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Cite as: [2013] IECCA 86
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Judgment Title: Director of Public Prosecutions -v- Timmons Neutral Citation: [2013] IECCA 86 Court of Criminal Appeal Record Number: 28/09 Date of Delivery: 14/01/2013 Court: Court of Criminal Appeal Composition of Court: McKechnie J., de Valera J., McGovern J. Judgment by: McKechnie J. Status of Judgment: Approved
Notes on Memo: Refuse application to amend grounds of appeal against conviction | ||||||||||||
COURT OF CRIMINAL APPEAL [C.C.A. No. 28 of 2009] McKechnie J. de Valera J. McGovern J. The People (at the Suit of the Director of Public Prosecutions) Prosecutor/Respondent And
David Timmons Accused/Appellant Judgement of the Court (Ex Tempore) delivered the 14th day of January, 2013 by McKechnie J.. General Background: 2. For reasons not entirely clear, the sentencing aspect of the appeal had not been moved or disposed of prior to the issuance of the notice of motion herein. In light of the relief which the motion prayed for, that matter remains adjourned and as yet, has not been determined or pronounced upon by this Court. 3. On the 23rd day of February, 2012, the Supreme Court delivered judgment in the case of Damache v. The D.P.P. & Ors. [2012] 2 I.R. 266 (“Damache”). The issue pronounced upon was the constitutional validity of s. 29(1) of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976 (“s. 29 of the 1939 Act”). Under the provisions of that section, a member of An Garda Síochána, being not below the rank of superintendent, could issue a search warrant (a “s. 29 warrant”) in respect of, inter alia, a person’s private dwelling house, if the conditions specified in the subsection were met. 4. On its face, the section did not differentiate between members for this purpose, save for specifying a minimum rank. This meant that a superintendent, or evidently, a member of higher rank, who was heavily involved in the underlying investigation, could himself/herself issue such a warrant. Such a procedure was challenged as being constitutionally flawed on the basis that a s. 29 warrant could only issue under the independent and impartial supervision of a qualifying member. The reason for this requirement, it was submitted, was to ensure that the issuing officer had no material interest in the decision and accordingly would be objectively positioned to satisfy himself that the statutory conditions had been met and that the conflicting interests of the State and the subject-person, if such arose, could be neutrally assessed. 5. The Supreme Court so agreed and granted the following declaration:-
7. In determining this application, which strictly speaking is one of amendment only, the Court nevertheless has also given careful consideration to whether, even if successful in that regard, Mr. Timmons could avail of the Damache decision. Submissions: 9. Several cases are quoted as part of the written submissions and were, at least to a degree, opened before this Court: these include The People (D.P.P.) v. Cunningham [2012] 2 ILRM 406 (“Cunningham”), The People (D.P.P.) v. Kavanagh & Ors. [2012] IECCA 65, The People (D.P.P.) v. O’Brien [2012] IECCA 68 and D.P.P. v. Hughes [2012] IECCA 69. 10. On behalf of the Director of Public Prosecutions (“D.P.P.”), it is submitted that as this Court in its judgment of the 12th April, 2011 (para. 1 supra), conclusively determined the appeal against conviction, that aspect of the case has been definitively disposed of. Accordingly, and notwithstanding the extant appeal against sentence severity, it is not now possible to re-open the jury finding in this case. 11. Secondly, it is pointed out that the constitutionality of s. 29 of the 1939 Act was not raised at trial or on appeal, nor was it the subject-matter of any court challenge external to the criminal process. Thirdly, irrespective of the objection made at trial to the admission of the search warrant evidence, the amendment now sought must be considered as introducing a new ground of appeal for the first time. Accordingly, the principles outlined in Cronin (No. 2) apply. 12. In support of these arguments, the written submissions filed on behalf of the D.P.P., as with those filed on behalf of the appellant, refer to several cases, including those identified above. In addition, a number of others are also mentioned, for example Murphy & Anor. v. Attorney General [1982] I.R. 241 (“Murphy”), and McDonnell v. Ireland & Ors. [1998] 1 I.R. 134 (“McDonnell”). 13. In conclusion, it is urged that in the presenting circumstances, the appellant lacks any standing to seek to invoke the decision in Damache. The Decision: 15. On the 27th March, 2009, Mr. Cunningham was convicted on several charges of money laundering, including count no. 10, relating to a sum of £2.4 million sterling, which was found in his house during a search carried out pursuant to a s. 29 warrant. The notice of appeal against conviction and sentence followed quickly, but for reasons not relevant the appeal itself, was not thereafter processed with any notion of vigour. In fact, the notice was at one stage struck out for want of prosecution, but was re-entered in the appeal list, on the 28th November, 2011. 16. In April, 2012, following Damache, a notice of motion issued seeking to amend the grounds of appeal, as filed, to include an allegation that s. 29 was unconstitutional and that as a result the evidence obtained on foot of the warrant was likewise constitutionally objectionable and therefore inadmissible in law. Without prejudice to its applicability or to its ultimate impact, the amendment was allowed. Subsequently the Court of Criminal Appeal considered, and on the 11th May, 2012 gave its judgment, inter alia, on whether Mr. Cunningham could rely on the Damache decision. 17. The following relevant factors were not seriously in dispute on the appeal:-
(ii) that the constitutionality of s. 29 of the 1939 Act was not raised at trial, and until the amendment was allowed, it was not included in his appeal grounds; (iii) that no proceedings independent of the criminal process had been taken by Mr. Cunningham at any time to challenge the constitutionality of the section; finally, it should however be noted, (iv) that in his first set of submissions filed in October, 2011, questions had been raised as to the constitutionality of the section. 19. In opposing the application of Damache to Mr. Cunningham’s situation, the D.P.P. made several submissions which do not require repetition in detail here. Briefly it can be said however, that the principle submission was to the effect that the circumstances giving rise to the Supreme Court’s judgment in A. v. The Governor of Arbour Hill Prison [2006] 4 IR 88 (“A.”) were comparable to those in that case, and accordingly, as with Mr. A., the argument as advanced should be rejected. Further, by virtue of the appellant’s conduct, in particular that referred to at (i), (ii), and (iii) at para. 17 above, relief should also be denied. 20. Before referring to the judgment of Hardiman J. in Cunningham, a word should be said about A., where the Supreme Court unanimously held that Mr. A. was not entitled to rely on the earlier declaration given in C.C. & Anor. v. Ireland & Ors. and P.G. v. Ireland & Ors. [2006] 4 IR 1 (“C.C.”), that s. 1(1) of the Criminal Law Amendment Act 1935 (“the 1935 Act”), was inconsistent with the Constitution. In C.C., the accused person – himself a teenager – who had been charged with unlawful cardinal knowledge of a girl under 15 years of age, freely admitted to having consensual sexual intercourse with her when interviewed by the gardaí. He said that she had told him that she was over the statutory age and he believed her. Before trial, but after charge, he instituted High Court proceedings in which, inter alia, he advanced two claims: firstly, that on the true construction of the section, a defence of a mistaken belief as to age, reasonably held, was available, but secondly, that if it was not, the section was thus unconstitutional. In the Supreme Court’s view, the section did not permit of the interpretation as suggested and as a result, for the reasons given, the section was declared unconstitutional. 21. Some days after the delivery of that judgment, Mr. A., a man who was in his late 30’s at the time of the alleged offence, sought to take advantage of its conclusions by arguing that, as s. 1(1) of the 1935 Act was inconsistent with the Constitution, the statutory foundation for his own conviction had ceased to exist and accordingly he was no longer being detained in accordance with law. In rejecting this argument, the Court pointed out that on the facts, a defence of mistaken belief as to age was never available, as to his knowledge, the girl in question was a classmate of his daughter. Of much more significance in the present context however was the fact that he had pleaded guilty and had never attempted to appeal, with the appeal period having long since expired. He had actually served about half of his three year sentence at the time. Therefore, the case of Mr. A. had long since reached finality. 22. In such circumstances, Murray C.J. at p. 143 of the report had this to say on the subject:
24. The case of The People (D.P.P.) v. Kavanagh & Ors. [2012] IECCA 65 (“Kavanagh”), is also relied upon. Mr. Kavanagh and his two co-accused were jointly tried and all convicted of certain offences for which each of them received a lengthy term of imprisonment. Their convictions were materially based on evidence obtained under a s. 29 warrant, which had been issued by a senior member of the investigative team. When their appeal came on for hearing, the Damache decision had been given: they sought to rely on its consequences and were permitted to so do, with the following matters being particularly noted:-
(ii) the search warrant (in that case) was challenged at trial on certain grounds, but of particular significance was the submission of Counsel for a co-accused, in which he tried to raise the constitutionality of s. 29 of the 1939 Act on the same grounds as were later decided upon in Damache. However, and understandably, the trial judge declined to entertain the argument, in view of Article 34.3.2 of the Constitution; and finally (iii) that submission also constituted a ground of appeal which was included in the notices of appeal and which incidentally had been delivered prior to the Damache decision. 26. Another case highlighted was that of Mr. Hughes (D.P.P. v. Hughes [2012] IECCA 69 (“Hughes”)), who on the 1st November, 2011, pleaded guilty to counts 14 and 15 in the indictment and received a five year sentence on the former conviction and a concurrent two year sentence on the latter. There was no appeal on either conviction or sentence until, following Damache, an enlargement of time for so-doing was applied for. Having described the type of personal recognition or acceptance of guilt which a plea in that direction conveys, and having taken the broader considerations of justice into account when applying the civil standard of Eire Continental Trading Company Ltd. v. Clonmel Foods, Ltd. [1955] I.R. 170, on the criminal side, the Court of Criminal Appeal repeated and further affirmed all of what it had previously said in Cunningham. Having pointed out that the constitutional issue was not agitated at trial, that a plea of guilty had been entered, that no appeal was lodged within the required time, and that in any event, the Damache point could have no bearing on count 14 as the premises in question was not a family home, the Court continued:
The criminal proceedings against the appellant have not been finalised and either a trial or an appeal from conviction is still pending”.
28. There is no doubt but that there is a direct factual connection between this case and s. 29 of the 1939 Act, in that a search warrant was issued under that section by a superintendent who was involved in the investigation of the criminal activity which gave rise to Mr. Timmons’ subsequent conviction on the charge above referred to. In the execution of the warrant, the appellant’s private dwelling house was searched and mobile phones and a notebook were found. Information was obtained from both, which despite objection as to its admissibility, was tendered in evidence and relied upon by the prosecution to help establish the guilt of the accused on the conspiracy charge. Therefore, it must be accepted that there are similarities between the evidential foundation upon which Damache was based and that found to exist in the instant case. 29. Whilst the D.P.P. accepts that such exists at the level of principle, she makes the point in her submissions, being one not hotly disputed by the moving party, that the contested evidence, although relevant and supportive, was not corroborative of the main thrust of the prosecution’s case against Mr. Timmons. It was therefore not central to his conviction. Consequently, it could not be said to have had a material influence on the jury’s view of the guilt or innocence of Mr. Timmons, or in any review by the Court of Criminal Appeal of his conviction. If that is the situation, as it appears to be, that in itself might be sufficient to dispose of this motion, as in the Court’s opinion, the appellant would have to demonstrate that the evidence in issue was capable of being at least influential – though not necessarily decisive – before any amendment would be allowed. However, the Court does not propose to determine the application solely on what the D.P.P. asserts, but rather, will further consider the issue on its merits. 30. Leaving aside for the moment the question of what effect the continuing existence of the sentence appeal has on the overall submission that the appellant can invoke the decision in Damache, it is instructive at this juncture to look at the manner in which the s. 29 issue was raised at trial and how it has been relied upon thereafter up to the present application. 31. It seems not in dispute but that an issue arose during the currency of the hearing regarding the information obtained from the mobile phones and the notebook found in the bedroom of the appellant. That issue was ventilated in a way which focused on the defence trying to establish the inadmissibility of such evidence, on a number of grounds, all of which were rejected by the presiding judge. In the notice of appeal as it presently stands, fourteen grounds of complaint are raised. 32. Whilst acknowledging that the constitutionality of s. 29 of the 1939 Act was not as such raised at trial or as a ground of appeal, it is said nonetheless by Counsel on behalf of Mr. Timmons that grounds nos. 2 to 4 of the appeal notice, relating to the admissibility of the search warrant evidence are sufficiently proximate to the amendment sought that they should be allowed. I take this to mean, at the most generous level of understanding, that the form in which the objection was raised and the manner in which it was subsequently phrased in the notice of appeal, are sufficiently close to articulating the constitutional point that the amendment is but an express pleading of that which is already implied. 33. From a careful consideration of the grounds of appeal however, all of which are set out in the Court’s judgment on the conviction appeal, it is clear beyond question that ground no. 4 is entirely irrelevant to this submission and that ground no. 3 can either be subsumed into the preceding ground, or be treated as merely peripheral. This means that howsoever the point is raised, it is to be found in the wording of ground no. 2 only. 34. That ground reads “ 2. That the learned trial judge had committed a fundamental error in law by admitting into evidence material, or information, obtained from mobile phones and from a notebook, all located in the residence of the applicant, and had thereby failed to ensure that the applicant had a fair trial”. In the Court’s view this cannot in any way be read as constituting an attack on the validity of the warrant, much less a constitutional assault on the authorising section. It seems, as was virtually admitted, that this ground is premised on a number of common law exclusionary rules, regarding evidence. That this is so is evident from the submissions made in support of ground no. 2 at the appeal hearing, and the manner in which the Court in its judgment dealt with that ground and those submissions. In short, it was argued that the trial judge was wrong in admitting such evidence as it was irrelevant and was more prejudicial than beneficial; that it showed no personal connection with the accused or temporal relationship with the underlying events and finally that if admitted, these objections made on behalf of the defence could not properly be addressed by way of charge. It is therefore self-evident that neither expressly nor by implication could one read this ground of appeal or the submissions made in support thereof, as including within their remit any challenge, either to the warrant, or much more significantly, to the section itself. 35. Thus the situation as it pertained immediately prior to the issue of this motion, was that the constitutional point was not raised, either as part of the criminal process or in any process separate to it. 36. Before dealing with the specific points which require resolution, it is necessary to say something about the nature of the general submission made at the outset by Counsel on behalf of the appellant. That submission, which is referred to at para. 8 above and which incidentally is not easily understood, suggests that there is some overriding duty on the Court, certainly on the criminal side, to intervene in circumstances (like those which presently exist), where a conviction, once thought to be safe and satisfactory, may no longer be so. Implicit in this may be the suggestion that some sort of review should be initiated and undertaken by the Court of its own motion or even more radically that even if incapable of review under existing jurisprudence, some method must be found to redress the grievance said to exist, no matter how novel or far-reaching that might be. It is quite difficult to see any basis for this argument, particularly in an adversarial system which is governed by well-established principles, both substantively and procedurally, where it is for the parties themselves, not only to engage the Court but to do so, in a fact specific and legally focused way. In the absence of greater clarity and without at least some level of authority being presented, it is not possible to take this submission any further. In any event, the jurisdiction of this Court has been invoked by the issuance of the motion with the appellant being free to advance any relevant arguable point capable of sustaining his submission. Such will of course be considered by this Court. Therefore, as a matter of reality, it is not necessary for Mr. Timmons to endeavour to advance such a difficult argument, as the result sought to be achieved is otherwise available to him. The Determining Point: 38. In considering the issue, it is not necessary to review the earlier case law on the consequences which flow from a declaration that either a statutory provision has not been carried forward under Article 50 of the Constitution, or is one in respect of which a declaration of repugnancy has been made under Article 15.4.2 of the Constitution. Cases such as Murphy and McDonnell are well-known for having established a set of principles in this area. For present purposes it is sufficient to rely on A., where, as previously stated, the Supreme Court made it clear that once a prosecution has reached “finality”, then the decision in question must be taken as having been lawfully made, even when, as happened in C.C., the underlying provision upon which that prosecution was moved, is later declared unconstitutional. That proposition of law has guided the decision of the Court of Criminal Appeal in Cunningham, and in all of the other cases above mentioned and must thus be followed and applied in this case. 39. On the question of finality there is no doubt but that there has been a practice in this Court for some time – a practice with which we entirely agree – that where an appeal raises both conviction and sentence issues, the latter aspect of the appeal is frequently stood aside until such time as the Court rules on the conviction point. This is not always done, but where a separation of grounds is convenient and saves time it is beneficial to both parties to do so. Sometimes, such a course is suggested by either the prosecution or the defence and whilst the Court is itself free to impose this option, it generally will seek the parties’ consent before so doing. That is what happened in this case. Consequently, Mr. Timmons moved his conviction appeal, concentrating solely on challenging the finding of guilt. He did so through fourteen grounds of appeal. The Court, having considered each of these grounds, came to the conclusion that none were sustainable. It did so by reference to the law as it was understood to apply and as it was applied at that time. This occurred in April, 2011. It is therefore quite surprising to find the appellant now arguing that this aspect of his appeal is still alive and that it can be re-opened and reviewed, by reference to circumstances occurring almost one year later. 40. No authority has been opened to this Court in support of such a submission and we doubt very much that any exists. As stated, the issue of guilt has been determined, not only at first instance by the trial court and the jury, but also on appeal. Apart from a potential application under s. 29 of the Courts of Justice Act 1924, as amended, that is the end of a convicted person’s legal right of access to the court to have the issue of his/her guilt determined. Consequently, at the level of principle, we are satisfied that the decision given in April, 2011 was final in every sense and certainly final as technically understood in the face of a subsequent application to re-open the matter. 41. Staying at the level of principle, the situation might be looked at from a slightly different perspective by asking whether in the absence of Damache, it would have been possible for the appellant during the hearing of his sentence appeal, to ask this Court to revisit the conviction judgment, or for that matter, could the D.P.P. make a similar request? The answer, quite unequivocally, would be no. 42. There are however other reasons why the same conclusion must be reached. The first is the clear statutory wording of the opening portion of s. 29 of the Courts of Justice Act 1924 which reads:
45. Finally, as the appeal has been concluded it is to be very much doubted if Cronin (No. 2) could have any application. 46. In conclusion, the application will be dismissed. | ||||||||||||