Michael Mckevitt v DPP

• Jurisdiction: Ireland
• Judge: MacMenamin J.
• Judgment Date: 20 May 2014
• Neutral Citation: [2014] IECCA 19
• Court: Court of Criminal Appeal
• Docket Number: [CCA No. 263/CPA/12]
• Date: 20 May 2014

[2014] IECCA 19

COURT OF CRIMINAL APPEAL

MacMenamin J., McGovern J., Edwards J.

[CCA No. 263/CPA/12]

BETWEEN

MICHAEL McKEVITT

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Practice & Procedure – Certification of Point of Law of Exceptional Public Importance – Newly Discovered Fact – Offence Against the State Act 1939 – Criminal Procedure Act 1993.

Facts: The applicant brought this application for the certification of points of law of exceptional public importance. Over 10 years ago, under s.29 Offences Against the State Act 1939, a search of the applicant”s home had been carried out on the foot of a warrant issued by a Detective Superintendent who was involved in the investigation and prosecution of the applicant and the material found in his home was used in court. In 2012 the Supreme Court in DPP – v - Damache held that s.29 Offences Against the State Act 1939 was unconstitutional as it did not prevent Gardai who were involved in the investigation from issuing search warrants. The applicant had therefore sought to have certified whether this subsequent decision of the Supreme Court amounted to a newly discovered fact under s.2 Criminal Procedure Act 1993 and also whether it was necessary for an applicant to have objected to the use of an unconstitutional provision before conviction in order to benefit from a later declaration of unconstitutionality obtained by a different litigant.

Held by MacMenamin J. nem diss, that as was found in earlier proceedings, the applicant”s claim that the material found in his home should have been inadmissible on the basis that it was obtained in a manner later found to be unconstitutional was without merit. It was also held that the application to certify as a point of law of public importance that the judgment of the Supreme Court in Damache amounted to a newly discovered fact was also misconceived as there was distinction between a declaration of the unconstitutionality of a provision and the retrospective effect of such a declaration. At the applicant”s intial trial in 2003 the constitutionality of s.29 Offences Against the State Act 1939 had not been raised nor was it the subject of any judicial review proceedings.

In addition, the points of law that the applicant sought to have certified were not deemed by MacMenamin J. to be of exceptional public importance nor were they in the public interest and therefore it was held that they should not be brought before the Supreme Court to be determined. This was especially so given that the case was decided in it”s entirety many years ago and as such there were no issues ‘pending’ in anyway. Furthermore, it was held that even if the the case of Damache was deemed to be a newly discovered fact this would not be of assistance to the applicant.

Application refused.

MacMenamin J.

JUDGMENT of the Court of Criminal Appeal delivered the 20th day of May, 2014, by MacMenamin J.

1 In this application the court is asked to certify two questions set out below as being matters of exceptional public importance such that it is in the interests of justice that they be heard and determined by the Supreme Court. These matters are:

‘(i) Whether a subsequent judgment which establishes that unconstitutionally obtained evidence was adduced against a convicted person at trial could amount to a ‘newly discovered fact’ within the meaning of S. 2 of the Criminal Procedure Act 1993

(ii) Whether a convicted person must have expressly raised or demonstrated, either at their trial or prior to their conviction, their objection to the use of an unconstitutional statutory provision, in order to avail of a later declaration of unconstitutionality of the said provision obtained by another litigant’.

2 The circumstances in which this application arises are described in the judgment of this court delivered on 19th April 2013. It is unnecessary to reiterate them here. The gist of this application is to the effect that the judgment of the Supreme Court in DPP v Damache [2012] might arguably amount to a ‘ newly discovered fact’ within the meaning of S. 2 of the Criminal Procedure Act 1993. Second that the principles annunicated in The People (DPP) v Cronin (No 2) [2006] 4 I.R. 329 should apply in such a situation.

3 In Damache this court held that S. 29 of the Offences against the State Act 1939 was inconsistent with the Constitution of Ireland. The section permitted a member of An Garda Síochána not below the rank of Superintendent to issue a search warrant in certain specified circumstances. The Section did not stipulate that such a warrant might only be issued by members of that rank who are independent of the relevant investigation. The Section was found to be repugnant to the Constitution on the basis that the administrative act of issuing a warrant should not be carried out by a Garda Superintendent who was involved in an investigation or prosecution as this offended against the principles of fair procedures and nemo udex in sua causa.

4 As the earlier judgment of the court set out the search carried out on the applicant”s house now more than 10 years ago took place on foot of a warrant issued by Detective Superindent Peter Maguire of An Garda Síochána who was involved in the investigation and prosecution of the applicant. On the basis of judgment in Damache the applicant sought to contend that there had been a miscarriage of justice in his case which came within S. 2 of the Criminal Procedure Act 1993. He contended that the court relied on corroborative relating to material found in the house which should have been ruled inadmissible as it been obtained under a statutory provision which was subsequently found to be repugnant to the Constitution. This court concluded that the application made by Mr. McKevitt was without merit. Regrettably the court must make a...