DPP v Gilligan (No 2)

• Jurisdiction: Ireland
• Judge: Denham J.,MR JUSTICE FENNELLY
• Judgment Date: 10 July 2006
• Neutral Citation: [2006] IESC 42
• Court: Supreme Court
• Date: 10 July 2006

[2006] IESC 42

THE SUPREME COURT

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

Macken J.

[S.C. No: 154/2004]

DPP v GILLIGAN (NO 2)

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

John Gilligan (No. 2)

Applicant/Appellant

COURTS OF JUSTICE ACT 1924 S29

DPP v GILLIGAN UNREP SUPREME 23.11.2005 2005 IESC 78 2005/20/3987

CONSTITUTION ART 34.4.3

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12

AG v GILES 1974 IR 422

CRIMINAL PROCEDURE ACT 1993 S3

CRIMINAL PROCEDURE ACT 1993 S3(1)

CRIMINAL PROCEDURE ACT 1993 S3(2)

COURTS OF JUSTICE ACT 1924 S34

COURTS OF JUSTICE ACT 1924 S33

COURT OF APPEAL ACT 1907 (UK)

MILNE v COMMISSIONER OF POLICE FOR CITY OF LONDON 1940 AC 1

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S15(2)

MISUSE OF DRUGS ACT 1977 S21

MISUSE OF DRUGS ACT 1977 S17

CONSTITUTION ART 38.1

R v BASKERVILLE 1916 2 KB 658

CONSTITUTION ART 34.4.3

COURTS OF JUSTICE ACT 1924 S28

COURTS OF JUSTICE ACT 1924 S30

COURTS OF JUSTICE ACT 1924 S32

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3(2)

CRIMINAL LAW:

Appeal

Jurisdiction of Supreme Court - Appeal from Court of Criminal Appeal - Scope of appeal from Court of Criminal Appeal to Supreme Court - Statute - Interpretation - Certificate on point of law of exceptional public importance that appeal be taken to Supreme Court - Whether Supreme Court having jurisdiction to intervene in sentence when questions certified for appeal relate to conviction - Sentence - Whether sentence disproportionate - Whether Supreme Court should intervene in sentencing decision of Court of Criminal Appeal - People (AG) v Giles [1974] IR 422 followed - Courts of Justice Act 1924 (No 10), s 29 - Constitution of Ireland 1937, Article 34.4.3 - Appeal dismissed (154/2004 - SC - 10/7/2006)[2006] IESC 42, [2006] 3 IR 273, [2007] 1 ILRM 182

People (DPP) v Gilligan (No 3)

Facts: The points of law certified by the Court of Criminal Appeal for an appeal to the Supreme Court referred to the judgment on the issue of the convictions but there was no reference to the judgment which dealt with the issue of sentence. This decision concerned the jurisdiction of the Supreme Court to hear an appeal by the appellant against his sentence and whether the Court should intervene in the sentencing decision.

Held by the Supreme Court (Denham, McGuinness, Geoghegan, Fennelly and Macken JJ) in dismissing the appeal that the Court had jurisdiction to hear an appeal by the appellant against his sentences but having considered the sentences imposed by the Court of Criminal Appeal and all the circumstances of the case, the Court would not intervene in the sentences.

Reporter: R.W.

1 Judgment delivered the 10th day of July, 2006 by Denham J.

1. Issues

2 Two issues arise for decision on this appeal. First, it is necessary to determine whether this Court has jurisdiction to hear an appeal by the applicant against his sentences. Secondly, if the answer to the first question is in the affirmative, whether the Court should intervene in the sentencing decisions.

2. Special Criminal Court

3 John Gilligan, the applicant/appellant, hereinafter referred to as the applicant, was convicted by the Special Criminal Court on the 15th March, 2001, of drug offences involving importation into the State and possession for the purpose of sale or supply of cannabis resin between July, 1994 and October, 1996. In respect of six counts of possession for the purpose of sale or supply he was sentenced to a term of twenty eight years imprisonment in respect of each count, the sentences to run concurrently. In respect of the five counts of unlawful importation of a controlled drug he was sentenced to a term of twelve years imprisonment, the terms to run concurrently.

3. Court of Criminal Appeal

4 The applicant applied for leave to appeal to the Court of Criminal Appeal against the convictions and sentences. The applicant's appeal against his convictions was refused by a judgment of the Court of Criminal Appeal delivered on 8th August, 2003. In a judgment delivered on the 12th November, 2003, the Court of Criminal Appeal reduced the sentences in respect of the convictions of possession of a controlled drug for the purpose of selling or otherwise supplying to another from twenty eight years imprisonment to twenty years, and upheld the sentences of twelve years imprisonment in relation to the convictions for unlawful importation.

5 Thus there were two separate judgments of the Court of Criminal Appeal, the first, on the 8th August, 2003, related to the issue of convictions. The second, on the 12th November, 2003, dealt with the issue of sentences.

4. Certified Questions

6 On the 20th February, 2004, (order perfected on the 11th March, 2004) the Court of Criminal Appeal certified, pursuant to s.29 of The Courts of Justice Act, 1924, that its decision issued on the 8th August, 2003, refusing leave to appeal against a conviction of the Special Criminal Court given on the 15th March, 2001, on charges of possession of a controlled drug for the purpose of selling or otherwise supplying it to another and unlawful importation of a controlled drug, involved points 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 points of law certified were:

7 (i) In what circumstances and to what extent is evidence which may have been obtained from witnesses under a State Witness Protection Programme inadmissible and/or inconsistent with trial in due course of law as guaranteed by Article 38.1 of the Constitution?

8 (ii) Is corroboration in the sense described in R. v. Baskerville [1916] 2 K.B 658 required in respect of the testimony of accomplice witnesses who have participated in a State Witness Protection Programme? If not, what is the appropriate test in relation to such witnesses?

9 The certificate referred to the judgment on the issue of the convictions given on the 8th August, 2003. There was no reference to the judgment of the 12th November, 2003, which dealt with the issue of sentence.

5. The Supreme Court

10 On the 23rd November, 2005, the Supreme Court delivered judgment dismissing the appeal of the applicant insofar as it related to his convictions.

11 In accordance with the jurisprudence of the Court, the appeal under s. 29 of The Courts of Justice Act, 1924 was treated as a full appeal from the decisions of the Court of Criminal Appeal. In addition to the certificate setting out two certified points of law, a full set of grounds of appeal were lodged with this Court, comprising the same grounds as were argued before the Court of Criminal Appeal. These included grounds relating to sentence. The grounds, including the certified points, dealing with the convictions, were addressed in the judgment of 23rd November, 2005. At issue in this judgment is the appeal against the sentences.

6. Jurisdiction

12 Article 34.4.3 of the Constitution provides:

"The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law".

13 The latter part of the Article is relevant to this case as it includes the appellate jurisdiction of the Supreme Court from the Court of Criminal Appeal, which is provided for by legislation. This follows upon the statutory scheme for appeals from trial courts to the Court of Criminal Appeal.

14 Section 3 of the Courts (Establishment and Constitution) Act, 1961 provided for the establishment of a new Court of Criminal Appeal. Section 12 of the Courts (Supplemental Provisions) Act, 1961 vested in the Court of Criminal Appeal all jurisdiction which immediately before the operative date vested in the existing (now previous) Court of Criminal Appeal. This included s.29 of The Courts of Justice Act, 1924. The degree of finality of the determination of the Court of Criminal Appeal is to be found in s. 29 of The Courts of Justice Act, 1924. Section 29 states:

"The determination of the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive."

15 Thus the determination of the Court of Criminal Appeal is final unless leave to appeal is granted pursuant to s. 29.

16 It was on the basis of this legislation that Walsh J. in The Attorney General v. Giles [1974] I.R. 422 was of the view that a decision of the Court of Criminal Appeal when hearing both an appeal against conviction and an appeal against sentence may be considered as two appeals. I shall return to this later in the judgment.

17 The jurisdiction of the Court of Criminal Appeal in relation to appeals was also addressed in s. 3 of the Criminal Procedure Act, 1993. Section 3 subsection (1) sets out the orders the court may make on an appeal against conviction. Subsection (2) states the orders the court may make on an appeal against sentence. This confirms the earlier approach by Walsh J. in Giles that there are two appeals, one against conviction and one against sentence. The Act does not in any other relevant respect address the jurisdiction of the...