McKevitt v DPP

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMacMenamin J.
Docket Number[C.C.A. No. 263 of 2012]
Date19 April 2013

[2013] IECCA 22

COURT OF CRIMINAL APPEAL

MacMenamin J.

de Valera J.

McGovern J.

RECORD NO. 263 CPA/12
McKevitt v DPP
IN THE MATTER OF SECTION 2 OF THE CRIMINAL PROCEDURE ACT 1993

BETWEEN

MICHAEL McKEVITT
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

CRIMINAL PROCEDURE ACT 1993 S2

OFFENCES AGAINST THE STATE ACT 1939 S29

DAMACHE v DPP 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

BARRY v BUCKLEY 1981 IR 306

OFFENCES AGAINST THE STATE (AMENDMENT) ACT 1998 S6

OFFENCES AGAINST THE STATE ACT 1939 S21

CONSTITUTION ART 38.1

CRIMINAL PROCEDURE ACT 1993 S2(1)(B)

CRIMINAL PROCEDURE ACT 1993 S2(4)

DPP, PEOPLE v KELLY 2008 3 IR 697 2008 2 ILRM 217 2008/32/7069 2008 IECCA 7

DPP, PEOPLE v MELEADY & GROGAN 1995 2 IR 517 1996/3/748

DPP, PEOPLE v PRINGLE 1995 2 IR 547

DPP v GANNON 1997 1 IR 40 1997/3/789

DPP, PEOPLE v MCDONAGH 1996 1 IR 305

DPP, PEOPLE v SHORTT (NO 1) 2002 2 IR 686 2002/26/6627

CRIMINAL PROCEDURE ACT 1993 S2(1)

O'MALLEY THE CRIMINAL PROCESS 2009

DPP v SHORTT (NO 2) 2002 2 IR 696 2002/25/6428

C (C) v IRELAND & ORS 2006 4 IR 1 2006 2 ILRM 161 2006 IESC 33

CRIMINAL LAW (AMENDMENT) ACT 1935 S1(1)

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88 2006 2 ILRM 481 2006/1/11 2006 IESC 45 2006 IEHC 169

DPP v CUNNINGHAM UNREP CCA 19.10.2011 2011/16/3778 2011 IECCA 64

DPP v KAVANAGH UNREP CCA 24.5.2012 2012/12/3438 2012 IECCA 65

DPP v O'BRIEN UNREP CCA 2.7.2012 2012/13/3672 2012 IECCA 68

DPP, PEOPLE v BIRNEY 2007 1 IR 337 2006/6/1072 2006 IECCA 58

CRIMINAL LAW

Trial

Newly discovered fact - Miscarriage of justice - Subsequent judgment - Constitutional invalidity of statute - Retrospective effect - Jurisdiction to strike out application - Whether subsequent declaration of invalidity of statute capable of constituting newly discovered fact - Whether declaration of unconstitutionality of retrospective effect - Whether miscarriage of justice - Whether court entitled to strike out application - A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88; Barry v Buckley [1981] IR 306; CC v Ireland [2005] IESC 48, [2006] IESC 33, [2006] 4 IR 1; Damache v Director of Public Prosecutions [2012] IESC 11, [2012] 2 IR 266; The People (Director of Public Prosecutions) v Birney [2006] IECCA 58, [2007] 1 IR 337; The People (Director of Public Prosecutions) v Cunningham [2012] IECCA 64, (Unrrep, CCA, 11/5/2012); The People (Director of Public Prosecutions) v Gannon [1997] 1 IR 40; The People (Director of Public Prosecutions) v Kavanagh [2012] IECCA 65, (Unrep, CCA, 24/5/2012); The People (Director of Public Prosecutions) v Kelly [2008] IECCA 7, [2008] 3 IR 697; The People (Director of Public Prosecutions) v McDonagh [1996] 1 IR 305; The People (Director of Public Prosecutions) v Meleady [1995] 2 IR 517; The People (Director of Public Prosecutions) v O'Brien [2012] IECCA 68, (Unrep, CCA, 2/7/2012); The People (Director of Public Prosecutions) v Pringle [1995] 2 IR 547; The People (Director of Public Prosecutions) v Shortt (No 1) [2002] 2 IR 686 and The People (Director of Public Prosecutions) v Shortt (No 2) [2002] 2 IR 696 considered - Criminal Procedure Act 1993 (No 40), s 2 - Application struck out (263/2012 - CCA - 19/4/2013) [2013] IECCA 22

McKevitt v Director of Public Prosecutions

1

JUDGMENT of the Court of Criminal Appeal delivered the 19th day of April 2013.

2

1. This judgment arises from an application made by counsel for the respondent herein ("the Director"), to strike out an application under s. 2 of the Criminal Procedure Act 1993 ("the s. 2 application") brought by Michael McKevitt ("the applicant") as being an abuse of process. Whilst strictly speaking, the Director is the moving party in this application to strike out it will be more convenient to refer to her as being "the respondent", and Mr. McKevitt as "the applicant", this being their status in the s. 2 application.

The s. 2 application brought by Michael McKevitt
3

2. Section 2 of the Criminal Procedure Act 1993 permits an application be made to this Court to a quash conviction on the basis that a newly discovered fact or facts shows that there has been a miscarriage of justice in relation to that conviction.

4

3. Section 2 of the Criminal Procedure Act 1993 provides as follows:

5

2 "2(1) A person -

6

(a) who has been convicted of an offence either -

7

(i) on indictment, or

8

(ii) after signing a plea of guilty and been sent forward for sentence under Section 13(2)(b) of the Criminal Procedure Act 1967, and

9

who, after appeal to the court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

10

(b) who alleges that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,

11

may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence.

12

(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.

13

(3) In subsection (l)(b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.

14

(4) The reference in subsection (l)(b) to a newly discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisors during the trial or appeal proceedings

15

(5) Where -

16

(a) after an application by a convicted person under subsection (1) and any subsequent retrial the person stands convicted of an offence, and

17

(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent retrial or a fact the significance of which was not appreciated by him or his advisors during the hearing of the application and any subsequent retrial shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,

18

he may apply to the court for an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection".

19

4. Michael McKevitt was convicted of offences by the Special Criminal Court on the 6 th August, 2003. Details of these offences are set out later in the judgment. He seeks in his application made under s. 2 of the Act to contend that those convictions were a miscarriage of justice, as the convictions arose from a trial where the court relied on evidence of corroboration obtained on foot of s. 29 of the Offences Against the State Act 1939, as amended, which section, the Supreme Court held in Damache v Director of Public Prosecutions [2012] IESC 12 was repugnant to the Constitution,

The test in an application to strike out
20

5. The task which faces this court is to consider whether the s. 2 application which has been brought by Mr. McKevitt raises a point which is arguable and comes within the terms of s. 2. If both those conditions are satisfied, then it follows that it could not be held to be an abuse of process. If, on the other hand, this court were to conclude that the point raised is unstateable and cannot come within the terms of s. 2 of the Act, then, it must accede to the application brought by the Director.

21

6. The court must bear in mind that what is in issue here is a balance of constitutional rights. The litigant has a continued right of access to the courts. The courts have the entitlement and duty to protect their processes and procedures from being abused by claims which cannot possibly succeed. There is no factual issue in dispute in this application. The statement of law which best expresses the balance of rights which should be applied in an application of this type is that identified in Barry v Buckley [1981] I.R. 306.

22

7. As identified in Barry, the question to be determined by this court therefore is whether, as is urged by counsel for the Director, the substantive application under s. 2 of the Act is "bound to fail". An application is bound to fail if the very basis for it does not come within the statutory remit of the section said to permit it.

23

8. The point raised by the applicant should now be explained in some more detail. The applicant was convicted by the Special Criminal Court on the 6 th August, 2003, of directing the activities of an unlawful organisation, contrary to s. 6 of the Offences Against the State (Amendment) Act 1998, and of being a member of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939. He contends that an essential part of the prosecution case was based on the evidence of David Rupert, a man who infiltrated the unlawful organisation in question. Michael McKevitt contended at the trial, and in this appeal, that Mr. Rupert's evidence was simply not credible, and that he had never met Mr. Rupert at any time, and that his evidence was invention.

24

9. In its judgment, the Special Criminal Court found that Mr. Rupert was a credible witness. This conclusion was based on Mr. Rupert's own testimony which had been subject to rigorous cross-examination. But the court's conclusion was also based on corroboration. On the one hand, there was testimony from garda witnesses who swore that they had seen Mr....

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  • DPP v Yusuf Ali Abdi
    • Ireland
    • Court of Appeal (Ireland)
    • 13 February 2019
    ...applied in The People (Director of Public Prosecutions) v. Kelly [2008] 3 I.R. 697 and in McKevitt v. Director of Public Prosecutions [2013] 1 IR 750,). 66 Whilst conceding that there is no universal definition for a “miscarriage of justice”, the applicant invites this Court to consider t......
  • Rattigan v DPP
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    • Court of Appeal (Ireland)
    • 15 February 2016
    ...lawful and this constituted a new fact as envisaged by s. 2 of the Criminal Procedure Act 1993. The DPP relied on the case of McKevitt [2013] IECCA 22 which establishes that the Supreme Court?s decision in Damache could not be categorised as a newly discovered fact within the meaning of s. ......
  • O'Reilly v DPP
    • Ireland
    • Court of Appeal (Ireland)
    • 11 May 2015
    ...abuse of process, on the basis that it was bound to fail or not grounded on a new or newly discovered fact was considered in the case of DPP v McKevitt [2013] IECCA 22. It clear from the judgment in that case that while the jurisdiction to make orders of the type now sought by the Director ......
  • DPP v Adams
    • Ireland
    • Court of Appeal (Ireland)
    • 24 April 2018
    ...a “newly discovered fact” for the purposes of s. 2 of the 1993 Act. Held by the Court of Appeal that, having referred to McKevitt v DPP [2013] 1 IR 750, the applicant could not rely on a purported change in Irish law as being a “newly discovered fact” for the purposes of s. 2; the “newly di......
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