DPP v McCabe
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kearns |
| Judgment Date | 08 June 2005 |
| Neutral Citation | [2005] IECCA 79 |
| Date | 08 June 2005 |
| Court | Court of Criminal Appeal |
| Docket Number | [C.C.A. No. 213 CJA of 2004] |
[2005] IECCA 79
THE COURT OF CRIMINAL APPEAL
Kearns J.
Budd J.
MacMenamin J.
AND
BETWEEN
AND
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S3
CRIMINAL JUSTICE ACT 1993 S2(ii)
INTERPRETATION ACT 1937 11(h)
MCGUINNESS v ARMSTRONG PATENTS LTD 1980 IR 289
CRIMINAL ASSETS BUREAU v MCS UNREP HIGH COURT KEARNS 16.11.2001 2001/4/912
TAX CONSOLIDATION ACT 1997 933(1)(c)
PRITAM v S RUSSELL & SONS LTD 1973 1 ALL ER 617
DPP v MCKENNA 2002 1 IR 347
CRIMINAL LAW
Practice & procedure
Time limit - Review of sentence - Application by prosecutor for review of sentence - Statutory time limit for making of application - Whether application made in time - McGuinness v Armstrong Patents [1980] IR 289; CAB v McS (Unrep, Kearns J, 16/11/2001); and Pritam v S Russell & Sons [1973] QB 336 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 122, r 3 - Interpretation Act 1937 (No 38), s 11(h) - Criminal Justice Act 1993 (No 6), s 2(2) - Finding that notice was in time (213CJA/2004 - CCA - 8/6/2005) [2005] IECCA 79 People (DPP) v McCabe
Facts: The DPP applied for a review of a sentence imposed by the Central Criminal Court. The respondent was sentenced to 4 years imprisonment, which said sentence was suspended when evidence was given to the trial judge that the victim was prepared to accept a sum of Eur15,000 offered to her in Court by the respondent as compensation. The respondent alleged that the application was out of time. The notice of application was not lodged until the morning of Monday, the 8th November, 2004 and the last of the 28 days fell on the 7th November, 2004.
Held by the Court of Criminal Appeal (Kearns J; Budd and MacMenamin JJ): in holding that the notice was served in time that a day when the office was closed should not be taken into account, at least when it was the last day of the specified period.
Reporter: R.W.
8th day of June. 2005 by Mr. Justice Kearns
This is an application by the Director of Public Prosecutions seeking a review in respect of a sentence imposed by the Central Criminal Court (Carney J.) on Monday, the 11 th October, 2004. On that occasion the respondent had pleaded guilty to aggravated sexual assault contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990, on a young woman at Dundalk on the 13 th September, 2002. On that occasion, the respondent was sentenced to 4 years imprisonment, which said sentence was suspended when evidence was given to the trial judge that the victim was prepared to accept a sum of €15,000 offered to her in court by the respondent as compensation.
The application brought by the Director of Public Prosecutions is brought under s.2 of the Criminal Justice Act, 1993. An objection has been taken at the outset by the respondent who alleges that the application is out of time. Section 2(ii) of the said Act of 1993 reads as follows:-
"An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed."
While in this case a copy of the notice of application was served on the respondent's solicitors by registered post on the 5 th November, 2004, the original notice of application was not lodged with the registrar in the office of the Court of Criminal Appeal until the morning of Monday, the 8 th November, 2004.
On behalf of the respondent it was argued that the application was not lodged within time, because under the Interpretation Act, 1937, the computation of time must run from the day when sentence was imposed and include that date. If correct in that submission, it was submitted that the appeal which was lodged on the 8 th November was out of time as the last of the 28 days thus calculated fell on the 7 th November, 2004.
Section 11(h) of the Interpretation Act, 1937, provides:-
"Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such periods."
Heavy reliance was placed by the respondent upon the well known case of McGuinness v. Armstrong Patents Ltd. [1980] IR 289 to argue that the period was inclusive, and not exclusive, of the first day. In that case the plaintiff suffered personal injuries in a road traffic accident. The proceedings were issued against two defendants. The plaintiff then learned that it was being alleged that the accident had been caused by a mechanical failure in the car which had been manufactured by a third defendant, a company registered outside the jurisdiction. The accident happened on the 21 st June, 1972. Having obtained leave to add the third defendant as a party, the plaintiff on the 23 rd June, 1975 issued a concurrent summons against the third named defendant. The 21 st and 22 nd June, 1975, were dies non juridicus, being a Saturday and Sunday respectively, when the court offices were closed. The critical issue in that case was to determine whether the three year period fixed by the Statute of Limitations, 1957 was to be calculated inclusive or exclusive of the date of the accident on the 21 st June, 1972. McMahon J held that it was inclusive of the date of the accident, stating (at 292-3):-
"I would gladly adopt any construction of this provision which would achieve uniformity in the laws of England and of Ireland in computing periods of time, but I do not see how the provision can be construed in that way. The period of time specified in s.11, sub-s.2(b) of the Act of 1957 is expressed to be a period 'from the date on which the cause of action accrued' and not from the accrual of the cause of action. I can not distinguish the period so defined from a period specified in the manner described in the Act of 1937, namely, a period of time 'expressed to begin on or be reckoned from a particular day'. The legislature must be presumed to have intended that the periods of limitation in the Statute of Limitations, 1957, should be calculated in accordance with the rules of construction contained in the Act of 1937".
In Criminal Assets Bureau v. McS [unreported, High Court, Kearns J, 16 November, 2001], a similar issue arose.
Section 933(1)(c) of the Tax Consolidation Act, 1997, provided for a period of 15 days from the date of issue of a refusal of an appeal by the Inspector as the specified period for the purpose of further appealing such refusal to the Appeal Commissioners. In that case, the time for appeal was ticking away in circumstances where the person affected was unaware that the written refusal had issued until the notification reached him. Even though that was the case, I felt obliged to state (at p.29):-
"On consideration of s.933(1)(c), one is immediately struck by the fact that in this case, at least, there is no evidence to indicate what the date of the issue of the notice of refusal by the inspector might have been. There is only the letter of the 7 th January, which, having regard to the fact that its contents could not have been communicated to the defendant prior to the following day if posted in the ordinary way, had the effect in real terms of truncating the 15 day period for bringing an appeal under the section against the refusal.
Be that as it may, it seems to me that the court can only take the date of the letter as being the date of issue by the inspector of the notice of refusal. The question is whether that date is to be included or excluded in the computation of the 15 day period.
It seems to me that Mr. Nesbitt's submission on this point must be correct, namely, that this issue essentially falls to be determined under s.11 of the Interpretation Act, 1937. While the issue of a notice of refusal is an act, the computation period is expressed in the section to commence with a date which clearly is a particular day (in this instance the date of issue) and that being so, I must hold that when proceedings were launched on the 22nd January, 1998, the 15 day period had expired."
Having relied upon these two decisions, counsel on behalf of the respondent emphasised that under...
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