DPP -v- McKevitt, [2009] IESC 29 (2009)

Docket Number:467/06
Party Name:DPP, McKevitt
Judge:Ruling of the Court / Geoghegan J.

THE SUPREME COURTMurray C.J. 467/06Denham J.Hardiman J.Geoghegan J.Fennelly J.BETWEENTHE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENT-v-MICHAEL McKEVITT APPELLANT RULING of the Court delivered by Murray C.J. on the 26th day of March, 2009The appeal of the above named appellant from a decision of the Court of Criminal Appeal, pursuant to s. 29 of the Courts of Justice Act 1924 (as amended) was dismissed by this Court on the 30th July 2008. The reasons for the dismissal of the appeal were set out in a judgment of Mr. Justice Geoghegan with whom all other members of the Court agreed. The original trial and conviction of the applicant took place before the Special Criminal Court.On the 2nd day of December 2008 the appellant submitted to the Office of the Supreme Court an application to set aside the decision of this Court dismissing the s. 29 appeal and for a re-hearing of the appeal. The application is grounded upon an affidavit sworn by his solicitor.Article 34.4.6 of the Constitution provides "The decision of the Supreme Court shall in all cases be final and conclusive."That is a clear constitutional statement that the decisions of this Court are in principle final. Prima facie this Court has no jurisdiction to hear an application to set aside a decision which finally determines proceedings before it. Very exceptionally the Court has jurisdiction to review a decision in the special circumstances referred to in the case-law summarised below.It is convenient to note at this point that in this matter the Court is not concerned with the kind of collateral proceedings which may be taken at first instance where a party seeks to set aside final judgment obtained by another party on the grounds that it was obtained by fraud. In any event setting aside such proceedings, on the grounds of fraud as Murphy J., stated in Tassan Din -v- Banco Ambrosiano S.P.A. [1991] I.R. 569 "does not truly represent an exception to this constitutional provision, an order obtained by fraud is a mere nullity". (See also Kenny -v- TCD, Supreme Court, Unreported 10th April 2008). Nor is this application concerned with the Court's jurisdiction to correct an accidental slip in a judgment as drawn up or the correction of an order of the Court so that it correctly states what the Court actually decided and intended.The Court is being asked in this case to exercise its inherent jurisdiction to set aside a final decision, a jurisdiction which the Court may only exercise in the exceptional circumstances specified in its case-law.As regards those exceptional circumstances in which the Court could have jurisdiction to review an earlier decision notwithstanding the terms of Article 34.4.6 the relevant case-law was summarised in the judgment (nem diss) delivered in P -v- P, The Supreme Court, Unreported, 31st July 2001 in the following terms:"Constitutional considerations:However, the position may be otherwise when a final order is challenged on the grounds that the judicial proceedings in question were gravely flawed by reason of a fundamental breach of fair procedures and justice guaranteed by the Constitution. This question was expressly addressed by this Court in the judgments of Denham, J. and Barron, J. in the Greendale case with whom both Barrington, J. and Lynch, J. agreed.In that case Denham, J. (at page 542) held that "The Supreme Court has jurisdiction and a duty to protect constitutional rights. This jurisdiction may arise even if there has been what appears to have been a final Order. However, it would only arise in exceptional circumstances. The burden on the Applicants to establish that exceptional circumstances exist is heavy."Later in her judgement she concluded "It would only be in 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."Barron, J. in the same case held (at 545) that there may be circumstances which might exclude the application of Article 34.4.6 concerning the finality of decisions of the Supreme Court. He then added:"Nevertheless, where such circumstances exist, this Court must be free to so declare and to indicate the procedures whereby such circumstances should be investigated. Not to be able to do so would conflict with the guarantee of fair procedures enshrined in the Constitution.The Constitution requires the decisions of this Court to be final and conclusive for good reason. There must be certainty in the administration of justice. Uncertainty can lead to injustice. In my view, these provisions must prevail unless there has been a clear breach of the principles of natural justice to which the Applicant has not acquiesced and such that a failure to take steps to remedy such breach would, in the eyes of right minded citizens damage the authority of this Court. I believe that the jurisprudence of this Court has always been to this effect."In the Bula case Bula Ltd -v- Tara Mines (Supreme Court, Unreported, 3rd July 2000). McGuinness, J. expressing her agreement with those judgments stated "In summary, whilst very great weight must be given to the principle of finality and to the provisions of Article 34.4.6., this court has a jurisdiction to review and if necessary to set aside what appears to have been a final order in circumstances where the Court's duty to protect constitutional rights or natural justice arises. Such circumstances can only be to a high degree exceptional, and a very heavy onus lies on the Applicants to establish that such exceptional circumstances exist."The judgments of this Court in Greendale and Bula establish that a final order may be rescinded or varied where a party discharges the burden of establishing that there are exceptional circumstances showing that such a remedy is necessitated by the interests of constitutional justice."The first question for a court when a litigant or party seeks to initiate proceedings or any form of application is whether the court has a jurisdiction to deal with the matter. In the vast majority of cases it will be evident that no issue as to jurisdiction arises.When a party seeks to set aside a final decision of this Court a question as to whether the Court has jurisdiction to entertain such an application must always arise having regard to the terms of Article 34.4.6.There are two particularly important factors to be addressed when considering whether this Court has, in the circumstances of a particular case, jurisdiction to consider a re-opening of its decision. Firstly the application must patently and substantively concern an issue of constitutional justice other than the merits of the decision as such. Secondly, the grounds of the application must objectively demonstrate that there is a substantive issue concerning a denial of justice in the proceedings in question consistent with the onus of proof on an applicant.Accordingly, insofar as this Court has potential jurisdiction, in the exceptional circumstances referred to in the case-law, to review one of its earlier decisions, an applicant must show cogent and substantive grounds which are objectively sufficient to enable the Court to enter upon an exercise, by way of a hearing of an application on the merits, of that wholly exceptional jurisdiction. (For example, a mere assertion of subjective bias on the part of the Court by a dissatisfied litigant could not be a ground upon which the Court could have jurisdiction to hear and determine an application).Where an applicant fails to discharge the onus on him or her the Court has no jurisdiction to deal with the matter and the application must be considered as manifestly unfounded.Summary RefusalAlthough in absolute terms their numbers remain small, there has been an increase in the number of applications to the Court which may properly be considered to be manifestly ill-founded either because the Court has no jurisdiction in any circumstances to deal with the matter or if there is a potential jurisdiction, the applicant has failed to disclose any objective basis for the exercise of that jurisdiction. The former case, where there is no jurisdiction under any circumstances, may typically arise when a litigant seeks to appeal a decision of the High Court which determined an appeal from the Circuit Court. Section 39 of the Courts of Justice Act 1936 provides that a decision of the High Court on an appeal from the Circuit Court shall be final and conclusive and not appealable. As a consequence of that provision this Court cannot under any circumstances, entertain an appeal from a decision of the High Court in such a matter (see Andrews Productions Limited -v-Gaiety Theatre Enterprises Limited 1973 I.R. 295; P -v- P and C.MVJF (Supreme Court, Unreported, 5th October 2007)). In Clohessy -v- Clohessy (nem diss) (Supreme Court, Unreported, 31st July 2008) Murray C.J., stated, with regard to an attempt to bring such an appeal, "It is the entitlement and always has been the entitlement of the Office of the Supreme Court to refuse to entertain appeals from such decisions of the High Court or any form of application that is designed or endeavours to advance an appeal which is so manifestly outside the jurisdiction of the Court. That is the position under the law. We do not have jurisdiction and cannot entertain any matter in which we do not have jurisdiction." Thus the Office of the Supreme Court may refuse to accept an application relating to a matter which manifestly falls outside the jurisdiction of the Supreme Court although the Court itself remains entitled, in its discretion, to rule directly on such an application, by summarily refusing it on the grounds that it is manifestly unfounded.Similar considerations apply where the Court has potential jurisdiction by virtue of the...

To continue reading