DPP v Walsh

• Jurisdiction: Ireland
• Judge: Mr.. Justice Edwards
• Judgment Date: 09 April 2017
• Neutral Citation: [2017] IECA 111
• Date: 09 April 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Record Nos: 106/2011 289 & 290/2012

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

STEPHEN WALSH

Applicant

[2017] IECA 111

Edwards J.

Ryan P

Mahon J

Edwards J.

Record Nos: 106/2011

289 & 290/2012

THE COURT OF APPEAL

Enlargement of time – Grounds of appeal – Additional grounds – Applicant seeking an enlargement of time within which to appeal – Whether applicant could add further grounds of appeal

Facts: The applicant, Mr Walsh, on 18th December 2009, was found guilty by a jury in the Central Criminal Court of 2 counts of rape as defined in s. 2 of the Criminal Law (Rape) Act 1981 and one count of oral rape being rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. On 19th February 2010, the applicant was sentenced to 10 years imprisonment on each count, the sentences to run concurrently and to date from 18th December 2009. On 21st October 2010 the applicant was further convicted by a jury before the Dublin Circuit Criminal Court on two counts of indecent assault, contrary to common law and as provided for by s. 10 of the 1981 Act. On 18th November 2010 the applicant was sentenced to three years imprisonment on both counts, the said sentences to run concurrently inter se, but consecutively to the sentences of 10 years imprisonment imposed on 19th February 2010 in the Central Criminal Court. On 10th November 2011 the applicant was further found guilty by a jury in the Dublin Circuit Criminal Court of two counts of sexual assault contrary to s. 2 of the 1990 Act, two counts of the attempted defilement of a child under the age of 15 contrary to s. 2(2) of the Criminal Law (Sexual Offences) Act 2006, one count of defilement of a child under the age of 15 contrary to s. 2(1) of the 2006 Act, two counts of the attempted defilement of a child under the age of 17 contrary to s. 3(2) of the 2006 Act and four counts of defilement of a child under the age of 17 contrary to s. 3(1) of the 2006 Act. On 20th December 2011 the applicant was sentenced to ten years imprisonment, with the final two years suspended, on each of the sexual assault counts. He was further sentenced to twelve years imprisonment on each of the counts of defilement or attempted defilement of a child under the age of 15, with the last two years suspended. The applicant further received sentences of two years imprisonment on the counts of attempted defilement of a child under the age of 17 years of age and sentences of five years in respect of the offences of defilement of a child under the age of 17 years of age. All sentences were to run concurrently inter se but the ten and twelve year sentences were to run consecutive to the sentence imposed by the Central Criminal Court on 19th February 2010. The applicant brought three motions before the Court of Appeal, one in relation to each of his appeals or intended appeals. In respect of his intended appeals bearing Record No. 289/2012 and 290/2012, respectively, he sought an enlargement of time within which to appeal. He did not require this in respect of the proceedings bearing Record No. 106/2011 as the Court deemed him to have appealed within time in that matter. Then in respect of his intended appeals bearing Record No. 289/2012 and Record No. 106/2011, respectively, he sought leave to amend his initial grounds of appeal by supplementing them with additional grounds, and in respect of his appeal bearing Record No. 290/2012 he was in effect seeking liberty to set out grounds of appeal for the first time, the proposed additional grounds/new grounds being those exhibited with the affidavits grounding the motion in each instance. He also sought such directions as the Court may deem fit to grant and an order providing for the costs of the application in each case.

Held by the Court that it refused to enlarge the time to appeal in Case No. 289/2012 and in Case No. 290/2012 respectively. The Court held that it was not necessary in those circumstances to determine the other main limb of the motions in those cases, namely the applications to add grounds or additional grounds of appeal.

The Court held that the applicant appealed in time in Case No. 106/2011. However, the Court refused the application to add additional grounds of appeal. The Court held that the applicant was at liberty to proceed with an appeal based upon his original grounds of appeal.

Appeal dismissed.

Judgment of the Court delivered the 7th of April, 2017 by Mr.. Justice Edwards

Introduction

1 This Court is concerned with substantially similar motions in three separate appeals proceedings involving the applicant, in which he seeks, in each case, (i) an enlargement of time within which to appeal, and (ii) liberty to furnish grounds of appeal or to amend existing grounds of appeal (where grounds were previously specified) by adding additional grounds of appeal.

General background and procedural history

2 As indicated there are three separate sets of appeal proceedings. It is proposed to set out the background and procedural history of each one individually

Proceedings under Record No 289/2012

3 On the 18th of December 2009 the applicant was found guilty by a jury in the Central Criminal Court (Carney J. presiding) of 2 counts of rape as defined in s. 2 of the Criminal Law (Rape) Act, 1981 and one count of oral rape being rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990. The relevant bill number in these proceedings before the Central Criminal Court was CC0091/2008.

4 On the 19th of February 2010 the applicant was sentenced to 10 years imprisonment on each count, the sentences to run concurrently and to date from the 18th of December, 2009.

5 At the time of both conviction and sentence in this matter the provisions of s.31 of the Courts of Justice Act 1924 (the Act of 1924) as originally enacted were still in force. They provided:

‘31.—A person convicted on indictment before the Central Criminal Court … may appeal under this Act to the Court of Criminal Appeal under the following conditions:—

(i) if the appellant obtains a certificate from the judge who tried him that the case is a fit case for appeal;

(ii) in case of refusal of such certificate if the Court of Criminal Appeal on appeal from such refusal grant leave to appeal.’

6 Following the imposition of sentence there was no immediate application to the trial judge for a certificate that the case was a fit case for appeal. However, approximately one month later, on the 15th of March 2010, the applicant's defence counsel appeared before the trial judge and made a late application for such a certificate stating that, on the previous occasion, ‘because of some distraction I inadvertently forgot to ask your lordship for leave to appeal formally’. The trial judge raised no issue about the lateness (although the rules in Order 86 r 3 RSC required that such an application should be made ‘at the close of the trial or within three days thereafter’), but indicated that he was refusing leave to appeal.

7 The then extant rules further provided that where a certificate had been refused, an application to the Court of Criminal Appeal for leave to appeal was required to be made within twenty one days of the refusal, i.e., in this instance, on or before the 5th of April 2010.

8 The applicant did not seek leave to appeal within time. What in fact occurred next was that the applicant wrote to the Registrar of the Central Criminal Court to complain that counsel, in seeking a certificate on his behalf that the case was a fit one for appeal, had acted without his authority and against his wishes. The applicant's correspondence was brought to the attention of Carney J. who then ordered that the applicant should be produced before him. The applicant was produced on the 23rd of July 2010 whereupon he informed Carney J. that he wished him to set aside his refusal of the said certificate. Carney J. acceded to the applicant's application and made an order setting aside his earlier refusal of a certificate that the case was a fit one for appeal. He pointed out to the applicant that ‘that has consequences for Mr. Walsh now because he's in the position of neither having a certificate for leave to appeal or a refusal of leave to appeal to appeal against.’ The applicant's response to this was ‘Thank You’.

9 That was seemingly the end of the matter until just over two further years later, on the 27th of July 2012, when counsel appeared before Carney J. in the Central Criminal Court and applied on behalf of the applicant to have the court's initial refusal of a certificate that the case was a fit for appeal, which had been set aside at Mr..Walsh's request, re-instated. Counsel informed the court:

‘The circumstances are now Mr. Walsh is clear in his mind that he made a mistake, he shouldn't have done what he did. He did wish to appeal and he didn't ~ his instructions to me are that he didn't understand the consequences of dropping himself, if you like, between a pillar and a hard place and that he thought he could appeal nonetheless and he can't appeal. He either has to get leave from you or a refusal from you and he really didn't understand that he should have done that. They're his instructions to me.’

10 Carney J., acceded to the application stating:

‘JUDGE: All right. I think one of the features of the trial which is not unusual in Mr. Walsh's litigation is that counsel were in and out of the case several times during the day, being sacked and re-hired. However, in the circumstances I'm going to have regard to the fact that there's a fresh team here now that Mr. Walsh is not standing over his conduct to date in this matter.

MR PEART: No, he's not.

JUDGE: And I will refuse leave to appeal and give you a certificate for solicitor and two counsel to appeal that refusal if you think it appropriate to do so.’

11 As this is a case to which the ...