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

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


Murray C.J. 467/06

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.






MICHAEL McKEVITT APPELLANT RULING of the Court delivered by Murray C.J. on the 26th day of March, 2009

The 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...

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