Rattigan v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IECA 66
• Docket Number: 113CPA/14
• Court: Court of Appeal (Ireland)
• Date: 15 February 2016

Birmingham J.

Mahon J.

Edwards J.

In the matter Section 2 of the Criminal Procedure Act 1993

Director of Public Prosecutions

respondent

and

timothy rattigan

applicant

[2016] IECA 66

113CPA/14

THE COURT OF APPEAL

Criminal Law ? Murder ? s. 2 of the Criminal Procedure Act 1993 ? Search Warrants

Facts: The applicant brought an application pursuant to s. 2 of the Criminal Procedure Act 1993 in respect of his murder conviction. He contended that there had been a miscarriage of justice and that a re?trial should be ordered in light of the Supreme Court decision in Damache v. DPP [2012] 2 I.R. 266. The DPP brought a motion to dismiss the application arguing that it was not based on any new or newly discovered fact. The DPP contended that the application was unarguable and bound to fail. As a result of the Supreme Court case it was argued on behalf of the applicant that s. 29 warrants were no longer 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. 2 of the Criminal Justice Act 1993 and that Damache is of limited application and of no application in finalised cases.

Held by Birmingham J: The court agreed with the reasoning and conclusions of the Court of Criminal Appeal in McKevitt. The court determined that it was unnecessary to consider the issue further where a case is clear cut and there was no doubt that a s. 2 application would be dismissed as one bound to fail at all stages when the DPP brought the motion. The court dismissed the proceedings brought by the applicant.

Judgment of the Court (ex tempore) delivered on the 15th day of February 2016 by Mr. Justice Birmingham

1 In this case Mr. Rattigan has brought an application pursuant to s. 2 of the Criminal Procedure Act 1993, in respect of his murder conviction in the Central Criminal Court on the 8th July, 2005. Before the court today is a motion brought by the Director of Public Prosecutions seeking to dismiss the application as one not based on any new or newly discovered fact and therefore one that is unstateable and unarguable and bound to fail.

2 That the court has jurisdiction to make such an order is clear from the decision in McKevitt v. DPP. However, it is clear from that decision of the Court of Criminal Appeal and also from the decision of this Court in the case of O'Reilly v. DPP, that it is a jurisdiction to be exercised sparingly and only in clear cases.

3 The background to the s. 2 application and to today's motion is, that as indicated on the 8th July, 2005, Mr. Rattigan was convicted of the murder of Joan Casey in her home in Avonbeg Park, Tallaght, on the 3rd April 2014. Following his conviction he sought leave to appeal and on the 9th March, 2006, the Court of Criminal Appeal refused to grant leave to appeal.

4 The contention that there has been a miscarriage of justice and that a re-trial should be ordered, which is what is sought, arises from the decision of the Supreme Court in Damache v. DPP [2012] 2 I.R. 266. The issue is raised now in circumstances where at trial there was evidence that Detective Superintendent Declan Coburn gave evidence of having issued a warrant pursuant to s. 29 of the Offences Against the State Act, on the 17th April, 2004. On the 19th April, 2004, gardaí entered the premises at 13 Avonbeg Gardens, purporting to do so on foot of the authority of a s. 29 warrant. There Mr. Rattigan was arrested and then detained pursuant to s. 30 of the Offences Against the State Act. During the course of the search a number of items of evidential significance were seized, including a pair of runners. Expert evidence subsequently linked these forensically to the front door and bedroom door of 11 Avonbeg Park, the murder scene. A colour spray was also located. In relation to this spray can there was evidence that it was similar to a spray that was used on an imitation firearm that was found during the course of the investigation. Also fingerprints were found on a firearm of significance in the case.

5 At trial in issue in relation to the warrant was raised by counsel for a co-accused, Mr. Grogan, Ms. Aileen Donnelly S.C. as to the validity of search warrants that had been issued by the Detective Superintendent. The contention being that they were invalid as they were not issued by a person independent of the investigation. That argument was expressly adopted by Mr. Tony Sammon, S.C. who was counsel for Mr. Rattigan. It is clear from the transcripts that the arguments that were advanced on behalf of Mr. Grogan which were then adopted on behalf of Mr. Rattigan anticipated the arguments that would eventually find favour with the majority of the Supreme Court in Damache.

6 The trial judge, the late Mr. Justice Carney rejected the arguments. Given the state of the law as it was then understood to be, it is hard to see how he could have done otherwise. Section 29 of the Offences Against the State Act, enjoyed a presumption of constitutionality. It is to be noted that the issue of the s. 29 warrant did not feature in the application to the Court of Criminal Appeal for leave to appeal. It is also to be noted that while Mr. Rattigan and his co-accused presented arguments that foreshadow the arguments that would be presented in Damache and were to be successful in Damache that Mr Rattigan unlike Mr. Damache did not bring plenary proceedings challenging the constitutionality of s. 29 of the Offences Against the State Act.

7 Following on from the judgment of the Supreme Court in Damache which was delivered on the 23rd February, 2012, Mr. Rattigan presented a statement grounding an application pursuant to s. 2 of the Criminal Procedure Act, on the 4th April, 2014. The grounds are there set out at paras. E1 and E2 and when the matter goes up on the website, as it will in due course, the grounds will be quoted:

?E1. New facts which have transpired from the trial in the case of Damache v. DPP [2012] 2 I.R. 266 showing that it would be unsafe to continue to accept as being established beyond reasonable doubt that the applicant is guilty of the offence of the murder of Joan Casey insofar as such conviction is grounded on the ruling by the Court of Trial and this Honourable count on appeal therefrom that the warrants issued in the course of the investigation were issued, in accordance with law and which said warrants were executed to secure the only evidence against the appellant capable of grounding his conviction. The appellant's conviction is unsafe and unsatisfactory by reason of the admission of evidence in the appellant's trial which was obtained in a search of a dwelling at 13, Avonbeg Gardens, Tallaght, on the 19th April, 2004, carried out pursuant to a search warrant obtained under s. 29 of the Offences Against the State Act 1939 (as amended), the said section being repugnant to the Constitution, thus rendering the applicant's...