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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Andrews v. D.P.P. [2008] IECCA 87 (9 June 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_87.html
Cite as: [2008] IECCA 87
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Neutral Citation: [2008] IECCA 87
Kearns J.
Budd J.
Hanna J.
[Record No. 188/2008]
BETWEEN
APPLICANT
V
RESPONDENT
Judgment of the Court (ex tempore) delivered the 9th day of June, 2008 by Kearns J.
The Court is satisfied that the leave application in this case, including the application to produce additional evidence, should be refused.
Effectively the application is one being brought on behalf of the applicant to reverse his plea of guilty in the court below. Essentially the case is mounted on the basis that in some other case concerning some
other prosecution arising out of similar facts, where video and DVD material were seized in some other premises in Dublin, a witness who had provided a certificate forming part of the proofs admitted that although she had inspected the register which showed that the particular item, the subject matter of the count, was not on the register as having been certified, she admitted she had not seen the particular work, the subject matter of the named video. On that basis no conviction was recorded in that other case and the prosecution case failed because this particular technicality was successfully argued.
The law in this respect in this jurisdiction could not be clearer in that it imposes an onus on a defendant to bring forward all points of defence at the time a trial takes place. They can not be held "in reserve", so to speak, for an appeal and only brought forward at that stage. This point was made very clear in the decision of the Supreme Court in DPP v. Cronin [2006] IESC 9 and indeed by the Court of Criminal Appeal in DPP v. Willoughby [2005] IECCA 4. There may be certain exceptions, of course, to that rule, for example where a plea is obtained by coercion, fraud, duress, undue influence, or something of that sort.
I think that the necessity of preventing the ventilation of new points not taken at trial can be underlined by simply considering any case involving technical proofs or certificate evidence which goes unchallenged or unquestioned at trial. Where there is no requirement of
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full proof and the accused adopts a certain course, no plea would ever be safe and no conviction would ever be safe because in each and every case a person could bring the matter back before the court to say that the plea had been entered under misapprehension of fact.
This is not, in any event, an error (if such it was) which goes to the substance matter of the offence. It is, if anything, an error which relates to a technical aspect of the proofs. It is unlike the case of The People (AG) v. Marshall [1956] 1 I.R. 79 where it was demonstrated that a young man who had pleaded guilty to having carnal knowledge with a girl simply could not have committed the particular offence. In those circumstances, given his limited education and intelligence, the court took the view that it was appropriate to allow the conviction to be set aside and for the trial to proceed on lesser charges.
Those are not the sort of circumstances that arise in the present case and that being so the Court will dismiss the appeal against conviction.
The Court has considered and taken on board the submissions made with regard to severity of sentence and the Court does take the view that the fine imposed in this case was excessive by a considerable margin. The purchaser of this material, the person operating the shop, had to buy these videos, these DVDs that have been confiscated, so to impose a fine related to the profits he might have made strikes the Court as being
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entirely inappropriate and not based on any sound principle of law. The Court will intervene to substitute a fine of €5,000 in the circumstances, for the €30,000 that had originally been imposed.