DPP v Gilligan (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 10 July 2006
• Docket Number: [S.C. No. 154 of 2004]
• Date: 10 July 2006
• Court: Supreme Court

The People (Director of Public Prosecutions) v. Gilligan (No. 3)

The People (at the suit of the Director of Public Prosecutions) Respondent

and

John Gilligan, Applicant (No. 3)

[2006] IESC 42

[S.C. No. 154 of 2004]

Supreme Court

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 - Courts of Justice Act 1924 (No. 10), s. 29 - Constitution of Ireland 1937, Article 34.4.3.

Courts - Supreme Court - Appeal from Court of Criminal Appeal - Certificate on point of law of exceptional public importance - Point of law concerning conviction - Whether jurisdiction to hear appeal against sentence - Courts of Justice Act 1924 (No. 10), s. 29.

Section 29 of the Courts of Justice Act 1924 provides as follows:-

"The determination by 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."

The applicant was convicted by the Special Criminal Court of various offences relating to importation and possession of a controlled substance. He was sentenced to 28 years imprisonment. The applicant appealed to the Court of Criminal Appeal against both conviction and sentence. The Court of Criminal Appeal dismissed the appeal in relation to conviction but did reduce the sentence to twenty years. On application to it, the Court of Criminal Appeal then certified for appeal to the Supreme Court, pursuant to s. 29 of the Courts of Justice Act 1924, as being a point of law of exceptional public importance whether the conviction was unlawful. The Supreme Court, in an initial judgment, dismissed the appeal insofar as it related to the conviction but invited further submissions on the issue of whether sentence was a matter that the Supreme Court could rule on absent a specific question as to sentence being referred to it by the Court of Criminal Appeal.

Held by the Supreme Court (Denham, McGuinness and Geoghegan JJ., Fennelly and Macken JJ. dissenting), in accepting jurisdiction to hear the appeal against sentence and in dismissing the appeal, 1, that the granting of a certificate pursuant to s. 29 of the Courts of Justice Act 1924 for leave to appeal to the Supreme Court did not limit the scope of that appeal and if there was a certificate relating to a point of law relevant to conviction only, that did not rule out an appeal against sentence. The appeal to the Supreme Court was limited only by the nature of the appeal to the Court of Criminal Appeal.

The People (Attorney General) v. Giles [1974] I.R. 422followed.

2. That, where an appeal had been heard by a Court of Criminal Appeal as to both conviction and sentence, even if the certificate pursuant to s. 29 of the Courts of Justice Act 1924 referred specifically only to matters relating to the conviction, the Supreme Court had jurisdiction in relation to the decision of the Court of Criminal Appeal which included the issue of sentencing.

The People (Attorney General) v. Giles [1974] I.R. 422 followed.

3. That, in construing a statute in the context of the criminal law, any ambiguity should be determined to the advantage of an accused.

4. That sentences should be proportionate to the crime and the circumstances of the offender and should reflect the sentence provided by the Oireachtas, which principles were followed by the Court of Criminal Appeal.

Per Fennelly and Macken JJ., dissenting, that, the court had no jurisdiction to entertain the appeal against sentence. The appeal to the Supreme Court provided for by s. 29 of the Act of 1924 was not against a decision of the Court of Criminal Appeal but against its determination of any appeal and an appeal could not be entertained against either conviction or sentence based on a certificate relating to a determination of a question of substantive law, as opposed to sentence, only.

The People (Attorney General) v. Giles [1974] I.R. 422 considered.

Cases mentioned in this report:-

Milne v. Commissioner of Police for City of London [1940] A.C. 1; [1939] 3 All E.R. 399; 55 T.L.R. 898.

The People (Attorney General) v. Earls [1969] I.R. 414.

The People (Attorney General) v. Giles [1974] I.R. 422; (1974) 110 I.L.T.R. 33.

The People (Attorney General) v. Quinn [1965] I.R. 366.

R. v. Baskerville [1916] 2 K.B. 658.

Appeal from the Court of Criminal Appeal

The facts have been summarised in the headnote and are more fully set out in the judgments of Denham and Fennelly JJ., infra.

The accused was convicted of various drug trafficking offences in the Special Criminal Court on the 15th March, 2001. On the 8th August, 2003, the Court of Criminal Appeal (McCracken, Quirke and Peart JJ.) dismissed an appeal against conviction and on the 12th November, 2003, reduced the sentence. On the 20th February, 2004, the Court of Criminal Appeal granted a certificate pursuant to s. 29 of the Courts of Justice Act 1924, stating that its decision of the 8th August, 2003, refusing leave to appeal against conviction involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken to the Supreme Court on that decision.

The appeal in relation to conviction was heard by the Supreme Court and judgment given on that point on the 23rd November, 2005 ([2005] IESC 78). The appeal in relation to sentence was heard by the Supreme Court (Denham, McGuinness, Geoghegan, Fennelly and Macken JJ.) on the 21st February, 2006.

Cur. adv. vult.

Denham J. 10th July, 2006

Issues

1 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.

Special Criminal Court

2 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 28 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.

Court of Criminal Appeal

3 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 dismissed by a judgment of the Court of Criminal Appeal delivered on the 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.

4 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.

Certified Questions

5 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:-

• (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?

• (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?

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.

The Supreme Court

6 On the 23rd November, 2005, this court delivered judgment dismissing the appeal of the applicant insofar as it related to his convictions ([2005] IESC 78).

7 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...