Irish Court of Criminal Appeal
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Cite as: [2013] IECCA 62
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Judgment Title: Director of Public Prosecutions -v- Cunningham Neutral Citation: [2013] IECCA 62 Court of Criminal Appeal Record Number: 135/09 Date of Delivery: 29/07/2013 Court: Court of Criminal Appeal Composition of Court: Hardiman J., Moriarty J., Hogan J. Judgment by: Hardiman J. Status of Judgment: Approved
Notes on Memo: Court enjoys jurisdiction to order Director of Public Prosecutions to pay costs of appeal and retrial | ||||||||||||
THE COURT OF CRIMINAL APPEAL Hardiman J. 135/2009 Moriarty J. Hogan J. Between: THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF Prosecutor PUBLIC PROSECUTIONS) and DefendantTIMOTHY CUNNINGHAM JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 29th day of July, 2013.
On the 27th March, 2009, the appellant, Mr. Timothy (“Ted”) Cunningham was convicted of ten counts of money laundering following an exceptionally long (forty-four day) and complex trial in the Cork Circuit Criminal Court. The charges arose following allegations preferred by the prosecution that Mr. Cunningham had used money (or moneys worth) knowing or believing it to be the proceeds of the Northern Bank robbery in Belfast on the 20th December, 2004. One of the counts - count 10 - related to a sum of some £2.4m sterling allegedly discovered by the gardaí during a search of the appellant’s dwelling on foot of warrant issue pursuant to s.29 of the Offences against the State Act 1939, inserted by s.5 of the Criminal Law Act 1976. The other counts related to money allegedly transferred by Mr. Cunningham to other persons for related purposes. On conviction, Mr. Cunningham was sentenced to ten years imprisonment. By notice of appeal dated 14 May 2009 the appellant sought leave to appeal against his conviction and against the severity of the sentence imposed. The appeal proceeded on a rather leisurely basis before this Court. By the time the appeal was ready for hearing in April 2012, the Supreme Court had found that s.29 of the 1939 Act was unconstitutional. See Damache v. Director of Public Prosecutions [2012] IESC 11. In the light of this significant development, the appellant sought leave to amend his grounds of appeal to add a ground based on Damache. The appellant had challenged the admissibility of the material allegedly obtained on the search in the Circuit Court but was not in a position to argue the constitutionality of the Section at his trial because the Circuit Court has no jurisdiction in that regard. The application to amend the grounds of appeal was opposed by the State and, having heard both parties, this Court gave liberty for the amendment on the 16th April 2012 when Mr. Cunningham’s appeal against conviction was heard. In a judgment delivered on the 11th May 2012 this Court allowed the appeal, quashed the convictions and ordered a new trial on the first nine counts. See [2012] IECCA 65. The ordering of a retrial does not of course compel the prosecutor to put the appellant on trial a second time, it merely authorises her to do so. Whether the appellant will in fact be retried on foot of this order is a matter for the prosecutor. In the ordinary way, the appellant would prima facie be entitled to the costs of a successful appeal and the costs of any retrial. But the prosecution contend here that the present appellant is not so entitled because a legal aid certificate had been granted to him by the Cork Circuit Criminal Court on the 18th December 2008. Furthermore, at a post conviction hearing on the 24th April 2009 a legal aid certificate in respect of an appeal to the Court of Criminal Appeal was granted on the application of counsel for Mr. Cunningham. It appears from the foregoing that the appellant was unable to meet the costs of his defence at the extremely protracted trial in the Circuit Court from his own resources. He was therefore defended on legal aid in that forum. Subsequent to his conviction and sentence of ten years imprisonment a member of his family decided that she would finance the conduct of the appeal privately out of her own resources and, this Court has been informed, she actually did this.
The power to order a retrial is now to be found in s.3(1)(c) of the Criminal Procedure Act 1993:
… (c) quash the conviction and order the appellant to be retried for the offence…”.
(a) where a legal aid certificate does not apply in respect thereof, order that the costs of the appeal and of the new trial in whole or in part be paid by the State, unless the Court is of opinion that the necessity for the appeal and the new trial has been contributed to by the defence.” (Emphasis supplied) Section 3(7) of the 1993 Act further provides:
In any event, counsel on each side of the argument assented to the proposition that, for a change of legal aid representation to be effective, it was incumbent on the new solicitor formally to seek a transfer of the legal aid certificate, thereby giving effect to the words of the trial judge at the conclusion of the sentence hearing, certifying for a particular representation by counsel “in the event of appeal”. That would seem to import that, in the absence of such transfer, the renewed legal aid certificate was inoperative and inchoate in regards new defence representation. As noted above, there is no suggestion that Messrs. Sheehan and Partners were aware of any provisional legal aid certification by the trial judge when they undertook the privately funded appeal. It would obviously have been a serious breach of professional standards to have sought legal aid when privately funded, and that did not occur. Should it thus occur that an accused elects not avail of a legal aid certification for an appeal, and (if applicable) a subsequent retrial it follows that, pursuant to the terms of s.4(2)(a) of the 1993 Act, this Court retains a jurisdiction to order the costs of the appeal in favour of the accused. We would accordingly determine the preliminary issue by ruling as follows:
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