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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- McNulty [2014] IECCA 34 (29 October 2014)
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Cite as: [2014] IECCA 34
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Judgment Title: Director of Public Prosecutions -v- McNulty Neutral Citation: [2014] IECCA 34 Court of Criminal Appeal Record Number: 270/12 Date of Delivery: 29/10/2014 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., Moriarty J., Herbert J. Judgment by: MacMenamin J. Status of Judgment: Approved
Notes on Memo: Section 29 Application refused | ||||||||||||
COURT OF CRIMINAL APPEAL [CCA No. 270/2012] MacMenamin J. IN THE MATTER OF AN APPLICATION FOR CERTIFICATION PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924, AS AMENDED
FERGAL MCNULTY Applicant/Appellant AND THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent Judgment of the Court delivered on the 29th day of October, 2014 by Mr. Justice John MacMenamin.
1. The applicant seeks an order pursuant to s.29 of the Courts of Justice Act, 1924 (“the 1924 Act”), as amended by the provisions of the Criminal Justice Act, 2006, seeking a certificate for leave to appeal to the Supreme Court on a point of law. The Statutory Provisions
(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.
2. Where a defence of alibi has been raised and the evidential burden satisfied, should the trial judge charge the jury that before proceeding to convict the accused, the prosecution is required to demonstrate that the alibis were not telling the truth and to prove beyond reasonable doubt that the alibis ought to be disbelieved? 3. In cases where the prosecution relies on identification/recognition evidence and a defence of alibi has been raised and the evidential burden satisfied, should the jury be charged to the effect that where the jury rejects the alibi defence that such rejection does not lend support to the recognition/identification evidence upon which the prosecution is based? 4. On the 30th July 2012, the applicant herein was sentenced to eight years imprisonment having been found guilty of the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 and the offence of intentionally or recklessly causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997. The applicant was convicted of a vicious attack on his former partner who identified him as the assailant. 5. The Applicant appealed his conviction to this Court on the basis of two alleged errors on the part of the trial judge. First, it was urged on his behalf, that the trial judge had erred in failing to charge the jury to the effect that the burden of disproving the defence of alibi lay at all times with the prosecution. Second, the applicant argued that the trial judge erred in rejecting the application for a direction of ‘not guilty’ at the close of the prosecution case due to the allegedly weak nature of the identification evidence and the fact that the prosecution case rested solely on same. 6. This Court rejected the appeal in an ex tempore judgment delivered on the 10th March, 2014. With regard to the first ground of appeal, the Court was satisfied that the trial judge’s exposition of the law was correct. The trial judge emphasised that there was no onus on the accused to disprove the prosecution case, but rather at all times the onus of proof lay on the prosecution to prove its case. This Court concluded that the judge made this clear to the jury, clearly, emphatically and repeatedly. 7. In relation to the second ground of appeal, the Court pointed out that the identification evidence was, in fact, recognition evidence. The victim knew the applicant and recognised him. This was not, therefore, identification of some unknown person. Further to this, the Court was satisfied that the visibility conditions at the time of the incident, and the fact that the victim had two sightings of her assailant, rendered it safe to leave such evidence to the jury. The Legal Authorities
17. In any event it is clear that the point of law cannot only be peculiar to the particular facts of any given case and that it must have the capacity of widespread application in its subject area. The point must have a gravity and importance to it which enables the Court to rightfully classify it as “exceptional”. Further, the jurisdiction must be considered as such and in no circumstances is it intended to displace the first level of appeal, or, outside of its express parameters, to permit a second strand of appeal. It is not designed to gain, and should not be used as, an opportunity of rerunning what was argued in the Court of Criminal Appeal. It must therefore only be on rare and very limited occasions that the certifying process can be invoked. 18. In addition it seems to the Court that when considering an application under the section, it is important to ascertain: (i) what precise relevance 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 would it have on the ultimate disposal of the case. 19. Quite evidently, if the suggested point of law is not at the heart of the argument, it is difficult to see how it could satisfy the requirements of the section. Likewise, there could be no question of seeking from the Supreme Court its opinion on some abstract, hypothetical or moot issue. Furthermore, if the point does not have a decisive influence on the ultimate disposal of the case, or at least a material bearing to that end, it is difficult to see how and why the exceptional jurisdiction of the section should in such circumstances be applied. 20. In the Court's view these points are no more than an elaboration of the section's true positioning within, as applicable in this case, the criminal process as a whole.” 11. As evident from both the wording of the statutory provision and the case law, there are two limbs to the test for one to succeed in reaching the threshold for the granting of a certificate pursuant to s.29. The two limbs - described as the “twin requirements” by McKechnie J in O’Connor (para.25) - are:
2. It is desirable in the public interest that the person should take an appeal to the Supreme Court 13. A point of law of exceptional public importance will exist where the point reaches beyond the four corners of the applicant’s case and is likely to arise in future cases involving the same or related issues. The ‘exceptional’ nature relates to the gravity and importance of the issues involved. The point of law must be one which is contested and requires clarification in the interests of justice. Where clarity in the law is required it could be said to be desirable in the public interest that such further appeal is taken. 14. The point of law must be material to the decision such that the applicant’s case turns on it. In the case of DPP v K, Unreported Court of Criminal Appeal, 29th July 2002, Murphy J held that even where a point of law may be of public importance or ‘benefit from judicial clarification’ but is moot with respect to the applicant, and such appeal would not benefit the applicant, a s.29 certificate will not be granted. This is also evident in the McKevitt decision, whereby futility will defeat an application. Further, he court must have relied upon the point of law in issue in their reasoning and it must not be extraneous to the decision. 15. It is important to emphasise in the context of this case that the point of law on which certification is sought must involve a dispute as to an actual issue or element of law; and not as to the application of any point of law to facts of the case. It must not involve a criticism of the law as it was applied to the applicant’s case. Where the application of the law is in issue, such takes on the form of a re-appeal and is not permitted by, nor is it the purpose of, s.29. 16. It should by now be very clear that there are two important elements involved here. First, there must be a point of law of exceptional public importance. The applicant bears the burden of proof in this respect. A legal point might well be of great importance to the person concerned. This will not render the point of public importance. Secondly, the public interest must render it desirable that a further appeal be taken. (Cf Thomas O’Malley, The Criminal Process (Round Hall, 2009) p.942). 17. This means that there is a legal issue which arises from the appeal on which it is in the public interest that the law should be clarified. Insofar as these somewhat overlapping tests are concerned, the requirements may be satisfied when a point arises in one case which has arisen, or may arise, in a number of other cases. The tests are not satisfied merely because an issue of law arises in an appeal. The Court of Criminal Appeal is vested with the task of finally determining the correctness or otherwise of the decisions under appeal. The s.29 jurisprudence, therefore, will arise only in very rare and exceptional cases. (See DPP v Eamonn Kelly (unreported, Court of Criminal Appeal, 11th July 1996) Blayney J and DPP v. Littlejohn [1978] ILRM 147). 18. In the case of The People (DPP) v McCarthy & Ors [2010] IECCA 51 pp. 2-3, this Court held that the Court must be satisfied that the decision on which an appeal is sought:
The proposed point of law must have been involved in the decision of the court in the sense that the court’s ruling on the point formed part of the reasoning leading to the rejection of the application. In other words, it must be possible to identify a point of law upon which the Court relied and which it applied in making its decision. Implicitly also, the point of law must have been contested. In a literal sense, every application for leave to appeal raises some point of law. Where the law is not in dispute, but an unsuccessful applicant criticises the manner in which the court has applied it to the facts, the section does not apply. It is not sufficient for the applicant to show that the court incorrectly applied the law to the facts of the case. That would be tantamount to permitting the repetition of the original hearing… Section 29 does not permit an appeal, where the appellant merely wishes to dispute the manner in which the Court of Criminal Appeal applied the law to the facts.” (emphasis added) 19. Having accepted that the authority of The People Attorney General v Casey (No 2) [1963] I.R. 33 deals with the warning to be given to a jury in matters of identification evidence, and the case of People (DPP) v Burke & O’Leary [1986] 3 Frewen 92 which addresses the warning to be given to a jury in relation to alibi evidence, the applicant contends that there must be an obligation on a trial judge to give a direction on the relationship between the two. 20. This Court would comment that the actual words the judge uses to bring this about are a matter for him or her. That is a matter for discretion. The function of this Court on an appeal is to see to it that the legal position is clear to the jury and that there is no error in principle. 21. In this application, the applicant sought to rely on a number of cases from the United Kingdom in making his case. It is said that the case of R. v. Pemberton (1994) 99 Cr. App. R. 228 is authority for a duty on a trial judge to correctly charge the jury regarding alibi and identification/recognition evidence. However, in fact, the English Court of Appeal found nothing more than a Turnbull direction was required in the circumstances of the case where no direction in any specific manner or form had been given to the jury in relation to the alibi evidence. Similarly, in the case of R. v. Duncan, Times Law Reports, 24th July 2012, it was said there was a failure by the trial judge to address the issue of alibi. But in Duncan it can be seen that there is nothing more than a duty adequately to charge the jury and the specific form and manner of same depends on the facts of the case (see also Lesley [1996] 1 CAR 39, Burge & Pegg [1996] 1 CAR 163 and Harron [1996] 2 CAR 457). 22. While three points of law were put forward by the applicant as requiring a certificate, the central issue on which the applicant makes his case, and underlying all three points, is that the jury ought to be charged to the effect that if they reject alibi evidence put forward by the defence, this does not automatically lend support to the identification evidence put forward by the prosecution. 23. In the instant case, this Court found in its judgment, specifically, that the trial judge had separated the alibi evidence from the accused’s own evidence. The trial judge had repeatedly emphasised the duty of the prosecution. The submissions in this case simply do not address the s.29 tests in any meaningful way. In fact, the point which is sought to be certified, arising in various characterisations in all three of the points, demonstrates that what is in issue is a matter which goes to the judge’s discretion. How the judge applies principles, provided they are correctly applied, is a matter for him or her, provided the issues are explained clearly. These cases are highly fact specific and the question in each case hinges on the manner in which the trial judge discharges his or her function. 24. This Court found on the appeal that the jury were adequately charged. It follows that the applicant’s case does not turn on points of law, as asserted. This Court is of the view that the issue on which a certificate is sought is, rather, on the application of points of law to the particular facts of the applicant’s case, and not a point of law which requires clarification in the public interest. 25. Having regard to all these circumstances, it cannot be said that this is a point of law of “exceptional public importance”. Nor can it be said that it is “desirable in the public interest” that this appeal should be brought to the Supreme Court. In all the circumstances, the Court will refuse the application. 26. In the instant case, the applicant has failed to address both limbs of the test set out both in s.29 of the Courts of Justice Act, 1924, and confirmed in the case law. The court was not directed to any wider implications of the issues involved, but rather the focus was directed, as it had to, to the applicant’s own circumstances. The applicant failed to outline to the Court, any gravity and importance of the issues he sought to address. Further, no reference was made to the second limb of the test, that “it is desirable in the public interest that the person should take an appeal to the Supreme Court”. The Court declines to make the order sought.
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