People v Kelly
| Jurisdiction | Ireland |
| Judgment Date | 11 January 1982 |
| Date | 11 January 1982 |
| Docket Number | [C.C.A. No. 100 of 1980] |
| Court | Supreme Court |
Court of Criminal Appeal
Supreme Court
Cases mentioned in this report:—
1 The Attorney General v. McGann [1927] I.R. 503.
2 The Attorney General v. Farrell (Kennedy C.J.—23rd July, 1935).
3 The Attorney General v. Scuffil [1936] I.R. 469.
4 The People v. Ailbe Daly ( Ó Dálaigh C.J.—12th November, 1962).
5 Éire éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170.
6 The People v. McNally and Breatnach (Court of Criminal Appeal: 16th February, 1981).
7 R. v. Jones [1971] 2 Q.B. 456.
8 R. v. Jones [1972] 1 W.L.R. 887.
9 R. v. Marsh (1935) 25 Cr.App.R. 49.
10 R. v. Rigby (1923) 17 Cr.App.R. 111.
11 MacFoy v. United Africa Co. Ltd. [1962] A.C. 152.
12 Petty v. Daniel (1886) 34 Ch.D. 172.
13 The People (Attorney General) v. O'Donoghue. ( Ó Dálaigh C.J.—1970).
14 Gatti v. Shoosmith [1939] 1 Ch. 841.
Criminal law - Appeal - Time limit - Extension - Principles applicable - Conviction on indictment in Special Criminal Court - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 86. rr. 3-5, 8, 40.
Criminal Appeal.
The applicant, Eamonn Noel Kelly, was tried jointly with two co-accused on the 9th-15th December, 1978, in a Special Criminal Court on indictments charging them with having committed offences contrary to s. 12 of the Larceny Act, 1916. A previous trial of the applicant on the same indictment by a Special Criminal Court had to be abandoned owing to the death of His Honour Judge J. W. O'Connor, who was a member of that court. On the 11th December, 1978, the applicant, who was then on bail, absconded and went to the United States of America. On the 15th December the applicant was convicted in his absence and was sentenced to 12 years penal servitude. Immediately after sentence had been passed on the applicant, his solicitor applied unsuccessfully to the Special Criminal Court for its certificate stating that the applicant's case was a fit case for appeal. The co-accused were also convicted and sentenced. Appeals by the two co-accused were heard by the Court of Criminal Appeal on the 12th-16th and 19th May, 1980, and on the 22nd May, 1980, that court announced that it was not satisfied that the inculpatory statements made by the co-accused, being the only evidence against them, were admissible as evidence; that court therefore granted the co-accused leave to appeal, set aside their convictions and sentences, and stated that the court's reasons would be given later. The co-accused had submitted that their statements had been procured by oppressive interrogation, and the appeal of one of them was allowed on that ground. On the 29th May, 1980, the applicant's solicitor in Ireland was informed that the applicant intended to return to Ireland. The applicant returned to Ireland on the 3rd June, 1980, when he was arrested, and he instructed his solicitor to apply on the applicant's behalf to the Court of Criminal Appeal for leave to appeal to that court against the conviction and sentence of the applicant.
The applicant's solicitor served on the registrar of the Court of Criminal Appeal a notice (Form No. 3) dated the 10th July, 1980, of the applicant's application to that court for leave to appeal against his conviction and sentence. The applicant also applied to that court by motion on notice dated the 28th July, 1980, pursuant to order 86, r. 8, of the Rules of the Superior Courts, 1962 (Form No. 5), for an extension of the period allowed by order 86, r. 5, for service of notice of his application for leave to appeal to the Court of Criminal Appeal.
Section 44, sub-s. 1, of the Offences Against the State Act, 1939, states that a person convicted or sentenced by a Special Criminal Court may appeal to the Court of Criminal Appeal from such conviction or sentence "if, but only if, either he obtains from that Special Criminal Court a certificate that the case is a fit case for appeal or, where such Special Criminal Court refuses to grant such certificate, the Court of Criminal Appeal on appeal from such refusal grants to such person leave to appeal under this section." By sub-s. 2 of s. 44 (as amended) the provisions of s. 29 (inter alia) of the Courts of Justice Act, 1924, are applied to appeals pursuant to sub-s. 1 of section 44.
Order 86 of the Rules of the Superior Courts, 1962, applies to appeals to the Court of Criminal Appeal and rr. 3-5, 8 and 40 of that order provide:—
"3. Every application for a certificate of the judge of the court of trial that the case is a fit case for appeal shall be made at the close of the trial or within three days thereafter, and the certificate when granted may be in the Form No. 1.
4. A person desiring to appeal to the Court shall serve on the Registrar a notice of appeal in the Form No. 2. A person desiring to apply to the Court for leave to appeal shall serve on the Registrar a notice of application for leave to appeal in the Form No. 3. In either case, the notice so served shall answer the questions and comply with the requirements set forth on such forms.
5. Every notice of appeal shall be served within seven days from the date of the grant of the certificate, and every notice of application for leave to appeal shall be served within seven days from the date of the refusal of the certificate."
"8. (1) The Court shall have power to enlarge the time appointed for doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed.
(2) An application to the Court for an enlargement of time within which notice of appeal or notice of application for leave to appeal may be served shall be in the Form No. 5.
(3) The form of application shall, in addition to specifying the grounds of such application, also specify the grounds on which the applicant proposes to base his appeal or application for leave to appeal."
"40. Non-compliance on the part of an appellant with the Rules of this Order, or with any rule of practice for the time being in force, shall not prevent the further prosecution of his appeal or application unless the Court shall so direct, but such appeal or application may be dealt with in such manner and upon such terms as the Court shall think fit."
The applicant filed, with his affidavit, a document specifying his intended grounds of appeal. Numbers 4-10 of those grounds were stated as follows:—
"4. There was no or no sufficient evidence to support the findings of the Court that the injuries seen on the body of the applicant (and evidence in relation to which was given inter alia by the applicant and four doctors) were 'self inflicted' and/or 'mutually inflicted' and that such findings were against the evidence and were perverse.
5. The Court erred in law in holding that the alleged verbal admissions of the applicant were voluntary.
6. That the said finding of the said admissions were voluntary was against the evidence and the weight of the evidence and was perverse.
7. That insofar as the Court admitted in evidence the alleged verbal admissions of the applicant in the exercise of its judicial discretion the Court exercised the same upon wrong principles.
8. That the Court erred in law in holding that the alleged written statement of the applicant was voluntary.
9. That the said finding that the said written statement was voluntary was against the evidence and the weight of the evidence and was perverse.
10. That the findings of the Court that the alleged verbal admissions and the alleged written statement of the applicant were not obtained as a result of oppression were wrong in law and were against the evidence and the weight of the evidence and were perverse."
The applicant's application for an extension of time pursuant to order 86, r. 8, was heard by the Court of Criminal Appeal (Parke, Gannon and Carroll JJ.) on the 10th November, 1980.
The applicant appealed to the Supreme Court, pursuant to s. 29 of the Courts of Justice Act, 1924, against the judgment and order of the Court of Criminal Appeal refusing his application for an extension of the period within which to serve notice of his application for leave to appeal against his conviction. The appeal was heard by the Supreme Court on the 21st and 22nd July, 1981.
The applicant was tried jointly with another in a Special Criminal Court on an indictment which charged them with larceny of mail bags. Having attended at the start of the trial, the applicant absconded and went abroad before its conclusion on the 15th December, 1978. The applicant was convicted in his absence and sentenced to 12 years penal servitude. The co-accused, who was also convicted, appealed to the Court of Criminal Appeal. On the 22nd May, 1980, that court announced that it was not satisfied that an inculpatory statement made by the co-accused (being the only evidence against him) was admissible in evidence and that, accordingly, his appeal would be allowed and his conviction set aside. The co-accused had contended that his statement had been procured by oppressive interrogation. On the 3rd June, 1980, the applicant returned to Ireland and applied to the Court of Criminal Appeal for leave to appeal against his conviction, and for an extension of the period allowed by order 86, r. 5, for service of notice of his application for leave to appeal. In his affidavit, filed in support of his application for an extension of that period, the applicant referred to "beatings and pressurisation" which he alleged he had suffered during his interrogation prior to his trial, but he failed to aver any connection between the facts of which he complained and his conviction. At the hearing of the applicant's application for an extension of such period, it was
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...state solicitor’s submission concerned a fundamental issue regarding the test to be applied by the court, as set out in The People v Kelly [1982] IR 90 and, importantly, in the light of the impression which had been given by the judge on the previous day that all that remained was to delive......
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