DPP v McCarthy and Others

JurisdictionIreland
JudgeMr. Justice Fennelly
Judgment Date16 June 2010
Neutral Citation[2010] IECCA 51
CourtCourt of Criminal Appeal
Date16 June 2010

[2010] IECCA 51

THE COURT OF CRIMINAL APPEAL

Fennelly J.

Dunne J.

McGovern J.

[28/04]
[25/04]
[27/04]
[26/04]
[17/04]
DPP v McCarthy & Ors

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT / PROSECUTOR

AND

ANTHONY McCARTHY, CHRISTOPHER COSTELLO, DAVID STANNERS, JAMES MCCARTHY & DESMOND DUNDON
APPLICANTS/ APPELLANTS

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 2006 S22

WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60 1998 2 ILRM 493

Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949

ZOE DEVELOPMENTS LTD v DPP & NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH UNREP GEOGHEGAN 3.3.1999 1999/25/8085

DPP v NEVIN 2003 3 IR 321 2003/19/4217

MONTGOMERY v HM ADVOCATE & ANOR 2003 1 AC 641 2001 2 WLR 779 2001 SC (PC) 1 2001 SLT 37

JURIES ACT 1976 FIRST SCHED PART I

JURIES ACT 1976 S7

DPP v TOBIN 2001 3 IR 469 2002 1 ILRM 428 2001/8/2198

AG, PEOPLE v CASEY (NO 2) 1963 IR 33

LYNAGH v MACKIN 1970 IR 180

MURPHY v MIN FOR DEFENCE & ORS 1991 2 IR 161 1991/4/981

DPP v O'BRIEN UNREP CCA 29.1.1990 2000/8/2854

WILLOUGHBY v DPP UNREP CCA 18.2.2005 2005/58/12223 2005 IECCA 4

DPP v O'REGAN 2007 3 IR 805 2008 1 ILRM 247 2007/21/4313 2007 IESC 38

CRIMINAL LAW

Appeal

Leave to appeal - Point of law of exceptional public importance - Whether any identifiable point of law raised capable of justifying grant of certificate - Disclosure - Applicable principles - Ward v Special Criminal Court [1999] 1 IR 60, [1998] 2 ILRM 493 considered - Prejudicial publicity - Failure to adjourn trial - Excessive and prejudicial media publicity - D v DPP [1994] 2 IR 465; Z v DPP [1994] 2 IR 476, [1994] 2 ILRM 481; Zoe Developments Ltd v DPP (Unrep, HC, Geoghegan J, 3/3/1999); People (DPP) v Nevin [2003] 3 IR 321 and Montgomery v HM Advocate [2003] 1 AC 641, [2001] 2 WLR 779 considered - Jury - Composition - Whether prosecution engaged in improper jury vetting - Whether prosecution had carried vetting procedure of jury panel - Civilian employee of An Garda Síochána on jury - Whether danger that juror unconsciously influenced by personal experience - People (DPP) v Tobin [2001] 3 IR 469, [2002] 1 ILRM 428 considered - Juries Act 1976 (No 4), s 7 - Identification - Directions to jury - Identification warning - Whether permissible simply to read out relevant passage - People (Attorney General) v Casey (No 2) [1963] 1 IR 33 considered - Additional evidence - Admission of new evidence for purposes of appeal refused - Reasonable earlier discoverability - Lynagh v Mackin [1970] IR 180; Murphy v Minister for Defence [1991] 2 IR 161; People (DPP) v O'Brien (Unrep, CCA, 29/11990); People (DPP) v Willoughby [2005] IECCA 4, (Unrep, CCA, 18/2/2005) and People (DPP) v O'Regan [2007] IESC 38, [2007] 3 IR 805, [2008] 1 ILRM 247 considered - Courts of Justice Act 1924 (No 10), s 29 - Criminal Justice Act 2006 (No 26), s 22 - Leave to appeal to Supreme Court refused (17/2004, 25/2004, 26/2004, 27/2004 and 28/2004 - CCA - 16/6/2010) [2010] IECCA 51

People (DPP) v McCarthy & Ors

1

JUDGMENT of the Court delivered by Mr. Justice Fennelly on the 16th day of June, 2010

2

1. On 25 th July 2007 this Court, in its judgment delivered by Kearns J, dismissed the applications for leave to appeal of the five above-named applicants against their convictions on 20 th December 2003 by a jury at the Central Criminal Court of the murder of Kieran Keane on 29 th January 2003 and of other offences. All five applicants have brought before this Court applications pursuant to section 29 of the Courts of Justice Act, 1924 requesting that it certify a number of points of law claimed to be of exceptional public importance so as to enable them to pursue their appeals before the Supreme Court.

3

2. Section 29 of the Courts of Justice Act, 1924, as amended by section 22 of the Criminal Justice Act, 2006, provides, insofar as concerns an appeal by a convicted person, as follows:

4

(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.

5

(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.

6

3. By virtue of that provision, the applicants must satisfy this Court that its decision of 25 th July 2007 determining their appeals ("the appeal decision") "involved a point of law of exceptional public importance" and, in addition, that it is "desirable in the public interest that the person should take an appeal to the Supreme Court." It is not easy to conceive of a point of law which would satisfy the first part of this test but not the second. The second part of the test underscores the exceptional character of the certificate requested of the court. At a minimum an applicant must be able to point to a significant point of law which is involved in the decision.

7

4. The proposed point of law must have been involved in the decision of the court in the sense that the court's ruling on the point formed part of the reasoning leading to the rejection of the application. In other words, it must be possible to identify a point of law upon which the Court relied and which it applied in making its decision. Implicitly also, the point of law must have been contested. In a literal sense, every application for leave to appeal raises some point of law. Where the law is not in dispute, but an unsuccessful applicant criticises the manner in which the court has applied it to the facts, the section does not apply.

8

5. It is not sufficient for the applicant to show that the court incorrectly applied the law to the facts of the case. That would be tantamount to permitting a repetition of the original hearing on the application for leave to appeal. It would circumvent the statutory rule that there is, in the ordinary way, no appeal to the Supreme Court from a decision of the Court of Criminal Appeal. Even where the law is not disputed and is clearly and correctly stated, there is often room for disagreement as to whether it applies in a particular case. Section 29 does not permit an appeal, where the appellant merely wishes to dispute the manner in which the Court of Criminal Appeal applied the law to the facts.

9

6. The present decision must be read together with the judgment of the Court dated 25 th July 2007. Reference will be made to the terms of that judgment only to the extent necessary. The Court mentioned the key and central facts as follows:

"At around 9 p.m. on the night of 29th January, 2003, Kieran Keane, a notorious Limerick gangland figure, was shot dead with a single bullet to the head on an unlit country road at Drombanna outside Limerick. His nephew, Owen Treacy, who with Kieran Keane had been abducted earlier that evening, suffered multiple stab wounds at the same location and was left for dead on the side of the road by three assailants whom he subsequently identified as David Stanners, James McCarthy and Christopher Costello, being three of the applicants herein."

10

As the Court stated,

"all five applicants were found guilty of the murder of Kieran Keane, the attempted murder of Owen Treacy and the false imprisonment of both Kieran Keane and Owen Treacy."

11

7. The evidence of Owen Treacy was fundamental to the prosecution. As the trial judge put it to the jury, in a passage quoted in the judgment of this Court,

"You have been told right from the outset that the case depends wholly and exclusively on the evidence of Owen Treacy and anything else that is put in as being supportive of the case that is being made but it stands or falls on the evidence of Owen Treacy and Owen Treacy purports to identify the five accused as being the parties involved in the matters complained of."

12

8. The applicants have raised five separate claimed points of law of exceptional public importance. Although they differ to some extent in their application to the five persons, it is possible to deal with them individually as if they applied to the case generally. In dealing with these matters, it will not be necessary to recite in full the facts which are extensively set out in the judgment of the Court.

Disclosure
13

9. This point was argued by Mr. Barry Macdonald, Q.C., Senior Counsel on behalf of the first and fifth named applicants, though it potentially applies to all. This suggested point of law is expressed sufficiently clearly in the Notice of Motion on behalf of the second-named applicant:

"In circumstances where full disclosure was not made by the Director of Public Prosecutions or the Garda Síochána prior to the trial of the Applicant, can such failure be excused on the basis that the Court's decision now seems to place an onus on the accused person (and his legal representatives) to fully particularise each element of disclosure required when making a disclosure applicable to the Director of Public Prosecutions?"

14

10. Counsel argued that the judgment of the Court proceeded on an incorrect legal premise, namely that the defence has a responsibility to make complaint or take steps to insist on the proper compliance by the prosecution with its obligations. Counsel took issue, in particular, with statements in the judgment to the effect that the refusal of the prosecution to make the particular disclosure seems to have been of no great...

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9 cases
  • DPP v Wilson
    • Ireland
    • Court of Criminal Appeal
    • 22 January 2016
    ...[2001] 1 I.R. 704). Whilst indeed it may be true to say, as the Court of Criminal Appeal did in The People (D.P.P.) v. McCarthy & Ors [2010] I.E.C.C.A. 51 (? McCarthy)?, that if a point satisfies the first aspect of the test, then it is most likely that it will also satisfy the other; none......
  • DPP v McNulty
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    ...[2001] 1 I.R. 704). Whilst indeed it may be true to say, as the Court of Criminal Appeal did in The People (D.P.P.) v. McCarthy & Ors. [2010] I.E.C.C.A. 51 ("McCarthy"), that if a point satisfies the first aspect of the test, then it is most likely that it will also satisfy the other; nonet......
  • DPP v Patchell
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    ...[2001] 1 I.R. 704). Whilst indeed it may be true to say, as the Court of Criminal Appeal did in The People (D.P.P.) v. McCarthy & Ors. [2010] I.E.C.C.A. 51 (“ McCarthy”), that if a point satisfies the first aspect of the test, then it is most likely that it will also satisfy the other; none......
  • Michael Mckevitt v DPP
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    ...(No 2) [2001] 1 I.R. 704). Whilst indeed it may be true to say as the Court of Criminal Appeal did The People (DPP) v McCarthy and Ors [2010] IECCA 51 (McCarthy) that if a points satisfies the first aspect of the test then it is most likely that it will also satisfy the other; nonetheless i......
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