THE COURT OF CRIMINAL APPEAL
[2010 No. 111 CCA]
THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 25th day of June, 2015
2. A retrial was ordered by the CCA which, following an application by the Mr. M.J., was transferred to the Dublin Circuit Court for hearing. On the 22nd March, 2010, Mr. M.J. was once again convicted by unanimous jury verdict of the same four counts of indecent assault as set out in the indictment laid against him. These charges were as follows:
Count no. 2: that “[the accused person], did on a date unknown between the 1st November 1981 and the 31st December 1981, did [sic] force [Ms. H.] to masturbate him while he was in his car in County [(specified)].”
Count no. 3: that “[the accused] did, on a date unknown between the 7th June 1981 and the 7th June 1983, indecently assault [Ms. H.] in his car on [(specified road in specified county)] by making her engage in masturbation of him.”
Count no. 4: that “[the accused], did on a date unknown between the 31st December 1983 and the 31st March 1984 in County [(specified)] indecently assault [Ms. H.] by forcing her to perform oral sex on him.”
Subsequently, at a hearing held on the 29th April, 2010, Mr. M.J. was sentenced by the learned trial judge (His Honour Judge O’Donnell) to six years imprisonment with the final three years suspended on certain terms and conditions.
3. By notice of appeal dated the 18th June, 2010, Mr. M.J. sought leave to appeal from the CCA against both conviction and sentence. Ten grounds of complaint were advanced on his behalf but two of them were ultimately abandoned: as was his appeal against sentence during the course of the hearing. The remaining grounds were referenced in the following manner by the CCA in its judgment, delivered on the 3rd June 2014 (“the main judgment”):
Ground No. (2) the refusal of the trial judge to grant a direction at the close of the prosecution’s case;
Ground No. (3) the failure of the said judge to discharge the jury at the conclusion of the charge;
Ground No. (4) the inadequacy of that charge and also the recharge, on the “right to silence”; and finally
Ground No’s. (5) to (8) the judge’s failure to give to the jury a “Cronin” type direction (The People (Director of Public Prosecutions) v. Cronin  3 I.R. 377 (“Cronin”)).”
4. It should be noted that Mr. M.J., as part of his original trial, also faced other charges of indecent assault and of incestuous behaviour in relation to the complainant, Ms. H., but was acquitted of such charges: as he was, on a number of similar charges of indecent assault concerning another of his daughters namely, Mrs. M. Evidently none of these charges formed any part of the re-trial.
The Decision of the Court of Criminal Appeal:
5. This ground of appeal related to an alleged family confrontation which took place some time in the early 1990s, during which it was claimed that the accused had admitted to having sexually assaulted Ms. H. At trial, counsel on his behalf submitted that in the exercise of its discretion, the Court should not admit evidence of this alleged event. The reasons for this contention were summarised by the appeal court, at para. 9 of its judgment in the following manner:
(ii) that even if such an admission was made, it was impossible to relate it specifically to the counts on the indictment in view of the other charges of a similar nature involving the complaint, of which the accused had previously been found not guilty;
(iii) that given the significant inconsistencies in the evidence, described by counsel as “massive”, it would, in this particular case, be impossible for the accused to obtain a fair trial, if the normal course was followed, of leaving such matters to the jury - particularly so when the timeframe of events is also considered; finally and in any event,
(iv) that if the accused person was compelled to defend himself against such evidence, given the antiquity of the relevant events, then the same would inevitably result in an unfair trial.”
6. The trial judge, when dealing with exactly the same submission as made to this Court on this ground of appeal, was satisfied that as a matter of law there was in fact a sufficient legal basis upon which the intended evidence of the confrontation could properly be placed before the jury: indicating that if and where necessary, the same would be accompanied by appropriate directions. The trial judge also stated when delivering his ruling that “at the moment”, meaning as the evidence then stood, he would have no difficulty in giving a “Cronin” type direction. The controversy which subsequently arose out of this remark was later ventilated as part of Grounds No.’s 5 - 8 of the notice of appeal.
7. The CCA considered this ground of appeal at length. Having made some general observations on the relevant case law as opened by counsel on behalf of the accused, the Court, being still somewhat uncertain as to whether the submission related solely to the principles outlined in R v. Galbraith  2 All E.R. 1060 (“Galbraith”) or whether it was raising a “pure admissibility” point, dealt with the issue at both levels. It concluded that no concerns arose at a “technically” admissible level regarding such evidence and also, having conducted a detailed review of what each relevant witness had in fact said, was equally satisfied that when properly considered, such evidence, as a matter of principle, was capable of surviving the Galbraith test, observing in the process that of course such a decision was a matter for the jury. Having looked at a number of other rather subsidiary issues, the Court was perfectly satisfied that no point of substance had been established, which could lead to a finding that the trial judge was in error or otherwise had acted erroneously.
Ground No. 2: the refusal of a direction at the close of the prosecution’s case:
8. In analysing the submissions made on this ground of appeal, the Court pointed out that at all stages during the course of a trial, there remained on the presiding judge an ongoing duty to ensure that the trial and the trial process was fair: and that if at any stage of the proceedings the rights of the accused person in that regard were being impeached or jeopardised, he would have an obligation to take whatever corrective measures were appropriate, including where necessary, an order terminating the trial.
9. Within that framework, the Court again reviewed the evidence as tendered and expressed the opinion that it was much more substantial than the submission of the accused person would suggest. Furthermore, by reference to his instructions, as articulated on his behalf by counsel during the course of the trial, it was clear that Mr. M.J. did not suffer from any substantive memory loss or recollection deficit regarding the family confrontation. Moreover, in accordance with its previous conclusion on the Galbraith challenge (para. 7 supra), it was further satisfied that any infirmities in the evidence were a matter for jury consideration and not a matter for judge led rejection. Finally, whilst the charges undoubtedly had an antiquitus feeling to them, nonetheless there was no legal support, in statutory provisions, in case law or elsewhere, to sustain the argument that by reason only of such antiquity, the same should be withdrawn from the jury or otherwise dismissed by the trial judge.
Ground No. 3: the failure of the trial judge to discharge the jury at the conclusion of his charge to them:
10. Counsel for the appellant, at the close of the judge’s charge, made an application that the jury should be discharged because the errors identified by him, were so serious that their irremediable effect could not be cured by any recharge, no matter how comprehensive that might be. More than a dozen requisitions were made in this context. Some of these had fallen out of the case by the hearing date with the most important of those remaining being set out at para. 68 of the main judgment. The Director of Public Prosecutions (the “DPP” or “the respondent”) opposed the application on the basis that any corrections needed could be made by way of recharge and on the appeal argued that such recharge as in fact given, had adequately dealt with the complaints made.
11. The CCA found by reference to the points argued, that the trial judge’s directions with regard to “out of court statements” and “stories in the workplace” were entirely correct, that his repeated reference to and warnings on the issue of corroboration, argued in part in the context of s. 10 of the Criminal Procedure Act 1993, were “forceful and emphatic”, and that any shortcomings in any other area, such as how he had treated the delay issue, were remedied by the recharge. Hence, this ground of objection had not been sustained.
Ground 4: the inadequacy of the charge and of the recharge to the jury on the particular issue of the “right to silence”:
12. The trial judge informed the jury, when explaining where the burden of proof lies, that there was no obligation on an accused person to give evidence and that he has an absolute right to remain “silent”, if he wishes. Counsel for the accused argued that this direction was inadequate, as being capable of misleading, in that the jury may have picked it up as a reference to a suspect’s right to remain silent when in garda custody, which was not of course what was intended. The CCA found that these concerns were entirely misplaced and that on any reasonable assessment of the transcript there was no scope for the misunderstanding as alleged.
Grounds No. 5 - 8: the judge’s failure to a give a Cronin type direction:
13. As appears from para. 6 supra, the trial judge said that if required he would have no difficulty in giving a Cronin type direction. A Cronin type direction in broad terms relates to the operation of the benefit of the doubt, if the evidence, correctly assessed, permits of more than one view or conclusion, as to matter of effect. In his charge to the jury the learned judge did give a direction with regard to inferences but by common accord the same was incomplete. However, the Court was satisfied that in the recharge this defect was remedied and in the circumstances he was quite entitled to refuse to expressly link what he had said, with the admission evidence regarding the family confrontation.
14. Accordingly, the application for leave to appeal was refused.
Section 29 Proceedings:
(ii) Whether the protection against self-incrimination as guaranteed by law is breached by admitting into evidence an incriminating statement made during a highly charged and tense confrontation, where eye witness evidence relating to the circumstances and/or substance of such admission contain significant inconsistencies?
(iii)Whether the protection against self-incrimination as guaranteed by law is breached by admitting into evidence an uncautioned incriminating statement made in, circumstances which do not make it evident that such admission might be admissible in subsequent criminal proceedings?
(iv)An Order extending the time for Leave to Appeal
(v) Does the fundamental requirement of basic fairness require that a trial Judge who has given an indication that a particular warning or direction will be given, upon which indication the defence has relied in its conduct of the proceedings, follows through by way of giving the expected direction or warning.
(vi)Such further and other Order as the Court deems meet.”
16. A further motion issued on the 19th or 26th of November, 2014, wherein new grounds of appeal were sought to be added to those contained in the original s. 29 notice. This application was grounded upon the affidavit of the said Mr. John Devane dated the 28th of November, 2014. Therein were listed ten grounds to include the three already advanced, all of which together read as follows:
b. Further, or in the alternative, the learned Trial Judges erred by not affording the Applicant / Appellant the opportunity of applying by way of Case Stated to the Supreme Court re the constitutionality & / lawfulness of section 29 of the Courts of Justice Act 1924 as re-enacted by s. 48 of the Courts (Supplemental Provisions) Act 1961 (which provides that appeals from the Court of Criminal Appeal are only permitted where a case involves a point of law of exceptional public importance and is desirable in the public interest).
c. Further, or in the alternative, the learned Trial Judges erred by not affording the Applicant/Appellant the opportunity of applying by way of Case Stated (within the framework of the European Convention on Human Rights and the European Treaty Provisions) to the Supreme Court on any point of law.
d. The learned Trial Judges erred by not referring a Case Stated to the Supreme Court on the question of law of public importance & public interest “Whether the protection against self-incrimination as guaranteed by law is breached by admitting into evidence an incriminating statement made during a highly charged and tense confrontation, where eye witness evidence relating to the circumstances and / or substance of such admission contain significant inconsistencies”.
e. The learned Trial Judges erred by not referring a Case Stated to the Supreme Court on the question of law of public importance & public interest “Whether the protection against self-incrimination as guaranteed by law is breached by admitting into evidence an un-cautioned incriminating statement made in circumstances which do not make it evident that such admission might be admissible in subsequent criminal proceedings”
f. The learned Trial Judges erred by not referring a Case Stated to the Supreme Court on the question of law of public importance & public interest “Does the fundamental requirement of basic fairness require that a Trial Judge who has given an indication that a particular warning or direction will be given, upon which indication the defence has relied in its conduct of the proceedings, follows through by way of giving the expected direction or warning”
g. The learned Trial Judges erred by not referring a Case Stated to the Supreme Court about whether a jury properly instructed could safely base a conviction on the evidential inconsistencies & discrepancies of 4 witnesses outlined in paragraphs 32 & 33 of the learned Ruling.
h. The learned Trial Judges erred by not referring a Case Stated to the Supreme Court about whether all evidence was admissible before arriving at their determination.
i. The Applicant / Appellant expressly seeks a ruling of the Supreme Court to enumerate current parameters of the constitutional privilege against self-incrimination (within the framework of the European Convention on Human Rights and the European Treaty Provisions) in the public interest & as a question of law of public importance (before determination of his appeal).
j. The Applicant / Appellant also expressly seeks a ruling of the Supreme Court to enumerate current parameters of the related constitutional right to silence (within the framework of the European Convention on Human Rights and the European Treaty Provisions) in the public interest & as a question of law of public importance (before the determination of his appeal).”
18. There was also some correspondence, it would appear, with regard to a bail application by Mr. M.J.. In his judgment on the habeus corpus application, Barrett J. stated as follows:
19. Mr M.J. has also filed an appeal against the judgment of this Court given on the 3rd June, 2014 (“the main judgment”) with the Court of Appeal on the same grounds as submitted to this Court on the s. 29 application. An extension of time for this appeal was also sought. This was a most unusual application and one difficult to understand. In the pre 2014 legal regime an appeal from either the Circuit Criminal Court or the Central Criminal Court was to the Court of Criminal Appeal. Subject to the transitional provisions, such an appeal, subsequent to the passing of the thirty third amendment of the Constitution and the enactment of the Court of Appeal Act 2014, is to the Court of Appeal. As the instant case falls to be determined under the former process, the only appeal which the respondent has is to this Court, namely the Court of Criminal Appeal.
Submissions of the Appellant:
21. The appellant submits that some remedy must be available to him and he argues that ensuring that there is a dynamic and evolving constitutional and evidential jurisprudence is a matter of exceptional public importance. Furthermore, it is stated that the report of the Law Reform Commission, Prosecution Appeals and Pre-Trial Hearings (LRC 81-2006) (paras. 2.19, 3.68, 5.17 and ors) recommends without prejudice prosecution appeals. It is submitted that the European Convention on Human Rights and the European Treaty provisions require that access to the courts is protected and that as the appellant currently has the option of taking a “case stated” to Europe, a similar remedy should be available in the domestic courts despite the attempt in s. 29 of the 1924 Act to restrict such right.
22. It is explained in the submissions that Mr. M.J., as a lay litigant, had issued the original motion seeking the s. 29 relief: hence the limited nature of what was claimed (however, see para. 15 supra). On professional advice he has now instructed his lawyers to expand the basis of such application. Hence the second notice of motion.
23. The appellant submits that the European Court of Justice (“ECJ”) and the European Court of Human Rights (“ECHR”) have ruled that there is a right to legal aid for those without sufficient resources to provide such legal advice for themselves. It is stated that lay litigants do not know how to not self-incriminate themselves.
24. The appellant also submits that evidence put to the jury at his trial was unsafe and that four witnesses had the benefit of retaining their witness summonses from the original trial until the second trial. It is also noted that the European Commission produced a Working Document dated the 27th November, 2013, proposing measures to strengthen aspects of the presumption of innocence and that the right not to self-incriminate is indentified therein.
Submissions of the Respondent:
Section 29 of the Courts of Justice Act 1924:
(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.
(5A) The Supreme Court, in an appeal under subsection (2), (2A), (2B) or (3) of this section, may, if it considers it appropriate to do so, hear argument and make a determination in relation to any part (not only the point of law of exceptional public importance which is the subject of the certificate concerned issued under whichever of those subsections is appropriate) of the decision of the Court of Criminal Appeal concerned.”
27. The law on s. 29 applications was considered by the Court of Criminal Appeal in 2010 in the case of Director of Public Prosecutions v. Linda Mulhall  IECCA 72:
28. In The Director of Public Prosecutions v. McCarthy & Ors (unreported; Court of Criminal Appeal; 16th June 2010) Fennelly J. also considered s. 29. He stated that:
29. Professor O’Malley, in The Criminal Process (Dublin; Round Hall; 2009), writes in similar tones with regard to s. 29:
30. See also the judgment of Kenny v. An Bord Pleanála and Ors (unreported; High Court; McKechnie J.; 2/3/2001), where much of the law on what precisely must be established before certification will follow, was outlined and discussed.
32. The original s. 29 application (para. 15 supra) at subparas. (ii), (iii) and (v), raised issues which the appellant says fall within the provisions of s. 29 of the 1924 Act and thus are worthy of a certificate under that section. The first two matters mentioned relate to the family confrontation, with the third being referable to the Cronin point. As set out above and as appears more fully from the decision of this Court given in the substantive appeal on the 3rd June, 2014 (“the main judgment”), these matters were dealt with at length in that judgment. Accordingly, Mr. M.J. already has had the benefit of having each of these issues fully explored by the appellate court.
33. No point of any sufficient importance within the provisions of s. 29 of the 1924 Act has been articulated which would merit the application of that section. The facts giving rise to the family confrontation were very special and case specific to the situation of the moment and to this family. Whilst it may be said that such are of great interest to Mr. M.J., it could not be reasonably argued that such are more than that and certainly in this Court’s opinion do not reach the level which would meet the threshold of the section.
34. The Cronin point once more, arose in the particular circumstances of the case, and in any event this Court, in its earlier judgment, was entirely satisfied that any deficiencies which may have existed in the charge and in respect of which complaint was made, were adequately remedied in the re-charge. Accordingly, none of these grounds qualify, in accordance with well established principles, for a certificate under s. 29 of the 1924 Act.
35. Points (a), (b) and (c), raised in the additional motion issued on 19th November, 2014 (para. 16 supra), are quite difficult to understand and it is entirely unclear to this Court how they are arguable or even stateable in an application such as this. The first matter is an allegation that the CCA erred in not directing a full hearing regarding the unconstitutionality/unlawfulness of s. 29 of the 1924 Act. The second matter, which is a variation on the first, complains of the CCA’ s refusal to afford Mr. M.J. an opportunity of applying by way of case stated to the Supreme Court regarding the constitutionality/unlawfulness of s. 29 of the 1924 Act, with the third point being in effect a repetition of the second, but pitched within the framework of the European Convention of Human Rights (“ECHR”) and European Treaty provisions. It is submitted by counsel for the appellant that the ECHR and European Treaty provisions require domestic appellate options to be provided and that access to the courts be assured, and that any restriction on these requirements would not be upheld by the European Court of Justice or the European Court of Human Rights.
36. Insofar as one can put a legal interpretation on these matters, they would appear to suggest that the respondent wishes to argue that s. 29 of the 1924 Act is unconstitutional. If that be correct, such an issue, as a matter of law, cannot be initiated in an appeal to the CCA from a conviction recorded in the Circuit Criminal Court. The CCA, in its pre-2014 form, was statutory based. It did not have constitutional status. As such within its founding jurisdiction, it had no competence to entertain an allegation that a statutory provision was inconsistent with Bunreacht na hÉireann or alternatively was not carried forward into Irish law following its enactment in 1937. Furthermore, apart from the provisions of s. 29 of the 1924 Act there is no other process by which the Supreme Court can be asked for an opinion on an issue arising out of a decision of this appellate court. As is common case and as standard practice has demonstrated for several decades, where a person wishes to challenge the constitutionality of a provision, he does so either by instituting plenary proceedings or alternatively, by seeking judicial review. Therefore, at the level of principle it is not at all clear how these points can even be raised on this application.
37. At the individual level, it should be noted that no argument was addressed to the CCA in the substantive appeal about the constitutionality or unlawfulness of s. 29 of the 1924 Act. Nor in fact would it have been appropriate to so do. Accordingly, this Court is entirely satisfied that these matters could not conceivably justify a certificate under the said statutory section.
38. There remain the grounds specified at subparas. (g), (h), (i) and (j) of the said second notice of motion (para. 16 supra). All of these points, though differently phrased, have as their core complaint an allegation that the CCA acted erroneously in not either itself seeking or else permitting the appellant to seek, the opinion of the Supreme Court on the trial process, on the rulings of the trial judge, or on the conviction recorded against the appellant. As above stated, there is no such provision by which it would be appropriate for the trial court or the CCA to have done so or to have permitted the appellant to do, what he now appears to claim. The only way in which the Supreme Court can become engaged with a matter in the context under discussion is through the provisions of s. 29 of the 1924 Act.
39. Accordingly, in this Court’s opinion none of the grounds so advanced meet the necessary threshold for a certification under s. 29 of the 1924 Act and thus, this application must be dismissed.