Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 19
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Judgment Title: Director of Public Prosecutions -v- McKevitt Neutral Citation: [2014] IECCA 19 Court of Criminal Appeal Record Number: 263CPA/12 Date of Delivery: 20/05/2014 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., McGovern J., Edwards J. Judgment by: MacMenamin J. Status of Judgment: Approved
Notes on Memo: Refuse Section 29 Certificate | ||||||||||||
COURT OF CRIMINAL APPEAL [CCA No. 263/CPA/12] MacMenamin J.
MICHAEL McKEVITT APPLICANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGMENT of the Court of Criminal Appeal delivered the 20th day of May, 2014, by MacMenamin J.
In this application the court is asked to certify two questions set out below as being matters of exceptional public importance such that it is in the interests of justice that they be heard and determined by the Supreme Court. These matters are:
(ii) Whether a convicted person must have expressly raised or demonstrated, either at their trial or prior to their conviction, their objection to the use of an unconstitutional statutory provision, in order to avail of a later declaration of unconstitutionality of the said provision obtained by another litigant”. In Damache this court held that S. 29 of the Offences against the State Act 1939 was inconsistent with the Constitution of Ireland. The section permitted a member of An Garda Síochána not below the rank of Superintendent to issue a search warrant in certain specified circumstances. The Section did not stipulate that such a warrant might only be issued by members of that rank who are independent of the relevant investigation. The Section was found to be repugnant to the Constitution on the basis that the administrative act of issuing a warrant should not be carried out by a Garda Superintendent who was involved in an investigation or prosecution as this offended against the principles of fair procedures and nemo udex in sua causa. As the earlier judgment of the court set out the search carried out on the applicant’s house now more than 10 years ago took place on foot of a warrant issued by Detective Superindent Peter Maguire of An Garda Síochána who was involved in the investigation and prosecution of the applicant. On the basis of judgment in Damache the applicant sought to contend that there had been a miscarriage of justice in his case which came within S. 2 of the Criminal Procedure Act 1993. He contended that the court relied on corroborative relating to material found in the house which should have been ruled inadmissible as it been obtained under a statutory provision which was subsequently found to be repugnant to the Constitution. This court concluded that the application made by Mr. McKevitt was without merit. Regrettably the court must make a similar finding in relation to this application. The applicant now seeks to make the case that there was no obligation to raise the Damache point at the trial. It is said that the judgment is a newly discovered fact. In the view of this court this application is entirely misconceived. In the course of its judgment this court quoted judgment of Murray C.J. in A v Governor of Arbour Hill Prison [2006] 4 IR 88. In that judgment the Supreme Court made clear that when an Act is declared unconstitutional a distinction is made between the making of such a declaration on the one hand, and its potential retrospective effect on cases which have been already been determined by the court. The distinction must be made in the interests of legal certainty, to avoid injustice, and having regard to the overriding interests of common good in an ordered society. Expanding on this Murray C.J. stated at paragraph 125 of A. under the heading the general principle
In the course of its judgment herein this court considered the range of cases addressed the question of what constituted a newly discovered fact. It is unnecessary to reiterate them here. The court held that a decision of the Supreme Court in DPP v. Damache could by no stretch of the imagination identified as a newly discovered fact. What is more fundamental however are the terms in which the Supreme Court reached its conclusion? This court has already concluded that there was no miscarriage of justice in Mr. McKevitt’s case. It cannot be said then that an application to the Supreme Court on either of the issues canvassed is, “in the interests of justice” insofar as they arise in this case. Secondly it cannot be suggested that what arises here is a matter of “exceptional public importance”. By reason of the fact that the Supreme Court has already pronounced in the issue in the passages from A. v The Governor of Arbour Hill Prison cited above. Even if one were to redefine the word “fact” so that it arguably might equate to judgment how could it avail the applicant. This is not a situation where the interests of justice require that the matter be determined. Moreover it cannot be held to be a matter of exceptional public importance by reason of the fact that the Supreme Court has already pronounced on the consequences a finding of unconstitutionality in circumstances such as these. Were the declaration of unconstitutionality to be recategorised as a newly discovered fact could it in anyway assist the applicant? The answer to that question must be no. The validity or arguably of the second question hinges on the first one. In fact both of the issues are encompassed in the quotation from Murray C.J. in the A. case which this court might add (was cited in the earlier judgment herein). In all the circumstances the court does not consider that the matters which arise are of exceptional importance nor is it in the interests of justice that they should be heard and determined by the Supreme Court. The court would add that in the course of the passages cited earlier Murray C.J. specifically stated that the principle which is enunciated arose in circumstances where
More recently in DPP v Patchell the Court of Criminal Appeal Unreported 4th February 2013 this court (McKechnie J.) set out a number of principles which are equally relevant to this case. The court observed:
(i) what precise relevance to the point of law in question has on the critical issue still pending in the case; (ii) the necessity of obtaining the Supreme Court’s view on the suggested point; and irrespective of that view (iii) what effect it would have on the ultimate disposal of the case”
The point which the applicant now seeks to raise is on foot of a conviction by the Special Criminal Court as long ago as the 6th August 2003. Although the matter has been before the courts in many guises since then, in the view of this court the point which is now sought to be certified does not have any merit and the court will refuse the application. | ||||||||||||