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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Alan Morrison and Aidan Finnegan [2012] IECCA 77 (30 July 2012)
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Cite as: [2012] IECCA 77
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Judgment Title: DPP -v- Alan Morrison and Aidan Finnegan Neutral Citation: [2012] IECCA 77 Court of Criminal Appeal Record Number: 228 & 229/09 Date of Delivery: 30/07/2012 Court: Court of Criminal Appeal Composition of Court: Fennelly J., Moriarty J., Hogan J. Judgment by: Fennelly J. Status of Judgment: Approved |
THE COURT OF CRIMINAL APPEAL Record No. 228/09 & 229/09
Moriarty J. Hogan J. BETWEEN THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND ALAN MORRISON & AIDAN FINNEGAN APPLICANTS Judgment of the Court of Criminal Appeal delivered by Mr Justice Fennelly the day of July 2012. The applicants have applied to this Court to certify, pursuant to s. 29 of the Courts of Justice Act, 1924, as inserted by s. 22 of the Criminal Justice Act, 2006, that the determination of their applications for leave to appeal to this Court involved a point of law of exceptional public importance. On 25th of June 2009, the applicants were convicted by a jury at the Circuit Criminal Court sitting in Cork, after a trial lasting five days, of the offence of unlawful possession of a controlled drug for the purposes of sale or supply contrary to Section 15A of the Misuse of Drugs Act 1977 as inserted by Section 4 of the Criminal Justice Act 1999. The sentence hearing took place before His Honour Judge Moran on 27th July 2009. The applicants were each sentenced to a term of twelve years imprisonment. They applied to this Court for leave to appeal against their conviction. That application was dismissed in the judgment of the Court dated 28th July 2011 delivered by Macken J. Their application for leave to appeal against sentence was heard by a differently constituted court. In its judgment delivered by Finnegan J on 27th January 2012, their application for leave to appeal against severity of sentence was dismissed. Each applicant, by an identical notice of motion, asks this Court to grant a certificate granting leave to appeal the decision on sentence to the Supreme Court. The essence of the point made by the applicants is that another person, who was investigated and convicted for a similar offence arising from the same garda investigation, received a lesser sentence of ten years imprisonment with five years suspended, and that the sentence imposed on them breached the principle that sentences must be proportionate. The points for which a certificate is sought are expressed in the following terms:
Where such an appeal is brought before the Court of Criminal Appeal, is there any onus on the prosecution to adduce the transcript evidence from the sentencing hearing of the co-accused, upon whom an apparently different sentence for the like offence has been imposed, in circumstances where such transcript may be in the power or procurement of the Director of Public Prosecutions. It will be noted that the first point concerns whether the applicant is under a duty to adduce evidence before the Court of Criminal Appeal, not the court of trial. The second proposed question asks whether the prosecution is under a corresponding duty to adduce before the Court of Criminal Appeal the transcript of the evidence which had been given before the court of trial. The applicants have also made substantive submissions regarding the manner in which the parity principle was applied by this Court. They refer, in particular, to the decisions of this Court in The People (Attorney General) v. Poyning [1972 I.R.402] and Director of Pubic Prosecution v. Gardiner [2011] IECCA 70. The former decision was mentioned in the judgment of this Court on sentence. However, as was pointed out at the hearing of the application, an application pursuant to section 29 cannot be treated as a means of having a re-hearing of the appeal. It is necessary to recount the history of the proceedings to date. The applicants, as already stated, were convicted, following a full trial on 25th June 2009. At the sentence hearing evidence was given only by D/Sergeant Lar O'Brien. In summary, he described the circumstances of the offence as follows:
D/Sergeant O'Brien also gave evidence of the quite significant previous convictions of both applicants. It is unnecessary to refer to these. No submissions have been made to suggest that they were not relevant to the sentences imposed. It was established that a certain John McCarthy, who was under garda surveillance on the same occasion as the applicants were apprehended, had pleaded guilty to possession of drugs and had been sentenced by a different judge to ten years imprisonment with five years suspended. It was established in evidence that Mr McCarthy had been charged with possession, also apparently for the purpose of supply, of a quantity of drugs on the same day. However, they were not the same drugs; their value was not the same; they were found in the residence of Mr McCarthy. The evidence of D/Sergeant O'Brien was that there was no connection between the two quantities of drugs. Furthermore, Mr Carey had pleaded guilty and had co-operated with the gardaí. Counsel for the applicants did not cross-examine D/Sergeant O'Brien. Nor did counsel seek the production of any evidence by means of the transcript or otherwise of what had transpired at the trial of Mr McCarthy. He confined himself to making a submission that the trial judge should have regard to the fact that Mr. Carey obtained a sentence of 10 years, this five years sentence of suspended of that. He said that the court should “take account of the tariff imposed on Mr Carey in his case; nothing beyond that.” His Honour Judge Moran, in his sentencing remarks, noted that counsel had asked him to take into account the manner in which Mr Carey had been dealt with. He said he could “certainly have regard to it” but that he must not “forget that Mr Carey pleaded guilty to the offence and that Sergeant O'Brien had confirmed that he had cooperated with the gardaí. He noted that the judge who had dealt with the case had imposed a sentence of 10 years with five years suspended. The cases before him, he considered to be “a very different situation altogether.” In view of submissions made on the present application, two points need to be made concerning the Circuit Court hearing. Firstly, there is no apparent basis for criticizing the decision of counsel to limit his submission to asking the trial judge to have regard to the sentence imposed on Mr Carey. There were significant differences between his case and the case of the applicants. Further investigation might not have assisted the applicants to demonstrate any degree of parity between Mr Carey’s case and the instant case. Secondly, given this apparent considered stance of counsel, it was not necessary to call for the transcript of the other hearing and, most materially, that was not done. To the extent that any issue concerning the desirability of having access to that transcript, it was an issue which was or should have been apparent at or immediately after the Circuit Court hearing. The applicants did not complain in their notices of appeal to this Court of any defect of procedure in the court of trial. In particular, they did not claim that anyone had been under a duty to seek evidence of the hearing in Mr Carey’s case. It would, have course, have been difficult to do so, in view of the position adopted by counsel at the hearing. Nor does it appear from the judgment of this Court delivered by Finnegan J that any argument had been addressed to this Court to suggest that the prosecution was under a duty to produce the transcript of the Carey sentencing hearing. Counsel has, however, forcefully argued on this application that the applicants’ submissions to this Court regarding the proportionality of the sentences imposed on them particularly by reference to the Carey sentence were not dealt with. Reliance is placed on the remark in the judgment delivered by Finnegan J that “there is a difficulty in that this court has no knowledge of the personal circumstances or the previous offending history of Mr Carey.” The court noted that it “knew nothing of his co-operation with the Gardaí.” It added that these were “circumstances which [might] well justify a difference in the ultimate sentence.” It is important to take note of the fact that the Court, had at an earlier point in its judgment the Court had taken note of the fact that Mr Carey had been “charged in respect of different quantities of the drugs which were found in his house” (later it was noted that Mr Carey had a somewhat lesser quantity of drugs.) and that it was “clear from the transcript that he [had] co-operated with the Gardaí……………and he [had] pleaded guilty: it was an early plea.” The Court noted merely that it did not know “the extent or nature of the co-operation.” The Court observed, finally, that “where it is sought to rely on a discrepancy between sentences imposed on a co-accused, it is important that the court should be furnished with such information as is available which will indicate if there are differences between the co-accuseds.” It is in this light that the submission is made that the point for which the certificate is sought arose only in the judgment of the Court. However, it is perfectly clear that the applicants had never suggested, either in the court of trial or in their notices of appeal that the transcript of the Carey hearing should have been before the Circuit Court. The Supreme Court in People (Director of Public Prosecutions v Cronin [2006] 4 IR 329 considered the circumstances in which an applicant should be allowed to raise on appeal a point not raised or argued at trial. Kearns J, having reviewed the case-law said at page 346:
It is, therefore, well established in the jurisprudence of this Court that an applicant for leave to appeal may not, in the absence of good explanation, rely on the hearing of an application for leave to appeal on a point of law or argument which was not advanced at the court of trial. Even if a new point is to be allowed, it must at least form the subject-matter of a ground advanced, whether following amendment or otherwise, in the notice of appeal. In this case, the applicants ask the Court to certify as a ground of appeal to the Supreme Court a point which was not argued at the court of trial, was not the subject of a ground of appeal to this Court and was not, so far as one can discern from the judgment of this Court delivered by Finnegan J, the subject of argument at the hearing of the leave application. The applicants’ complaint that this Court had not been able to consider the argument of parity of sentence with Mr Carey must fail. It is based exclusively on the matter as it appears in the judgment of this Court and ignores the fact that it had not been raised in the trial court and that this occurred by reason of a clear and considered position adopted for counsel then acting for the applicants. Consequently, the matter which the applicants now raise was not involved in the determination of their application for leave to appeal. Therefore, s. 24 does not apply. The Court refuses the application. |