Judgment Title: D.P.P.-v- Dermot Laide & Desmond Ryan
Composition of Court: McCracken J., Murphy J., Peart J.
Judgment by: McCracken J.
Status of Judgment: Approved
Outcome: Refuse applications
Notes on Memo: Judgement relates to application to revisit the question of the retrial earlier
directed by the court.
Such application refused together with an application to appeal said decision
to the Supreme Court
COURT OF CRIMINAL APPEAL
59/04 & 65/04
The People at the suit of the Director of Public ProsecutionsRespondent
Dermot Laide and Desmond RyanAppellants
Supplementary judgment of the Court delivered on the 29th day of June 2005 by McCracken J.
Mr Michael O’Higgins SC on behalf of Dermot Laide (hereinafter called “the Appellant”) has addressed the Court on two matters arising out of the judgment of this Court delivered on 24th February 2005. Firstly, he seeks to argue that the order of the Court, which has not yet been finally perfected, should not order the retrial of the Appellant on the charge of manslaughter, and secondly, should he fail in this application, he seeks an order pursuant to s.29 of the Courts of Justice Act 1924 certifying that the decision of this Court involved a point of law of exceptional public importance and for this reason permitting an appeal to the Supreme Court. The Court proposes to deal with each of these points separately.
Reconsidering a Retrial
Mr O’Higgins makes it quite clear, as he must, that he is not re-opening the appeal, is not making fresh arguments and is not revisiting the substantive decision that the conviction was unsafe. However, he submits that the ordering of a retrial is an ancillary or consequential order, which the Court would not have made had it considered all the arguments put forward on behalf of the Appellant. In particular, he submits that on a proper construction of the indictment, the Appellant could only be convicted of manslaughter on the basis of common design between the four original accused.
He is perfectly correct in arguing that this Court did not rule on that point, on the basis that the manslaughter charge was being set aside in any event. However, the Court did comment on this point and said:-
(c) quash the conviction and order the applicant to be retried for the offence.”
The jurisdiction of the Court of Criminal Appeal derives solely from statute and the orders which the Court is empowered to make are those set out in s.3(1). It is quite clear that the statute offers alternatives to the Court, either to quash the conviction simpliciter or to quash the conviction and order a retrial. Specifically, the section does not empower the Court to quash a conviction and subsequently consider the question of a retrial. The ordering of a retrial is a part of the substantive order of the Court.
At the hearing of an appeal against conviction, it is always open to the appellant to argue before the Court which of these remedies is appropriate. It was open to the Appellant to do so in the present case, and accordingly he was not precluded in any way from making the arguments which it is sought to make at the supplementary hearing.
There are circumstances in which a Court may have an inherent jurisdiction to set aside or vary what appears to be a final order. This may arise under the “slip rule” where there has been a manifest error in drawing up the terms of the order, and it may also arise where the Court has been mislead, either innocently or deliberately, as to the factual background of the case, or where the order does not accurately reflect the judgment of the Court. None of these considerations arise in the present case. There are also circumstances where natural justice may require the reconsideration of a decision or an order. In this regard the Court will adopt the passage from the judgment of Denham J in in Re Greendale Developments Ltd (No. 3)  2 IR 514 where she said at page 544:-
The Court considers that this principle applies equally to the Court of Criminal Appeal.
In the present case it could not possibly be said that there has been any breach of any constitutional rights of the Appellant. As the Appellant has not brought himself within any of the recognisable grounds to seek to have the matter revisited, this Court will not entertain any further arguments as to the decision to direct a retrial.
Section 29 Certificate
The right of an accused whose conviction has been overturned by the Court of Criminal Appeal and a retrial ordered to seek a further appeal under s.29 was considered recently by the Supreme Court in The People (Director of Public Prosecutions) v Campbell  2 ILRM 412. In that case the applicant had been convicted before the Special Criminal Court of membership of an unlawful organisation. He applied to the Court of Criminal Appeal for leave to appeal against conviction and sentence. The Court of Criminal Appeal allowed the appeal, quashed the conviction and ordered a retrial on the ground that a particular line of cross-examination should not have been permitted by the Court. The applicant had also sought to rely in the Court of Criminal Appeal on the question of whether the “Real IRA” was a proscribed organisation. The Court of Criminal Appeal granted a certificate pursuant to s.29 raising the point of law of exceptional public importance as:-
The Supreme Court considered as a preliminary point whether it had any jurisdiction under s.29 to consider this point of law. The Supreme Court had already decided in The People (Director of Public Prosecutions) v O’Callaghan  1 ILRM 438 that there could be no appeal by the prosecution where the Court set aside the conviction and ordered a retrial. In giving his decision in the Campbell case Keane CJ said at page 417:-
That, however, is precisely the course which, in the passage I have already cited from my judgment in People (DPP) v O’Callaghan, was described as the exercise by this Court of a form of consultative jurisdiction with which it had not been endowed by the Oireachtas. It is clear that this also applied to the course urged upon us by the applicant in this case.”
In that case the Supreme Court expressed some sympathy with the position of the applicant who was attempting to have a point of considerable legal significance determined by the Supreme Court, rather than have it determined on a retrial with the prospect of further appeals. The Court held that it had no jurisdiction to determine the point of law involved. Keane CJ ended his judgment at page 418 with the unequivocal statement:-
Fennelly J in a short concurring judgment at page 418 said:-
He went on to comment that “This result is unfortunate and undesirable”.
This Court also has some sympathy for the Appellant, but what he is seeking to have decided by the Supreme Court is whether the charge against him, by reason of the way it is worded, necessarily requires common design as an essential ingredient of the offence. He argues that if such an ingredient is required, it is not present and cannot be present because the other persons with whom a common design was alleged have all been acquitted of manslaughter. He argues that in those circumstances he could not be convicted on a retrial and therefore no retrial should be ordered.
This Court cannot see how the present case can be distinguished from Campbell. Having expressed some sympathy for the applicant in that case, Keane CJ said at page 418:-
The Court of Criminal Appeal is a creature of Statute, and its powers are circumscribed by Statute. It is, however, always open to the Oireachtas to extend those powers by amending legislation.