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Cite as: [2010] IECCA 51

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Judgment Title: D.P.P.-v- Desmond Dundon & Others

Neutral Citation: [2010] IECCA 51

Court of Criminal Appeal Record Number: 17/04, 28/04, 25/04, 26/04 & 27/04

Date of Delivery: 16/06/2010

Court: Court of Criminal Appeal

Composition of Court: Fennelly J., Dunne J., McGovern J.

Judgment by: Fennelly J.

Status of Judgment: Approved


Judgments by	Result
Fennelly J.	Refuse SEction 29 Application

Outcome: Refuse Section 29 app

THE COURT OF CRIMINAL APPEAL

[28/04]
[25/04]
[27/04]
[26/04]
[17/04]

Fennelly J.
Dunne J.
McGovern J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT / PROSECUTOR

AND

ANTHONY McCARTHY, CHRISTOPHER COSTELLO, DAVID STANNERS, JAMES MCCARTHY & DESMOND DUNDON

APPLICANTS/ APPELLANTS

JUDGMENT of the Court delivered by Mr. Justice Fennelly on
the 16^th day of June, 2010

On 25^th July 2007 this Court, in its judgment delivered by Kearns J, dismissed the applications for leave to appeal of the five above-named applicants against their convictions on 20^th December 2003 by a jury at the Central Criminal Court of the murder of Kieran Keane on 29^th January 2003 and of other offences. All five applicants have brought before this Court applications pursuant to section 29 of the Courts of Justice Act, 1924 requesting that it certify a number of points of law claimed to be of exceptional public importance so as to enable them to pursue their appeals before the Supreme Court.

Section 29 of the Courts of Justice Act, 1924, as amended by section 22 of the Criminal Justice Act, 2006, provides, insofar as concerns an appeal by a convicted person, 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.

By virtue of that provision, the applicants must satisfy this Court that its decision of 25^th July 2007 determining their appeals (“the appeal decision”) “involved a point of law of exceptional public importance” and, in addition, that it is “desirable in the public interest that the person should take an appeal to the Supreme Court.” It is not easy to conceive of a point of law which would satisfy the first part of this test but not the second. The second part of the test underscores the exceptional character of the certificate requested of the court. At a minimum an applicant must be able to point to a significant point of law which is involved in the decision.

The proposed point of law must have been involved in the decision of the court in the sense that the court’s ruling on the point formed part of the reasoning leading to the rejection of the application. In other words, it must be possible to identify a point of law upon which the Court relied and which it applied in making its decision. Implicitly also, the point of law must have been contested. In a literal sense, every application for leave to appeal raises some point of law. Where the law is not in dispute, but an unsuccessful applicant criticises the manner in which the court has applied it to the facts, the section does not apply.

It is not sufficient for the applicant to show that the court incorrectly applied the law to the facts of the case. That would be tantamount to permitting a repetition of the original hearing on the application for leave to appeal. It would circumvent the statutory rule that there is, in the ordinary way, no appeal to the Supreme Court from a decision of the Court of Criminal Appeal. Even where the law is not disputed and is clearly and correctly stated, there is often room for disagreement as to whether it applies in a particular case. Section 29 does not permit an appeal, where the appellant merely wishes to dispute the manner in which the Court of Criminal Appeal applied the law to the facts.

The present decision must be read together with the judgment of the Court dated 25^th July 2007. Reference will be made to the terms of that judgment only to the extent necessary. The Court mentioned the key and central facts as follows:

“At around 9 p.m. on the night of 29th January, 2003, Kieran Keane, a notorious Limerick gangland figure, was shot dead with a single bullet to the head on an unlit country road at Drombanna outside Limerick. His nephew, Owen Treacy, who with Kieran Keane had been abducted earlier that evening, suffered multiple stab wounds at the same location and was left for dead on the side of the road by three assailants whom he subsequently identified as David Stanners, James McCarthy and Christopher Costello, being three of the applicants herein.”

As the Court stated,

“all five applicants were found guilty of the murder of Kieran Keane, the attempted murder of Owen Treacy and the false imprisonment of both Kieran Keane and Owen Treacy.”

The evidence of Owen Treacy was fundamental to the prosecution. As the trial judge put it to the jury, in a passage quoted in the judgment of this Court,

“You have been told right from the outset that the case depends wholly and exclusively on the evidence of Owen Treacy and anything else that is put in as being supportive of the case that is being made but it stands or falls on the evidence of Owen Treacy and Owen Treacy purports to identify the five accused as being the parties involved in the matters complained of.

The applicants have raised five separate claimed points of law of exceptional public importance. Although they differ to some extent in their application to the five persons, it is possible to deal with them individually as if they applied to the case generally. In dealing with these matters, it will not be necessary to recite in full the facts which are extensively set out in the judgment of the Court.

Disclosure

This point was argued by Mr. Barry Macdonald, Q.C., Senior Counsel on behalf of the first and fifth named applicants, though it potentially applies to all. This suggested point of law is expressed sufficiently clearly in the Notice of Motion on behalf of the second-named applicant:

“In circumstances where full disclosure was not made by the Director of Public Prosecutions or the Garda Síochána prior to the trial of the Applicant, can such failure be excused on the basis that the Court’s decision now seems to place an onus on the accused person (and his legal representatives) to fully particularise each element of disclosure required when making a disclosure applicable to the Director of Public Prosecutions?”

Counsel argued that the judgment of the Court proceeded on an incorrect legal premise, namely that the defence has a responsibility to make complaint or take steps to insist on the proper compliance by the prosecution with its obligations. Counsel took issue, in particular, with statements in the judgment to the effect that the refusal of the prosecution to make the particular disclosure seems to have been of no great concern to the applicants’ advisors, that no application was made, as had been threatened, for adjournment of the trial, that no application for further disclosure was at any time made during the trial, and that no ruling was sought in respect of any documents which might be in dispute in the context of disclosure.

The suggested point of law, therefore, is that this court, in reaching its decision, held that there was a burden on the defence to agitate the disclosure issue further, by making applications for adjournment of the trial or for orders for the making of further and better disclosure. The correct position in law, it was argued, is that the obligation to make full disclosure rests at all times on the prosecution and that no activity or inactivity on the part of the defence absolves the prosecution of that prime duty.

The judgment of the court identified the applicants’ case regarding failure of disclosure and its effect as follows:

“It was argued that, in the light of information gleaned from further disclosure made available in the context of the appeal to this Court, a different decision as to defence strategy might have been adopted had that information been available before trial. The decision actually made was to suggest that Owen Treacy was an accomplice in the murder of Kieran Keane. The alternative strategy, it was suggested, was one whereby an all-out attack on the character of Owen Treacy could have been attempted with a view to undermining his credibility as the chief prosecution witness.”

Expressed in its simplest terms, the fact is that Owen Tracy was of unquestionably bad character. The representatives of the defence were fully aware of this fact. They knew of his previous convictions, which had been disclosed. The defence made what has been described as a "strategic decision" not to put his character in issue before the jury. The prosecution had refused to disclose details of a number of occasions on which Owen Treacy had been arrested and questioned but not subsequently charged. It is claimed, on appeal, that the defence, had this material been disclosed, would or, at least, might have altered the "strategic decision."

The court, in its judgment, described the material disclosed, dealt with the circumstances of the prosecution's refusal to make further disclosure and addressed the question of what difference the undisclosed material would have made. In doing so it expressly followed the principles with regard to disclosure laid down in The Director of Public Prosecutions v. The Special Criminal Court & Paul Ward [1999] 1 IR 60. It added:

“The Court is satisfied, however, that the obligations of disclosure are not limitless nor are they to be assessed in a vacuum or upon a purely theoretical or notional basis. Nor is a conviction to be regarded as unsafe per se simply because there has been a partial failure by the prosecution to meet the obligations of disclosure. It is a question of degree in every case, having regard to the nature and importance of the material in question.”

Applying these principles to the facts of the case, the appeal decision states, firstly:

“It is not in dispute that full and correct information as to Owen Treacy’s previous convictions, including one for possession of a firearm, was furnished to all applicants at this early point in time.”

Secondly, it adds

“…the CPS furnished to all defence solicitors four bundles of documents consisting of notes, memoranda of interviews and statements taken in the course of the garda investigation into some 23 incidents connected to the ongoing feud in Limerick between the Ryan, Keane, Collopy and McCarthy families between 2000 - 2003. The material disclosed that Owen Treacy was suspected of involvement in four of these incidents, one of which related to the abduction of the Ryan brothers on 23rd January, 2003.”

The defence complaint relates to the express refusal of the prosecution to make disclosure in circumstances traced in detail in the appeal decision. The prosecution informed the defence that Owen Treacy had been arrested in connection with as many as nine different serious criminal investigations. It provided the dates and locations. It stated that the custody records in connection with his detention and other related documents were not being disclosed because Owen Treacy "was either not charged, released without charge or the charges were struck out or withdrawn…”

The court noted the submission of counsel for the prosecution to the effect that any of the material which could have been disclosed arising from the several events of questioning and detention of Owen Treacy amounted to no more than hearsay suggestions that Owen Treacy was involved in gangland activity, a view apparently shared by counsel for one of the applicants, as also recorded in the judgment. Counsel had also stated that virtually all of the information later made available was already in the public domain. The Court, in the judgment delivered by Kearns J, expressed its view of the additional material disclosed pending the appeal hearing as follows:

“Such information as had been made available indicated that while the gardaí suspected Owen Treacy of involvement in many crimes, including the murder of Eddie Ryan, they had no evidence to support their suspicions and for that reason had never charged him. In any event Owen Treacy’s associations and character were, as was frankly conceded by one member of the defence team at trial, well known to all the applicants against a background of internecine feuding between various families living in close proximity to each other in Limerick city.”

Those remarks are consistent with and explain the later decisive passage in the judgment of the court as follows:

“However the Court is satisfied that nothing in the later disclosed material would have added significantly to the store of information which the defence already had in relation to Owen Treacy’s associations, previous convictions and involvement in gangland crime and feuding. Nor would the later disclosed material have made any material difference to his credibility if an attack on his character had been made.”

The principal focus of Mr. MacDonald’s submissions was the immediately ensuing passage:

“What the principles enunciated in Cronin do suggest however is this: where, as in the instant case, a dialogue between prosecution and defence about disclosure is opened prior to commencement of trial and where a clear exposition is delivered of what the prosecution will disclose and will not disclose, it is not, in the view of this Court, open to the defence, having made certain requests for information and disclosure some of which have been met and others which have not been met for whatever reason, to thereafter sit on their hands and do nothing. That would encourage a most invidious state of affairs whereby a disclosure point could be kept in reserve to see if a certain strategy deployed at trial was successful, failing which the disclosure point could then be canvassed on appeal. That indeed was the very kind of mischief that Cronin was endeavouring to deal with. No good reason or explanation has been offered as to why further disclosure was not sought, or a ruling sought in respect of any disputed documentation in the present case. The explanation set out in the letter from Hanahoes to Madden & Finucane does not, in the opinion of this Court, amount to a reasonable explanation for failing to raise any concerns about the adequacy of disclosure or to seek appropriate rulings either prior to or during the trial herein. The true explanation, in the opinion of this Court, is that the defendants’ advisors were at all times fully content to pursue the accomplice theory and had little interest in pursuing an attack on the character or associations of Owen Treacy for the reasons already detailed. Further complaints now advanced about lately notified evidence equally did not give rise to any particular application being made for specific rulings at the time of the trial.”

While the first part of that passage contains criticisms of the defence for not explaining the failure to seek further disclosure, it does not, as Mr. MacDonald suggested in argument, by any means state that this failure absolved the prosecution from the performance of its duty or operate as a bar to an appeal. It is, however, more important to consider the second part of that passage. The letter from Hanahoes referred to is a letter which stated that counsel, who had acted for the first-named applicant at the trial, had subsequently stated that, if he had been aware of the contents of the materials disclosed after the trial, this would have led to a decision to recommend that Owen Treacy and or the gardaí be cross-examined as to Mr. Treacy’s alleged participation in feud-related incidents. It is clear that the Court, in its judgment, firmly rejected this contention. It found that the defence had little interest in cross-examining Owen Treacy for good reasons concerned with the conduct of the defence. In short, the use of the material would not have been without its dangers from the point of view of the defence. Following a detailed consideration of the history of the pre-trial disclosure procedures and the “strategic decision” not to cross-examine Owen Treacy as to his involvement in Limerick gangland activity, the court thus concluded that the undisclosed material would not have made a material difference.

It follows that the decision of the Court flowed from that view of the facts and of the circumstances of the trial and not from a view regarding the obligation of the defence to seek disclosure. The decision of the court was not dependant on the criticisms of the inactivity of the defence in respect of disclosure, but rather on the view that the undisclosed material would not have been of any material advantage to the defence. That was based on an assessment of the facts. Thus there is no point of law of exceptional public importance in this respect.

Prejudicial publicity: failure to adjourn

Mr. Bernard Condon, Senior Counsel argued that the judgment involves a point of law of exceptional public importance arising from the failure of the learned trial judge to adjourn the trial due to excessive and prejudicial media publicity until such time as the adverse effects would diminish, sometimes called the “fade factor.” Mr. Condon emphasised that there was no question of applying for total prohibition, merely an adjournment for a sufficient time to enable a fair trial to take place.

It was not in dispute that the trial attracted enormous public interest and widespread press coverage. As the Court observed, “it could scarcely have been otherwise having regard to the fact that ongoing gangland feuds in Limerick were, and still are, the cause of enormous concern, not only to the local population, but to the entire country.” This publicity had been a principal reason for the transfer of the trial from Limerick to Dublin. Details of this publicity are discussed in the judgment.

The applicants complained that the trial judge was in error in deciding to proceed with the trial, rather than adjourning in response to a number of applications, to allow a ‘fade factor’ to have effect so that memories of detrimental publicity might dim and disappear. He had, on the other hand, given a number of warnings to the jury to ignore press or other media publicity. Counsel had argued on the appeal that such warnings were only but one of a variety of measures open to the trial judge and of themselves could never suffice to eliminate the risk of an unfair trial.

The Court, in its judgment referred to D v. Director of Public Prosecutions [1994] 2 IR 465, Z v. Director of Public Prosecutions [1994] 2 IR 476 and Zoe Developments Ltd. v Director of Public Prosecutions (Unreported, High Court, Geoghegan J., 3rd March, 1999). The Court posed the question: “Does the fact that gangland feuding is continuing in Limerick mean that no trial by jury of the applicants could ever take place?” It continued:

“The Court is satisfied that the jury system, if it is to survive, can only do so on the assumption that juries will heed warnings given to them by trial judges. Strong and repeated warnings in trenchant terms were given by the trial judge to the jury in this case to ignore everything other than the evidence adduced in court. It is not to be supposed that juries treat such warnings lightly.”

The Court noted that it had been held in The People (Director of Public Prosecutions) v. Catherine Nevin [2003] 3 IR 321 “that there could indeed be circumstances in which a trial would be stopped on grounds of adverse media publicity.” It noted the view of the Court in that case that:

“…that there was a range of discretion within which the trial judge could legitimately consider whether the accused would get a fair trial and that an appeal court should not interfere with the exercise of this discretion unless it was clearly wrongly exercised.”

It is clear from a careful reading of the judgment that the court followed the principles laid down in those three cases. Mr. Condon did not contest the correctness of the propositions of law there laid down. The Court is satisfied that where its judgment referred to the decision of the House of Lords in Montgomery v HM Advocate & Anor [2003] 1 AC 641 it was not, contrary to what counsel suggested, laying down any different test. It was merely responding to the reliance by counsel for one of the applicants on that decision by observing that it “operates to the same effect,” i.e., to the same effect as DPP v Nevin.

The court finally ruled that, while the learned trial judge had “erred in thinking that the appropriate test was to balance the supposed public interest in an expeditious trial against the rights of the applicants to a fair trial,” nonetheless, it was “satisfied that the learned trial judge did not go outside the parameters of his discretion in refusing either to adjourn the trial or discharge the jury on foot of the various applications made to him.”

The court went on to say:

“To put it another way, the Court is not satisfied that

[counsel]

has provided objective justification for his contention that the learned trial judge demonstrated a lack of impartiality in the manner in which he dealt with issues of media publicity or that he failed to play his part in trying to ensure a fair trial for the applicants.

The court was here applying agreed and accepted legal principles to the facts of the case. Specifically it formed a view as to whether the learned trial judge had conducted the trial correctly. There is no identifiable point of law of exceptional public importance.

Jury issues

Two issues have been raised with regard to the composition of the trial jury. They were argued by Mr. Andrew Sexton, Senior Counsel. The first is as to whether, based on the evidence in the case, the prosecution had engaged in improper jury vetting. The second arises from the presence on the jury of a civilian employee of An Garda Síochána.

The first issue arises from the fact that, on the empanelling of the jury, the prosecution, having exhausted the right to challenge seven jurors without cause endeavoured to show cause in the case of one further juror. The objection raised by the prosecution was that a family member of the juror in question had a criminal conviction. The objection was disallowed and the juror served upon the jury. It was submitted on behalf of the applicants at the hearing of the applications for leave to appeal and repeated on this application that, on this evidence, it was clear that the prosecution, through the gardaí, had carried out some sort of vetting procedure in respect of the jury panel.

Mr. Sexton argued that either the prosecution had no power to gather information about (i.e. “to vet”) the jury panel or, alternatively, that they should be considered obliged to share any information gathered with the defence.

The Court, in its judgment, declined to rule upon a submission on behalf of the Director to the effect that it would be impossible ever to show cause without the making of some form of enquiry. The Court ruled that there was no evidence as to what, if any, enquiries had taken place and “certainly no evidence of impropriety.” In other words, this particular submission fails in the absence of any evidential substratum. It is accepted that there is no relevant provision in the Juries Act, 1976. Consequently, there is no identifiable point of law.

The second point arises from the presence on the jury of a civilian clerk employed in Clondalkin Garda Station. Part I of the First Schedule to the Act of 1976 lists "Members of the Garda Síochána” among the persons made "ineligible" for jury service pursuant to section 7 of the Act. This clearly did not apply to the juror in question. The learned trial judge ruled that the jury had been selected in accordance with law and that the trial should proceed. At the hearing of the appeal, it was argued for the applicant, in reliance, inter-alia, on the decision of this Court in The People (Director of Public Prosecutions) v. Tobin [2001] 3 IR 469 that “a reasonable and fair minded observer would consider that there was a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his or her personal experience and for that reason the appellant might not receive a fair trial.”
Thus, it was argued, the verdict of the jury should be quashed. The Court, in its judgment rejected this submission without hesitation. It expressed itself satisfied that "no reasonable or fair minded observer would think that some unfairness to the applicants would result from the presence of this juror on the jury.” In so ruling, the court was applying the principle of law put forward on behalf of the applicants. Its decision did not involve a point of law but rather its application to the facts. This does not come within section 29.

At the hearing of the present applications, Mr. Sexton proposed a refinement of the argument, namely that the test was being applied to a class or body of persons and not to a particular juror. The court is satisfied that this is not correct. The key passage in the judgment of the court very clearly and explicitly applies the test to the particular juror. In yet a further refinement, it was submitted that the learned trial judge should, at the least, have questioned the particular juror as to her attitude to and possibly knowledge of the case. This was not a matter ruled upon in the decision of the Court on the application for leave to appeal. It was not, therefore, "involved" in that decision for the purpose of section 29.

There is no identifiable point of law of exceptional public importance in respect of these jury matters.

Identification

Mr. Anthony Sammon, Senior Counsel, submitted that there was an identifiable point of law of exceptional public importance in respect of the manner in which this Court ruled on the directions given by the learned trial judge to the jury regarding the evidence of identification.

It is common case, as already emphasised, that the identification evidence given by Owen Treacy was utterly essential to the prosecution in the case of at least four of the applicants. Nor does it appear to be in dispute that there were inconsistencies in the evidence of this witness and that his opportunities for visual identification were limited.

The identification warning given by the learned trial judge is set out in full in the judgment of the Court. The core of the complaint is that the judge, in effect, confined himself to a reading of the well-known and lengthy passage from the judgment of Kingsmill Moore J in The People (Attorney General) v Casey (No. 2) [1963] 1 I.R. 33.

It is not correct, however, to say that the warning was confined to a reading from the judgment of Kingsmill Moore J. It commenced by emphasising that the case depended “wholly and exclusively on the evidence of Owen Treacy.” It stated that “very great caution has to be adopted in relation to visual identification” and that it was mandatory for the trial judge to "deal with it in very, very strong terms." He referred to "the strongest possible warning.”

The judgment of this court refers not only to The People (Attorney General) v Casey but to several other decisions. In particular it addresses the concern of the applicants by reiterating authorities to the effect that “the warning should not be given in a stereotypical manner” and that it needed to be addressed to the “particular infirmities” of the case. The applicants do not contest any of these legal propositions. Indeed, they rely upon them. In so far as a point of law is formulated it is as to whether it is permissible simply to read out the relevant passage in The People (Attorney General) v Casey. However, the judgment of the court does not say that it is. The conclusion of the court was that:

“It is clear from a reading of the trial judge’s summing up as a whole and in particular that portion that relates to visual identification, that his directions to the jury were firmly rooted in the particular circumstances of this case and the dangers of erroneous identification were more than adequately emphasised in what indubitably was a recognition case. The Court is also satisfied that while the learned trial judge did not fully repeat Mr. Sammon’s closing address to the jury in the course of his summing up he nonetheless in his summary of the evidence covered all salient points relating to the identification of David Stanners by Owen Treacy and indeed the identification of the other applicants also.”

That passage does not contain any ruling on the point of law capable of justifying the grant of a certificate pursuant to section 29. It comprises the ruling of the court as to whether the well-established and uncontested rules regarding the advice to juries in cases of visual identification had been complied with.

In this respect also, there is no identifiable point of law of exceptional public importance.

Additional evidence; first-named applicant

This question relates in particular to the first named applicant. It arises from a decision of the Court made on 12^th December 2006, in advance of the main appeal hearing, whereby the court declined to admit into evidence for the purposes of the appeal the evidence of Ms Karen O'Sullivan, who worked in a garage relevant to the events on the night of the murder of Kieran Keane. The purpose of calling that evidence was to support an alibi for the first named applicant. From her statement as provided to the court it appeared that she was in a position to give evidence of persons coming and going and moving about upon the forecourt of the garage. On that issue, the court was prepared to accept that the evidence was potentially credible and that it might have a material and important influence on the result of the case. On the other hand, the court ruled that the applicant was not in a position to show that it could not reasonably have been known or acquired at the time of trial.

Mr. MacDonald, on behalf of this applicant, submitted that the court had applied its established rules in a rigid and mechanical manner which did not respect the broader interests of justice recognised in the case law.

It should be noted that the court, in its decision, referred to a long line of leading cases including Lynagh v Mackin [1970] I.R. 180; Murphy v Minister for Defence [1991] 2 I.R. 161; People (Director Of Public Prosecutions) v O'Brien (unreported Court of Criminal of Appeal, 29^th of January 1990); People (Director Of Public Prosecutions) v Willoughby (unreported Court of Criminal of Appeal, 18^th February 2005). Mr. MacDonald referred in addition to the decision of the Supreme Court in People (Director of Public Prosecutions) v O’Regan [2007] 3 IR 805.

Mr. MacDonald makes the point that the court ruled the evidence out on grounds of its reasonable earlier discoverability and that, in that way, it applied an inflexible rule. He submitted, in particular, that the ruling was impossible to reconcile with a passage at page 827 of the judgment of Kearns J (as he then was) in the Supreme Court in, People (Director of Public Prosecutions) v O’Regan, cited above. In that passage, Kearns J was responding to a submission that the Court of Criminal Appeal in People (Director of Public Prosecutions) v Willoughby had laid down “rigid and inflexible preconditions” to the admission of new evidence. He said that:

“The application of these principles should not be seen as displacing or negativing in any way the overarching requirement that justice be seen to be done having regard to all the circumstances and facts of the particular case. In this regard, the court is again satisfied that the "saver" contained in the first of the stated principles is adequate to safeguard that particular requirement. No statement of principle enunciated in

The People (Director of Public Prosecutions) v. Willoughby

[2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005) is to be seen or understood as abrogating that requirement.”

It is notable that the court in its ruling of 12^th December 2006 also referred to the judgment in Willoughby. It would be absurd to interpret a decision of this court as applying “rigid and inflexible” rules to the exercise of a discretionary power. It would be contrary to the most fundamental principles of justice. It must be borne in mind that the ruling in question was delivered ex tempore. Even then, it made it perfectly clear that it had been open to the applicant to provide an explanation for the failure to make appropriate inquiries as to the identity of the potential witness. The Court is satisfied that the ruling of 12^th December 2006 did not express any rigid or inflexible rule with regard to the admission of new evidence on appeal.

The Court is quite satisfied that this point gives rise to no point of law of exceptional public importance.

The Court is satisfied that none of the applicants have been able to point to a point of law of exceptional public importance, which was involved in its decision on the applications for leave to appeal and refuses to grant a certificate pursuant to section 29 of the Courts of Justice Act, 1924, as amended by section 22 of the Criminal Justice Act, 2006.