DPP v Kenny

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 05 February 2004
• Neutral Citation: [2004] IECCA 2
• Date: 05 February 2004
• Court: Court of Criminal Appeal

[2004] IECCA 2

COURT OF CRIMINAL APPEAL

Denham J.

Kelly J.

Ó Caoimh J.

APPEAL NO. 137/00

DPP v. KENNY

APPLICATION FOR CERTIFICATION

UNDER SECTION 29 OF THE

COURTS OF JUSTICE ACT, 1924

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

WILLIAM KENNY

APPLICANT

Citations:

COURTS OF JUSTICE ACT 1924 S29

PEOPLE, DPP V LITTLEJOHN 1978 ILRM 147

JURIES ACT 1976 S15(3)

PEOPLE, AG V TAYLOR 1974 IR 97

DPP V HIGGINS UNREP SUPREME 22.11.1985 1985/7/1994

PEOPLE, DPP V KELLY UNREP CCA 11.7.1996 1998/15/5617

Abstract:

Criminal law - Appeal to Supreme Court - Whether point of law of exceptional public importance on which it was desirable in public interest that appeal by taken - Empanelling of jury - Treatment of hostile witness - Whether point argued before CCA - Courts of Justice Act 1924, s. 29

The applicant applied for a certificate pursuant to s. 29 of the Courts of Justice Act 1924 that the decision of the Court of Criminal Appeal involved a point of exceptional public importance and that it was desirable in the public interest that an appeal should be taken. The grounds of the application related to the empanelling of the jury; the treatment of hostile witnesses; and a misdirection by the trial judge.

Held by the Court of Criminal Appeal in refusing the application for certification under s. 29 that the applicant failed on all grounds. The applicant had not raised any point of law of exceptional public importance on which it was desirable in the public interest that an appeal by taken. The point of law, the subject of a certificate, must be a point which was argued before the Court of Criminal Appeal.

Reporter: R.W.

1 Judgment of the Court delivered on the 5th day of February, 2004 by Denham J.

2 1. This court delivered judgment on the 7 ^th day of October, 2003 and dismissed the application of the applicant for leave to appeal against his conviction.

3 2. On 8 ^th day of October, 2003 notice of application for a certificate pursuant to section 29 of the Courts of Justice Act, 1924was filed and served and this application was heard by the court on the 11 ^th December, 2003.

4 3. The applicant has been remanded on continuing bail throughout these applications.

5 4. The jurisdiction for this application arises under section 29 of the Courts of Justice Act, 1924. It provides:

"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."

6 5. Thus the question for the court is whether a decision of this court 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.

7 6. The onus rests on the applicant to establish that a point of law of exceptional public importance is at issue and that it is desirable in the public interest that an appeal be taken to the Supreme Court: People (Director of Public Prosecutions) v. Littlejohn [1978] I.L.R.M. 147, 148.

8 7. In written submissions counsel for the applicant raised seven grounds of application. However, on presenting the application orally to the court counsel limited the application to the first three grounds, which he identified as the strongest grounds.

9 2 7(i) The first ground submitted by counsel for the applicant was: "Whether in all the circumstances the Learned Trial Judge acted in breach of the Constitution and of the provisions of the Juries Act, 1976, during the empanelling of the jury, in communicating with prospective jury members otherwise than in a manner audible in open court, by entering into individual dialogue with certain prospective jury members who had approached the Learned Trial Judge following a general invitation to do so?"

10 This must be seen in the context that the issue on the appeal against the conviction before this court was set out in ground 19 of the grounds...