DPP v Wayne Dundon

• Jurisdiction: Ireland
• Judge: Macken, J
• Judgment Date: 13 February 2008
• Neutral Citation: [2008] IECCA 14
• Docket Number: Record No. 104/05
• Court: Court of Criminal Appeal
• Date: 13 February 2008

[2008] IECCA 14

COURT OF CRIMINAL APPEAL

Macken, J.

Murphy, J.

Herbert, J.

Record No. 104/05

DPP v Dundon

Between:

DIRECTOR OF PUBLIC PROSECUTIONS

-and-

WAYNE DUNDON

Applicant

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

DPP v CRONIN UNREP SUPREME 3.3.2006 2006 IESC 9

R v GALBRAITH 1981 1 WLR 1039

R v SHIPPEY 1988 CLR 767

AG v CUNNINGHAM 1932 IR 28

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5(1)

R v WILLIAMS 1987 84 CAR 299

PHIPSON ON EVIDENCE 13ED 1982

R v BALL 1911 AC (HL) 47

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

DPP v GILLIGAN 2004 3 IR 87

R v KIDD 1998 1 WLR 604

R v ANDERSON 1978 AC 964

DPP v O'DONOGHUE UNREP CCA 18.10.2006 2006 2006/20/4238 IECCA 134

CRIMINAL LAW

Appeal

Conviction - Sentence - Offence of threatening to kill - Judge's charge - Legal representation - Application to expand grounds of appeal - Trial judge not requisitioned in respect of some grounds - Plea of not guilty - Maximum sentence imposed - Another defendant sentenced to lesser amount for same offence by same Judge on same day - Victim shot shortly after threat made - Accused not charged in respect of shooting - Whether case to answer - Whether jury correctly directed as to recklessness - Whether permissible to expand grounds of appeal by way of particularisation of general ground - Whether permissible to expand grounds of appeal by means other than prescribed procedure - Whether error of principle in sentencing - Whether permissible to have regard to prosecution evidence of accused's involvement in criminality - Whether appropriate to sentence on basis of victim having been shot shortly after threat - People (DPP) v Cronin (No 2) [2006] IESC 9 [2006] 4 IR 272 applied; People (DPP) v Gilligan (No 2) [2004] 3 IR 87, People (DPP) v O'Donoghue [2006] IECCA 134 [2006] 3IR 336, R v Kidd [1998] 1 WLR 604, R v Anderson [1978] AC 964, R v Galbraith [1981] 1 WLR 1039, R v Shippey [1988] CLR 767, Attorney General v Cunningham [1932] IR 28, R v Williams [1987] Crim LR 198 and R v Bali [1911] AC 68 considered - Appeal against conviction refused, appeal against severity of sentence allowed (104/2005 - CCA - 13/2/2008) [2008] IECCA 14

The People (Director of Public Prosecutions) v Dundon

1 Judgment of the Court delivered by Macken, J on the 13th day of February 2008

2 ----------------------------------

3 The applicant was convicted on the 20th April 2005 at the Circuit Criminal Court sitting in Limerick for an offence contrary to S.5 of the Non Fatal Offences Against the Person Act 1997. The charge was threatening to kill a man, Ryan Lee. The offence occurred on the 19th December 2004 at a nightclub or bar premises known as Brannigans in the City of Limerick. The trial on this charge commenced on the 20th April 2005. The applicant was arraigned on the 28th April 2005 in respect of two other offences. He pleaded guilty to assault causing harm contrary to S.3 of the Non Fatal Offences Against the Person Act 1997 and a further assault pursuant to the same Act, both assaults being on gardaí on the 22nd December 2004.

4 On the 11th May 2005 evidence was presented in relation to sentencing on all three counts, and the learned trial Judge reserved his judgment. He was sentenced on the 13th May 2005 to a term of 10 years imprisonment in respect of the offence of making a threat to kill or cause serious harm and to three years in respect of each of the assault charges, the latter to run concurrently with the 10 year sentence. The applicant lodged a Notice of Application for Leave to Appeal on the 17th May 2005, against the conviction and against all the sentences. The Applications for Leave to Appeal against sentence on the two assault charges have since been withdrawn. This application for leave to appeal concerns only the threatening to kill charge.

5 The particulars of the offence are described in the following terms:

"Wayne Dundon on the 19th December 2004 at Brannigan's Bar in the City of Limerick without lawful excuse, made to one Ryan Lee, a threat to kill the said Ryan Lee or cause him serious harm, intending the said Ryan Lee to believe that the said threat would be carried out."

6 A Notice of Grounds of appeal was lodged on behalf of the applicant on the 3rd August 2005 by the applicant's then solicitor. Apart from several specific grounds for leave to appeal against conviction, inter alia, on grounds of the trial judge's charge and the requisitions raised thereon, there were several non specific grounds, including the following ground, relevant to the one aspect of this application:

"8. That the charge of the learned trial judge was in general unsatisfactory".

7 Sometime before the hearing of the present application the applicant instructed a new legal team to represent him. Lengthy and detailed written legal submissions were filed on behalf of the new legal team on 15th January 2007, in anticipation of the hearing fixed for the 5th February 2007.

Preliminary:

8 During the course of the hearing on the 5th February 2007, it became clear that apart from argument on the several specific grounds for leave to appeal as filed, counsel for the applicant sought to introduce what, according to the jurisprudence of this court, were new grounds of appeal concerning the judge's charge. They had not been referred to, even by way of argument, in the detailed written submissions and had not been the subject of any requisitions following the charge, nor indeed were they raised at any point in the trial. These, counsel argued, were simply arguments "expanding or particularising" the above non-specific plea at number 8, and the applicant ought therefore be entitled to pursue the same. The court did not accept that the grounds then sought to be argued could be heard on the basis put forward. After some debate, the court agreed, however, to adjourn the hearing so as to enable the new legal advisers on behalf of the applicant to bring a motion in the usual way, seeking liberty to add new grounds of appeal.

9 By notice of motion dated the 26th March 2007 the applicant sought the following two reliefs:

10 (1) An Order granting liberty to … adduce supplemental legal submissions in order to give greater particularity to grounds of Appeal numbers 4, 5 and 8 of the originating Notice of Appeal and grounds therein contained".

11 (2) An Order, if necessary, pursuant to order 86 rule 4 of the Rules of the Superior Courts … granting the Applicant/Appellant liberty to file and serve … an amended Notice of Application setting forth such additional Grounds of Appeal as are sought to be advanced by the Applicant/Appellant at the hearing of the within application."

12 No Amended Notice of Application was before the court at the commencement of the oral hearing of the resumed application on the 22nd October 2007, nor was one exhibited to the affidavit of Matthew F. Higgins, solicitor, of Higgins Hollywood Deazley, Solicitors, grounding the motion. Prior to adjourning the application in February 2007, granted in circumstances where neither moving counsel for the applicant, nor his instructing solicitor, although each entitled to represent a client in the State, appeared to be fully familiar with the relevant procedural rules or practices in this jurisdiction relating to such applications, the court had pointed out that the applicant was also represented by a very practised junior counsel, and had explained in clear terms the means and the procedures by which an application for leave to add grounds of appeal comes before this court, particularly where, as here, the ground sought to be added had not been raised, nor any rulings made thereon, in the course of the trial. The court also drew counsel's attention to certain relevant case law and in particular to the principles reaffirmed in DPP v Cronin (2006) 4 IR 273 referred to below.

13 Notwithstanding the court's clear indication that a new ground of appeal cannot be presented to this court by "particularisation" of an existing general non-specific ground (or by argument thereon), the applicant nevertheless persisted with ground 1 of the motion seeking that very relief in respect of the general non specific ground at paragraph 8 of the original grounds of appeal (adding in a new reference to grounds 4 and 5). The regrettable impression which the court gained from the foregoing, and the exchanges thereon, is that there was some reluctance on the part of the applicant's advisers to comply with relevant and established rules and/or practices in this jurisdiction relating to such applications, there being no submission whatsoever made that these rules or practices were in any way wrong in law. The exchanges arising from the above added considerably to the time necessary to deal with this application, not only during the original hearing in February 2007, but also on the adjourned hearing date in October 2007.

14 The court refused the relief sought at ground 1 of the Notice of Motion, but accepted in the course of the resumed hearing, a handwritten note as being indicative of the four additional grounds then sought to be admitted as new grounds. Counsel for the applicant further reduced these to two, and a final form of Amended Grounds of Appeal was eventually filed on behalf of the applicant, including the following new grounds:

15 a "8(A) The charge of the learned trial judge failed to explain the critical distinction between words and gestures and their combination and the consequence and the correct approach if they were sure about the words being said but not sure about the gesture being made;

16 b 8(B) The judge unfairly led the jury to believe that Ryan Lee had no motive or reason to lie."

17 Being unrelated...