Irish Court of Criminal Appeal

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Cite as: [2009] IECCA 143

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Judgment Title: D.P.P.-v- Daniel Doherty

Neutral Citation: [2009] IECCA 143

Court of Criminal Appeal Record Number: 190/06

Date of Delivery: 14 December 2009

Court: Court of Criminal Appeal

Composition of Court: Macken J., Birmingham J., Edwards J.

Judgment by: Macken J.

Status of Judgment: Approved


Judgments by	Result
Macken J.	Refuse Section 29 application

Outcome: Refuse Section 29 application

THE COURT OF CRIMINAL APPEAL

Macken J.
Birmingham J.
Edwards J.

[190/06]

RULING ON APPLICATION FOR A CERTIFICATE PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924 AS SUBSTITUTED BY SECTION 22 OFTHE CRIMINAL JUSTICE ACT, 2006

BETWEEN

DANIEL DOHERTY

APPLICANT

AND

THE PEOPLE AT THE SUIT OF THE DIRECTOR
OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mrs. Justice Macken delivered the 14^th day of December, 2009

1. Arising from the judgment of the Court delivered on 26^th February, 2009, the applicant has sought a certificate from the Court to permit an appeal to the Supreme Court. In its notice of motion five questions are suggested but as was pointed out by Mr. Alex Owen, senior counsel on behalf of the applicant, as is not unusual in these cases, there was an element of overlap and reformulation of the same issue.

2. In essence the application now made relates to the view of the court that while the procedure followed in relation to the statements of evidence of two witnesses who were outside the jurisdiction was inappropriate, this did not have the effect of rendering the trial a nullity. In moving the application, particular reliance has been placed on the case of Mapp (A minor) v. Gilhooley, [1991] 2 I.R. 253. There is no doubt that the requirement that evidence be given on oath or affirmation or as provided for by statute is a matter of real significance. However, Mapp (A minor) v. Gilhooley, makes clear that it is not every departure from the appropriate procedure that will constitute a mistrial. In that regard the provisions of para. 4 of the head note are of significance. It provides:-

“That where an appellant sought to rely on the admission of unsworn viva voce evidence as constituting a mistrial, he might be prevented from doing so by reason of:

an estoppel arising from an express or unambiguously implied representation that he was waiving his right to challenge; or

by a finding that to allow such a challenge would constitute a virtual fraud or abuse of the process of the court.”

3. As emerges from this court’s judgment and as was reiterated by Mr. Denis Vaughan Buckley, senior counsel on behalf of the respondent in the course of this application, the procedure followed at trial was designed to facilitate the defence which saw the statements of evidence as assisting the strategy that it had decided upon. What happened occurred at the behest of the defence. It is clear from the sequence of events during trial, that what occurred clearly falls within the first of the above two categories. The court has already held that the pursuit of the defence strategy which led to the admission of the contents of the statements not sworn in compliance with the provisions of the relevant statute, has not been shown to be so clearly erroneous and misguided that it could be said that what happened was not a trial in due course of law.

4. The circumstances in which the jury came to hear the contents of the statement (save for a small portion of one of them which it was agreed would not be read out), will be recalled. At trial there appears to have been some element of confusion as to whether the relevant section of the Criminal Justice Act, 1984 was s.22 or s.21. Section 21 was the applicable provision. Given that the two statements were coming from persons outside the State, it was required by s.21 of the above statute that the statements contain a declaration to the effect that it was true to the best of the knowledge and belief of the person making this statement. Neither statement contained any such declaration. It is the absence of these declarations that forms the basis of the present application.

5. Before a certificate under s.29 can be granted it is not sufficient that the matters sought to be raised are of importance to the applicant. Rather, it is necessary that the matters identified transcend the specifics of the case before the court and constitute points of law of exceptional public importance on which it is desirable that the views of the Supreme Court be obtained. Given the history of the present proceedings the court is not satisfied that the enumerated points amount to points of law of exceptional public importance but rather are matters which, while of substance, are very much specific to this case. In these circumstances the application for a certificate is refused.