Judgment Title: D.P.P.-v- John McCabe
Composition of Court: Kearns J., Budd J., Mac Menamin J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Allow application to proceed
THE COURT OF CRIMINAL APPEAL
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993BETWEEN
IN THE MATTER OF BILL NUMBER CC0058/03
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENTJUDGMENT of the court delivered on the 8th day of June, 2005 by Mr. Justice Kearns
This is an application by the Director of Public Prosecutions seeking a review in respect of a sentence imposed by the Central Criminal Court (Carney J.) on Monday, the 11th October, 2004. On that occasion the respondent had pleaded guilty to aggravated sexual assault contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990, on a young woman at Dundalk on the 13th September, 2002. On that occasion, the respondent was sentenced to 4 years imprisonment, which said sentence was suspended when evidence was given to the trial judge that the victim was prepared to accept a sum of €15,000 offered to her in court by the respondent as compensation.
The application brought by the Director of Public Prosecutions is brought under s.2 of the Criminal Justice Act, 1993. An objection has been taken at the outset by the respondent who alleges that the application is out of time. Section 2(ii) of the said Act of 1993 reads as follows:-
On behalf of the respondent it was argued that the application was not lodged within time, because under the Interpretation Act, 1937, the computation of time must run from the day when sentence was imposed and include that date. If correct in that submission, it was submitted that the appeal which was lodged on the 8th November was out of time as the last of the 28 days thus calculated fell on the 7th November, 2004.
Section 11(h) of the Interpretation Act, 1937, provides:-
Section 933(1)(c) of the Tax Consolidation Act, 1997, provided for a period of 15 days from the date of issue of a refusal of an appeal by the Inspector as the specified period for the purpose of further appealing such refusal to the Appeal Commissioners. In that case, the time for appeal was ticking away in circumstances where the person affected was unaware that the written refusal had issued until the notification reached him. Even though that was the case, I felt obliged to state (at p.29):-
Be that as it may, it seems to me that the court can only take the date of the letter as being the date of issue by the inspector of the notice of refusal. The question is whether that date is to be included or excluded in the computation of the 15 day period.
It seems to me that Mr. Nesbitt’s submission on this point must be correct, namely, that this issue essentially falls to be determined under s.11 of the Interpretation Act, 1937. While the issue of a notice of refusal is an act, the computation period is expressed in the section to commence with a date which clearly is a particular day (in this instance the date of issue) and that being so, I must hold that when proceedings were launched on the 22nd January, 1998, the 15 day period had expired.”
In response, it was submitted that the period from Monday, 11th October to Monday, 8th November, included no less than eight dies non juridicus. In particular, the last two days, Saturday and Sunday, were two such days, the court offices then being closed. In those circumstances it was submitted that the notice was given “within 28 days from the date on which the sentence was imposed”.
Counsel further submitted that McGuinness v. Armstrong Patents  IR 289 was not particularly helpful, because the Statute of Limitations, 1957, contained an express negative prohibition in the context of enacting a limitation period: “An action claiming damages for negligence, nuisance or breach of duty… shall not be brought after the expiration of three years from the date on which the cause of action accrued.”
It was submitted that the case provided limited assistance when interpreting the words “within 28 days” in s.2 of the Act of 1993, which said words were argued to be more in the nature of rules of court than anything else. It was submitted that as Carney, J had imposed sentence after 4 pm on the 11th October, the 28 days were still unexpired when the Director’s notice of application was lodged in the office of the Court of Criminal Appeal on the morning of the 8th November.
The Criminal Justice Act, 1993 does not provide for an extension of time for the bringing of an application by the Director under section 2. We do not believe, therefore, that the Court of Criminal Appeal, being a statutory court, has any inherent jurisdiction to extend the time where the statute does not so provide.
The court also accepts as correct the submissions of counsel for the respondent that the day on which sentence was imposed must be regarded as the first day of the specified period. This is the clear import of section 11 (h) of the Interpretation Act, 1937, namely, that the period specified is inclusive of that date and not exclusive of it.
The section in its relevant portion provides as follows:-
However, what McGuinness v Armstrong Patents gives to the respondent with one hand (by deeming the first day to be included) it takes away with the other by reason of an identical factual circumstance common to both that case and the present one.
In McGuinness the concurrent summons could not in any event have issued on the anniversary of the accident 3 years earlier, because the 21st was a Saturday. As McMahon J noted (at 292):-
In Pritam v S Russell & Sons Ltd  1 All ER 617, the plaintiff’s husband was killed at work on 5th September, 1967. On 7th September, 1970, the plaintiff issued a writ against her husband’s employers claiming damages for negligence and breach of statutory duty. She could not issue her writ on the 5th or 6th which were Saturday and Sunday, the court offices being closed. The defendants contended the action was statute barred. However, the Court of Appeal held that where a statute prescribed a period within which an act was to be done and the act was one which could only be done on a day on which the court offices were open, the period would be extended, if the court office was closed for the whole of the last day of the prescribed period, until the next day on which the court offices were open. It followed that the plaintiff had until 7th September 1970 in which to issue her writ, and she was therefore in time. It is important to stress that the Court of Appeal so decided notwithstanding that the period was prescribed by statute and not by rules of court.
In the course of his judgment Lord Denning MR stated:-
The issue has also received consideration from this court in DPP v. McKenna (unreported judgment of CCA, 6th February, 2002, Geoghegan J.) where almost identical facts were present. In that case, an employee in the office of the Chief State Solicitor had gone to the office of the Court of Criminal Appeal on the 18th December, 2000, and there lodged a Director’s appeal under s.2 of the Act of 1993. In that case the sentences had been imposed on the 21st November, 2000. On the afternoon when she attended, the office would not accept the papers, apparently on the basis that a faxed copy of the notice of application only was available, though she may also have been informed that the respondent had to be first served personally. However, the solicitor was assured that if she were to lodge the document the following day she would still be in time. Thus, while the respondent was personally served later that day, the notice was only lodged the following day. Counsel for the Director of Public Prosecutions argued that the attempted lodgment of the documents was an adequate application and that both grounds of refusal to process the application by the court official were ill-founded. The court determined that the actions of Ms. O’Shea on the 18th December, which she explained in her evidence, constituted the making of the application for the purposes of the time limit, and that her evidence was prima facie evidence of an application being made on the 18th December, 2000. It was then for the respondent to satisfy the court that this was not so, which said onus had not been discharged.
Of interest, however, in that case is the fact that the court had due regard to the Rules of the Superior Courts in relation to the Court of Criminal Appeal. In particular, Geoghegan J. noted (at p.3):-
For these various reasons the court will hold that the Notice was served in time and will fix a date for the hearing of the application.