People (Attorney General) v Earls

• Jurisdiction: Ireland
• Judgment Date: 29 July 1969
• Date: 29 July 1969
• Docket Number: [S.C. No. 46 1968]
• Court: Supreme Court

The People (Attorney General) v. Earls

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

NOEL EARLS

[S.C. No. 46 of 1968]

Supreme Court

Criminal law - Appeal - Jurisdiction of Court of Criminal Appeal - Appeal against conviction only - Court purporting to increase sentence - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 86, r. 4 - Courts of Justice Act, 1924 (No. 10 of 1924), ss. 29, 34, 36 - Courts (Supplemental Provisions) Act, 1961 (No. 39 of 1961), ss. 12, 14.

An appellant who has applied for and has obtained from the Court of Criminal Appeal (pursuant to s. 31 of the Courts of Justice Act, 1924) leave to appeal against his conviction only is dominus litis in the sense that the Court of Criminal Appeal has no jurisdiction at the hearing of such appeal to increase or vary the sentence imposed on the appellant, unless he has agreed to extend the scope of his appeal so as to include an appeal against sentence.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh, Budd and FitzGerald JJ.; McLoughlin J. dissenting).

Attorney General v. Tynan [1964] Ir. Jur. Rep. 28 and

The State (P. Woods) v. Attorney General [1969] I.R. 385 considered.

Appeal from the Court of Criminal Appeal.

The appellant, Noel Earls, was convicted on the 4th November, 1966, at the Wickow Circuit Court of an offence contrary to s. 33(1) of the Larceny Act, 1916, and on the next day he was sentenced to 12 months imprisonment by His Honour Judge K. E. L. Deale, who refused to issue a certificate pursuant to s. 31 of the Courts of Justice Act, 1924, stating that the case was one fit for appeal. The appellant duly applied under s. 31 of the Act of 1924 to the Court of Criminal Appeal (pursuant to Order 86, r. 4, of the Rules of the Superior Courts, 1962) for leave to appeal against his conviction only; and that application was heard on the 12th January, 1967, when the Court of Criminal Appeal (O'Keeffe P., Haugh and Murnaghan JJ.) granted leave to appeal against the said conviction and, treating the hearing of the application for leave to appeal as the hearing of the appeal, affirmed the conviction and also increased the term of 12 months imprisonment to a term of two years imprisonment. On the 31st July, 1967, the Court of Criminal Appeal refused to certify, pursuant to s. 29 of the Act of 1924, that its decision on the 12th January, 1967, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken therefrom to the Supreme Court.

On the 12th January, 1968, the appellant applied ex parte to the High Court (O'Keeffe P.) for a conditional order of habeas corpus, but the application1 was refused and the appellant

appealed from that refusal to the Supreme Court. When that appeal came before the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and Budd JJ.) on the 12th February the Court directed that the appellant should give notice of that appeal to the Attorney General. On the 14th February the Attorney General informed the Supreme Court that he had decided to issue a certificate pursuant to the provisions of s. 29 of the Act of 1924 and, accordingly, the Supreme Court adjourned the habeas corpus proceedings generally. On the 19th February the Attorney General issued his certificate2 pursuant to s. 29 of the Act of 1924 thereby authorising the appellant to appeal to the Supreme Court from the order of the Court of Criminal Appeal made on the 12th January, 1967. The judgments delivered on foot of that appeal appear at p. 417 et seq. On the 29th July, 1969, after those judgments had been delivered, the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and Budd JJ.) stayed all further proceedings in the habeas corpus matter as the appellant had served the sentence imposed on him in the Circuit Court.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

The first question raised on this appeal is whether the Court of Criminal Appeal has jurisdiction to increase the sentence imposed by the court of trial in a case where the applicant for leave to appeal has limited his appeal to an appeal against conviction.

The appellant, Noel Earls, was convicted in the Wicklow Circuit Court on 4th November, 1966, of receiving stolen goods contrary to s. 33(1) of the Larceny Act, 1916, and was sentenced by the trial judge, His Honour Judge Deale, to twelve months imprisonment. He was refused a certificate for leave to appeal, and he appealed to the Court of Criminal Appeal against this refusal, limiting his intended appeal to an appeal against conviction. This application came on before the Court of Criminal Appeal (O'Keeffe P. presiding; Haugh and Murnaghan JJ.) on the 12th January, 1967. The order of that court recites his application for leave to appeal against his conviction in respect of which he had been sentenced to a term of 12 months imprisonment to run from the 5th November, 1966; it recites that the court granted leave to appeal and treated the hearing of the application as the hearing of the appeal and affirmed the conviction. The order concludes by stating that the court "doth order that the said sentence be varied by increasing the term of imprisonment imposed thereby from 12 months to 2 years and doth in all other respects affirm the said sentence."

The matter now arrives in this Court on a certificate from the Attorney General pursuant to s. 29 of the Courts of Justice Act, 1924. The Attorney's certificate is granted in respect of two points of law, the first point being formulated in these terms:"On an appeal stated to be against conviction and not against sentence, has the Court of Criminal Appeal jurisdiction to increase the sentence imposed in the court of trial?" To complete the picture I should add that the appellant sought to challenge the validity of the order of the Court of Criminal Appeal by habeas corpus proceedings, and that he desisted when counsel for the Attorney General intimated that the Attorney was willing to grant a certificate under s. 29 of the Act of 1924.

Counsel for the appellant has submitted that the principles enunciated in the judgment of this Court in The State (P. Woods)v. Attorney General9 rule the first point of law in the appellant's favour. The question raised in that case was whether the Court of Criminal Appeal had jurisdiction to vary sentence in a case where the applicant, who had appealed against conviction and sentence, had duly served notice of the abandonment of his appeal pursuant to the provisions of r. 24 of Order 86 of the Rules of the Superior Courts, 1962. The Court held that the appeal had been effectively abandoned and that the purported variation of sentence was therefore a nullity. Rule 24, sub-r. 1, says:—"An appellant at any time after he has duly served notice of appeal or of application for leave to appeal or of application for enlargement of time may abandon his appeal or application by giving notice of abandonment thereof in the Form No. 20";and that form reads:—"I. . . do hereby give you notice that I do not intend further to prosecute my appeal, and that I hereby abandon all further proceedings in regard thereto as from the date hereof." The judgment which was under appeal in Woods' Case9 was that of Mr. Justice Henchy. This Court approved of the statement in Mr. Justice Henchy's judgment that "The jurisdiction of the Court of Criminal Appeal . . . is confined to cases in which the convicted person invokes the jurisdiction of that court." Counsel for the appellant calls in aid that observation. In my opinion the decision in Woods' Case9 does not rule this case. In that case there was no appeal before the Court of Criminal Appeal; in this case there was a limited appeal before the Court of Criminal Appeal; and the question is whether, when an appellant brings a limited appeal (i.e., limited either to conviction or to sentence), the Court of Criminal Appeal has jurisdiction to make an order in respect of both conviction and sentence, or whether it is confined to dealing with the subject matter in respect of which the appellant has invoked that court. This is a new question; Woods' Case9 may throw some light upon it, but it does not govern the answer to be furnished.

The judgment of this Court in Woods' Case9 points to the

sections of the relevant statutes, viz., s. 12, sub-s. 1, of the Courts (Supplemental Provisions) Act, 1961, which replaced s. 30 of the Courts of Justice Act, 1924; and ss. 31, 34 and 36 of the Act of 1924. The extension of the powers of the Court of Criminal Appeal, by virtue of s. 5 of the Courts of Justice Act, 1928, is not relevant. I excerpt the essential words in each of these several sections.

Section 12, sub-s. 1, of the Act of 1961 provides that:—"The Court of Criminal Appeal shall . . . for the purposes of this Act and subject to the enactments applied by section 48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it."Section 48 of the Act of 1961 applies ss. 31, 34, 36 and 63 of the Act of 1924.

Section 31 of the Act of 1924 provides that:—

"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."

Section 34 of the Act of 1924 provides that:—

"The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court."

Section 63 of...