DPP v MJ

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMr. Justice William M. McKechnie
Judgment Date25 June 2015
Neutral Citation[2015] IECCA 3
Date25 June 2015
Docket Number[2010 No. 111 CCA]

[2015] IECCA 3

THE COURT OF CRIMINAL APPEAL

McKechnie J.

White J.

Stewart J.

[2010 No. 111 CCA]

Between
The People (Director of Public Prosecutions)
Respondent
and
M.J.
Appellant

Conviction – Indecent assault – Appeal against conviction and sentence – Appellant seeking leave to appeal to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924 on a point of law of exceptional public importance – Whether the grounds advanced met the necessary threshold for a certification under s. 29 of the Courts of Justice Act 1924

Facts: The appellant, in July, 2006, was convicted in the Circuit Criminal Court of four counts of indecent assault, contrary to s. 10 of the Criminal Law (Rape) Act 1981, with regard to one of his daughters. In March, 2008, this conviction was quashed by the Court of Criminal Appeal (the CCA) as a result of concerns arising in relation to the length of time and the circumstances in which the jury deliberated at the trial. A retrial was ordered by the CCA which, following an application by the appellant, was transferred to the Dublin Circuit Court for hearing. In March, 2010, the appellant was once again convicted by unanimous jury verdict of the same four counts of indecent assault. Subsequently, at a hearing held in April, 2010, the appellant was sentenced to six years imprisonment with the final three years suspended on certain terms and conditions. In June, 2010, the appellant sought leave to appeal from the CCA against both conviction and sentence. The application and, therefore, the appeal was dismissed on all grounds. In June, 2014, the appellant filed a notice of motion seeking leave to appeal the decision of the CCA to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924, on what he claimed was, a point of law of exceptional public importance. A further motion was issued in November, 2014, wherein new grounds of appeal were sought to be added to those contained in the original s. 29 notice. The appellant submitted that some remedy must be available to him and he argued that ensuring that there is a dynamic and evolving constitutional and evidential jurisprudence is a matter of exceptional public importance. It was submitted that the ECHR and the European Treaty provisions require that access to the courts is protected and that as the appellant had the option of taking a 'case stated' to Europe, a similar remedy should be available in the domestic courts despite the attempt in s. 29 of the 1924 Act to restrict such a right. The appellant also submitted that evidence put to the jury at his trial was unsafe and that four witnesses had the benefit of retaining their witness summonses from the original trial until the second trial. The DPP pointed out that the s. 29 procedure adopted was not the only avenue open to the appellant and that judicial review proceedings may have been a more appropriate route. The DPP also emphasised that the process under s. 29 was not supposed to provide for a re-hearing and that a point of exceptional public importance had to be identified, which the DPP submitted had not been done.

Held by McKechnie J that no point of any sufficient importance within the provisions of s. 29 had been articulated which would merit the application of that section. The Court, in its earlier judgment, was entirely satisfied that any deficiencies which may have existed in the charge and in respect of which complaint was made, were adequately remedied in the re-charge; accordingly, none of the grounds qualified, in accordance with well-established principles, for a certificate under s. 29. McKechnie J interpreted that the respondent wished to argue that s. 29 is unconstitutional; if that were correct, such an issue, as a matter of law, could not be initiated in an appeal to the CCA from a conviction recorded in the Circuit Criminal Court. At the individual level, McKechnie J noted that no argument was addressed to the CCA in the substantive appeal about the constitutionality or unlawfulness of s. 29, nor in fact would it have been appropriate to so do. Accordingly, the Court was entirely satisfied that these matters could not conceivably justify a certificate under the said statutory section.

McKechnie J held that none of the grounds advanced met the necessary threshold for a certification under s. 29 of the 1924 Act and thus, the application was dismissed.

Application for S29 Certificate refused.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 25th day of June, 2015
Background:
1

On the 27th July, 2006, Mr. M.J. ('the appellant') was convicted in the Circuit Criminal Court of four counts of indecent assault, contrary to common law as provided for in s. 10 of the Criminal Law (Rape) Act 1981, with regard to one of his daughters, Ms. H. On the 14th March, 2008, this conviction was quashed by the Court of Criminal Appeal (or 'the CCA') as a result of concerns arising in relation to the length of time and the circumstances in which the jury deliberated at the trial ( [2008] 2 I.R. 410).

2

A retrial was ordered by the CCA which, following an application by the Mr. M.J., was transferred to the Dublin Circuit Court for hearing. On the 22nd March, 2010, Mr. M.J. was once again convicted by unanimous jury verdict of the same four counts of indecent assault as set out in the indictment laid against him. These charges were as follows:

'Count no. 1: that '[the accused person] did, on or about the 31st October, 1981 (Halloween) in his car at a gateway on the [(specified road in specified county)], indecently assault [Ms. H.] by making her masturbate him.'

Count no. 2: that '[the accused person], did on a date unknown between the 1st November 1981 and the 31st December 1981, did [sic] force [Ms. H.] to masturbate him while he was in his car in County [(specified)].'

Count no. 3: that '[the accused] did, on a date unknown between the 7th June 1981 and the 7th June 1983, indecently assault [Ms. H.] in his car on [(specified road in specified county)] by making her engage in masturbation of him.'

Count no. 4: that '[the accused], did on a date unknown between the 31st December 1983 and the 31st March 1984 in County [(specified)] indecently assault [Ms. H.] by forcing her to perform oral sex on him.'

Subsequently, at a hearing held on the 29th April, 2010, Mr. M.J. was sentenced by the learned trial judge (His Honour Judge O'Donnell) to six years imprisonment with the final three years suspended on certain terms and conditions.

3

By notice of appeal dated the 18th June, 2010, Mr. M.J. sought leave to appeal from the CCA against both conviction and sentence. Ten grounds of complaint were advanced on his behalf but two of them were ultimately abandoned: as was his appeal against sentence during the course of the hearing. The remaining grounds were referenced in the following manner by the CCA in its judgment, delivered on the 3rd June 2014 ('the main judgment'):

'Ground No. (1) the admissibility of evidence issue;

Ground No. (2) the refusal of the trial judge to grant a direction at the close of the prosecution's case;

Ground No. (3) the failure of the said judge to discharge the jury at the conclusion of the charge;

Ground No. (4) the inadequacy of that charge and also the recharge, on the 'right to silence'; and finally

Ground No's. (5) to (8) the judge's failure to give to the jury a ' Cronin' type direction ( The People (Director of Public Prosecutions) v. Cronin [2003] 3 I.R. 377 (' Cronin')).'

The application and, therefore, the appeal was dismissed on all grounds.

4

It should be noted that Mr. M.J., as part of his original trial, also faced other charges of indecent assault and of incestuous behaviour in relation to the complainant, Ms. H., but was acquitted of such charges: as he was, on a number of similar charges of indecent assault concerning another of his daughters namely, Mrs. M. Evidently none of these charges formed any part of the re-trial.

The Decision of the Court of Criminal Appeal:
Ground No. 1: admissibility of evidence:
5

This ground of appeal related to an alleged family confrontation which took place some time in the early 1990s, during which it was claimed that the accused had admitted to having sexually assaulted Ms. H. At trial, counsel on his behalf submitted that in the exercise of its discretion, the Court should not admit evidence of this alleged event. The reasons for this contention were summarised by the appeal court, at para. 9 of its judgment in the following manner:

'(i) that a serious doubt existed as to what, if anything, was admitted, and in particular whether it related to sexual abuse;

(ii) that even if such an admission was made, it was impossible to relate it specifically to the counts on the indictment in view of the other charges of a similar nature involving the complaint, of which the accused had previously been found not guilty;

(iii) that given the significant inconsistencies in the evidence, described by counsel as 'massive', it would, in this particular case, be impossible for the accused to obtain a fair trial, if the normal course was followed, of leaving such matters to the jury – particularly so when the timeframe of events is also considered; finally and in any event,

(iv) that if the accused person was compelled to defend himself against such evidence, given the antiquity of the relevant events, then the same would inevitably result in an unfair trial.'

6

The trial judge, when dealing with exactly the same submission as made to this Court on this ground of appeal, was satisfied that as a matter of law there was in fact a sufficient legal basis upon which the intended evidence of the confrontation could properly be placed before the jury: indicating that if and where necessary, the same would...

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