DPP v Cunningham

JurisdictionIreland
CourtSupreme Court
JudgeDenham J.,Mr. Justice Hardiman
Judgment Date08 October 2002
Neutral Citation[2002] IESC 64
Date08 October 2002
Docket Number[S.C. No. 353 of

[2002] IESC 64

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

Record No. 353/01
DPP v. CUNNINGHAM
IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924

and

IN THE MATTER OF AN APPEAL AGAINST SEVERITY OF SENTENCE TO THECOURT OF CRIMINAL APPEAL
BETWEEN/
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS)

and

FRANCIS CUNNINGHAM
Applicant/Appellant

Synopsis:

CRIMINAL LAW

Sentence

Appeal - Severity of sentence - Point of law of exceptional public importance - Factors to be considered on appeal - Whether Court of Criminal Appeal limited to considering state of facts existing at date when sentence imposed - Courts of Justice Act, 1924, section 29 - Criminal Procedure Act, 1993, section 3 (353/2001 - Supreme Court - 8/10/2002)

DPP v Cunningham - [2002] 2 IR 712 - [2003] 1 ILRM 124

the appellant was sentenced to five years imprisonment on being convicted of forgery at Dublin Circuit Criminal Court. During the course of his application for leave to appeal the appellant asked the Court of Criminal Appeal to consider ad misericordiam a number of documents described as testimonials or certificates which had come into being since the imposition of sentence. The Court refused to accept such evidence and dismissed the appeal but certified that in the public interest an appeal should be taken to the Supreme Court on the following question of exceptional public importance: "Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, is it strictly limited to considering the state of facts existing at the date when the sentence was imposed or may it receive evidence relating to events or facts subsequently occurring relating to the behaviour of the applicant, his state of health or otherwise, which might be relevant if the Court were itself deciding on the correct sentence?"

Held in answering the first part of the certified question in the affirmative and the second part in the negative that a finding that the original sentence was wrong in principle is a condition precedent to the jurisdiction of the Court of Criminal Appeal, conferred by section 34 of the Act of 1924, itself to impose an appropriate sentence. Such error must be in the approach actually adopted by the trial judge to sentencing and by definition, this approach could not include facts which had not been in existence at the relevant time. The material which the Court of Criminal Appeal had been asked to consider was agreed not to relate to whether the sentence originally imposed was wrong in principle but was directed at evoking the mercy or leniency of the court and was not and could not have been opened to the trial court and could not therefore be relevant to a decision as to whether the sentence should be quashed. Accordingly, the Court of Criminal Appeal had been correct to reject the evidence since it had failed to meet the basic test of admissibility, that of relevance to the matter in issue.

1

Judgment delivered on the 8th day of October,2002by Denham J.

1. Issue
2

At issue in this case is an aspect of the jurisdiction of the Court of Criminal Appeal. The Court of Criminal Appeal is a superior court of record. It is a significant court. The Court of Criminal Appeal is the ultimate court of appeal for the majority of criminal cases heard by the Circuit Criminal Court and the Central Criminal Court. In a few cases, such as this, a point of law of exceptional public importance may be certified by the Court of Criminal Appeal to be determined by the Supreme Court.

2. Appeal
3

This an appeal by Francis Cunningham, the applicant/appellant, hereinafter referred to as the applicant, against a judgment and order of the Court of Criminal Appeal made on the 25 th July, 2001. The Court of Criminal Appeal refused the application of the applicant for leave to appeal against sentence. AIso refused by the Court of Criminal Appeal was a preliminary application by counsel for the applicant for leave to adduce evidence in relation to mitigation of sentence as to certain events which had occurred since the date of sentencing. On the 14 th December, 2001 the Court of Criminal Appeal certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision, in refusing the applicant leave to adduce the evidence in relation to mitigation of sentence concerning events which had occurred since the date of sentencing, involved a point of law of exceptional public importance.

3. Facts
4

The facts as to the applicant's conviction are not in dispute. The applicant pleaded guilty on the 8th December, 1999 to a count of forgery contrary to s.2 of the Forgery Act, 1913. He forged a valuable security, a bank-draft, in the amount of £45,000. The Circuit Criminal Court imposed a sentence of 5 years imprisonment. The applicant sought leave to appeal from the Court of Criminal Appeal. During the course of the application counsel for the applicant asked the court to receive and consider ad misericordiam a number of documents described as testimonials or certificates which had come into being since the imposition of the sentence of five years on the applicant on the 8th December, 1999. Having considered the matter the Court of Criminal Appeal refused leave for such material to be put before it. The court ruled that it was confined to a consideration of the correctness of the sentence imposed by the Circuit Criminal Court, which could only be reviewed by reference to the position which prevailed as of the date when it wasimposed and this necessarily ruled out of consideration any of the material proffered. Having then heard submissions from counsel on behalf of the applicant the court did not alter the sentence of five years that had been imposed in the Circuit Criminal Court.

4. Point of law of exceptional public importance
5

The question of law of exceptional public importance is whether the Court of Criminal Appeal in considering an application for leave to appeal against sentence is restricted to a consideration of the state of affairs which prevailed at the date of the imposition of the sentence or whether it may consider evidence relating to the subsequent behaviour of the applicant and thus receive material of the type proffered. The point of law of exceptional public importance certified by the Court of Criminal Appeal for the Supreme Court is:

"Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, is it strictly limited to considering the state of facts existing at the date when the sentence was imposed or may it receive evidence [in] relation to events or facts subsequently occurring relating to the behaviour of the applicant, his state of health or otherwise which might be relevant if the court were itself deciding on the correct sentence?"

5. Statutory Law
6

The Court of Criminal Appeal was established under s.3 of the Courts (Establishment and Constitution) Act, 1961. Section 12 of the Courts (Supplemental Provisions) Act, 1961provides:

"12.(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and subject to the enactments applied by s.48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.

(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied by s.48 of this Act, was, immediately beforethe operative date, vested in or capable of being exercised by the existing Court of Criminal Appeal. ..."

7

Section 48 of the Courts (Supplemental Provisions) Act, 1961provides that any enactment contained in the Courts of Justice Acts, 1924to 1961 shall apply to the courts established under the Courts (Establishment and Constitution) Act, 1961, this includes the Court of Criminal Appeal.

8

A person convicted on indictment in the Circuit Criminal Court has a right of appeal to the Court of Criminal Appeal: s.31 and s.63 of the Courts of Justice Act, 1924. Section 63 of the Courts of Justice Act, 1924states:

"63. An appeal shall lie from the Circuit Court in all cases tried on indictment to the Court of Criminal Appeal ..."

9

The grounds for leave to appeal were set out in s.32 of the Courts of Justice Act, 1924which provided:

"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."

10

This has been amended insofar as it relates to consequential orders, which amendment is not relevant to this case.

11

Section 33 of the Courts of Justice Act, 1924has been replaced by s.7 of the Criminal Justice ( Miscellaneous Provisions) Act, 1997which provides:

"7. The Act of 1924 is hereby amended by the substitution of the following section for s.33:"

"33. (1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal ("the court") on—"

12

a ( a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried,and

13

b ( b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains,

14

with power to the court...

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