DPP v Hughes

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 02 July 2012
• Neutral Citation: [2012] IECCA 69
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 141 of 2012]
• Date: 02 July 2012

DPP v Hughes

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

THOMAS HUGHES

Applicant

[2012] IECCA 69

Hardiman J.

Moriarty J.

Hogan J.

141/12

THE COURT OF CRIMINAL APPEAL

Crime - Offences against the State - Powers of Arrest - Lawful entitlement of Gardai to be on premises - Whether power of arrest available where Gardai to be considered trespassers -Offences against the State Act 1939 -Appellant seeking extension of time for appeal

Facts: The appellant had been convicted in 2011 after pleading guilty to a number of charges relating to possession of a firearm and an explosive substance. Following his conviction, the Supreme Court in the case of Damache v Director of Public Prosecutions [2012] IESC 11 ("Damache") had found s.29 to be unconstitutional. The appellant now sought an extension of time to appeal his conviction claiming he had not been able to instruct solicitors in due time as a result of his imprisonment in Portlaoise.

Held by Hardiman J, that the appellant had had ample opportunity to lodge an appeal in time, and the Court considered that the appellant only formed his intention to file an appeal after the decision in Damache was handed down.

Notwithstanding the tardiness of the appeal, the Court proceeded to consider the relevance of the Damache case to the appellant. The appellant had taken legal advice before pleading guilty to charges, and in doing so had accepted the allegations made against him. The Court considered that in the interest of legal certainty, having pled guilty and having not challenged the offending provision at trial the appellant could not now seek to challenge a decision intended to be final due to a much later development in the law. Damache v Director of Public Prosecutions [2012] IESC 11 considered.

The appeal was therefore dismissed.

EXPLOSIVE SUBSTANCES ACT 1883 S4

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S15(4)

FIREARMS ACT 1925 S2

CRIMINAL JUSTICE ACT 2006 S27

DAMACHE v DPP UNREP SUPREME 23.2.2012 2012 IESC 11

DPP v KAVANAGH UNREP CCA 24.5.2012 2012/12/3438 2012 IECCA 65

DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006/13/2579 2006 IESC 9

EIRE CONTINENTAL TRADING COMPANY v CLONMEL FOODS 1955 IR 170

MURPHY v AG 1982 IR 241

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

CRIMINAL LAW (AMDT) ACT 1935 S1 (1)

C(C) v IRELAND 2006 4 IR 1

STATE, BYRNE v FRAWLEY 1978 IR 326

DE BURCA v AG 1976 IR 38

DE BURCA v AG 1976 IR 38

MURDOCHS DICTIONARY OF IRISH LAW 5ED 2009

CRIMINAL JUSTICE ACT 1999 S29

BURNS v EARLY 2003 2 ILRM 321

1 JUDGMENT of the Court delivered the 2nd day of July, 2012 , by Hardiman J.

2 This is the applicant's application for an enlargement of time within which to appeal against conviction. The sequence of events in relation to those convictions is of critical importance.

3 On the 1 ^st November, 2011, in the Special Criminal Court (Butler J. presiding) the appellant pleaded guilty to counts 14 and 15 in the Indictment preferred against him and a co-accused. These counts were as follows:

(1) Count 14

Statement of Offence

Possession of an explosive substance contrary to s.4 of the Explosive Substances Act, 1883 as amended by s.15(4) of the Offences Against the State (Amendment) Act, 1998.

Particulars of Offence.

4 You, Thomas Hughes, on the 26 ^th day of January, 2011 at Hundred Acres, Monivea, Athenry in the County of Galway had in your possession an explosive substance to wit Ammogex containing ammonium nitrate, in such circumstances as to give rise to a reasonable suspicion that you did not have it in your possession for a lawful object.

(2) Count 15.

Statement of Offence

Possession of a firearm without a firearm certificate contrary to s.2 of the Firearms Act, 1925 as amended by s.27 of the Criminal Justice Act, 2006.

Particulars of offence.

5 You, Thomas Hughes, on the 26 ^th day of January, 2011 at 28 An Tuairin, Dublin Road, Tuam, in the County of Galway had in your possession or under your control a firearm being a six millimetre m.e. Flobert calibre Alfa-Proj Model 640 revolver bearing serial number 6640001003 without a firearm certificate granted under the Firearms Acts, 1925-1990 and for the time being in force.

6 The applicant received a five year sentence on Count 14 and a two year sentence to run concurrently on Count 15. These sentences were imposed on the 6 ^th December, 2011.

7 The applicant did not appeal either conviction or sentence within the time limited for such appeal, that is, within 21 days.

Legal Development

8 On the 23 ^rd February, 2012 Denham C.J. gave the judgment of the Supreme Court in the case of Ali Charaf Damache v. DPP, Ireland and The Attorney General.

9 At para. 59 of that 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."

Relevance to present case.

10 The relevance of the last mentioned development to the present case is that the searches of the two premises which led to the finds of materials which form the basis of Counts 14 and 15 were issued under s.29, and by a person who could not be described as independent. The second of these counts relates to material found in a search of the applicant's home. The first of the counts, apparently the more serious, relates to premises which were not his home or "dwelling" within the meaning of the Constitution.

Failure to appeal.

11 The applicant did not take any step to appeal his conviction or sentence either within twenty-one days of his conviction on his own plea of guilty, or within twenty-one days of his sentence. Instead, outside the time limited for appeal, on the 26 ^th April, 2012 , he filed an application for the enlargement of time to appeal. He stated that the ground on which he applied for such enlargement was:

"I intended to appeal the sentence initially but I did not instruct my solicitor in time as I was incarcerated in Portlaoise prison".

12 It must be said that, considered as a statement of the reasons why no appeal against the appellant's conviction was lodged within the time limited for such appeal, the above statement is hopelessly inadequate. Firstly, it relates wholly to an alleged intention to appeal sentence, whereas the present application relates to conviction. It then states that the reason why no appeal, as was allegedly intended, was in fact lodged was that "... I did not instruct my solicitor in time as I was incarcerated in Portlaoise Prison".

13 Although this Court has experience of appeals against conviction in cases where a custodial sentence was not imposed, it remains the case that the great bulk of appeals are lodged by or on behalf of people who have been committed to prison following their convictions. Prisoners so committed have ample opportunities for communication with their solicitor, and ample opportunities themselves to lodge an appeal from prison. Indeed, the prisons maintain a supply of the appropriate form for that purpose. Accordingly, the statement that the applicant did not instruct his solicitor in time because he was incarcerated is illogical, inadequate and false as a reason for the failure to lodge the appeal in time.

14 The Court has little doubt that no intention to appeal conviction was formed until after the decision of the Supreme Court in Damache on the 23 ^rd February, 2012. This conclusion, indeed, becomes inevitable when it is realised that the entire thrust of the written and oral submissions made on behalf of the applicant in this case related to that decision. Thus, the first sentence under the heading "Basis of the Application", at para. 2 of the applicant's written submissions is as follows:

"The applicant instructs (sic) that he is entitled to rely on the decision in the case of Ali Charaf Damache v. The DPP Ireland and the Attorney General [2012] 1 IESC 11".

15 The Court will, accordingly, approach this application on that basis. It must also approach the application in the context of the applicant's plea of guilty in November, 2011.

16 This Court has on two recent occasions considered applications by appellants to rely upon Damacheon appeal in circumstances where that case, or the point decided in it, was not or could not have been relied upon at the trial. In the second of those cases (DPP v. Kavanagh(Court of Criminal Appeal, [2012] IECCA 64, Denham C.J. referred to DPP v. Cronin(No. 2) and held:

"Some decisions by an accused during a trial have an important consequence for an appeal. For example, if the accused enters a plea of guilty at a trial that is a relevant factor. Such a plea is a choice by an accused. Once the plea is made and the conviction order follows, that is the foundation of fact for any consideration on any appeal".

17 Indeed, the effect of the plea of guilty goes somewhat further. It is an acknowledgment by the accused, fully advised by solicitor and counsel, of his factual and legal guilt of certain of the offences with which he is charged.

18 The effect of the foregoing is this: the applicant seeks an extension of time to appeal his conviction for offences of which he acknowledges himself guilty so that he can take advantage of a later finding, at the suit of another person, that the provisions of s.29 of the Offences Against the State Act 1939, as amended, are unconstitutional He himself did not agitate this point at or prior to his trial.

19 If the Rules in relation to extensions of time to appeal that apply in Civil cases...