DPP v Timmons

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMcKechnie J.
Judgment Date14 January 2013
Neutral Citation[2013] IECCA 86
Date14 January 2013
Docket Number[C.C.A. No. 28 of 2009]

[2013] IECCA 86

COURT OF CRIMINAL APPEAL

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

[C.C.A. No. 28 of 2009]

The People (at the Suit of the Director of Public Prosecutions)
Prosecutor/Respondent
And
David Timmons
Accused/Appellant

Criminal law – Misuse of drugs - Intent to supply - Appeal against conviction and sentence - Amendment of grounds of appeal - Constitutionality - Legislative interpretation - Misuse of Drugs Act 1977 - Courts of Justice Act 1924 - Criminal Law Act 1976 - Offences Against the State Act 1939

Facts: On the 12 th December 2008, the appellant was found guilty of an offence contrary to s. 15 of the Misuse of Drugs Act 1977 (the ‘1977 Act’) and he was subsequently sentenced to a period of eight years imprisonment. A notice of appeal against conviction was filed shortly thereafter. By a judgment of the 12th April 2011, the Court of Criminal Appeal rejected each of appellant”s grounds and dismissed the appeal against conviction. 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.’ The appellant subsequently brought a motion to amend the grounds of the notice of appeal.

The appellant argued that if his motion was approved, he would seek to argue that as a consequence of the judgment in Damache it had become clear that the prosecution evidence that was adduced during his trial should not have been admitted because it had been obtained in breach of his constitutional rights, which in turn could mean that his conviction was legally unsustainable. It was pointed out that because the appellant”s appeal against sentence had not yet been determined, it was open to the Court to revisit the appeal against conviction. It was also said that the appellant could not be faulted for not raising the matter before the trial court or the Court of Criminal Appeal because these courts did not have any jurisdiction to consider a constitutional question such as the one considered in Damache.

The respondent argued that the appeal against conviction had been conclusively determined by the judgment of the 12 th April 2011 and that this appeal could not be re-examined, notwithstanding the fact that the appeal against sentence was still outstanding. It was also said that the constitutionality of s. 29 of the Offences Against the State Act 1939 (the ‘1939 Act’) had not been previously challenged by the appellant, and that to allow the appellant to amend his grounds of appeal in the manner envisaged would allow him, in effect, to bring a new ground of appeal contrary to The People (D.P.P.) v. Cronin (No. 2) [2006] 4 I.R. 329.

Held by the Court that the judgment of The People (D.P.P.) v. Cunningham [2012] 2 I.L.R.M. 406 made it clear that it was possible to amend a notice of appeal against conviction to include an allegation that s. 29 was unconstitutional. Similarly to the appellant”s case, the appellant in Cunningham had been convicted prior to the delivery of the judgment in Damache but sought to amend the notice of appeal to include this new ground after that judgment was delivered. However in Cunningham, the appeal against conviction had not been determined by the Court prior to the application to amend the notice of appeal being brought.

In the present case, it was clear that because a significant amount of the prosecution evidence had been obtained pursuant to s. 29 of the 1939 Act, the appellant”s case shared some similarities with the Damache case. It was also clear that despite the appellant”s assertions, the grounds in the notice of appeal did not expressly of impliedly include a challenge to the constitutionality of s. 29 of the 1939 Act. On that basis, it was said that if the appellant was allowed to amend the grounds of appeal, the appellant would effectively be adding a new point of appeal instead of refining an existing one.

In regards to the issue on the finality of the appeal against conviction, it was said that the appellant had agreed shortly after the notices of appeal were first issued that the appeal against sentence should be considered after the appeal against conviction was determined. It was, therefore, clear that the appeal against conviction was not still alive, notwithstanding the fact that the appeal against sentence was yet to be determined. It was also pointed out that s. 29 of the Courts of Justice Act 1924 was unequivocal in stating that a determination of a appeal before the Court of Criminal Appeal was final. The motion was, therefore, dismissed.

Application dismissed.

McKechnie J.
Judgement of the Court ( Ex Tempore) delivered the 14th day of January, 2013 by McKechnie J..
1

On the 12th day of December, 2008, Mr. Timmons was convicted, by jury verdict, in the Dublin Circuit Criminal Court, of the offence that he conspired to commit a crime, that is to say, the unlawful possession of a controlled drug for the purposes of sale or supply, contrary to s. 15 of the Misuse of Drugs Act 1977, as amended, and the regulations made thereunder. On the 28th January, 2009 he was sentenced to eight years imprisonment in respect thereof. A notice of appeal against both conviction and sentence was filed on the 13th February, 2009. With the consent of both the appellant and the respondent, the Court (Macken J., Budd J., and Hannah J.) decided to proceed with the appeal against conviction in the first instance, leaving over for subsequent consideration, the issue of sentence, if the same should arise. The judgment on that appeal was delivered on the 12th April, 2011 ( [2011] I.E.C.C.A. 13). Following a lengthy review of each ground of appeal and a detailed consideration of the submissions made in support thereof, the application for leave to appeal against conviction was dismissed on all grounds.

2

For reasons not entirely clear, the sentencing aspect of the appeal had not been moved or disposed of prior to the issuance of the notice of motion herein. In light of the relief which the motion prayed for, that matter remains adjourned and as yet, has not been determined or pronounced upon by this Court.

3

On the 23rd day of February, 2012, the Supreme Court delivered judgment in the case of Damache v. The D.P.P. & Ors. [2012] 2 I.R. 266 (‘ Damache’). The issue pronounced upon was the constitutional validity of 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’). Under the provisions of that section, a member of An Garda Síochána, being not below the rank of superintendent, could issue a search warrant (a ‘s. 29 warrant’) in respect of, inter alia, a person”s private dwelling house, if the conditions specified in the subsection were met.

4

On its face, the section did not differentiate between members for this purpose, save for specifying a minimum rank. This meant that a superintendent, or evidently, a member of higher rank, who was heavily involved in the underlying investigation, could himself/herself issue such a warrant. Such a procedure was challenged as being constitutionally flawed on the basis that a s. 29 warrant could only issue under the independent and impartial supervision of a qualifying member. The reason for this requirement, it was submitted, was to ensure that the issuing officer had no material interest in the decision and accordingly would be objectively positioned to satisfy himself that the statutory conditions had been met and that the conflicting interests of the State and the subject-person, if such arose, could be neutrally assessed.

5

The Supreme Court so agreed and granted the following declaration:-

‘…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.’ (p. 285).

6

Following that judgment, the appellant issued the within notice of motion whereby he sought to amend or enlarge grounds numbers two to four of the notice of appeal previously referred to, so that in effect he could obtain the benefit of the Damache decision. If permitted to do so, he intends to argue that prosecution evidence adduced at his trial, and which is later referred to, should never have been admitted and that if excluded, his resulting conviction is legally unsustainable. That is the result which the applicant seeks and it is the motivating factor which lay behind this motion.

7

In determining this application, which strictly speaking is one of amendment only, the Court nevertheless has also given careful consideration to whether, even if successful in that regard, Mr. Timmons could avail of the Damache decision.

Submissions:

8

The submission made in support of this application, at least at the level of generality, is to suggest that the Court itself must feel a ‘sense of unease’ or ‘disquiet’ in the knowledge that evidence used to convict the appellant was obtained in breach of his constitutional rights. Surely, it is said that intervention is required as otherwise a residual feeling of ‘concern’ will result, if nothing is done. At the more specific level, it is suggested that, by virtue of the sentencing appeal being as yet undetermined, the position of the appellant is unique: as a result, the conviction aspect of the appeal could again be looked at, as it has not been finalised. Moreover, the passage of time from conviction to the present is not so distant, as to disentitle Mr. Timmons from relying on Damache. In addition, Mr....

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4 cases
  • Buck v Governor of Portlaoise Prison
    • Ireland
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    ...no evidence that these events gave rise to any fundamental injustice or substantial error or oversight (see the People (DPP) v. Bolger [2013] IECCA 86; the People (DPP) v. Huges [2013] 2 I.R. 619; Director of Public Prosecutions v. O'Connor (unreported Court of Criminal Appeal 4th Februar......
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    ...Bolger [2013] IECCA 6, The Director of Public Prosecutions v. Hughes [2012] IECCA 69, The Director of Public Prosecutions v. Timmons [2013] IECCA 86 and The Director of Public Prosecutions v. Kavanagh & Ors [2012] IECCA 65. Furthermore, in two recent cases which have come before this Co......
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    • 23 January 2014
    ...of Criminal Appeal (McKechnie, de Valera, McGovern JJ.) in The People (at the suit of the Director of Public Prosecutions v. Timmons, [2013] IECCA 86, delivered on the 14th January, 2013. Delivering the judgment of the Court, McKechnie J. stated:- “39. On the question of finality there is n......
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    ...shall be final …" As is pointed out by this Court in The People (at the suit of the Director of Public Prosecution) v David Timmons [2013] IECCA 86, it cannot be suggested that the word "final" in this provision could have any meaning other than what it conveys, namely that the determinatio......

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