Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Christopher Griffin

Neutral Citation: [2010] IECCA 102


Court of Criminal Appeal Record Number: 106/07

Date of Delivery: 10/18/2010

Court: Court of Criminal Appeal

Macken, J. [No. CCA 106/07]
de Valera, J.
Gilligan, J.

Judgment of the Court delivered on the 18th day of October, 2010 by Macken, J.

By a Notice of Motion returnable for the 18th January, 2010, and arising from the judgment of this Court delivered on the 22nd June, 2009, the applicant has sought a certificate pursuant to the provisions of s.29(2) of the Courts of Justice Act 1924 (“the Act of 1924) (as amended and substituted by s.2 of the Criminal Justice Act 2006), on the basis that the decision of this Court involves points of law of exceptional public importance, and that it is desirable in the public interest that such questions be certified to the Supreme Court.

The points of law of exceptional public importance set out in the Notice of Motion, as filed, are the following:-

“1. In circumstances where:
(a) the witness has given a written statement probative of the prosecution case;

(b) at trial gives evidence materially inconsistent with the statement, which is helpful to the defence and is declared hostile;

(c) is unavailable at a subsequent retrial;

is consideration as to the effect of the unavailability of the witness and/or her evidence to be confined to considering whether the evidence could be considered material only to the prosecution?

2. In circumstances where:
(a) there is information before the learned trial judge not available to the prosecution or the defence; and/or

(b) the learned trial judge states that no matter what application is made the trial is going to proceed to a conclusion;

is there an obligation (on the defence) to make an application to discharge the jury?”

“(a) Is there an onus on counsel for the accused to establish that the witness’s evidence in question was “centrally supportive of his innocence?”;

(b) Is there an onus if the accused requires the witness to give evidence to apply for a warrant to forcefully [sic] bring the witness to court?”

The First Question
The issue behind the first question arises where a witness is not available and the trial judge has to decide whether the trial should or should not proceed. In the present case the missing witness was not available, the defence wished the witness to be available and in her absence applied to the trial judge for the trial to be brought to an end. As to the context in which the question arises, it is helpful to adopt a synopsis of the note provided by counsel for the applicant in the written submissions filed, as follows:

(a) The original charges concerned events arising between the years 1993 and 2001. The trial commenced on the 11th December, 2006 and was adjourned for one day and then continued, and after a relatively lengthy trial, the applicant was convicted in January, 2007 on each of eleven counts, by unanimous verdict of the jury. The charges included both rape and sexual assault. Of particular relevance as a background factor is the fact that this was the applicant’s second trial, the first trial having taken place in May, 2006 when the jury disagreed.

(b) Prior to the first trial, the witness in question, the mother of the complainant and, since in or around 1993, the long-standing partner of the applicant, had made a statement to the gardaí. As is stated in the judgment in respect of which this application arises, she was listed as a prosecution witness in the first trial, and also in the Book of Evidence in the second trial. Her original intended evidence for the first trial was comprised in a statement she made to the gardaí on the 8th January, 2003. That statement included the fact that her daughter, the complainant, had informed her of the alleged assaults and she, the witness, whom the Court will describe as MD, had then taken the complainant to the garda station to make a complaint on the 2nd or 3rd January, 2003.

(c) MD’s statement of proposed evidence also contained what was claimed by the prosecution to be an assertion by her that when she confronted the applicant with the claims, he admitted having sexually assaulted the complainant.

(d) In the first trial in May, 2006 MD agreed, in her oral evidence, that she had brought the complainant to Store Street Garda Station in early January, 2003 to make a complaint. She did not agree in oral evidence, however, that the applicant had made the above referred to admission. In the first trial, her evidence, as tendered viva voce, was found not to be in accordance with the statement she had made to the gardaí, but was materially different to, and inconsistent with, it. She was, on the application of the prosecution in the first trial, declared by the court to be a hostile witness.

(e) When it came to the second trial, a witness order was served on MD, but she did not appear in response to it, as she was ill.

The written submissions in this application point out that the key issue in the case was for the prosecution to satisfy the jury as to whether or not the complainant was telling the truth, and it had to be satisfied of this beyond reasonable doubt. The credibility of the complainant was, therefore, central to the case, in particular the case of the applicant. It is submitted that the evidence which her mother, MD, gave in the first trial had the potential to impact severely upon the complainant’s credibility. Such a matter was therefore one of substance. Counsel for the applicant in the present application says that the missing witness had, in the earlier trial, clarified the circumstances, as she viewed them, of the conversation surrounding the alleged admission, and had explained that there was not, in fact, any admission on the part of the applicant, and moreover, that the complainant was in the habit of “making things up” when she had had an argument with the applicant, and had made claims against others in the same vein. The jury had disagreed in the first trial, and counsel submits that while it cannot be said that the evidence of MD was the reason for the disagreement, nor could it, however, be excluded as being the reason therefor. It is argued in the circumstances that the evidence of the missing witness was central to the case, in particular that of the defendant, and most particularly to their claim that (a) there was no admission and (b) the complainant was not credible.

Counsel for the applicant points out, correctly, that at several points during the course of the second trial, the learned trial judge indicated that he would be willing to issue a warrant to procure the missing witness’s attendance, if required, but counsel then acting on behalf of the accused had indicated that if the witness was brought to court in such circumstances this “would aggravate the circumstances of unfairness to my client so far as to the holding of the trial in this complex, which is clearly connected with the prison”. It is said that this submission is consistent with the evidence of Dr. Lynam, who had examined the missing witness, and who did not consider that a “heavy handed approach” would “improve matters”. Counsel for the accused had indicated at trial that he did not wish the missing witness to give evidence until it had been established that she was well enough to do so.

The principal features of the judgment of this Court’s decision on the witness, MD, are set out in the written submissions. Certain issues are stated as arising, among them: (1) the fact that the onus is on the prosecution to prove its case beyond reasonable doubt; (2) that the assessment of a missing witness’s evidence depends on the individual circumstances of each case; (3) where a prosecution is brought on the basis of an allegation which is uncorroborated, and of antiquity, the credibility of the complainant will be paramount; (4) the purpose of such evidence, that is to say, the evidence of a missing witness, is not to support the innocence of the accused, but rather to see whether the evidence which she might give is capable of raising a doubt about the credibility of the complainant, and therefore of her evidence; and (5) that the placing of an onus on a defendant to establish that the evidence is centrally supportive of the innocence of an accused is to place an onus which is inconsistent with the established burden of proof.

It is contended finally, that two points arise from the foregoing concerning the issue of a warrant: (a) no function could be usefully served by having a person arrested and brought to court to give evidence when it had already been established that the person is unfit to do so, as such a person cannot, by definition, be a reliable witness; and (b) it would be improper to apply to a court to forcibly bring a witness to a trial, in circumstances where there existed a finding that she was unfit and too unwell to attend. Finally, it is said that securing the presence of the witness by forcibly bringing her to court is not appropriate, nor is it in conformity with any norm.

In oral evidence before this Court and arising from the foregoing, it is further argued on behalf of the applicant that the issue of law which arises is, what is the appropriate test to be applied in circumstances where there is a missing witness of the type mentioned above. It is contended that there is no certainty the witness would be declared hostile, since the case made on behalf of the prosecution would not necessarily lead to that result. Further, it was not necessary to establish that the information or the witness’s evidence would be centrally supportive of the defence, counsel repeating that it might be of assistance in undermining the credibility of the complainant.

On the other hand it is contended that this Court appears to be saying in its judgment that there is an onus on the defence to establish that the evidence would be centrally supportive of the defendant’s case, and that this issue requires to be clarified by the Supreme Court.

The Second Question
The context in which the second question arises may also be briefly described as follows. During the course of the trial there was certain publicity in the media about a death which had taken place. The death was considered in the media to be related to a feud going on in the centre of Dublin City. Several applications were made on behalf of the applicant in relation to the publicity in question, on the basis that (a) the comments made in the course of the media publicity related to the applicant, or could be understood as doing so; and (b) were, if properly understood, highly prejudicial to the applicant. The applications made, which were for the discharge of the jury on the basis that the media coverage was such that the applicant could not get a fair trial, were rejected by the learned trial judge. In the course of one of the applications made (the second application on the 14th December, 2006), the learned trial judge made the following statement:-

“Very good. One thing I want to make absolutely clear is that the trial is going to proceed to a conclusion. Let there be absolutely no doubt in anybody’s mind in relation to that.”

“Wrongly issued blanket refusals of applications made on behalf of the applicant”.

The Applicant’s Arguments
In the written submissions on this application, the portion of the decision of this Court of the 22nd June, 2009, upon which the applicant relies is cited, and he argues that the principles set out in the case of DPP v. Madden [1977] I.R. 336, and adopted in The People (D.P.P.) v. Cronin No. 2 [2006] 4 IR 329, were exceeded or extended by the Court, such that the law requires clarification by the Supreme Court on this issue. These principles include that the function of this Court is to adjudicate upon rulings made by the trial judge. Counsel contends that the words clearly constituted a ruling, and that the trial judge gave his “ruling”, within the meaning of that word, as used in the case of DPP v. Cronin, supra., in peremptory and unequivocal terms. Counsel submits that the judgment of this Court contained adverse comment to the effect that the ruling was not the subject of objection and that no application was made to the judge to have him withdraw or retract it. According to the written submissions, as developed in the course of the oral argument, this constitutes an extension not only of the decision in DPP v. Cronin, supra., but of “the jurisprudence generally”. The written submissions continue:-

“Clearly, there may be circumstances where, if a judge makes a comment to which an objection is not taken, there may be grounds for applying the Cronin principle. This, however, was not a comment. It was a ruling by the judge. There has never been an obligation to ask a judge to withdraw a ruling or to raise an objection to it. It is submitted, in fact, that the position is to the contrary. Once a judge makes a ruling, counsel is bound by it. Any attempt to have the judge withdraw it would not be in accordance with accepted principle, or practice and procedures. If this course is justified under DPP v. Cronin, this is again a significant increase in the parameters of that decision.”

The Respondent’s Arguments
On behalf of the respondent, Ms. Murphy, senior counsel, argues that, even on a preliminary basis, both questions proceed on false premises.

In respect of the first question, the manner in which it is framed disguises the fact that the law is clear and settled on the question of a missing or unavailable witness. There is no onus on an accused to apply for a warrant when a witness is absent. There is instead a discretion vested in the trial judge to proceed or not with the trial, on the basis of whether the trial can be conducted fairly in the absence of the witness. The duty of the trial judge is to exercise that discretion in accordance with law. In respect of the second question, there was no ruling to the effect contended for by the applicant. Rather what was in issue was a statement made by the trial judge to which no exception was taken during the course of the trial, and which became the subject matter of a ground of appeal on the basis that it was an alleged ruling.

Counsel further draws the Court’s attention to the test laid down by s.29 of the Act of 1924, as amended, which requires that the question should involve both a point of law of exceptional public importance, and also that it is desirable in the public interest that a certificate should issue, so that an appeal can be brought to the Supreme Court. It is submitted that this Court must be satisfied that it has been demonstrated that there exists an exceptionally important need for clarity in an area of law that is uncertain, or a need for re-examination, and that neither question meets these criteria, as the law in respect of both issues is well settled and clear.

Accordingly, the respondent contends that there is no question of law requiring elucidation or clarification by the Supreme Court arising on the Notice of Motion, even as the first question is reformulated.

Commencing with the first question, and notwithstanding the above preliminary objections, the question, it is submitted, is posed in the context of a witness who (a) gave a written statement probative to the prosecution case; (b) at the trial gave evidence materially inconsistent with that statement, which evidence was helpful to the defence and, in consequence, was declared hostile; and (c) is unavailable at a subsequent retrial. The facility of issuing a warrant was offered to the applicant by the learned trial judge on several occasions but was declined by the applicant.

The respondent points to the two elements in the question, as reformulated, and suggests that the question misstates the issue. If there is a missing witness, the trial judge must exercise his discretion to proceed, or not, with the trial. In exercising that discretion, the trial judge must take account of submissions made by all parties. It is therefore not a question of any onus being placed on the defence. Were it otherwise, an accused could stop a trial whenever any witness fails to appear, and the potential for mischief in such circumstances is, according to the respondent, readily apparent.

It is argued by the respondent that as to the first part of this question, it was not an issue that arose in the trial at all. The learned trial judge did not place an onus on the applicant to establish that the proposed evidence was “centrally supportive of his innocence”. The question posed, therefore, relates to matters that were not a feature of the trial. In such circumstances, it is said, it cannot be argued that a certificate under s.29 should now issue in relation to events that did not occur in the trial. The respondent also submits that this Court, in its decision, did not suggest that, where that witness became unavailable, there is a legal onus on the applicant to demonstrate that the missing witness’s evidence is “centrally supportive of the accused’s innocence”. Rather, this Court indicated that, in deciding the issue of the unavailability of a witness, a trial judge should consider the centrality of the witness’s evidence to the trial and, in particular, to the accused. It would be strange, it is argued, if it were otherwise. If an application is made to discharge a jury, on the basis that a witness is unavailable, a judge must consider the application and examine why it is thought an absent witness matters. To do otherwise is an abdication of the judge’s function. However, the applicant had mischaracterised the judgment of this Court in suggesting that the statement by the Court creates an onus of proof on the applicant, or foists upon him an onus, to establish, upon some unarticulated standard of proof, the centrality of the purported witness’s evidence to his innocence. This Court merely suggested that an application to discharge the jury must be based on grounds, and if the ground in question relates to the unavailability of a witness, then the centrality, or otherwise, of that witness’s evidence should be asserted. The respondent submits that the learned trial judge was entitled to find, in his discretion, that the proposed evidence was of no weight whatsoever, these principles being established in the case law referred to in this Court’s decision, and which do not require further clarification. Moreover, it is argued that the judgment of this Court, properly understood, does not deviate from the authorities in any way, and does not lay down any new test.

Insofar as the second part of the question is concerned, the law is clear, there being no such onus. The facility of a warrant was tendered by the learned trial judge to the defence, if the defence wished to avail of that option to secure the attendance of the witness, and the applicant’s counsel, as he was entitled to, declined to accept such an offer. The respondent refers to the exchanges between the learned trial judge and counsel for the applicant, on the first day of the trial and repeated on the 13th December, 2006 in relation to the same witness, and argues that, given the facility was offered and refused, that part of the question is entirely redundant.

Turning to the second question, the respondent identifies the mischief intended to be cured by the decision in The People (D.P.P.) v. Cronin (No. 2) [2006] 4 IR 329 as being, correctly in this Court’s view, the avoidance of a trawl through transcripts “to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial did not see fit to do so”. According to the argument of the respondent, Cronin (No. 2) is very clear that points of appeal cannot be taken that were not argued at the trial. The exception to this principle is where there has been an oversight of substance on the part of counsel at the trial, which must be explained and which is sufficient to ground an apprehension that a real injustice has occurred. That test is not met here.

The question in the present case, according to the argument of the applicant, is that the decision of this Court in its judgment in the instant case allegedly “has profound implications and it would appear to extend the Cronin decision well beyond what the court ruled in that case”. In response, it is argued first, that there was no peremptory ruling of the type contended for by the applicant. It is a mischaracterisation of the position to say “there can be no question that the words as pronounced amounted to a ruling”, and that “the learned trial judge not only gave a ruling, but did so in peremptory and unequivocal terms”. Asserting that the comment passed is a ruling elevates the statement of the learned trial judge to a status which it does not and did not have. The fact that this was not a ruling is borne out by the number and frequency of subsequent applications by defence counsel at the trial on the same subject matter. Moreover, this Court in its judgment recognised this by characterising the words of the learned trial judge as “a statement” and, more importantly, in recognising that “the transcript discloses no reluctance on the part of the learned trial judge to hear that application and all arguments tendered on behalf of the applicant”. It is submitted that it is in the teeth of the actual conduct and behaviour of the learned trial judge to suggest, or classify, the statement made by him as “a ruling”. It is further pointed out that this Court found that the defence legal team was “extremely alert” to all objections that could be made on behalf of the accused, and did make a number of applications before and after the comment made by the learned trial judge. In the present case, this Court, it is argued, had extensively considered the so-called blanket ruling point and on a comprehensive review of the transcript, ruled that the applicant’s counsel did not argue the point, and for good and valid reasons, did not seek to have the jury discharged on the basis of the statement. Moreover, this Court had also rejected the ground for leave to appeal on a substantive basis.

In the present case, there is no issue of law of any, or any considerable, doubt. Both issues are ones on which the law is clear at this time, and, even if there is an interesting or helpful point of law upon which to have a comment from the Supreme Court, which is of particular interest to an applicant for a certificate, there is no issue of significant public importance, and no basis upon which the questions may be posed. This is clear from the reported decision in the case of D.P.P. v. Thomas O’Regan, (Unreported, Court of Criminal Appeal, 16th June, 2006) a decision of this Court delivered by McCracken, J., in which it was clear that there was an attempt to appeal, as here, couched as a s.29 application.

Accordingly, none of the criteria laid down in the statute is satisfied.

Conclusion
Having regard to the detailed background facts set out, the extracts from the judgment of this Court and the arguments of the parties, it is appropriate to start with the law.

The Law on Section 29 Certificate Applications
Section 29 of the Act of 1924 (as amended by the above Act of 2006), in the form in which it applied at the relevant date, provides as follows:

“(1) No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other matter except in accordance with this section.

(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”

“While such a question as has been posed illustrates a degree of ingenuity by counsel, it is not a point of law arising from the decision of this Court, and consequently the Court has no jurisdiction to refer such a question to the Supreme Court.” (emphasis added)

“The first hurdle which the applicant has to cross on this application is to establish that the decision of this Court on his application for leave to appeal involves the point of law set out in his Notice of Motion.” (emphasis added)

“While, as has been held in The People v. Shaw [1982] I.R. 2, this Court is not confined on the hearing of an appeal to the points certified, it is inherent in this section that a point of law certified on these two grounds must be a point arising before the Court of Criminal Appeal and thus involved in its decision. A point of law certified in the abstract or in terms wider than those involved in the decision of the Court of Criminal Appeal cannot be entertained for it would be outside the jurisdiction given to this court by the section which is not consultative, but essentially appellate and for the purposes of doing justice in the particular case.” (emphasis added)

“The court was not asked to make, and did not make any decision, on the question of whether any permanent record should be made and kept of forensic tests carried out on behalf of the prosecution, and then to be disclosed for the consideration of the court. What the court decided was that there was no evidence that any permanent records had been made of the results of the finger print examination, and that the only evidence was that there were no such records at the date of the trial, if they had ever existed, so there was nothing that could have been disclosed to the defence”. (emphasis added)

In no part of the judgment of this Court, did the Court find, or declare, that there is an onus on an accused to establish that the evidence of a missing witness, which the accused wishes to have available during a second trial, is “centrally supportive of his innocence”. Nor did the Court find, or declare, that there is an onus on an accused to apply for a warrant forcibly to bring a witness to court whom the accused wishes to have in attendance.

The context in which the missing witness situation was resolved by the learned trial judge and considered by this Court is clearly set out in the above narrative. The original application for leave to appeal, insofar as this ground is concerned, complained about a failure of the learned trial judge “to discharge the jury, but wrongly permitted the trial to continue in the absence of a material witness”. The issue of law, which was set out by this Court in its decision concerning the judge’s discretion in circumstances where a witness is unavailable, was stated to be the following:-

“The issue which the law requires a trial judge to consider, for the purposes of exercising his discretion to discharge the jury in such circumstances, is the centrality of the witness’s evidence to the trial, in particular to the accused.”

“Well I am satisfied that she is not fit to attend. I am also satisfied from what I have been told in relation to the position as regards to this witness, that she would have no evidence to contribute to the trial in any event. She has been declared hostile on a previous occasion. There is no reason to think that that situation will be any different. In fact, all the evidence suggests that she will be equally, if not more hostile, were she to be brought here in her present situation. The jury in that situation would have to be told that no matter what she said on other occasions, no matter how many times, it wasn’t evidence, and that the only matter capable of being considered evidence in the present trial is what she says on oath in the course of this trial. Accordingly, her evidence would have no weight whatsoever and her medical situation is not going to bring about an immunity from the trial and the trial will have to continue without her.”

Here the position is that both parties put forward their submissions in relation to the value or the necessity for the presence of the absent witness, and the learned trial judge then exercised his discretion, having regard to the submissions and the factual matters arising in the course of the trial, including factual matters brought to the attention of the judge arising in the earlier trial. As is clear from his ruling, the learned trial judge had found that the witness would have “no evidence to contribute”, having regard to the background explained by him. The issue therefore was whether he exercised his discretion properly.

It is clear, and the arguments were advanced to address the centrality of the missing evidence to the defence, on a reading of this Court’s decision, that what the Court was addressing was whether or not there was any evidence supportive of the applicant’s case, or the centrality of that evidence for the applicant’s case.

The Court did not either suggest or determine that there is any obligation on an accused to establish that the evidence, if given, would be centrally supportive of the accused’s innocence, and it is a misreading of the judgment, and in particular, of the arguments made on behalf of the applicant, both in the course of the trial and in the course of the application for leave to appeal - specifically referred to in the judgment as being the argument of counsel - to contend that any such obligation was imposed in law. Although in that part of the written submissions in this application it is correctly stated, in referring to the judgment, that it speaks of the evidence being “centrally supportive of the applicant’s case”, this is taken in the later part of the same page of the written submissions, as meaning that this Court found that there was an obligation to establish that the missing evidence be centrally supportive of the “innocence of the accused”. In that regard it is appropriate to cite what was stated on behalf of the applicant in the written submissions filed on his behalf in support of the application for leave to appeal. In that part of the written submissions devoted to the claim that the learned trial judge “failed to discharge the jury, but wrongly permitted the trial to continue in the absence of a material witness”, the following is written:-

“It is submitted that the evidence given by Marina Doody, as stated above, had at least the effect of negativing the admission relied upon by the prosecution but it also called into question the evidence given by the complainant herself, and when considered in its entirety was highly favourable evidence insofar as the interests of the appellant were concerned, i.e. the evidence was evidence consistent with innocence”. (emphasis added)

“This resulted in the situation where evidence available to the appellant (evidence consistent with innocence) was wholly lost and the conduct of the case insofar as it required fairness of procedures, must now be criticised.” (emphasis added)

On the second element in this question, this Court found that the most reliable evidence, tendered by the medical expert, was not suggestive of the missing witness being available to give evidence within any reasonable period of time, a finding clear from the transcript. Nor can it be understood from the judgment of this Court that there is any obligation imposed on an accused, whether generally or in the particular circumstances of this case, to make any application for an order that a missing witness be forcibly brought to court. It was pointed out that facilities were tendered by the learned trial judge to the applicant’s counsel, as would be expected, but these were not taken up on behalf of the applicant, as was his choice. That is a mere statement of fact.

There was no finding by this Court to the effect contended for by the applicant, as the respondent correctly points out. Despite the ingenuity of the question, and counsel’s impressive argument on it, and having regard to the jurisprudence cited at the commencement of these conclusions, the first question is not one which properly arises from the decision of this Court delivered on the 22nd June, 2009.

As to the second question concerning the so-called blanket ruling, this question too does not arise from the decision of this Court. The Court was careful to point out that it was a so-called blanket ruling, and repeated this classification of the ground of appeal on several occasions in the course of its decision. The reason for this was because it is quite clear from the context in which the statement complained of was made that it could not properly be considered or understood as being a “ruling”. The ruling itself, and its content, is clear from the transcript. The media coverage applications are considered in detail in the course of the judgment of this Court delivered on the 22nd June, 2009. The applications themselves came thick and fast in the first series of days of the trial, and in relation to the so-called blanket ruling it concerns the second and, as the trial developed, the third of the applications made on behalf of the applicant for the discharge of the jury. It is important to set out the comments of the trial judge in full, which was in the following terms:-

“Very good. One thing I want to make absolutely clear is that the trial is going to proceed to a conclusion. Let there be absolutely no doubt in anybody’s mind in relation to that.

Now, obviously there is a great concern in the nation at the moment as to what is happening in the country at the present time and the question “Who’s in charge?” is a question everybody is asking. The Archbishop of Dublin has been saying what he has to say about the situation over lunchtime and obviously the press cannot in any fashion be gagged in relation to expressing concern in relation to what is going on the streets at the present time.

Now, Mr Giblin is entitled not to have anything published during the currency of this trial which would associate his client with an alleged rape or anything of that kind or with gangsterism. I will receive from either the prosecution or defence motions for contempt of court in relation to anything published that in any fashion prejudices the accused man in the course of this trial or can be taken as a reference to him in the context indicated. It is also open to the parties to take proceedings in the judicial review list. If any newspaper defies or radio station or organ of opinion defies the ruling I am just giving by prejudicing Mr Griffin’s situation in the course of this trial, they will be dealt with extremely severely. After the trial is over, the gloves are off, they can publish what they like and, unfortunately, it is a feature of contemporary journalism that people are never prepared to wait. If Mr Giblin has cause to complain again in the course of this trial, these publications can be brought before me immediately for the purpose of extremely serious financial penalties. Ultimately, of course, the punishment for contempt is sequestration of their assets. I am not going to go down the imprisonment route and give them the satisfaction of martyrdom.”

The applicant has, however, as part of this and the earlier application for leave, isolated the general comment of which complaint is made, which was followed by another general comment, unfairly and wrongly, from the core ruling of the learned trial judge. As was stated in the judgment, the learned trial judge had heard several applications prior to the application in question, including those for the discharge of the jury on the basis of (a) the venue of the trial; (b) the failure of the learned trial judge to recuse himself; (c) the absence of a witness; and (d) earlier media coverage.

It is in that context that the application for leave to appeal was sought, quite apart from the media grounds themselves, that is to say, on the basis of the so-called blanket ruling ground. The so-called blanket ruling has to be seen in that context, but there is also another important context in which it has to be viewed. The basis upon which the so-called blanket ruling was objected to as constituting a proper ground for leave to appeal was that it allegedly established that the learned trial judge had a fixed view in relation to the trial, that he had set his face against the possibility of entertaining any applications, in particular those relating to media publicity, that the nature of the so-called blanket ruling was such that counsel was, or was likely to have been, intimidated into not raising any further such applications, and that, in any event, having regard to the nature of the contended for ruling, it was pointless for counsel to attempt to raise any such applications.

In fact, on the very next day, as the judgment under consideration makes clear, the very same media publicity, the subject of the so-called blanket ruling, in respect of which counsel for the prosecution then had fuller instructions, was revisited on a fresh application for the trial to be halted (on different media related grounds), and a further application was made in relation to media publicity at a later date. All applications were opened fully on behalf of the applicant and dealt with by the trial judge.

This Court did not accept that this was, in the context argued for, a blanket ruling, or any ruling, on the grounds contended for, but nevertheless also dealt with the matter on the basis that, even if it were an admissible ground of appeal, which this Court did not accept, the test of establishing that the statement made, in response to an application in a voir dire, would lead to a real or serious risk of an unfair trial, was not met. In the circumstances, even if the applicant could have properly classified the statement as being a ruling, the application for leave to appeal was rejected on substantive grounds also, having regard to the history of all the applications made. No suggestion is now made that in doing so, any issue of law arises which could be the subject of a s.29 certificate.

In the foregoing circumstances, neither question as posed, and in the case of one of them as reformulated, is one which arises from the decision of this Court. Moreover, the provisions of s.29 of the Act of 1924, as amended, requires that the decision of this Court involves both a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be taken to the Supreme Court so that the point of law can be clarified. The applicant's arguments on this application do not support his contention that this Court's decision involves any point of law of "exceptional public importance" within the meaning of s.24 of the Act of 1924, as amended. This is so notwithstanding that the Court recognises that the section is intended to be considered as appellate in nature, and to do justice to the applicant, as is clear from the case law. Nor can the Court conclude from the submissions made, and having regard to its decision, that it is in the public interest that either question should be referred. Having regard to the foregoing, the application for a certificate, pursuant to s.24 of the Criminal Justice Act 1924, as amended, is refused.