Irish Court of Criminal Appeal

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Cite as: [2014] IECCA 10

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Judgment Title: Director of Public Prosecutions -v- Meehan

Neutral Citation: [2014] IECCA 10

Court of Criminal Appeal Record Number: 190CPA/10

Date of Delivery: 23/01/2014

Court: Court of Criminal Appeal

Composition of Court: Murray J., de Valera J., McGovern J.

Judgment by: Murray J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Murray J.	Link	Refuse motion of DPP to dismiss

Outcome: Refuse motion of DPP to dismiss

THE COURT OF CRIMINAL APPEAL

Murray, J. [190 CPA/10]
de Valera, J.
McGovern, J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL PROCEDURE ACT, 1993

BETWEEN/

BRIAN MEEHAN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of the Court delivered on the 23rd January, 2014 by Murray J.

1. This matter concerns an application by the respondent, the Director of Public Prosecutions by way of Notice of Motion seeking a dismissal of an application which has been brought by the above named applicant, Brian Meehan, pursuant to s.2 of the Criminal Procedure Act, 1993.

2. The application which the DPP seeks to have dismissed, without waiting for a hearing on the merits, relates to what may be called the substantive proceedings in which the above named applicant, Brian Meehan, seeks an order of this Court pursuant to s. 2 of the Criminal Procedure Act, 1993 quashing his conviction and sentence in 1999 for the offence of murder (for which he was sentenced to life imprisonment). That section permits a convicted person who claims that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence imposed is excessive, to apply to this Court for an order quashing the conviction or reviewing the sentence. It is an application which may be made notwithstanding that a convicted person may have previously unsuccessfully appealed to this Court. Such an application is to be treated by the Court for all purposes as an appeal to the Court against conviction and sentence.

3. In the ordinary course of events an application pursuant to s.2 of the Act of 1993 is heard and determined on its merits by this Court in the normal way. In this case the applicant has filed and served the statement of grounds for his application supported by affidavits sworn by him and on his behalf. In turn the DPP has filed and served his reply to the statement of grounds and also filed an affidavit in support of that reply.

4. Instead of addressing the issues arising in the substantive proceedings when the proceedings come on for hearing in the ordinary way the DPP has sought to pre-empt a hearing on the merits by seeking to have the applicant’s substantive application summarily dismissed at this stage.

5. As the Notice of Motion states, the DPP applies for an order pursuant to s.5 of the Criminal Procedure Act, 1993 dismissing Brian Meehan’s application lodged pursuant to s.2 of that Act on the grounds that it does not disclose a prima facie case that a miscarriage of justice has occurred in relation to the conviction of the applicant.

6. That is the substantive application but as an alternative the DPP has sought an order that certain issues arising out of the s.2 application be heard as “preliminary issues in the case” prior to any disclosures being made in favour of the applicant, and prior to a hearing of the application on the merits in the ordinary way.

7. The only questions to be addressed in this matter are those two reliefs as sought in the respondent’s Notice of Motion.

8. The issue which the DPP seeks to have treated as preliminary issues are set out in paragraph 15 below.

Primary Relief Sought - An Order Pursuant to s.5 of the Act of 1993
9. The DPP seeks an order for the summary determination of the applicant’s application as provided for in s.5 of the Act of 1993. But the jurisdiction of this Court to make an order pursuant to s.5 is confined to the special circumstances set out in that section.

10. Section 5 of the Criminal Procedure Act, 1993 provides as follows:

“5.-(1)

If it appears to the registrar of the Court

that a notice of an application for leave to appeal does not show any substantial ground of appeal or, in the case of an application under section 2, that the application does not disclose a prima facie case that a miscarriage of justice has occurred in relation to the conviction or that the sentence is excessive,

he may

, without calling for the report of the official stenographer,

refer the application to the Court for summary determination

; and where the case is so referred the Court may, if it considers that the application is frivolous or vexatious and can be determined without adjourning it for a full hearing, dismiss it summarily, without calling on anyone to attend the hearing or to appear on behalf of the prosecution.

(emphasis added)

(2) The jurisdiction of the Court under subsection (1) may be exercised by a single judge of the Court and an appeal may be made to the Court by the convicted person against the summary determination of an application.”

11. The DPP asks the Court to make an order dismissing the s.2 application pursuant to the foregoing section. It is clear that this primary application of the DPP is misconceived. It is manifestly evident that this Court only has jurisdiction to make an order pursuant to s.5 when the registrar refers an application made pursuant to s.2 to the court. The registrar of the court may only refer the matter to this Court if it appears to the registrar that the notice of an application pursuant to s.2 does not disclose a prima facie case that a miscarriage of justice has occurred.

12. The stark fact is that the registrar of the court has not referred the applicant’s application to this Court. There is nothing whatsoever to suggest that the registrar formed a view that the application does not disclose a prima facie case, or indeed formed any view on the matter.

13. Since the registrar of the court has not referred Brian Meehan’s application to the Court, which is an essential precondition to the court or a member of the court having jurisdiction to make an order pursuant to s.5, the primary application of the DPP must be refused.

Alternative Order
14. The DPP wishes, according to paragraph 2 of the Notice of Motion, a number of issues in the matter to be heard and determined “prior to any disclosure orders being made in favour of appellant and prior to any full hearing of the application”. It is clear that the DPP takes the view that the applicant’s s.2 application is wholly without merit and that there is no “newly discovered fact”. Needless to say, the applicant, through his counsel, has taken a contrary position. A “newly discovered fact” includes, according to sub-section 4 of s.2 a fact which, while not new or newly discovered, is one the significance of which had not been appreciated by an applicant at the relevant time. Insofar as the DPP may be correct in stating that the newly discovered facts relied on by the applicant had, in fact, been made known to his solicitor prior to the hearing of the original appeal of the applicant to this Court, the applicant contends that they are in any event facts which are “newly discovered” within the meaning of the terms of the section, as their significance was not appreciated by those acting for him at the time and in any event he personally was not aware of them. All these matters are in issue between the parties, the onus being on the applicant to establish, at a hearing on the merits, the facts relied upon or asserted by him in support of his application.

15. As pointed out above s.5 of the Act makes provision for summary determination of an application pursuant to s.2 in certain circumstances and these circumstances have not been met.

16. The issues which the DPP, in the alternative, seeks to have decided on a “preliminary” basis would appear, from the Notice of Motion, to be the following:

“(1) There is no new or newly discovered fact within the meaning of s.2 of the Criminal Procedure Act, 1993. In particular the transcript of the trial of John Gilligan in February and March, 2001 is not a new or newly discovered fact.

(2) The within application is an abuse of process insofar as it seeks to rely on material that was known to the appellant at the time of his original appeal against conviction and which he sought to raise but which he then chose not to advance.

(3) The appellant is not entitled to advance the within appeal by reason of doctrine of estoppel by omission. The appellant advanced and/or could have advanced all of the points he now seeks to advance at the hearing of his original appeal on 27th June, 2006 - 28th June, 2006.

(4) The within application amounts to a collateral attack on the finality of the decision of this Court on the appellant’s appeal against conviction on 24th July, 2006.

(5) The within application is wholly without merit.”

17. The range of issues which the DPP seeks to have treated as “preliminary issues” encompass virtually the full ambit of the issues between the parties – they go to the kernel of the merits of the applicant’s application – and any hearing to resolve them would be tantamount to a hearing and determination of the case on its merits in the ordinary way, which is what s.2 envisages. No doubt the applicant could also identify discrete headings or issues within the ambit or scope of the issues unilaterally referred to by the DPP. It is difficult to see how directing that the issues referred to by the DPP should be treated as some kind of “preliminary issues” at this stage would assist in the effective disposal of this application when in substance it would involve a full hearing on the merits of the applicant’s application. When a case pending before this Court is ready for hearing and it is in the list of cases for hearing it may, depending on all the circumstances of the case and the nature of the issues, be appropriate for the Court, in the course of a case management exercise, to identify precisely the issues between the parties and the manner or order in which they should be addressed at a hearing. That is something that may be done with the assistance of both parties, each having their own perception of the issues at the appropriate stage.

18. In asking the Court, as an alternative to the primary application, to determine that those particular issues should be treated as so-called preliminary issues the DPP is asking the Court to depart from the normal procedure, namely, a hearing of the application in the ordinary way and a determination on the merits or otherwise of the s.2 application.

19. The Court does not consider that the DPP has established any grounds for embarking on some form of preliminary or separate hearing on the range of issues specified by the DPP when to do so would involve in any case in substance a hearing of the case on the merits and moreover would be unlikely to contribute to the management of the case as such. It seems to the Court that this subsidiary application is also misconceived or is, at best, premature.

20. The motion brought by the DPP referred to a hearing of these issues “prior to any disclosure orders” being made in favour of the applicant. No issue has been brought before the Court in the motion concerning what, or if any, disclosure orders should be made in favour of the appellant. The bringing of an application pursuant to s.2 does not give rise to a roving enquiry on the part of an applicant, and other than that the Court considers it should not make any further observations on that matter since no issue concerning the making of such an order has been brought before it. If that should arise in the future it is only then that the Court can consider what, if any, order should be made in that regard.

21. For the reasons set out above the Court is of the view that the matter should continue to proceed to a hearing to determine, on its merits in the ordinary way as s.2 of the Act of 1993 envisages, and the present application of the DPP be refused. If at an appropriate stage directions can usefully be given by the Court concerning the management of the case for the purposes of that hearing that can be addressed as it arises at an appropriate stage. The same applies for any issue that may arise concerning any order for disclosure.

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