DPP -v- Timothy (Ted) Cunningham, [2012] IECCA 64 (2012)

Docket Number:135/09
Party Name:DPP, Timothy (Ted) Cunningham
Judge:Hardiman J.

THE COURT OF CRIMINAL APPEALHardiman J. 135/09Moriarty J.Hogan J.Between:THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)Prosecutor/RespondentandTIMOTHY (TED) CUNNINGHAMAppellantJUDGMENT of the Court delivered the 11thday of May, 2012 by Hardiman J.This is the appellant’s appeal against his conviction in the Cork Circuit Court on the 27th March, 2009 on ten counts of money laundering. This conviction occurred on the 44th day of the trial. Count 10 on the indictment referred to a sum of stg. £2,400,000 which was found in the applicant’s dwelling house on the 17th February, 2005 during a search on foot of a warrant issued by a Superintendent Quilter pursuant to s.29 of the Offences Against the State Act, 1939, as inserted by s.5 of the Criminal Law Act, 1976. The balance of counts related to smaller sums of money said to have been transferred by the appellant to other persons for various purposes. Three of these persons, John Douglas, Dan Joe Guerin and John Sheehan gave evidence for the prosecution against the appellant.Subsequent to his conviction, the applicant was sentenced to ten years imprisonment.A sample count.All of the ten counts and the indictment preferred against the applicant allege separate offences of money laundering by using various items of property, all money or monies’ worth, knowing or believing that it was the proceeds of the well known Northern Bank Robbery of the 20th December, 2004. The most serious count, Count 10, is worded as follows:“Statement of OffenceMoney laundering contrary to s.31(1)(c) of the Criminal Justice Act, 1994 as inserted by s.21 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.Particulars of OffenceTimothy Cunningham between the 20th December, 2004 and the 16th February, 2005 at Farran in the County of Cork knowing or believing that property that is to say Sterling Cash to the value of £3,010,380 represented the proceeds of criminal conduct namely a robbery at the Northern Bank Cash Centre, Donegal Square West, Belfast on the 20th December, 2004 or being reckless as to whether it was or represented such proceeds, possessed the said property.”An Item of Evidence.On the 17th February, 2005 the applicant’s home at Farran, Co. Cork, was searched on foot of a warrant under s.29(1) of the Offence Against the State Act, 1939. This warrant was issued by Superintendent Quilter who was the person in charge of the investigation and accordingly (it was not seriously contested), could not possibly be described as a person independent of the investigation.It was agreed between the parties on the hearing of this appeal that the validity of this warrant would be dispositive of the appeal against the conviction on Count 10 of the Indictment. This was because the admissibility of the evidence of finding a very large sum of cash on the appellant’s premises at least so far as that particular count was concerned was dependent on the validity of the warrant under which the search was conducted.Section found unconstitutional.On the 23rd February, 2012, Denham C.J. gave the judgment for the Supreme Court in the case of Ali Charaf Damache v. The D.P.P. (Ireland) and the Attorney General.At para. 59 of the judgment it is recited that, for the reasons set out in the judgment:“The Court would grant a declaration that s.29(1) of the Offences Against the State Act, 1939 (as inserted by s.5 of the Criminal Law Act, 1976) and referred to as s.29(1) of the Act of 1939, 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 Appeal.Having been convicted as described above, the applicant appealed to this Court by notice of appeal dated 14th May, 2009, about three years before the Supreme Court judgment in Damache.This set out nineteen grounds of appeal in all, of which ground two in particular made reference to the s.29(1) warrant. It was alleged that the warrant was defective because it did not identify the appellant’s residence as the place to be searched and further because it was merely a “colourable device” to avoid the necessity of making an application for a warrant to a judgeAfter the notice of appeal was lodged, the appeal itself proceeded slowly. The grounds of appeal had been lodged at the trial itself by the lawyers who appeared for Mr. Cunningham at that time but at a later date the applicant discharged those representatives. The applicant’s appeal was struck out for want of prosecution on the 15th February, 2011. However the case was re-entered by the Court of Criminal Appeal on the 28th November, 2011. The applicant’s original written submissions had previously been filed on the 13th October, 2011.After Damache.The Supreme Court, as already noted, delivered its judgment in the Dimache case on the 23rd February, 2012. On the 7th March, 2012, the applicant lodged in this Court a notice of motion seeking bail on the basis of the Damache case and on the 2nd April, 2012, the appellant lodged supplemental submissions, relying heavily on the Damachecase.By a notice of motion dated the 13th day of April, 2012, and returnable on the 16th April, 2012, the appellant sought liberty to amend ground 2 in his original grounds of appeal. In what follows, the underlined portion is the amendment sought and the balance is ground No. 2 as originally lodged:“The learned trial judge erred in fact and/or in law in admitting into evidence the warrant issued under the Offences Against the State Act on the grounds that the same did not identify the appellant’s residence as the place to be searched and further that the warrant was a colourable device to avoid the necessity of application being made to the District Court under the Criminal Justice Act, 1994 and that s.29 of the said Act was declared to be repugnant to the Constitution by the Supreme Court on the 23rd day of February 2012 as a result of which any evidence procured on foot of the said warrant was unconstitutionally obtained and inadmissible in law”.On the 16th April, 2012, the Court granted leave to amend the ground of appeal as sought. In doing so the Court pointed out that the effect of the amendment was simply to refer to the decision of the Supreme Court in the Damache case, leaving open the question as to whether the appellant was entitled to rely on this precedent to invalidate his conviction which predated the Damache decision by some years.The proposition that s.29(1) of the Act of 1939 was repugnant to the Constitution was not raised in this case in the court of trial. Indeed, it could not have been raised as that Court, the Cork Circuit Criminal Court, had no jurisdiction to entertain it, such jurisdiction being confined to the High Court and the Supreme Court on appeal. It was also common case that the appellant had not, either before or after the Damache decision instituted proceedings claiming that the relevant section was repugnant to the Constitution.The question of the constitutionality of the section was, however, referred to in the appellant’s first set of written submissions.These were filed just over four months before the decision on the Supreme Court in Damache. The respondent says, however, that this material is an afterthought, inserted in the knowledge that the Supreme Court would soon dispose of the Damache appeal and inserted with a view to putting the applicant in a position to avail of that decision if it were favourable to his position. But it would have been extraordinary if the appellant’s lawyers had omitted this step.Extent of Hearing on the 16thApril, 2012.As noted above, the case came first into the Court’s list in April, 2012 in the form of a bail application. It was however decided to address the Damache issue with a view to deciding firstly whether it was open to the applicant to rely upon it and secondly to ascertain the extent to which it might be dispositive of the appeal. These are the only issues which will be addressed in this judgment: none of the other grounds of appeal are considered at all. If necessary, they will be addressed at a later time.Issues argued.The appellant says that the search of his premises which led to the discovery of an enormous sum in Sterling cash was central to the case against him and was the engine, or a main engine, of his conviction. The search, it is agreed, was carried out on foot of a warrant issued under s.29(1) by Superintendent Quilter. As a result of the Damache decision, it is now known that this section is repugnant to the Constitution and was accordingly invalid from the time of its insertion into the Act of 1939, which occurred in the year 1976. Accordingly, Mr. Cunningham says, his conviction cannot stand. Specifically (it is said) the conviction on Count 10, which is directly related to the search of his premises, cannot stand and the balance of the convictions are rendered unsafe or unsatisfactory because they occurred after evidence of the fruit of the invalid warrant had been given; after evidence of the appellant’s consequential arrest under s.30 of the Offences Against the State Act, 1939, after the search had taken place, and an account of it, have been given; because these convictions occurred after evidence of alleged admissions made by the appellant while he was in custody under s.30 had been admitted, and on account of the general prejudicial effect of the evidence of the search and what followed from it.The D.P.P.’s case.The Respondent, the Director of Public Prosecutions, says that it is simply not open to the appellant now to rely on the declaration of repugnancy of s.29(1). He agrees that the appellant could not have raised this point in the court of trial but he says that he could have raised it by plenary proceedings or by judicial review either before or after the trial but did not do so. He says that the appellant is now attempting to “piggyback” on the Damache case and that this has never...

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