DPP v Liam Bolger (No. 2)

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 23 January 2014
• Neutral Citation: [2014] IECCA 1
• Date: 23 January 2014
• Court: Court of Criminal Appeal
• Docket Number: CCA No. 292/09

[2014] IECCA 1

THE COURT OF CRIMINAL APPEAL

Denham C.J., de Valera J., McGovern J.

CCA No. 292/09

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

Liam Bolger (No. 2)

Applicant

Application for leave to appeal - Murder - Trial judge error - Admissibility of evidence - Admission of interview - Inferences form silence - Caution - Charge to the jury - Re-charge to the jury

The applicant, Liam Bolger, was convicted of murder in November 2009 and sentenced to life imprisonment. It was found by the jury that although the applicant was not the one who shot the victim, he shared equal responsibility because he drove the gunman away from the scene in a joint enterprise. Mr Bolger filed a notice of application for leave to appeal on grounds relating to errors on the part of the trial judge and an unsatisfactory hearing. The application was heard on the 28 ^th of January 2013, following which judgment was reserved and on the 14 ^th of March 2013, the application was refused. In these proceedings, the applicant sought an order setting aside the judgment of this Court on the 14 ^th of March, or, alternatively, an order for the re-hearing of the applicant’s appeal. Held by Denham C.J., the Court heard the appeal and reached a final determination. The Court, however, decided to hear counsel on the 28 ^th of November 2013 to ensure that justice had been done.

The applicant asserted that the grounds of appeal raised, especially grounds number 3, 5 and 6 were not addressed; and that the judgment contained no reference to the trial judge’s charge and re-charge to the jury on inferences from silence. Ground 3 was the assertion that the trial judge erred by admitting into evidence an interview the applicant gave while in Garda custody, in which interview sections 28 and 29 of the Criminal Justice Act 2007 and section 19A of the Criminal Justice Act 1984 were invoked. The interview in question saw Mr Bolger offer no comment on the questions posed to him. Ground 5 was the averment that the trial judge erred in the manner the jury were re-directed on the issue of inferences to be drawn under these sections. Ground 6 was the argument that the trial judge erred in re-charging the jury on the issue of the consequences of the applicant’s original solicitors’ advice in respect of “inferences to be drawn thereto”. The applicant also focused on whether he should have been cautioned in a specific manner.

On the inferences issue, the Court held that the trial judge applied the standard of proof beyond reasonable doubt in admitting the interview so that the jury could be invited to draw inferences from the applicant’s silence. The Court was satisfied that the applicant was advised by the gardaí that they intended to invoke the statutory provisions; that he consulted with his solicitor; that the relevant sections of statute were explained; that the applicant understood the caution; and that the evidence was properly admitted. Concerning the issue of caution, the Court determined that at the beginning of the admitted interview a standard caution had been given. The Court agreed with the assertion that while section 32 of the Criminal Justice Act envisaged a “new caution format, no such regulation had been made”. The Court then dealt with the charge of the judge. Following a review of the transcript, the Court held that, in refusing to repeat his charge as requested, the judge did not fall into error. On the issue of legal advice, the Court again reviewed the transcript whereby the trial judge gave a short advisory to the jury. Counsel submitted that this was not what was required. The Court, however, saw no error arising in relation to this aspect either.

The Court determined that the trial judge did not err on any of the grounds raised in the application for leave to appeal. The Court was satisfied that the judgment of the 14 ^th of March was final. The core element of the appeal was the admissibility of evidence which was adequately dealt with by the trial judge. It was concluded that the application for leave to appeal was refused correctly.

Denham C.J.

Judgment of the Court delivered on the 23rd day of January, 2014, by Denham C.J.

1 A Statutory Court

2 1. The Court of Criminal Appeal is a creature of statute; from which it gets all its jurisdiction.

3 2. Originally, the Court of Criminal Appeal’s jurisdiction was set out in the Courts of Justice Act, 1924, which provided:-

“34. The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the Court.”

4 3. The Court of Criminal Appeal was established by s. 3 of the Courts (Establishment and Constitution) Act, 1961. The jurisdiction of the Court of Criminal Appeal was described in s. 12 of the Courts (Supplemental Provisions) Act,1961, as:-

“(i) The Court of Criminal Appeal shall be a superior court of record and shall, for the purpose of this Act and subject to the enactments applied by section 48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.”

5 4. There have been amending statutory provisions as to the Court of Criminal Appeal but the fundamental nature of the Court of Criminal Appeal remains. As Hardiman J. stated in The People v. Francis Cunningham 2002 2 I.R. 712:-

“It is trite but fundamental, to recall that the jurisdiction of the Court of Criminal Appeal is an ‘appellate’ jurisdiction. Moreover, as was said in the case of The State (Woods) v. Attorney General [1969] I.R. 385, and elsewhere, the jurisdiction is a statutory one: the Court is entirely a creature of statute and has no other jurisdiction.”

6 5. The Court of Criminal Appeal is thus an appellate court, created by statute. It is the ultimate appellate court for the most serious criminal trials. It is not an appellate court which retries the defendant. It does not hold a re-hearing. It conducts an appeal by reviewing the transcript of the trial court.

7 6. The decision of the Court of Criminal Appeal is final. However, s. 29 of the Courts of Justice Act, 1924 provided:-

“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 [DPP] 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.”

8 7. Section 29 has been substituted by section 22 of the Criminal Justice Act, 2006. This provides:-

(1) No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other matter except in accordance with this section.

(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.

9 The fundamental structure of the Court of Criminal Appeal, being the final court of appeal, continues, subject to the s. 29 provision for a limited form of appeal to the Supreme Court.

10 Case law

11 8. It is possible for a court to omit to determine an important issue raised on appeal. Over the last decade the Court of Criminal Appeal has been requested to revisit a judgment on a number of occasions. In those cases the matter was simply brought back before the Court of Criminal Appeal where the issue raised was considered.

12 9. In the case of DPP v Laide [2005] 1 I.R. 209, a supplementary judgment, DPP v Laide [2005] IECCA 85, was delivered by the Court on the 29th June, 2005, having already handed down judgment on 24th February 2005. In the supplemental judgment, McCracken J discusses the jurisdiction of the Court of Criminal Appeal to set aside its judgment. The Court, in its analysis, found that the principle established by the Supreme Court in the case of Greendale Developments [2000] 2.I.R 514 applies equally to the Court of Criminal Appeal. The Court stated:-

“In this regard the Court will adopt the passage from the judgment of Denham J in Re Greendale Developments Ltd (No. 3) [2000] 2 IR 514 where she said at page 544:-

‘The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such a jurisdiction exercised. It would only be in the most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.’

The Court considers that this principle applies equally to the Court of Criminal Appeal.”

13 In that case the Court of Criminal Appeal held that it could not possibly be said that there had been any...