DPP v Patchell

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Mr. Justice McKechnie.
• Judgment Date: 23 January 2014
• Neutral Citation: [2014] IECCA 6
• Docket Number: [C.C.A. No. 87 of 2011]
• Date: 23 January 2014

[2014] IECCA 6

THE COURT OF CRIMINAL APPEAL

McKechnie J., de Valera J., McGovern J.

[C.C.A. No. 87 of 2011]

In the Matter of an Application Pursuant to s. 29 of the Courts of Justice Act 1924, as Amended

The Director of Public Prosecutions

Prosecutor/Respondent

And

David Patchell

Accused/Appellant

Reporter: M.D.

Criminal law – Murder - Appeal against conviction - Warrant - Constitutionality - Admissibility of evidence - Arrest and detention - Appeal to the Supreme Court - Public interest - Exceptional public importance - Courts of Justice Act 1924 - Manifest error in judgment - Criminal Law Act 1976 - Certification

Facts: On the 8 ^th April 2011, the appellant was charged and convicted of murder and sentenced to life imprisonment. A notice of appeal against conviction was filed shortly thereafter. On the 23rd February 2012, judgment was delivered in the case of Damache v. The D.P.P. & Ors. [2012] 2 I.R. 266 where it was declared “…that s. 29(1) of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.” Consequently, the appellant brought a motion to amend the notice of appeal by adding a new ground; namely, that Damache was applicable to the circumstances of his case and thus that he was entitled to rely upon it. In this regard, it was said that an incorrectly obtained warrant had led to the appellant’s arrest. More importantly, it was said that any confession evidence that was obtained during his unlawful detention was improperly obtained and should be regarded as inadmissible. This application was refused on the basis that the appellant had not previously raised the point at any stage and because he had engaged in a course of conduct which in itself disentitled him from relying upon it. On the 4 ^th February 2013, the Court of Criminal Appeal rejected each of the appellant’s other grounds and dismissed the appeal against conviction.

The appellant brought an application pursuant to s. 29 of the Courts of Justice Act 1924 (“the 1924 Act”) for a certificate to enable him to further appeal to the Supreme Court from the decision of the 4th February 2013. The question that he wished to have certified was as follows:

“(1) Notwithstanding the presumption of constitutionality and that a trial court cannot declare upon the unconstitutionality of a statute, must an appellant nonetheless expressly raise an objection before the trial court if he is thereafter to be permitted in an appeal before the Court of Criminal Appeal to avail of a subsequent declaration of unconstitutionality in relation to the relevant provision.”

Section 29 of the 1924 Act states that an appeal from the Criminal Court of Appeal to the Supreme Court is only permitted where a decision of the former is certificated to contain a point of law of exceptional public importance and that it is in the public interest that the appeal be heard.

Held by McKechnie J (de Valera J and McGovern J concurring) that it was clear from the test detailed in s. 29 of the 1924 Act that the point of law that was being put forward must have sufficient gravity and widespread importance to be considered exceptional. It was also said that a court considering an application under s. 29 of the 1924 Act must ascertain the relevance of the point of law to the critical issue of the applicant’s case, the importance of acquiring the Supreme Court’s view on the matter, and the effect an appeal to the Supreme Court would have on the disposal of the applicant’s case.

It was held that the suggested question had difficulties because it was not precisely worded to reflect the original argument that had been made by the appellant when he brought the notice of motion to argue the Damache point. Nevertheless, it was said that the suggested question was a matter that could be effectively addressed by the Court of Criminal Appeal. This, in fact, had occurred in the appellant’s appeal when the Court of Criminal Appeal rejected the motion to add the Damache point to the grounds of appeal. It was also said that there was no conflicting judgments to suggest there was legal uncertainty over this view. It was, therefore, held that the suggested point of law did not have sufficient gravity and widespread importance to be considered exceptional, and the application was refused.

It was also pointed out that it was established in case law that where an accused adopts a certain course of conduct during his trial, or demonstrates a clear intention of pursuing a definite strategy, he will not be allowed to change tact at a later stage. In this case, the appellant had conceded during his trial that his arrest and detention were lawful as part of his defence strategy, but was now seeking to challenge their constitutionality. This was held to be impermissible.

Application refused.

Mr. Justice McKechnie.

Judgment of the Court delivered on the 23rd day of January, 2014 by Mr. Justice William M. McKechnie.

1 This application is moved pursuant to s. 29 of the Courts of Justice Act 1924, as amended (“the 1924 Act”) (para. 15 infra), for the purposes of seeking a certificate which, if granted, will enable the appellant to further appeal to the Supreme Court from the decision of this Court delivered on the 4th February, 2013. It is said that the suggested point of law upon which the application is made falls within the provisions of this section.

2 Mr. Patchell was convicted on the 8th April, 2011 by unanimous jury verdict, of murder contrary to common law, of assault, causing harm and of assault causing serious harm, contrary to ss. 3 and 4 respectively of the Non-Fatal Offences Against the Person Act 1997. He was sentenced to life imprisonment on the murder conviction and to separate terms of imprisonment on the assault charges which are concurrent to each other, and both of which are concurrent to the life sentence, with all commence on the 14th April, 2011.

3 By notice in writing dated the 30th May, 2011, the appellant sought leave from this Court to appeal his conviction, relying on the grounds then specified in the said notice. In July, 2012 he made an application to amend his notice of appeal by adding an additional ground which was intended to enable him, at the substantive appeal hearing, to argue that the Supreme Court’s decision in Damache v. D.P.P. & Ors. [2012] 2 I.R. 266 (“ Damache”) was applicable to the circumstances of his case and thus that he is entitled to rely upon it. That was the sole issue of this Court’s judgment as above referred to, with all other grounds of appeal being unaffected thereby.

4 To understand and place in context this present application, some more details must be given of the background.

5 In February, 2012 the decision in Damache was delivered, which effectively held that a search warrant granted under s. 29 of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976 (“s. 29 of the 1939 Act”), when affecting the family home, could not be issued by a member of An Garda Síochána unless, in addition to holding the specified rank, that person was independent of the underlying investigation to which the warrant related. In other words, the issuing officer should not have a material interest in the decision on whether or not to grant such a warrant.

6 A similar type of warrant had been obtained and executed in the case of Mr. Patchell, on which occasion he was also arrested. He argues that without the cover of this warrant, the gardaí had no legal authority to be in his home at the time and thus no power to arrest him as they did. Consequently such arrest and his subsequent detention were unlawful and as a result, any admissions, statements or confessions allegedly made by him whilst in garda custody should be classified as inadmissible and thus excluded from the prosecution’s evidence. On this basis, he sought permission to argue the Damache point.

7 This was not the first application of this nature to come before the Court of Criminal Appeal following the Damache judgment. A number of cases, in particular The People (D.P.P.) v. Cunningham [2012] 2 I.L.R.M. 406 (“ Cunningham”); The People (D.P.P.) v. Kavanagh & Ors. [2012] I.E.C.C.A. 65 (“ Kavanagh”); and The People (D.P.P.) v. O’Brien [2012] I.E.C.C.A. 68 (“ O’Brien”) had to consider similar submissions, though not on exactly the same grounds.

8 From these cases it seems reasonably clear that if the criminal process has reached finality (in the sense meant by Murray C.J. in A. v. The Governor of Arbour Hill Prison [2006] 4 I.R. 88 (“ A.”) at p. 143), then a convicted person has no basis for seeking to avail of a declaration of unconstitutionality subsequently given in third party proceedings. It is where an extant appeal exists that the debate ensues. In fact for the purposes of this case, the issue can be even further refined by focusing on two points: firstly, whether an appellant must have raised or be deemed to have raised the Damache point; and secondly, and independently of that, can “conduct” itself, otherwise disentitle that person from relying on such declaration.

9 The case law shows that Mr. Cunningham was allowed to amend his notice of appeal and to argue the point even though he had not raised the constitutionality of s. 29 of the 1939 Act either at trial or by way of separate proceedings. He did however refer to it in his submissions to the Court of Criminal Appeal filed some four months prior to February, 2012 – a factor referred to, if not even stressed in the court’s judgment. Mr. Kavanagh was considered to have raised the point at his trial, and as he had not otherwise debarred...