Jenna Heaphy v DPP

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 29 July 2015
• Neutral Citation: [2015] IECCA 7
• Docket Number: 12/10
• Court: Court of Criminal Appeal
• Date: 29 July 2015

[2015] IECCA 7

COURT OF CRIMINAL APPEAL

O'Donnell J.

Moriarty J.

White J.

12/10

Application pursuant to Section 29 of the Courts of Justice Act 1924 as amended

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Brian Rattigan

Applicant

Criminal procedure – Point of law – Exceptional public importance – Applicant seeking a certificate that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance – Whether it was desirable in the public interest that the applicant should take an appeal to the Supreme Court

Facts: The applicant, Mr Rattigan, applied for a certificate pursuant to s.29 of the Courts of Justice Act 1924 that the decision of the Court of Criminal Appeal of the 19th of February 2013 involved a point of law of exceptional public importance and that it was desirable in the public interest that the applicant should take an appeal to the Supreme Court. There were three points identified by the applicant, two relating to s.16 of the Criminal Justice Act 2006 and one relating to the trial judge’s charge to the jury. The first point sought to be certified by the applicant was derived from the fact that the relevant statements admitted under s.16 were made prior to the coming into force of the 2006 Act. Accordingly, the applicant asked the Court to certify the following question: Does s.16 apply to statements of evidence made prior to the coming into force of the 2006 Act? The second question proposed by the applicant in relation to s.16 was as follows: Does the requirement in s.16 that the witness be available for cross-examination require anything further than the mere physical presence of the witness in court? The third point sought to be certified related to certain portions of the trial judge’s charge to the jury. The question sought to be certified was as follows: Is a trial judge, when charging a jury, entitled to advocate for a conviction without informing the jury in terms that he is not giving a direction in law which is binding upon them but is merely giving his views of the facts, which they are entitled to disregard?

Held by O’Donnell J that the first argument made by the applicant raised underlying issues as to the manner in which the Court should approach changes to criminal procedure and evidence; that is an issue of enduring importance. Accordingly the Court certified this point raised by the applicant. O’Donnell J held that it not appear to the Court that any point of law arose from the Court’s decision in regard to the second question, which could be certified under s.29; the applicant or anyone else affected by the section could seek to contend in properly constituted proceedings that the effect of s.16 on the trial process is such a departure from fundamental conceptions of justice in the adversarial system as to render it unconstitutional, but that was not a point of law arising on appeal in this case, which was capable of being certified under s.29. O’Donnell J held that although the argument on the application for a certificate under s.29 did come close to suggesting that the law had now reached a point where a trial judge could not comment in any way upon the facts (which would arguably have raised a point of law), that argument was not made as part of the appeal proper; the issue in the appeal involved application of settled principles to particular facts. Since that was a matter of judgment, O’Donnell J held that it is possible that others may take a different view of the merits, but that it is not possible to consider that it raises any issue of law sufficient to certify a point under s.29.

O’Donnell J held that the Court would certify that its decision of the 19th February 2013 involved one point of law of exceptional public importance and that it was desirable in the public interest that an appeal on that point should be taken to the Supreme Court. That point of law was: Does s.16 apply to statements of evidence made prior to the coming into force of the 2006 Act?

Appeal allowed.

Judgment of the Court delivered on the 29th of July 2015, by O'Donnell J.

1 The applicant herein applies for a certificate pursuant to s.29 of the Courts of Justice Act 1924 as substituted by s.22 of the Criminal Justice Act 2006 and as amended by s.59 of the Criminal Justice Act 2007 and s.31 of the Criminal Procedure Act 2010, that the decision of this Court of the 19th of February 2013 involved a point of law of exceptional public importance and that it is desirable in the public interest that the applicant should take an appeal to the Supreme Court. It was necessary to rehear this application due to the serious illness of one of the members of the Court. There are three points identified by the applicant, two relate to s.16 of the Criminal Justice Act 2006 and one relates to the trial judge's charge to the jury.

Section 16 of the...