DPP v O'Sullivan

JurisdictionIreland
JudgeMr Justice Fennelly
Judgment Date18 December 2013
Neutral Citation[2013] IECCA 87
CourtCourt of Criminal Appeal
Date18 December 2013

[2013] IECCA 87

THE COURT OF CRIMINAL APPEAL

Fennelly J.

Herbert J.

Birmingham J.

[Record No. 280/2010]
DPP v O'Sullivan

Between

DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
-and-
BRENDAN O'SULLIVAN
Applicant

DPP v O'SULLIVAN UNREP CCA 4.6.2013 2013 IECCA 18

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 2006 S22

COURTS OF JUSTICE ACT 1924 S29(1)

DPP v MCCARTHY & ORS UNREP CCA 16.6.2010 2010/16/3808 2010 IECCA 51

DPP v DWYER 1972 IR 416

DPP v O'CARROLL 2004 3 IR 521

DPP v CURRAN UNREP CCA 19.2.2013

Criminal law - Criminal procedure – Certification – Murder - Court of Criminal Appeal - Exceptional public interest – Direction – Charge – Evidence - Whether would be certification

Facts: The applicant had been convicted or murder by a jury and sought a certification to enable him to appeal to the Supreme Court as to whether it was mandatory for a trial judge where the defence of partial self-defence was raised to be considered by a jury, to charge the jury in accordance with the headnote from People (Attorney General) v. Dwyer [1972] IR 416.

Held by the Court of Criminal Appeal per Fennelly J. that the Court would dismiss the application for certification. There was no point of law of exceptional public interest. There had been insufficient evidence to support the desired trial judge direction.

1

1. On 8 th November 2010 the applicant was convicted of murder by a jury in the Central Criminal Court following a six-day trial before McCarthy J. This Court on the 4 th of June this year dismissed ( [2013] IECCA 18) the applicant's application for leave to appeal against that conviction.

2

2. The applicant now applies for a certificate pursuant to s.29 of the Courts of Justice Act, 1924, as amended, to enable him to appeal to the Supreme Court. The following is the question which he seeks to have certified:

"Whether it is mandatory for a trial judge, in all instances where the defence of partial self-defence is raised in a murder case and is to be considered by a Jury, to charge the Jury in accordance with the statement set out in People (Attorney General) v Dwyer [1972] I.R. 416 as set out in the headnote as follows:"

"Where the defence made to a charge of murder is self-defence against a violent and felonious attack, the trial judge should inform the jury that if they come to the conclusion that the accused, acting in self-defence, employed more force than was reasonably necessary but no more than he honestly believed to be necessary, they should return a verdict of guilty of manslaughter."

3

3. Section 22 of the Criminal Justice Act, 2006 substituted an entirely new version of s.29 of the Courts of Justice Act, 1924 (the Act of 1924). Its effect is summarised in the heading: "Decision of Court of Criminal Appeal final save on certificate of Court, Attorney General or Director of Public Prosecutions." That section has subsequently been amended in ways which do not affect the present application.

4

4. Section 29(1), insofar as relevant, as it now stands provides:

"No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other matter except in accordance with this section."

5

The effect of the section is that the applicant may further appeal his conviction to the Supreme Court only if this Court "certifies that [its] decision involve[d] a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court." The applicant applies for such a certificate. that this Court's decision involved a point of law of public importance.

6

It is apposite to recall what this Court said in People (Attorney General) v Anthony McCarthy and others (Court of Criminal Appeal, unreported 16 th June 2010, per Fennelly J):

"The proposed point of law must have been involved in the decision of the court in the sense that the court's ruling on the point formed part of the reasoning leading to the rejection of the application. In other words, it must be possible to identify a point of law upon which the Court relied and which it applied in making its decision. Implicitly also, the point of law must have been contested. In a literal sense, every application for leave to appeal raises some point of law. Where the law is not in dispute, but an unsuccessful applicant criticises the manner in which the court has applied it to the facts, the section does not apply."

7

The principal ground of appeal...

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