 S29

CRIMINAL LAW ACT 1976 S5

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

DAMACHE v DPP & AG SUPREME 23.2.2012 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

OFFENCES AGAINST THE STATE ACT 1939 S30

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

C (C) v IRELAND 2006 4 IR 1

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

MURPHY v AG 1982 IR 241

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40

STATE (BYRNE) v FRAWLEY 1978 IR 326

JURIES ACT 1927

DE BURCA v AG 1976 IR 38

CONSTITUTION ART 34.2

CONSTITUTION ART 34.5.1

COURTS OF JUSTICE ACT 1924 S29

PRINGLE v IRELAND 1994 ILRM 467

DALTON v MIN FOR FINANCE 1989 ILRM 519

OFFENCES AGAINST THE STATE ACT 1939 PART V

CONSTITUTION ART 40.5

RYAN v O'CALLAGHAN UNREP BARR 22.7.87 1987/8/2214

KING v AG 1981 IR 233

DPP v DUNNE 1994 2 IR 537

MCDONALD v UNITED STATES 1948 335 US 451

GROH v RAMIREZ 2004 540 US 551

BRIGHAM CITY v STUART 2006 540 US 398

CORRIGAN v IRISH LAND COMMISSION 1977 IR 317

CONSTITUTION ART 15.4.2

MCDONNELL v IRELAND 1998 1 IR 134

MARBURY v MADISON 1803 1 CRANCH 137

BRYCE THE AMERICAN COMMONWEALTH 1889 VOL.1 P246

MUCKLEY v IRELAND 1985 IR 472

FINANCE ACT 1980 S21

BLANCHFIELD v HARNETT 2002 3 IR 207

BANKERS BOOK EVIDENCE ACT 1879 S7

DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60

KENNEDY v DPP & AG UNREP MACMENAMIN 11.1.2007 2007/32/6613 2007 IEHC 3

PREVENTION OF CORRUPTION (AMDT) ACT 2001 S4(1)

CRIMINAL LAW (AMDT) ACT 1935 S1

OSMANOVIC v DPP 2006 3 IR 504

MCMAHON v AG 1972 IR 69

CONSTITUTION ART 16

CONSTITUTIONAL LAW

Statute

Invalidity - Effect of declaration of inconsistency on third parties - Whether declaration of inconsistency having retrospective effect - Whether finality attaching to conviction subject of appeal - Whether evidence obtained on foot of warrant unconstitutionally obtained - Whether applicant obliged to pursue alternative remedy to appeal - Whether applicant debarred from relying on declaration of inconsistency when grounds not argued in application for leave to appeal - A v Governor of Arbour Hill Prison [2006] IEHC 169, [2006] IESC 45, [2006] 4 IR 88; Blanchfield v Harnett [2002] 3 IR 207; Brigham City v Stuart (2006) 540 US 398; CC v Ireland [2005] IESC 48, [2006] IESC 33, [2006] 4 IR 1; Corrigan v Irish Land Commission [1977] IR 317; Dalton v Minister for Finance [1989] ILRM 519; Damache v Director of Public Prosecutions [2012] IESC 11, [2012] 2 IR 266; De Burca v Attorney General [1976] IR 38; Director of Public Prosecutions v Dunne [1994] 2 IR 537; Director of Public Prosecutions v Special Criminal Court [1999] 1 IR 60; Groh v Ramirez (2004) 540 US 551; Kennedy v Director of Public Prosecutions [2007] IEHC 3 (Unrep, MacMenamin J, 11/1/2007); King v The Attorney General [1981] I.R. 233; Osmanovic v Director of Public Prosecutions [2006] IESC 50, [2006] 3 IR 504; Marbury v Madison 1 (1803) Cranch 137; McDonnell v Ireland [1998] IR 134; McDonald v United States (1948) 335 US 451; McMahon v Attorney General [1972] IR 69; Muckley v Ireland [1985] IR 472; Murphy v The Attorney General [1982] IR 241; Pringle v Ireland [1994] ILRM 467; Ryan v O'Callaghan (Unrep, Barr J, 22/7/1987) and The State (Byrne) v Frawley [1978] IR 326 considered - Offences Against the State Act 1939, (No 13) s 29 - Criminal Law Act 1976, (No 32) s 5 - Constitution of Ireland, Art 40.3 - Appeal allowed; convictions quashed and re-trial ordered (135/2009 - CCA - 11/5/2012) [2012] IECCA 64

The People (Director of Public Prosecutions) v Cunningham

1 JUDGMENT of the Court delivered the 11th day of May, 2012 by Hardiman J.

2 This is the appellant's appeal against his conviction in the Cork Circuit Court on the 27 ^th March, 2009 on ten counts of money laundering. This conviction occurred on the 44 ^th day of the trial. Count 10 on the indictment referred to a sum of stg. £2,400,000 which was found in the applicant's dwelling house on the 17 ^th February, 2005 during a search on foot of a warrant issued by a Superintendent Quilter pursuant to s.29 of the Offences Against the State Act, 1939, as inserted by s.5 of the Criminal Law Act, 1976. The balance of counts related to smaller sums of money said to have been transferred by the appellant to other persons for various purposes. Three of these persons, John Douglas, Dan Joe Guerin and John Sheehan gave evidence for the prosecution against the appellant.

3 Subsequent to his conviction, the applicant was sentenced to ten years imprisonment.

A sample count.

4 All of the ten counts and the indictment preferred against the applicant allege separate offences of money laundering by using various items of property, all money or monies' worth, knowing or believing that it was the proceeds of the well known Northern Bank Robbery of the 20 ^th December, 2004. The most serious count, Count 10, is worded as follows:

"Statement of Offence

5 Money laundering contrary to s.31(1)(c) of the Criminal Justice Act, 1994 as inserted by s.21 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

Particulars of Offence

6 Timothy Cunningham between the 20 ^th December, 2004 and the 16 ^th February, 2005 at Farran in the County of Cork knowing or believing that property that is to say Sterling Cash to the value of £3,010,380 represented the proceeds of criminal conduct namely a robbery at the Northern Bank Cash Centre, Donegal Square West, Belfast on the 20 ^th December, 2004 or being reckless as to whether it was or represented such proceeds, possessed the said property."

An Item of Evidence.

7 On the 17 ^th February, 2005 the applicant's home at Farran, Co. Cork, was searched on foot of a warrant under s.29(1) of the Offence Against the State Act, 1939. This warrant was issued by Superintendent Quilter who was the person in charge of the investigation and accordingly (it was not seriously contested), could not possibly be described as a person independent of the investigation.

8 It was agreed between the parties on the hearing of this appeal that the validity of this warrant would be dispositive of the appeal against the conviction on Count 10 of the Indictment. This was because the admissibility of the evidence of finding a very large sum of cash on the appellant's premises at least so far as that particular count was concerned was dependent on the validity of the warrant under which the search was conducted.

Section found unconstitutional.

9 On the 23 ^rd February, 2012, Denham C.J. gave the judgment for the Supreme Court in the case of Ali Charaf Damache v. The D.P.P. (Ireland) and the Attorney General.

10 At para. 59 of the judgment it is recited that, for the reasons set out in the judgment:

"The Court would grant a declaration that s.29(1) of the Offences Against the State Act, 1939 (as inserted by s.5 of the Criminal Law Act, 1976) and referred to as s.29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a search of the appellant's home contrary to the Constitution, on foot of a warrant which was not issued by an independent person."

The Appeal.

11 Having been convicted as described above, the applicant appealed to this Court by notice of appeal dated 14 ^th May, 2009, about three years before the Supreme Court judgment in Damache.

12 This set out nineteen grounds of appeal in all, of which ground two in particular made reference to the s.29(1) warrant. It was alleged that the warrant was defective because it did not identify the appellant's residence as the place to be searched and further because it was merely a "colourable device" to avoid the necessity of making an application for a warrant to a judge

13 After the notice of appeal was lodged, the appeal itself proceeded slowly. The grounds of appeal had been lodged at the trial itself by the lawyers who appeared for Mr. Cunningham at that time but at a later date the applicant discharged those representatives. The applicant's appeal was struck out for want of prosecution on the 15 ^th February, 2011. However the case was re-entered by the Court of Criminal Appeal on the 28 ^th November, 2011. The applicant's original written submissions had previously been filed on the 13 ^th October, 2011.

After Damache.

14 The Supreme Court, as already noted, delivered its judgment in the Dimache case on the 23 ^rd February, 2012. On the 7 ^th March, 2012, the applicant lodged in this Court a notice of motion seeking bail on the basis of the Damache case and on the 2 ^nd April, 2012, the appellant lodged supplemental submissions, relying heavily on the Damache case.

15 By a notice of motion dated the 13 ^th day of April, 2012, and returnable on the 16 ^th April, 2012, the appellant sought liberty to amend ground 2 in his original grounds of appeal. In what follows, the underlined portion is the amendment sought and the balance is ground No. 2 as originally lodged:

"The learned trial judge erred in fact and/or in law in admitting into evidence the warrant issued under the Offences Against the State Act on the grounds that the same did not identify the appellant's residence as the place to be searched and further that the warrant was a colourable device to avoid the necessity of application being made to the District Court under the Criminal Justice Act, 1994 and that s.29 of the said Act was declared to be repugnant to the Constitution by the Supreme Court on the 23 ^rd day of February 2012 as a result of which any evidence procured on foot of the said warrant was unconstitutionally obtained and inadmissible in law".

16 On the 16 ^th April, 2012, the Court granted leave to...