Irish Court of Appeal

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URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA339.html
Cite as: [2019] IECA 339

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The President

McCarthy J.

Kennedy J.

BETWEEN

THE COURT OF APPEAL

[184/18]

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

VINCENT O’DONOGHUE

APPELLANT

JUDGMENT (Ex tempore) of the Court delivered on the 11th day of October 2019 by

Birmingham P.

1. This is an application to extend time. The application is a highly unusual one. The

background is that the appellant, on 27th February 2014, entered a plea of guilty to

offences in the nature of fraudulent conversion. A trial date had been fixed at that point

and the plea was entered at a pre-trial listing. Subsequently, on 29th July 2014, following

a sentence hearing, the appellant was ordered to perform 220 hours community service

as an alternative to a sentence of imprisonment. In seeking today to extend time for an

appeal, he says that his mental and physical state in 2014 was such that it undermined

the voluntariness of the guilty plea that he entered. He goes on to say that shortly after

the entry of the plea and within the time for appealing, that he formed the intention to

appeal, but that his ability to prosecute any appeal was hindered by his poor physical and

mental health. It seems he is saying that the intention he formed was that he would

appeal when his health improved to a level that would facilitate the conduct of the appeal.

2. In 2017, the appellant made contact with a firm of solicitors, apparently feeling well

enough to prosecute an appeal at that stage, and documents were generated relating to

the application to extend time, but at a later stage, the firm of solicitors in question

indicated that they would be applying to come off record, they did come off record, and in

March 2018, the appellant served a Notice of Discontinuance. One might have thought

that that was the end of matters. However, he has had a change of mind, and now wishes

to appeal. It must be appreciated that what he wants to do is, he wants to appeal against

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his conviction, notwithstanding that it is a case where he entered a plea of guilty at a time

when he was represented by a Solicitor and by Senior and Junior Counsel.

3. The background to the situation is to be found in offences, or alleged offences, which

occurred in 1998 and 1999. Then, in 2002, the appellant emigrated to Australia, and

between April 2009 and April 2013, he was imprisoned in Western Australia while he

contested an extradition request. He returned to Ireland on foot of the extradition

request, spent a period of time in custody, but was then admitted to bail. He entered his

plea of guilty at a time when he was on bail.

4. Two medical reports have been included in the papers. One is from a General Practitioner

in the medical practice where the appellant had attended, the actual doctor with whom he

had direct ontact appears to have sadly died. However, another doctor from the practice

comments “On reflection, it is likely he was anxious and depressed and suffering from

severe acute stress reaction at the time. This situation may have led to decisions being

made in an effort to alleviate the pressure on him, which may have been made differently

had he not been under such strain”.

5. A report was also sought from a consultant psychiatrist by a new firm of solicitors that the

appellant had instructed. The introduction to the report refers to the fact that the

appellant pleaded guilty to offences in 2014 and that he wishes to appeal the subsequent

conviction, but that a query arises from the legal point of view as to why he did not

appeal the conviction in 2014. The report observes that a psychiatric report is requested

as to any mitigating circumstances that may arise because of his mental health at the

time.

6. The psychiatrist reported in late August 2019, and concluded his report by saying that the

circumstances that the appellant endured between 2009 and 2013, it will be recalled that

this was the period of incarceration in Australia, and his description of his symptoms after

his return to Ireland led to the belief that he was suffering from symptoms of Post-

Traumatic Stress Disorder at the time of the conviction and for some time after. The

psychiatrist concludes his report by saying “Therefore, on the basis of the information

available to me and on the balance of probabilities, I believe that Mr. O’Donoghue was not

in a fit state to submit an appeal at the expected time”. However, it has been made clear

that there is no suggestion of an unfitness to plead, but rather, the suggestion is that his

mental state was such that the plea was not free and voluntary.

7. Guidance has been provided by the Supreme Court in the case of DPP v. Kelly [1982] IR

90, the so-called Sallins train robbery case, as to how courts should deal with applications

to extend time on the criminal side of the Court. The decision makes clear that a Court’s

approach must be flexible and that its discretion must be guided, not by any general test

or criteria, but rather, by what appears to be just and equitable on the particular facts of

the case in question.

8. While, at one level, the focus is on the fact that the appeal is out of time and that an

extension is required, the more fundamental point in in this case is that it is the situation

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that a plea of guilty was entered at a time when he was represented by Solicitor, Junior

and Senior Counsel. It is also the case that the appellant is a former solicitor himself, and

so, was obviously in a position to assess the pros and cons of entering a plea of guilty. In

recent days, the appellant has sworn a further supplemental affidavit, that is, I think, the

fourth affidavit in the context of this application. That makes criticisms of someone

identified in the affidavit as the complainant, though, in fact, it appears to be the situation

that the person to whom reference is made is the spouse of one of the two injured parties

referred to on the indictment. There is also criticism of the approach of the Gardaí to the

investigation. However, neither that affidavit nor anything else advanced in the course of

the documentation has convinced us that there is any point of real substance to be

investigated at this late stage in the day.

9. Finality and certainty are important objectives in any area of litigation, including on the

criminal side, and in the Court’s view, it is clear that the interests of justice would not be

served by permitting an extension of time to enter an appeal when the underlying

objective would be to set aside a plea of guilty entered in 2014 in respect of events that

occurred in 1998 and 1999.

10. The Court refuses the application to extend time.

Result: Refuse Application