DPP v McKevitt

CourtSupreme Court
JudgeMurray C.J.
Judgment Date26 March 2009
Neutral Citation[2009] IESC 29
Date26 March 2009
DPP v McKevitt



[2009] IESC 29

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.





Appeal - Set aside final decision - Alleged incorrect statement of fact - Whether decision of Supreme Court in final and conclusive - Exceptional jurisdiction - Inherent jurisdiction - Exceptional circumstances - Whether final order may be rescinded or varied - Onus of proof on applicant - Whether application manifestly unfounded - Whether decision of court in any way affected by the incorrect reference in judgment -Whether error in question had bearing on limited grounds of appeal - Whether application unmeritorious and opportunistic - Tassan Din v Banco Ambrosiano SPA [1991] IR 569; Kenny v Trinity College Dublin [2007] IESC 42, [2008] 2 IR 40; P v P (Unrep, SC, 31/7/2001); Bula Ltd v Tara Mines (No 6) [2000] 4 IR 412; In Re Greendale Developments Ltd (No 3) [2000] 2 IR 514; Andrews Productions Ltd v Gaiety Theatre Enterprises Ltd [1973] IR 295 and Philp v Ryan [2004] IESC 105, (Unrep, SC, 18/1/2005) - Courts of Justice Act 1924 (No 10), s 29 - Constitution of Ireland 1937, Article 34.4.6 - Application refused (467/06 - SC - 26/3/2009) [2009] IESC 29

People (DPP) v McKevitt

Facts: Article 34.4.6º of Bunreacht na hÉireann provides “the decision of the Supreme Court shall in all cases be final and conclusive.” The applicant brought an application to set aside a final judgment and order of the Supreme Court which had been made pursuant to an application under section 29 of the Courts of Justice Act 1924 from a decision of the Court of Criminal Appeal. The application was grounded upon the presence of an incorrect statement of fact in one particular passage of the judgment of the Court of Criminal Appeal to the effect that the prosecution had tendered photographic evidence in support of its case. The respondent conceded that the reference to photographic evidence in the judgment of the Court of Criminal Appeal was erroneous.

Held by the Supreme Court in dismissing the application, 1, that, decisions of the Supreme Court were final and conclusive. That fundamental constitutional principle was grounded in Article 34.4.6º of the Constitution to provide finality and certainty in the administration of justice. However, very exceptionally, the Supreme Court had jurisdiction to review a decision in special circumstances where:

(a) the application patently and substantively concerned an issue of constitutional justice other than the merits of the decision as such;

(b) the grounds of the application objectively demonstrated that there was a substantive issue concerning a denial of justice in the proceedings in question consistent with the onus of proof on an applicant.

The applicant had not discharged the heavy onus upon him to establish that such rare and exceptional circumstances existed to give rise to such jurisdiction in that the incorrect statement contained in the decision of the Court of Criminal Appeal did not make any difference to the outcome of the appeal. The error in question had no bearing on the other limited grounds of appeal and had nothing to do with any issue as to the guilt or innocence of the applicant.

P. v. P. (Unreported, Supreme Court, 31st July, 2001); [1994] 1 I.L.R.M. 29 and Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 applied.

Reporter: P.C.





P (L) v P (M) 2002 1 IR 219 2001/20/5450

BULA LTD v TARA MINES LTD (NO 6) 2000 4 IR 412 2000/3/925





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


Ruling of the court delivered by Murray C.J.


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 30 th 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 10 th 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, 31 st 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 1 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


1 Bula Ltd -v- Tara Mines (supreme Court, Unreported, 3 rd July 2000).


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 Greendaleand Bula establish that a final order may be rescinded or varied where a party discharges the burden of...

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