DPP v Laide & Ryan

• Jurisdiction: Ireland
• Judge: McCracken J.
• Judgment Date: 29 June 2005
• Neutral Citation: [2005] IECCA 85
• Court: Court of Criminal Appeal
• Date: 29 June 2005

[2005] IECCA 85

COURT OF CRIMINAL APPEAL

McCracken J

Murphy J

Peart J

59/04 & 65/04

DPP v LAIDE & RYAN

Between:

The People at the suit of the Director of Public Prosecutions

Respondent

AND

Dermot Laide and Desmond Ryan

Appellants

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL PROCEDURE ACT 1993 S3(1)

GREENDALE DEVELOPMENTS LTD (NO 3), RE 2000 2 IR 514

DPP, PEOPLE v CAMPBELL 2004 2 ILRM 412

DPP, PEOPLE v O'CALLAGHAN 2004 1 ILRM 438

CRIMINAL LAW Retrial Appeal against conviction - Terms of court order - Retrial - Whether court can order retrial if conviction quashed - Whether Court of Criminal Appeal can certify point of law of exceptional public importance to Supreme Court where conviction quashed and retrial ordered - (59 & 65/2004- CCA - 29/6/2005) [2005] IECCA 85 People (DPP) v Laide and Ryan

Facts: The appellant argued that the order of the Court, which had not yet been perfected, should not order the retrial of the appellant on the charge of manslaughter on the basis that on a proper construction of the indictment, the appellant could only be convicted of manslaughter on the basis of common design between the four original accused. In the alternative the appellant sought an order pursuant to s.29 of the Act of 1924 certifying that the decision of this Court involved a point of law of exceptional public importance and for that reason permitting an appeal to the Supreme Court.

Held by the Court of Criminal Appeal (McCracken, Murphy, Peart JJ) in dismissing the application:

1. That the ordering of a retrial was part of the substantive order of the Court and therefore was not an ancillary or consequential order. The appellant could have but failed to make the argument now sought to be made at the hearing of the appeal against conviction. The appellant failed to bring himself within any of the recognisable grounds to seek to have the matter revisited and accordingly he was not entitled to make further arguments regarding the decision to direct a retrial.

2. That there was no jurisdiction under s.29 to certify a point of law on any grounds whatever where the Court of Criminal Appeal had set aside a conviction and ordered a retrial. Accordingly in the circumstances of this case, where the appellant’s conviction for manslaughter was overturned and a retrial ordered, the Court had no jurisdiction to make the order sought.

The People (DPP) v Campbell [2004] 2 ILRM 412 followed.

Reporter: L.O’S.

1 29th day of June 2005 by McCracken J.

2 Mr Michael O'Higgins SC on behalf of Dermot Laide (hereinafter called "the Appellant") has addressed the Court on two matters arising out of the judgment of this Court delivered on 24 ^th February 2005. Firstly, he seeks to argue that the order of the Court, which has not yet been finally perfected, should not order the retrial of the Appellant on the charge of manslaughter, and secondly, should he fail in this application, he seeks an order pursuant to s.29 of the Courts of Justice Act 1924 certifying that the decision of this Court involved a point of law of exceptional public importance and for this reason permitting an appeal to the Supreme Court. The Court proposes to deal with each of these points separately.

Reconsidering a Retrial

3 Mr O'Higgins makes it quite clear, as he must, that he is not re-opening the appeal, is not making fresh arguments and is not revisiting the substantive decision that the conviction was unsafe. However, he submits that the ordering of a retrial is an ancillary or consequential order, which the Court would not have made had it considered all the arguments put forward on behalf of the Appellant. In particular, he submits that on a proper construction of the indictment, the Appellant could only be convicted of manslaughter on the basis of common design between the four original accused.

4 He is perfectly correct in arguing that this Court did not rule on that point, on the basis that the manslaughter charge was being set aside in any event. However, the Court did comment on this point and said:-

"However, as the concept of common design was clearly explained to the jury, the Court feels it probable, primarily because of the fact that only Dermot Laide was convicted of manslaughter, that the jury did not convict him on the basis of common design, but on the basis of his own actions."

5 In any event, the Court does not accept the submission that the ordering of a retrial in an ancillary or consequential order. Section 3(1) of the Criminal Procedure Act 1993 sets out four options open to the Court on the hearing of an appeal against conviction, two of which are:-

6 a "(b) Quash the conviction and make no further order, or

7 (c) quash the conviction and order the applicant to be retried for the offence."

8 The jurisdiction of the Court of Criminal Appeal derives solely from statute and the orders which the Court is empowered to make are those set out in s.3(1). It is quite clear that the statute offers alternatives to the Court, either to quash the conviction simpliciter or to quash the conviction and order a retrial. Specifically, the section does not empower the Court to quash a conviction and subsequently consider the question of a retrial. The ordering of a retrial is a part of the substantive order of the Court.

9 At the hearing of an appeal against conviction, it is always open to the appellant to argue before the Court which of these remedies is appropriate. It was open to the Appellant to do so in the present case, and accordingly he was not precluded in any way from...