DPP v Paul O'Connor

JurisdictionIreland
JudgeMr. Justice William M. McKechnie.
Judgment Date23 January 2014
Neutral Citation[2014] IECCA 4
Judgment citation (vLex)[2014] 1 JIC 2306
CourtCourt of Criminal Appeal
Date23 January 2014

[2014] IECCA 4

THE COURT OF CRIMINAL APPEAL

McKechnie J.

de Valera J.

McGovern J.

[C.C.A. No. 168 of 2011]
DPP v O'Connor
The Director of Public Prosecution
Prosecutor/Respondent

And

Paul O'Connor
Accused/Appellant

CRIMINAL JUSTICE (THEFT & FRAUD) ACT 2001 S14

DAMACHE v DPP & ORS 2012 2 IR 266

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1976 S5

OFFENCES AGAINST THE STATE ACT 1939 S29

RSC O.84 r4

DPP v CRONIN (NO.2) 2006 4 IR 329

DPP v CUNNINGHAM 2012 2 ILRM 406

DPP v KAVANAGH & ORS UNREP CCA 24.5.2012 2012/12/3438 2012 IECCA 65

DPP v O'BRIEN UNREP 2.7.2012 2012/13/3672 2012 IECCA 68

COURTS OF JUSTICE ACT 1924 S29

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

CRIMINAL JUSTICE ACT 2006 S22

CRIMINAL JUSTICE ACT 2007 S59

CRIMINAL PROCEDURE ACT 2010 S31

COURTS OF JUSTICE ACT 1924 S29(1)

COURTS OF JUSTICE ACT 1924 S29(2)

DPP v PATCHELL UNREP CCA 4.2.2013 [TRANSCRIPT NOT AVAILABLE]

DPP v BOLGER UNREP CCA 14.3.2013 2013 IECCA 6

Criminal procedure - Robbery - Declaration of unconstitutionality - Whether appellant could avail of declaration - Whether appellant required to raise matter prior to appeal - Courts of Justice Act 1924 section 29 - Exceptional public importance - Public interest

On the 15 th of July 2011, the appellant, Paul O"Connor, was convicted of robbery. He received a ten year sentence for the offence in which he stole over €10,000 from a bookmaker. He served a notice seeking leave to appeal against conviction. Following the Supreme Court decision of Damache v DPP & Ors, a notice of motion was issued whereby the appellant sought to amend his existing notice of appeal by adding three grounds. The third amendment sought was referred to as 'the Damache point'. This related to section 29 of the Offences Against the State Act 1939. That section provided for a member of An Garda Síochána to issue a search warrant in respect of a person"s private dwelling house where the subsection"s conditions were met. This provision did not differentiate as to who the officer could be. The constitutionality of this section was successfully challenged in Damache on the basis that the section allowed non-independent parties to issue such warrants.

In its judgment of the 4 th of February 2013, the Court dealt with the Damache point 'as a matter of substance'. Firstly, the Court commented on whether the point sought had to be raised as part of the record before an appellant was permitted to argue its application as part of his appeal. Secondly, the Court considered whether the appellant was entitled to have the benefit of the declaration. On the first issue, the Court stated that before an accused could argue the Damache point, it should have been raised at an earlier stage in the criminal process. The Court decided that the appellant could not avail of the Damache point. One reason given was that the appellant sought to raise an argument which was 'diametrically contrary to the position which he previously adopted'. Moreover, the appellant was not allowed to raise the Damache point in light of the Cronin (No 2) principle that a point not raised at trial would not be permitted at the appeal stage unless a substantial injustice would result. The declaration of unconstitutionality was held not to apply to the appellant"s circumstances.

Following the February judgment, the appellant applied to have a point of law certified under section 29 of the Courts of Justice Act 1924 so that the conviction could effectively be further appealed to the Supreme Court. The proposed question was whether a convicted person must have expressly raised their objection to an unconstitutional provision at their trial or prior to conviction so as to avail of a later declaration of unconstitutionality. Held by McKechnie J., in order for an application under section 29 of the Courts of Justice Act to be successful, the moving party was required to demonstrate that the point of law was of exceptional pubic importance and should be determined in the public interest. It was held that the appellant failed to satisfy these requirements. The Court concluded that the point was 'finally determined' in the 4 th of February judgment.

The application was therefore refused.

23

23rd day of January, 2014 , by Mr. Justice William M. McKechnie.

1

1. On the 15 th July, 2011, the appellant was convicted of a single count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Act 2001, in that, on the 28 th June, 2009 he stole over €10,000 from the premises of a certain well known bookmaker, known as Victor Chandler. He subsequently received a ten year sentence in respect of this offence. By the date of the motion next referred to, he had served a notice in writing seeking leave to appeal against his conviction, but the substantive hearing in respect thereof had not as yet taken place.

2

2. Following the decision of the Supreme Court in Damache v. D.P.P. & Ors. [2012] 2 I.R. 266 ("Damache"), a notice of motion was issued on behalf of Mr. O'Connor in which he sought to amend his existing notice of appeal by adding three grounds thereto. One of the grounds related to the legal basis upon which evidence of certain telephone records was adduced during the course of his trial: as the omission to include this ground in the original notice of appeal was purely an oversight, this Court acceded to that application. The second matter in respect of which he sought an amendment related to a complaint that since the indictment was not properly signed, the same was invalid. In view of the Criminal Justice (Administration) Act 1924 and the rules appearing in the First Schedule thereto, this argument was unsustainable and therefore the application in respect thereof was rejected.

3

3. By far the most important amendment sought however related to what can conveniently be described as "the Damache point", so called in light of the decision of the Supreme Court given in that case in February, 2012 (para. 2 supra). Briefly described, provision had been made in s. 29(1) 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"), for a member of An Garda Síochána, not below the rank of superintendent, to issue a search warrant ("a s. 29 warrant") in respect of, inter alia, a person's private dwelling house, where the conditions specified in the subsection were met. No differentiation was made as to who the issuing officer might be: accordingly, even one who was at the heart of the investigation could operate the section.

4

4. Mr. Damache was successful in challenging the constitutionality of this provision on the basis that such a warrant could only issue by an otherwise qualifying member but one who at the same time was independent of the investigation. In essence, that is to say that such an individual could not have a material interest in the underlying decision on whether or not to grant the warrant. Accordingly, as the provision was not operated in this way, the section was declared unconstitutional ("the Damache point" or "the Damache issue") in the case of Mr. Damache.

5

5. In light of that decision, the appellant, as stated, sought to amend the notice of appeal already filed, by adding the Damache point.

6

6. The application in this regard was moved under O. 86, r. 4 of the Rules of the Superior Courts, 1986 and technically speaking was one which sought an amendment only. However, during the course of the hearing, the Court enquired of Counsel for both parties as to whether, in the event of it deciding to determine the Damache point in a more substantive way, either would have further submissions to make in that context. Counsel on behalf of the appellant responded that, in light of the very full submissions which had already been filed, and given the presentation which he was about to embark upon, such would cumulatively constitute a full representation of what his client needed to say at the substantive level on the Damache point. Accordingly on that basis and with the agreement of both parties, the Court decided to determine the point as a matter of substance and went on to do so. Evidently, such a course was adopted in the full knowledge of the appellant's outstanding appeal on other grounds, including the ground relating to the telephone records, which at that time and apparently still, remain(ed) to be determined.

7

7. In its judgment of the 4 th February, 2013 ("the main judgment") the Court approached the Damache issue by firstly commenting on whether or not the point sought to be relied upon had to in some way be raised as part of the record before an appellant would be permitted to argue its application as part of his appeal, and secondly, by determining whether, either by reason of a course of conduct embarked upon at trial (later described), and/or on foot of the principles outlined in The People (D.P.P.) v. Cronin (No. 2) [2006] 4 I.R. 329 ( "Cronin (No. 2)"), he was entitled to have the benefit of the declaration.

8

8. On the first issue it is stated at para. 25 of the main judgment that "it seems to this Court that before an accused can argue the Damache point, on appeal, he should have raised the issue in some shape or form during the course of the trial or in a manner independent of it". In support of this viewpoint this Court referred to the case of The People (D.P.P.) v. Cunningham [2012] 2 I.L.R.M. 406 ("Cunningham"), where the Court of Criminal Appeal was satisfied to regard the three ways in which the Damache point was raised (para. 15 of the main judgment) as being sufficient for its purposes, although it must be recognised that the constitutional point was not, as such, ventilated at trial. The point however was clearly raised in The People (D.P.P.) v. Kavanagh & Ors. ...

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