DPP v McDonnell

 
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[2014] IECA 34

COURT OF CRIMINAL APPEAL

MacMenamin J.

Moriarty J.

Herbert J.

[CCA No. 270/2012]
DPP v McDonnell
IN THE MATTER OF AN APPLICATION FOR CERTIFICATION PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924, AS AMENDED

BETWEEN:

FERGAL MCNULTY
Applicant/Appellant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

208/2013 - Ryan Birmingham Sheehan - Court of Appeal - 11/12/2014 - 2014 16 4474 2014 IECA 34

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S49

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

Crime & sentencing – Sentence – Severity – Appeal against sentence for assault

Facts: The appellant had been convicted of assault causing serious harm, and received a term of imprisonment. He now sought to appeal against the sentence, contending it was severe.

Held by Justice Birmingham J, that having considered the circumstances of the case together with the transcript of the proceedings at first instance, the Court could find no error in the judgment of the trial judge. She had considered the matter with the required care and attention, and had taken account of the circumstances of the appellant and the assault itself. The appeal would therefore be dismissed.

1

Judgment of the Court delivered on the 29th day of October, 2014 by Mr. Justice John MacMenamin.

2

1. The applicant seeks an order pursuant to s.29 of the Courts of Justice Act, 1924 ("the 1924 Act"), as amended by the provisions of the Criminal Justice Act, 2006, seeking a certificate for leave to appeal to the Supreme Court on a point of law.

The Statutory Provisions
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2. S.29 of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act 2006 provides as follows:

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(1) Subject to subsection (9A) of this section, 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.

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(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.

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3. The three points in question are said to be:

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1. Where a defence of alibi has been raised and the evidential burden satisfied, should the trial judge instruct the jury on the relationship between the alibi defence and the burden of proof to the effect that there is no onus on the Accused to establish he was not present? In which case, is the onus on the prosecution to prove that the Accused was present thus disproving the defence of alibi?

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2. Where a defence of alibi has been raised and the evidential burden satisfied, should the trial judge charge the jury that before proceeding to convict the accused, the prosecution is required to demonstrate that the alibis were not telling the truth and to prove beyond reasonable doubt that the alibis ought to be disbelieved?

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3. In cases where the prosecution relies on identification/recognition evidence and a defence of alibi has been raised and the evidential burden satisfied, should the jury be charged to the effect that where the jury rejects the alibi defence that such rejection does not lend support to the recognition/identification evidence upon which the prosecution is based?

Circumstances
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4. On the 30 th July 2012, the applicant herein was sentenced to eight years imprisonment having been found guilty of the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 and the offence of intentionally or recklessly causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997. The applicant was convicted of a vicious attack on his former partner who identified him as the assailant.

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5. The Applicant appealed his conviction to this Court on the basis of two alleged errors on the part of the trial judge. First, it was urged on his behalf, that the trial judge had erred in failing to charge the jury to the effect that the burden of disproving the defence of alibi lay at all times with the prosecution. Second, the applicant argued that the trial judge erred in rejecting the application for a direction of 'not guilty' at the close of the prosecution case due to the allegedly weak nature of the identification evidence and the fact that the prosecution case rested solely on same.

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6. This Court rejected the appeal in an ex tempore judgment delivered on the 10 th March, 2014. With regard to the first ground of appeal, the Court was satisfied that the trial judge's exposition of the law was correct. The trial judge emphasised that there was no onus on the accused to disprove the prosecution case, but rather at all times the onus of proof lay on the prosecution to prove its case. This Court concluded that the judge made this clear to the jury, clearly, emphatically and repeatedly.

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7. In relation to the second ground of appeal, the Court pointed out that the identification evidence was, in fact, recognition evidence. The victim knew the applicant and recognised him. This was not, therefore, identification of some unknown person. Further to this, the Court was satisfied that the visibility conditions at the time of the incident, and the fact that the victim had two sightings of her assailant, rendered it safe to leave such evidence to the jury.

The Legal Authorities
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8. In People (Attorney General) v Curran (Court of Criminal Appeal, unreported 19th February, 2013) O'Donnell J., speaking for the Court, laid emphasis on the necessity for the point of law to effect not only the decision in issue, but be of wider impact. He pointed out:

"Occasionally, indeed exceptionally, a point of law of importance will arise, which transcends the individual facts of the case, and can be said to present a clear issue which arises in the case and determines it and which is likely to arise in further cases in the same or related areas, and in which, unusually, it is desirable that the issue be resolved conclusively by an appeal to the Supreme Court. The very fact that this section requires not only that the point of law be of exceptional importance, but also that it is desirable in the public interest that an appeal be taken to the Supreme Court, reinforces the exceptional nature of the jurisdiction."

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9. More recently the law relating to s.29 appeals was again identified by McKechnie J in DPP v Patchell [2014] IECA 6 paras. 16-20 and repeated by him in his judgement of the same date DPP v O'Connor [2014] IECA 4 para. 21, to the following effect:

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2 "16. As appears from the express wording of the section, for an application to be successful, the moving party, upon whom the onus of proof rests (D.P.P v. Littlejohn [1978] I.L.R.M 147), must demonstrate that the point is a point of law and is one not only of exceptional public importance but also that it should be determined in the public interest. Both requirements must be established; it being insufficient to establish either one only (Kenny v. An Bord Pleanàla (No. 2) [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; nonetheless, it may well be that in certain situations - at a particular time or in particular circumstances - it would not be in the public interest to have it determined. Therefore, I feel that it is more responsive to the section to treat the requirements as being disjunctive.

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17. In any event it is clear that the point of law cannot only be peculiar to the particular facts of any given case and that it must have the capacity of widespread application in its subject area. The point must have a gravity and importance to it which enables the Court to rightfully classify it as "exceptional". Further, the jurisdiction must be considered as such and in no circumstances is it intended to displace the first level of appeal, or, outside of its express parameters, to permit a second strand of appeal. It is not designed to gain, and should not be used as, an opportunity of rerunning what was argued in the Court of Criminal Appeal. It must therefore only be on rare and very limited occasions that the certifying process can be invoked....

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