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Cite as: [2003] 1 ILRM 124, [2002] IESC 64
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People (D.P.P.) v. Cunningham [2002] IESC 64 (8th October, 2002)
THE SUPREME COURT
353/01
Keane C.J. Denham J. Murphy J. Murray J. Hardiman J.
IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924
and
IN THE MATTER OF AN APPEAL AGAINST SEVERITY OF SENTENCE TO
THE COURT OF CRIMINAL APPEAL
BETWEEN/
THE PEOPLE (AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS)
and
FRANCIS CUNNINGHAM
Applicant/Appellant
[Judgments delivered by Denham J. and Hardiman J.; Keane C.J. , Murphy J. and Murray J. agreed with Hardiman J..]
Judgment delivered on the 8th day of October, 2002 by Denham J.
1. Issue1. At issue in this case is an aspect of the jurisdiction of the Court of Criminal Appeal. The Court of Criminal Appeal is a superior court of record. It is a significant court. The Court of Criminal Appeal is the ultimate court of appeal for the majority of criminal cases heard by the Circuit Criminal Court and the Central Criminal Court. In a few cases, such as this, a point of law of exceptional public importance may be certified by the Court of Criminal Appeal to be determined by the Supreme Court.
2. Appeal2. This an appeal by Francis Cunningham, the applicant/appellant, hereinafter referred to as the applicant, against a judgment and order of the Court of Criminal Appeal made on the 25th July, 2001. The Court of Criminal Appeal refused the application of the applicant for leave to appeal against sentence. Also refused by the Court of Criminal Appeal was a preliminary application by counsel for the applicant for leave to adduce evidence in relation to mitigation of sentence as to certain events which had occurred since the date of sentencing. On the 14th December, 2001 the Court of Criminal Appeal certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision, in refusing the applicant leave to adduce the evidence in relation to mitigation of sentence concerning events which had occurred since the date of sentencing, involved a point of law of exceptional public importance.
3. Facts3. The facts as to the applicant's conviction are not in dispute. The applicant pleaded guilty on the 8th December, 1999 to a count of forgery contrary to s.2 of the Forgery Act, 1913. He forged a valuable security, a bank-draft, in the amount of £45,000. The Circuit Criminal Court imposed a sentence of 5 years imprisonment. The applicant sought leave to appeal from the Court of Criminal Appeal. During the course of the application counsel for the applicant asked the court to receive and consider ad misericordiam a number of documents described as testimonials or certificates which had come into being since the imposition of the sentence of five years on the applicant on the 8th December, 1999. Having considered the matter the Court of Criminal Appeal refused leave for such material to be put before it. The court ruled that it was confined to a consideration of the correctness of the sentence imposed by the Circuit Criminal Court, which could only be reviewed by reference to the position which prevailed as of the date when it was imposed and this necessarily ruled out of consideration any of the material proffered. Having then heard submissions from counsel on behalf of the applicant the court did not alter the sentence of five years that had been imposed in the Circuit Criminal Court.
4. Point of law of exceptional public importance4. The question of law of exceptional public importance is whether the Court of Criminal Appeal in considering an application for leave to appeal against sentence is restricted to a consideration of the state of affairs which prevailed at the date of the imposition of the sentence or whether it may consider evidence relating to the subsequent behaviour of the applicant and thus receive material of the type proffered. The point of law of exceptional public importance certified by the Court of Criminal Appeal for the Supreme Court is:
"Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, is it strictly limited to considering the state of facts existing at the date when the sentence was imposed or may it receive evidence [in] relation to events or facts subsequently occurring relating to the behaviour of the applicant, his state of health or otherwise which might be relevant if the court were itself deciding on the correct sentence?"
5. Statutory Law5. The Court of Criminal Appeal was established under s.3 of the Courts (Establishment and Constitution) Act, 1961. Section 12 of the Courts (Supplemental Provisions) Act, 1961 provides:
6. Section 48 of the Courts (Supplemental Provisions) Act, 1961 provides that any enactment contained in the Courts of Justice Acts, 1924 to 1961 shall apply to the courts established under the Courts (Establishment and Constitution) Act, 1961, this includes the Court of Criminal Appeal. 7. A person convicted on indictment in the Circuit Criminal Court has a right of appeal to the Court of Criminal Appeal: s.31 and s.63 of the Courts of Justice Act, 1924. Section 63 of the Courts of Justice Act, 1924 states:"12.(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and subject to the enactments applied by s.48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied by s.48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Court of Criminal Appeal.. . ."
8. The grounds for leave to appeal were set out in s.32 of the Courts of Justice Act, 1924 which provided:"63. An appeal shall lie from the Circuit Court in all cases tried on indictment to the Court of Criminal Appeal . . ."
9. This has been amended insofar as it relates to consequential orders, which amendment is not relevant to this case. 10. Section 33 of the Courts of Justice Act, 1924 has been replaced by s.7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 which provides:"Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an order admitting the appellant to bail pending the determination of his appeal."
"7. The Act of 1924 is hereby amended by the substitution of the following section for s.33:
11. The jurisdiction of the Court of Criminal Appeal was described in s. 34 of the Courts of Justice Act, 1924. It provided:"33. (1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal ('the court') on—( a ) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and( b ) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains, with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge."
12. This section has been appealed by the Criminal Procedure Act, 1993. Section 3 of the Criminal Procedure Act, 1993 replaces s. 34 of the Courts of Justice Act, 1924, and provides:"34. The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court."
13. The Court of Criminal Appeal is a creature of statute. In The State (P. Woods) v. Attorney General [1969] I.R. 385 the jurisdiction of the Court of Criminal Appeal was considered. The undisputed facts in that case were that the prosecutor had given notice of abandonment of his appeal to the Court of Criminal Appeal. Counsel on behalf of the prosecutor submitted to the Court of Criminal Appeal that as a notice of abandonment had been served by the prosecutor there was no appeal before the Court of Criminal Appeal. Counsel for the Attorney General disputed the matter and asked the Court of Criminal Appeal to substitute a different sentence. The Court of Criminal Appeal ruled that notwithstanding the service of the notice of abandonment of the appeal it had seisin of the appeal and jurisdiction to vary the sentence. The Court of Criminal Appeal then substituted a new sentence. The prosecutor in habeas corpus proceedings challenged the jurisdiction of the Court of Criminal Appeal to vary the sentence after service of notice of abandonment of appeal. The High Court (Henchy J.) held that the Court of Criminal Appeal had no jurisdiction to make the order which it did. On appeal Ó'Dálaigh C.J. stated at p.409 the often quoted words:"3. . . . (2) On the hearing of an appeal against sentence for an offence the Court may quash the sentence and in place of it impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial. (3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction or sentence may—(a) where the appeal is based on new or additional evidence, direct the Commissioner of the Garda Síochána to have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining whether further evidence ought to be adduced; (b) order the production of any document, exhibit or other thing connected with the proceedings; (c) order any person who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; (d) receive the evidence, if tendered, of any witness; ( e ) generally make such order as may be necessary for the purpose of doing justice in the case before the Court.(4) For the purposes of this section, the Court may order the examination of any witness whose attendance might be required under this section to be conducted, in a manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court."
"The Court of Criminal Appeal is the creature of statute and it is a court of limited jurisdiction."
14. He analysed relevant statutes, being the Courts (Establishment and Constitution) Act, 1961 and the Courts (Supplemental Provisions) Act, 1961. He referred specifically to s. 12(1) of the Courts (Supplemental Provisions) Act, 1961 which made the Court of Criminal Appeal a superior court of record and provided that it shall have full power for the purposes of that Act and of the enactments which are applied by s.48 of that Act to determine any questions necessary to be determined for the purpose of doing justice in the case before it. He referred to the statutory sections providing for appeal to the Court of Criminal Appeal. Ó'Dálaigh C.J. then held at p. 410 to 412:
15. It is quite clear that in the above seminal case the Chief Justice held that the Court of Criminal Appeal was a creature of statute and its powers are to be found in the statutes. As there was express power enabling an abandonment of an appeal which had been invoked correctly the Court of Criminal Appeal had no jurisdiction to hear the abandoned appeal. The powers of the Court of Criminal Appeal are limited to those given by statute and as statute enabled abandonment of an appeal, which had been done, then the court had no jurisdiction."The prosecutor's case fell under paragraph (ii) of s. 31; and it may be emphasised that the powers conferred on the Court of Criminal Appeal by s. 34 of the Act of 1924 are exercisable in respect of 'the case before the court'. The position would, doubtless, be the same even if this express provision were absent. S.36 of the Act of 1924 left the question of pleading, practice and procedure generally in all criminal cases before the Court of Criminal Appeal to be determined by rules of court, and s. 14 of the Courts (Supplemental Provisions) Act, 1961, repeated this provision. The current rules are to be found in Order 86 of the Rules of the Superior Courts, 1962, and the provision for abandonment of appeal, which is contained in r. 24 is as follows:- … In terms an appellant is authorised by the rule to abandon his appeal by giving notice thereof in the appropriate form . . .The rule of court (r. 24) taken by itself is quite clear: it is an authority to an appellant to abandon his appeal. To do so all he is required to do is to give notice on the prescribed form to the registrar. The form indicates that the abandonment is effective from the date of the notice:- '. . . I hereby abandon all further proceedings in regard thereto as from the date hereof.' The rule requires that notice be given in the prescribed form, i.e. to the registrar of the Court of Criminal Appeal, and, on receipt by the registrar of the notice, the appeal is abandoned with effect as from the date it bears. The Act authorises a person to appeal against a refusal to grant him leave to appeal; and the rule authorises him to abandon his appeal by giving notice of abandonment to the registrar of the Court of Criminal Appeal with effect, on receipt of the notice of abandonment by the registrar, retrospectively to the date of the notice. In the face of this very clear provision I cannot see how any ground in law can be found for the view that the Court of Criminal Appeal retained seisin of the prosecutor's appeal. . . As was well said by Mr. Justice Henchy in the course of his judgment: 'The jurisdiction of the Court of Criminal Appeal . . . is confined to cases in which the convicted person invokes the jurisdiction of that court.'
I conclude, with Mr. Justice Henchy, that the Court of Criminal Appeal had no application for leave to appeal before it when it sat on the 13th and 14th March, 1968, and that its order on the latter date purporting to vary the sentence imposed by Mr. Justice Butler was a nullity."
16. The concept of limited jurisdiction is used to describe the fact that the jurisdiction of the Court of Criminal Appeal is limited to that set out in statutes, that the jurisdiction is derived solely from statutes, in contrast, for example, to the inherent jurisdiction of the Supreme Court. 17. In The People (Attorney General) v. Cronin [1972] I.R. 159 the Supreme Court held that the provisions of Order 86, r.8 were ultra vires the rule making authority insofar as that rule purported to confer on the Court of Criminal Appeal jurisdiction to make an order extending the period allowed for applying to the Central Criminal Court (or High Court) for a certificate pursuant to s. 31 of the Courts of Justice Act, 1924; and that the provisions of s. 12 of the Courts (Supplemental Provisions) Act, 1961 did not confer such jurisdiction. Ó'Dálaigh C.J. stated, at p. 166:
18. Thus the statutory basis of the Court of Criminal Appeal was emphasised. Power or jurisdiction for the Court of Criminal Appeal decisions has to be found in statute law. To determine the jurisdiction of the Court of Criminal Appeal it is necessary to consider the relevant statutes. 19. Irish case law has provided that the Court of Criminal Appeal would overturn a sentence given by a trial court if it erred in principle. This reflected the law in England in the early part of the twentieth century. In Sidlow (1908) 1 Cr. App. R. 28 it is reported at p.29 that:"The Court of Criminal Appeal is a statutory court. Its jurisdiction is spelled out in s. 12 of the Courts (Supplemental Provisions) Act, 1961, which replaces s. 30 of the Act of 1924 and, in effect, carries over that Court's previous powers. . . ."
20. However, in the most recent edition of Archbold, Criminal Pleading, Evidence and Practice (2002) it is indicated that this strict approach is not now always taken in England and Wales. The statutory basis for the law on sentencing has altered in England and Wales. However, given the root of the analysis of much of Irish case law on sentencing it remains of interest. Archbold [2002] states at para. 7 - 140:"The Lord Chief Justice said the question of sentence was by no means free from difficulty, but the Court would not interfere with a sentence unless it was apparent that the judge at the trial had proceeded upon wrong principles, or given undue weight to some of the facts proved in evidence. It was not possible to allow appeals because individual members of the Court might have inflicted a different sentence, more or less severe. There was, in this case, evidence of one or more substantial pieces of metal being taken by the appellant, who could not possibly have thought he had a right to take them. The judge evidently thought the offence was not an isolated act. It could not be said that he had proceeded either on a wrong view of the facts or on a wrong application of the law to the facts. Having regard to all the circumstances in this case, the sentence would run from the date of the conviction."
21. In R. v. Waddingham, 5 Cr. App. R. (S.) 66, the Court of Appeal took a more traditional view of its role, refusing to have regard to the conduct of the appellant in prison: this was a matter for the parole authority. The sentence being neither wrong in principle nor manifestly excessive the court would not interfere. 22. In R. v. Ashraf, 13 Cr. App. R. (S.) 451, the Court of Appeal said that if it is contended on an appellant's behalf that he has provided help to the authorities, it is imperative that the court is supplied with clear details of that assistance. This could be done either by providing the court with a transcript of the proceedings at the Crown Court disclosing exactly what had been put before the judge or by a letter or statement from the prosecuting authority or the police.""The Court of Appeal is entitled to have regard to material which was not available at the time sentence was passed and also to have regard to what has happened since sentence was passed. Whereas the CAA [Criminal Appeal Act] 1907 provided for the quashing of a sentence where it was thought that a different sentence should 'have been' passed, s.11 of the 1968 Act . . . provides for a sentence to be quashed where the Court of Appeal considers that the appellant 'should be' sentenced differently. As to the power of the Court of Appeal to consider fresh evidence? . . . It is impossible to be precise about the circumstances in which the Court of Appeal will have regard to fresh material or to events occurring subsequent to the passing of sentence. However, cases occur in which the Court of Appeal says that, having regard to a certain report, usually a prison governor's report, the court now feels able to take a lenient course, e.g. R v Plows, 5 Cr. App. R. (S.) 20, and R. v. Thomas [1983] Crim. L.R. 493, where the court said of a sentence of nine months imprisonment that it was neither wrong in principle nor excessive in length, but because of the impact of the sentence on the appellant, and as an act of mercy it could be reduced so as to permit immediate release.
7. Doing Justice in the Case23. The legislation in Ireland makes specific reference to the jurisdiction of the Court of Criminal Appeal to do justice in the case before it. I described this jurisdiction of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v M.S. [2000] 2 I.R. 592 at p. 600:
"Thus, the fundamental principle underlying the Act of 1924 on the Court of Criminal Appeal is that it has the power and jurisdiction to do justice in the case before it. This Court of Criminal Appeal was established under the Courts (Supplemental Provisions) Act, 1961. Section 12 of that Act of 1961 provides, inter alia:
'(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and subject to the enactments applied by s.48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.
(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied by s.48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Court of Criminal Appeal.'24. The Courts of Justice Act, 1924, is an enactment applied by s.48 of this Act of 1961. Consequently, the jurisdiction described, including the requirement to do justice in a case before the court, remains the position." 25. There is an express statutory jurisdiction in the court of doing justice in the case. While the Court of Criminal Appeal is a court created by statute it has been an express and constant theme of the legislation that power is given to the Court of Criminal Appeal to determine questions for the purpose of doing justice in the case before the court.
8. Practice26. It has been the practice of the Court of Criminal Appeal in certain circumstances to accept evidence of matters which occurred after the sentencing order. This is a practical application of the concept of doing justice in the case. In The People (Director of Public Prosecutions) v M.S. [2000] 2 I.R. 592 a previously constituted Court of Criminal Appeal had ordered the up to date reports which were in issue when the case came back before a differently constituted Court of Criminal Appeal which applied the reports and determined the matter. In The People (Director of Public Prosecutions) v. O'Halloran (Unreported, Court of Criminal Appeal, 15th February, 1999) the court considered reports relating to the applicant's attempts to rehabilitate himself in prison. The court was satisfied that the sentence was correct in principle yet considered the reports and reduced the sentence. In The People (Director of Public Prosecutions) v Jethi and Singh (Unreported, Court of Criminal Appeal, 7th February, 2000) the Court of Criminal Appeal stated that it could not be said that the trial judge had erred in principle in imposing the sentence. Particular hardship in the family was referred to. Barrington J. gave the judgment of the Court of Criminal Appeal stating at p. 6 of the judgment:
"In all the circumstances this Court feels that while it cannot interfere with the sentences imposed by the trial Judge, that to meet the justice and the humanity of the case it should suspend the balance of the sentence in each case, conditional upon the applicants entering into a bond to keep the peace with all the people of Ireland during the balance of their sentence, the bond to be in the sum of £1,000."
8. Form of Appeal27. The Court of Criminal Appeal is an appellate court. It is the ultimate court of appeal for most serious criminal trials. It is not an appellate court which retries the defendant. It does not hold a rehearing. It is an appeal based on the transcript of the trial court together with such matters as are permitted under the legislation. As the appeal it is not a full rehearing the rights of the applicant are already constricted and so the statutes should not be interpreted so as to further limit the right of the applicant to an appeal. There are penal consequences for an applicant and the statutes should be construed accordingly.
9. Principle28. There is no principle excluding the taking of evidence in the Court of Criminal Appeal. Legislation provides for the taking of evidence in the Court of Criminal Appeal in certain circumstances. 29. The Court of Criminal Appeal may hear evidence as to the appropriate sentence on an appeal by the Director of Public Prosecutions if it has determined that the trial court was unduly lenient. See s. 2 of the Criminal Justice Act, 1993 which was considered in D.P.P. c Byrne [1995]
1. I.L.R.M. 279, especially O'Flaherty J. at p. 287. If the court determines that the sentence is unduly lenient and quashes the sentence and in its place imposes a sentence such as it considers appropriate, it must be a 'sentence which could have been imposed on him by the sentencing court concerned'; (as per s.2(3)(a) of the Criminal Justice Act, 1993). The appropriate sentence means appropriate in accordance with the circumstances at the time the matter is before the Court of Criminal Appeal. This law was reviewed and described in Director of Public Prosecutions v. Egan 2 I.L.R.M. 299 Hardiman J., giving the judgment of the court, stated at p. 307, having reviewed Griffiths v. The Queen (1977) 137 CLR 293, The People (Director of Public Prosecutions) v. Thomas McCormack CCA [2000] 4 I.R. 356 Director of Public Prosecutions v. Byrne [1995] 1 ILRM 279,"Moreover, if the court makes a finding of undue leniency it may substitute the sentence it considers appropriate. In that context, the word "appropriate" means appropriate to the circumstances pertaining at the time the application for review is heard. This emerges clearly from a number of the cases cited below. Changes in the circumstances of the defendant or other persons involved may be relevant as may the fact that there has been a period of uncertainty or the fact that the defendant has already been released from prison. The extent of the difference between the sentence imposed and that found appropriate on review will also be a relevant factor. The foregoing is not intended to be an exhaustive statement of the new factors the court may be called upon to consider."
30. Equally, the Court of Criminal Appeal may hear evidence as to the appropriate sentence in the case of an appeal by a convicted person, if the court has determined that the sentence was in error because of, for example, its severity. 31. I am satisfied that in addition the Court of Criminal Appeal may hear evidence of facts occurring after sentence by a trial court even if there has been no error in principle, in exceptional cases, for the purpose of doing justice in the case.
10. Justice32. The Court of Criminal Appeal is not a court established by the Constitution. It has not been submitted that it has an inherent jurisdiction under the Constitution. However, there is a specific statutory mandate "to do justice in the case." The words "to do justice in the case" are at the root of the jurisdiction of the Court of Criminal Appeal. 33. It is for the court to determine what constitutes justice in the case before it. That issue is not a matter for another institution of State. "Justice" is defined in Murdoch's Dictionary of Irish Law (3rd ed. 2000) at p. 447 as:
"The impartial resolution of disputes, the upholding of rights, and the punishment of wrongs, by the law. Justice is required to be administered in courts established by law by judges appointed in the manner provided in the Constitution: 1937 Constitution, art. 34(1)."
34. The Court of Criminal Appeal does not exercise the prerogative of mercy. It is no more a court of mercy than it is a court of vengeance. Mercy is a power of the executive. Under the Constitution the concept of mercy is specifically a power of the executive. The Constitution provides in Article 13.6:
"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."
35. The concepts of mercy and justice are different. Mercy, as defined in the New Shorter Oxford English Dictionary, means:
36. Sentencing includes the concept of justice. The Court of Criminal Appeal is a court of justice. When considering all the facts of a case with a view to determining a just sentence some factors in the concept of justice applied by the courts may be common to the issue of mercy which may be exercised by the executive. However, they are not the same concepts. The mere fact that some factors may overlap does not exclude an arm of government from making its appropriate decision. Thus, under the separation of powers, the executive and its bodies exercise the prerogative of mercy. The courts, make the judicial decision of sentencing, decide in accordance with justice. In a particular case the circumstances as a whole are finite. Within that body of circumstances some factors may fall to be considered by the judicial branch of government as part of the sentencing process, within a further wide body of factors relevant only to the penal process. When the executive comes to consider its executive powers of mercy, it will also consider the circumstances of the case. Some of these circumstances may overlap the concept of justice. However, the executive branch will also consider factors not relevant to a judicial determination. The mere overlap of some factors in each decision making process does not exclude the other process. The jurisdiction of the Court of Criminal Appeal contains the specific statutory jurisdiction of doing justice in the case before it. This is not the prerogative of mercy."Forbearance and compassion shown to a powerless person, especially an offender, or to one with no claim to receive kindness; kind and compassionate treatment in a case where severity is merited or expected . . ."
11. Decision37. Bearing in mind the matters set out above I have reached the following decision in this case. Under statute law the jurisdiction of the Court of Criminal Appeal is to determine any questions necessary to be determined for the purpose of doing justice in the case. A scheme is set out in the legislation. While the Act of 1924 provides for a dual system, that is an application for leave to appeal followed by an appeal, in general the Court of Criminal Appeal hears these two applications together. Thus an application for leave to appeal is treated as the hearing of the appeal and both applications proceed in conjunction. 38. However, while this approach is good case management such management should not blur the jurisdiction of the court. The grounds for the application for leave to appeal set out in s. 32 of the Courts of Justice Act, 1924 are just that, the grounds for the application. It is couched in broad terms and gives a wide discretion to the court, providing for an appeal where "there appears to the court to be any other sufficient ground of appeal". Further, this must be considered for the purpose of doing justice in the case. 39. In general an appeal is heard on the evidence before the trial court. However, there is no reason in principle why the Court of Criminal Appeal should not hear additional evidence. The Court of Criminal Appeal may hear evidence as to the appropriate sentence on an appeal by the Director of Public Prosecutions if it has determined that the sentence was unduly lenient. The Court of Criminal Appeal may hear evidence as to the appropriate sentence on an appeal by a convicted person if it has determined that there was an error in principle. In addition, the Court of Criminal Appeal clearly has jurisdiction to allow, consider and apply additional evidence as to events occurring after sentence, in exceptional cases so as to do justice in the case. 40. By their very nature exceptional cases defy definitive definition. A useful analogy may be seen in the law of the Australian State of Victoria. In that jurisdiction additional evidence may be admitted where it throws a different light on circumstances which existed at the time of sentence. This is most readily illustrated by reference to medical evidence. In R. v Babic [1998] 2 V.R. 79, the issue of whether additional evidence should be looked at by the appellate court arose. The evidence related to a back injury which occurred in prison after the sentence. The court refused to admit the additional evidence. I would agree with this decision. The judgment of the court was given by Brooking J.A., who stated:
42. The decision most often cited in Victoria on the reception of evidence of events occurring after sentence in support of an application for leave to appeal is that of the Court of Criminal Appeal in R v Eliasen (1991) 53 A Crim R 391. That too was a case of AIDS, where the applicant was sentenced before the results of testing for AIDS were known and after sentence those results showed that at the time of sentence he was suffering from the disease. Crockett, J, speaking in effect for the Court, endorsed the view taken by the Court of Criminal Appeal of South Australia in Smith that when a sentence is attacked as excessive it is permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of facts which were in existence at the time of sentence. Crockett, J went on to endorse also the view taken in Smith that generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk that imprisonment will have a gravely adverse effect on the offender's health." 43. Applying the law to the facts of the case Brooking J.A. held:"The present case does not concern evidence of events occurring prior to sentence, as to which it has been held by courts of criminal appeal that, even though the new evidence is not fresh evidence, it may be received on appeal in order to avoid a miscarriage of justice . . . The present case concerns evidence of events after sentence. Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible. The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: R v Munday (1981) 2 NSWLR 177 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257 per Hunt and Badgery-Parker, JJ; R v Many (1990) 51 A Crim R 54 at 61-2; R v Maslen & Shaw (1995) 79 A Crim R 199 at 206-7. So it was laid down in B v Dorning (1981) 27 SASR 481 that evidence of a prisoner's marked psychological reaction to imprisonment cannot be used to show that the sentence is manifestly excessive, the significance of that event occurring after sentence being a matter for the Executive, not the appellate court. See further R v O'Shea (1982) 31 SASR 129 and R v Smith (1987) 44 SASR 587.41. These authorities recognise, as did two early decision of the Court of Criminal Appeal in England (R v Green 13 CAR 200 and R v Ferrua 14 CAR 39) that where it is sought to establish that the sentence was excessive evidence of events occurring after sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence. So in Ferrua evidence from a warder of what had taken place after sentence showed how infirm the prisoner had already been at the time of sentence and in Smith the fresh evidence showed the extent and implications of the AIDS condition from which the appellant was already suffering at the time of sentence. A similar case is R v Bailey (1988) 35 A Crim R 458.
44. This test has been applied in other cases. In R. v W.E.F. [1998] 2 V.R. 385 the Supreme Court of Victoria permitted additional evidence to be admitted because it cast light on the medical condition the applicant had at the time of his sentencing. Winneke P. stated:"In the present case the applicant does not say that he suffered from a bad back at the time of sentence and that the severity of that condition has been revealed only by subsequent events. Mr. Tehan has accepted that at the time of the prison incident the applicant was obviously a fit and healthy man tending garden beds. The applicant relies on an accident or incident which occurred about two months after sentence, which (he says) caused a disc injury as a result of which prison will be a great burden upon him. This is an attempt to rely on an event after sentence as in itself showing that the sentence has turned out to be excessive. This Court cannot (on the basis that the point is one of admissibility, not one of practice in relation to the exercise of discretion) receive evidence of subsequent events sought to be led for this purpose. The affidavits should not be received in evidence and in consequence the application should be dismissed."
45. Winneke P. found that the exception to the general rule had been satisfied. He held:"The circumstances in which this court will entertain new evidence relating to events which are alleged to have supervened after sentence are rare and exceptional. In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The authorities for this proposition have been collected and explained by this court recently in the case of R. v Babic [1998] 2 V.R. 79, per Brooking J.A. at 80-1.However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence."
46. I find this paragraph (as to the exception to the general rule) persuasive, and, I would adopt the reasoning. I am satisfied that evidence may be heard as to events occurring after sentence for the light they throw on the circumstances which existed at the time of sentencing. This would arise in exceptional cases. 47. Irish statute law itself has provided the basis to include the exceptional case. The statute provides for such order as may be necessary "for the purpose of doing justice in the case". Thus the general rule may be altered in the exceptional case where it is required for the purpose of doing justice in the case. The general rule that additional evidence (that is evidence additional to that before the sentencing judge and relating to events which are alleged to have occurred after sentence) may not be heard in the Court of Criminal Appeal on appeal against a sentence, is varied in the exceptional case where such additional evidence is necessary for the purpose of doing justice in the case. 48. The very nature of the concept of justice prohibits an inclusive list of exceptional circumstances. However, the illustration of health matters given in R. v. W.E.F. [1998] 2 V.R. 385 is persuasive. Other circumstances which might give rise to such exceptional circumstances as require additional evidence being admitted may arise in cases pertaining to defendants who are or have been addicted and where an addiction (whether it be to drugs, alcohol, violence or otherwise) is relevant to sentencing. This is consistent with the restorative nature of justice."Despite Mr. Ryan's submission to the contrary, the evidence which we have now admitted does throw a new light, I think, on the facts relating to the applicant's state of health at the time of sentence and does demonstrate a significance in those facts which was not, and could not have been, apparent to the learned sentencing judge whose sentencing discretion was appropriate to the facts as they appeared at the time of sentence. Although his Honour was aware that the applicant was in a state of ill health and was a diabetic, it was only after sentence that it became apparent that the underlying condition was more acute and less stable than the circumstances at the time of sentence suggested. Since that time symptoms of renal disease have emerged, making more likely eventual myocardial infarction or cerebral episode. This in turn has enabled a prognosis of limited life-span to be given."
49. Exceptional circumstances do not include the routine rehabilitation of prisoners in prison. Exceptional circumstances do not include evidence of good behaviour of a prisoner in prison, being in essence an ad misericordiam plea. Consequently the Court of Criminal Appeal in this case was correct to refuse to consider the testimonials presented to establish the applicant's good behaviour in prison. I would uphold the decision of the Court of Criminal Appeal in refusing to admit the evidence. However, that still leaves the remainder of the question of the Court of Criminal Appeal to be answered.
12. Conclusion50. I would uphold the decision of the Court of Criminal Appeal not to admit the material, being testimonials etc. as to good behaviour in prison and the rehabilitation of the applicant, as part of an ad misericordiam plea. The Court of Criminal Appeal was correct to rule that it was confined to a consideration of the correctness of the sentence imposed by the Circuit Criminal Court by reference to the position which prevailed as of the date when the sentence was imposed, which necessarily ruled out of consideration the material proffered. However, the question asked by the Court of Criminal Appeal extends wider than the facts of this case. 51. I would answer the question certified by the Court of Criminal Appeal as follows. In general the Court of Criminal Appeal hearing an appeal against the severity of a sentence imposed by a court of trial is limited to considering the state of facts existing at the date when the sentence was imposed. However, in exceptional cases, of which this is not one, for the purpose of doing justice in the case, the Court of Criminal Appeal may receive evidence relating to events or facts subsequently occurring relating to the behaviour of an applicant, his health or otherwise, which might be relevant if the court were itself deciding on the correct sentence. The jurisdiction of the Court of Criminal Appeal extends to the consideration of such additional evidence in exceptional cases for the purpose of doing justice in the case before it.
THE SUPREME COURT
353/01
Keane C.J.
Denham J.
Murphy J.
Murray J.
Hardiman J.
IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924
and
IN THE MATTER OF AN APPEAL AGAINST SEVERITY OF SENTENCE TO THE COURT OF CRIMINAL APPEAL
Between:
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent
and
FRANCIS CUNNINGHAM
Applicant/Appellant
Judgment of Mr. Justice Hardiman delivered the 8th day of October, 2002.52. This is an appeal from the Court of Criminal Appeal pursuant to Section 29 of the Courts of Justice Act, 1924. On the 14th December, 2001 that Court certified that the following question is one of exceptional public importance:-
"Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, is it strictly limited to considering the state of facts existing at the date when the sentence was imposed or may it receive evidence relating to events or facts subsequently occurring relating to the behaviour of the Applicant, his state of health or otherwise, which might be relevant if the Court were itself deciding on the correct sentence?"
Background to this question.53. On the 8th December, 1999 the Defendant/Appellant pleaded guilty to the offence of forgery contrary to Section 2 of the Forgery Act, 1913, at the Dublin Circuit Criminal Court (Her Honour Judge Dunne). The charge related to the events of the 25th November, 1996. On that date gardaí on surveillance duty observed the Defendant in South Richmond Street, Dublin with another man. The two went into a shop where they were joined by a third man. The Defendant asked this man to write the name "Oliver McDonald" several times on a piece of paper. He also got him to write out the figure "£45,000" several times. The Defendant then produced a blank bank draft to the man and instructed him as how to fill it out. This was a stolen draft which had been taken in the course of an armed robbery on the Bank of Ireland, Howth, on the 18th September, 1996. The draft was filled out in accordance with the accused's instructions. The Gardaí then made themselves known and after some confusion the draft was found in the restaurant. 54. The accused was arrested and made no admissions while in custody. It transpired that he was, at the time of the offence, on bail on a charge of receiving stolen property. 55. It also transpired that he had in all thirteen previous convictions and that "the vast majority are forgery related". It also emerged from the transcript that the charge of receiving stolen goods, in 1990, was eventually dealt with by the Dublin Circuit Criminal Court on the 14th January, 1998, by a five year suspended sentence. The present charge, relating to November 1996 was finalised in the Circuit Criminal Court in December, 1999, when a five year sentence was imposed. 56. As for the Defendant himself, it appears that he was 51 years of age in December, 1999. The undisputed evidence was that it was he who "masterminded these activities..... from start to finish". He was a father of a small child and, at the time of the hearing in the Circuit Court, had recently lost his mother. His plea of guilty was an extremely belated one: it was not offered until after the case had been sent to another court for trial and the learned trial judge remarked that "He has pleaded guilty to this particular offence at the last possible moment". The only aspect of the facts which provided any ground for mitigation was the fact that he did, eventually, plead guilty, that apart from the receiving charge mentioned above he had no convictions for a considerable period of time and that no violence was involved in the offence, an observation which is probably true of forgery offences in general by their very nature. 57. The Defendant appealed this sentence to the Court of Criminal Appeal. The appeal was dismissed on the 25th July, 2001. The judgment of the Court on that occasion records that the propriety of the sentence of five years "is not challenged in itself in principle". It appears from the judgment that the only point that was urged on behalf of the Appellant was that there was a "disproportionate discrepancy between the sentence imposed on the Appellant and the two other people involved in the event". This point did not find favour with the Court of Criminal Appeal and was not relied on in this Court. The immediate background to the question now before us is set out in a further judgment of the Court of Criminal Appeal on the 14th December, 2001 as follows:-
58. The Court went on to refer to certain cases considered below and to certify the question set out above pursuant to Section 29 of the Courts of Justice Act, 1924."At the hearing of the application for leave to appeal, counsel on behalf of the Applicant asked the Court to receive and consider ad misericordiam a number of documents described as testimonials or certificates all dated subsequent to the decision of the Circuit Criminal Court. The Court declined to receive these documents. It ruled that it was confined to a consideration of the correctness of the sentence imposed by the Circuit Criminal Court which could only be reviewed by reference to the position which prevailed as of the date when it was imposed. This necessarily ruled out of consideration any of the materials proffered".
"Testimonials or Certificates".59. The documents which the Court of Criminal Appeal refused to consider were all in the nature of testimonials or certificates. They were ten in number. The first eight included testimonials from a prison governor, the industrial manager of a prison, two teachers in the prison, another prison governor, a prison chaplain and a potential employer. The one on which most emphasis was placed was from the prison officer in charge of the catering department of Castlerea prison who said that the Applicant was "a keen team member of the catering group", stated that he suffered "an obvious sense of shame" in respect of the effect his crime had on his partner and young child and expressed the view that the Appellant "appears to have taken responsibility for his wrong doing and is actively trying to make amends". 60. Of the two certificates, one is from CERT confirming that in an "Introductory Vocational Skills" course, the Appellant had achieved the required standard in a variety of "personal skills" and one "practical skill", Introduction to Gym Training.
Submissions.61. Both sides made oral submissions on the hearing of this appeal and also provided written submissions. 62. On behalf of the Appellant Mr. Ciaran O'Loughlin SC made admirably focussed submissions. He first referred to the wording of the question emphasising the phrase "....... Is the Court strictly limited........". He submitted that there was authority for the proposition that, in exceptional circumstances, the Court of Criminal could have regard to events or facts occurring subsequent to the prisoner's conviction. In this connection he cited in particular the cases of DPP v. MS [2000] 2IR 591 and DPP v. Jethi and Syngh (Court of Criminal Appeal, unreported, 7th February 2000). These cases demonstrated, he said, that the Court was not "strictly" or absolutely precluded from having regard to such evidence: therefore the question should be answered in the negative. 63. Mr. O'Loughlin went on to submit that if a specific source for the jurisdiction to have regard to evidence of the relevant kind was needed, it could be found in Section 3(3) of the Criminal Procedure Act, 1993. 64. Mr. O'Loughlin further submitted that the test for the admissibility of new evidence of the kind in question here was: is the material such that, had it been available at the trial, it would have influenced the trial judge in imposing sentence. Putting it another way, Mr. O'Loughlin submitted, if the Court of Criminal Appeal thinks "Had the trial judge known of this it would have influenced his sentence", the Court can do what it thinks the trial judge would have done in light of the new evidence. 65. Mr. O'Loughlin referred to certain cases relating to the principles to be applied by the Court of Criminal Appeal in the case of a review of sentence sought by the DPP on the ground of alleged undue leniency. In particular he referred to DPP v. Egan [2001] 2ILRM 289. This establishes that, if the Court believes that the sentence is unduly lenient and it proceeds to impose the sentence it considers appropriate, the latter is to be assessed in light of the circumstances prevailing at the time when the application for review is heard, and not those prevailing at the time the original sentence was imposed. By parity of reasoning, it is submitted, the same approach should be taken on a defendant's appeal against severity of sentence. 66. More generally, Mr. O'Loughlin referred to the statutory constitution of the Court of Criminal Appeal. He submitted that the phrase "any other sufficient ground of appeal", which appears in Section 32 of the Courts of Justice Act, 1924 gives the Court power to intervene to alter a sentence on the basis of the prisoner's post incarceration behaviour. He lays still further emphasis on Section 13 of the same Act:-
67. A similar phrase occurs in Section 3(3) of the 1993 Act. 68. Mr. O'Loughlin submitted that the reference to "doing justice" was quite broad enough to encompass the consideration of evidence of the sort in question here. He relied in particular on the MS case and submitted that the statutory provisions had been correctly interpreted there. 69. On behalf of the Director, Mr. Thomas O'Connell SC submitted that the jurisdiction of the Court of Criminal Appeal on an appeal against the severity of sentence was limited to the question of whether the sentence actually imposed was, or was not, wrong in principle. Unless the Court came to the conclusion that the sentence was wrong in principle it had no power to alter it, whether by increase or reduction, merely on the grounds that the Court itself would have imposed a different sentence had it been dealing with the matter at first instance. He relied in particular on The State (Woods) v. The Attorney General and Kelly [1969] IR 385 at 409:-"The Court of Criminal Appeal shall be a superior court of record, and shall for the purposes and subject to the provisions of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it".
70. Mr. O'Connell referred to a number of cases, starting with R v. Sidlow [1908] 1 Cr. App. R. 28 to show that, from the very beginning of the history of the Court of Criminal Appeal in the United Kingdom the position in law had been that "The Court would not interfere with a sentence unless it was apparent that the Judge at the trial had proceeded upon wrong principles, or given undue weight to some of the facts proved in evidence. It was not possible to allow appeals because individual members of the Court might have inflicted a different sentence, more or less severe". 71. He emphasised that the nature of the appeal which the Court of Criminal Appeal has jurisdiction to conduct has been the same since its inception in 1924. The relevant statutory provision now is Section 33 of the Courts of Justice Act, 1924 as inserted by Section 7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997. This provides as follows:-"The Court of Criminal Appeal is the creature of statute and is a court of limited jurisdiction. The present Court of Criminal Appeal was established by Section 3 of the Courts (Establishment and Constitution) Act, 1961. Section 12(1) of the Courts (Supplemental Provisions) Act, 1961 made it a Superior Court of Record and provided that it shall have full power for the purposes of that Act and of the enactments which are applied by Section 48 of that Act to determine any question necessary to be determined for the purpose of doing justice in the case before it..... It may be emphasised that the powers conferred on the Court of Criminal Appeal ........ are exercisable in respect of 'the case before the Court' ."
72. Mr. O'Connell submitted that, on the authorities, "new or additional evidence" relates to an issue which was before the Court of Trial, the decision on which can therefore be a proper subject matter for appeal. This, he says, is borne out by a consideration of the jurisprudence of the Court of Criminal Appeal in such cases as The People v. Kearns [1949] IR 385 and equally in the cases on fresh evidence in civil appeals such as Lynagh v. Macklin [1970] IR 180. 73. In relation to evidence of matters arising after sentence Mr. O'Connell relied heavily on what he said was the case most clearly in point, DPP v. Walsh"33(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal on:-(a) A record of the proceedings of the trial and on a transcript thereof verified by the Judge before whom the case was tried and(b) Where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript contains, with power to the Court to hear new or additional evidence, and to refer any matter for report by the said trial judge.
[1989] 3 Frewen 248 at page 250. In that case Finlay C.J. stated:-
74. Mr. O'Connell also pointed out that pursuant to Rule 38 of the Prison Rules the Applicant will attract remission at the rate of one quarter of the sentence in respect of good behaviour while in prison. Accordingly, it would be wrong and inconsistent with the remission system to give him further credit for good behaviour in prison by way of reduction of the judicially determined sentence. 75. He also relied upon the case of DPP v. Finn [2001] 2 IR 25 at pages 45 - 46 in the support of the proposition that, by reason of the constitutionally mandated separation of powers (mandated generally by Article 6 of the Constitution and in respect of the commutation or remission of sentences by Article 13.6), no court can exercise what amounts in all but name to a power of commutation or remission. 76. Mr. O'Connell also drew attention to a number of Australian cases. He said they establish the proposition that evidence of matters occurring after a sentence which are said to make the sentence excessive, is not admissible. The only exception to this rule permitted by the cases cited is where fresh evidence would throw a different light on circumstances which formed part of the sentencing decision at first instance. Typically this would be medical evidence which disclosed, for example, that the physical or mental condition of a defendant was in fact more parlous than was believed at the time he was sentenced. The most relevant of these cases is The Queen v. Babic [1998] 2VR 79. 77. Finally and perhaps most fundamentally Mr. O'Connell strongly opposed the proposition that general words such as "doing justice" had the effect of permitting the Court to act in the manner proposed. Such general words are to be interpreted, he submitted, in the context of, and subject to the limitations of, the jurisdiction of the Court in appeals against sentence, described above."There are matters set out in a statement from the Applicant and repeated and pointed out by Mr. Sorahan here in his submission on behalf of the Applicant which would call for or raise the question of leniency and mercy towards this man in all the circumstances that have happened. There is a very clear division between the functions of this Court which is to review sentences imposed on the basis on which they were imposed and to see if an error has occurred and the function of the Executive which is to deal with questions of leniency and mercy. In particular, this is highlighted by the fact that one of the matters which Mr. Sorohan has stated, which I am sure is correct, is that this man has been an ideal or model prisoner and has not given any trouble in prison and he is very anxious to reform. ........ All these cases are sad and the Court must view that, but would point out that that would be a matter properly to be included if a petition were brought to the Minister and it might well be that the Minister would see fit to alleviate the sentence that has been imposed but it is not part of the function of this Court, nor should it view it, in the view of the Court".
Nature of the Court of Criminal Appeal's jurisdiction.78. It is trite, but fundamental, to recall that the jurisdiction of the Court of Criminal Appeal is an "appellate" jurisdiction. Moreover, as was said in the case of Woods and elsewhere, the jurisdiction is a statutory one: the Court is entirely a creature of statute and has no other jurisdiction. The manner of exercising this jurisdiction is, by virtue of Section 33 of the 1924 Act, primarily on the note or record of the hearing in the Court below and not by way of oral rehearing as is the case in appeals from the District Court to the Circuit Court or from the Circuit Court to the High Court in civil matters. Accordingly, the members of the Court of Criminal Appeal cannot place themselves in the position of the trial judge who hears and sees the witnesses but, in the nature of their jurisdiction, can only assess whether the decision against which appeal is taken was correct in principle. 79. In my view, the provisions in relation to fresh evidence, must be read in the context of the nature of the Court's jurisdiction in general. The power to admit fresh evidence has historically been interpreted in this way. For example, in DPP v. Kearns cited above, the Defendant pleaded guilty to what is colloquially referred to as statutory rape. In the hearing which preceded sentence his counsel was precluded by the trial judge from cross-examining a garda witness along the lines that the victim of the offence appeared to be over the statutory age. The Court of Criminal Appeal held that the judge was wrong in foreclosing this line of cross-examination and heard the evidence itself. 80. The Supreme Court, like the Court of Criminal Appeal, does not ordinarily hear fresh evidence but has power to do so under Order 58 Rule 8 of the Rules of the Superior Courts. The way in which this jurisdiction is exercised is illustrated in such cases as Lynagh v. Macklin [1970] IR 180 and Murphy v. Minister for Defence [1991] 2IR 161. Finlay C.J. in the second of these cases stated the matters which an appellant seeking to introduce further evidence must show as follows:-
81. The first and most basic of these requirements, that the evidence must have been in existence at the time of the trial, in my view applies to an appeal to the Court of Criminal Appeal also and arises from the fundamental nature of an appeal on the note as opposed to an appeal by oral rehearing. This requirement may not apply to a "new or newly discovered" fact relied upon for the purpose of an appeal pursuant to Section 2 of the Criminal Procedure Act, 1993. That Section however has no application in the present case. 82. Thus, in the Murphy case, the Supreme Court admitted fresh evidence in the form of a circular letter from the army's medical advisers suggesting that the Plaintiff should have been medically assessed before being subjected to fitness tests which, he alleged, had caused him injury. 83. The cases cited are entirely consistent with the Australian materials on which Mr. O'Connell relied. The principle in Babic, cited above, was summarised by Winneke P. in the later case of ER v. WEF [1998] 2VR 385 as follows:-"(1) The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with the reasonable diligence for use at the trial.(2) The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive.(3) The evidence must be such as is presumably to be believed or is apparently credible, though it need not be incontrovertible".
84. The facts of the case last cited emphasise both the rarity of any exception and its basis in principle. The Appellant was known, at the time of sentence, to be in a state of ill health and to suffer from diabetes. Subsequently, further medical examination suggested that his condition was much more acute and less stable than had been believed at the time he was sentenced and, indeed, that he had a prognosis of limited life span. The contrast with the facts of the present case scarcely requires emphasis. The principle on which the Australian court had regard to the new evidence was that it related to events which "can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of the sentence". 85. Those exercises of the jurisdiction are different in principle from what is proposed here, which is that the Court should hear evidence about a matter - the post sentence behaviour of the accused - which not only was not, but could not have been, before the trial court in any form. I say "hear evidence" because, prima facie, evidence of this sort if admissible at all would require to be heard orally after an application in proper form to hear new evidence had been made. This step was not taken in the present case. 86. The new material is, however, material of a sort "which might be relevant if the Court were itself deciding on the correct sentence", to quote the words of the certified question. That, however, is precisely what the Court is not doing. The Court of Criminal Appeal would itself impose an appropriate sentence only after it had decided that the original sentence was wrong in principle for excessive severity or (on the DPP's application) for undue leniency. One or other of these findings is a condition precedent to the jurisdiction of the Court of Criminal Appeal itself to impose an appropriate sentence. It appears to me that confusion has arisen in the Applicant's submission as a result of a failure to distinguish between the function of the Court in deciding whether or not a sentence is wrong in principle on the one hand and, if it is, in subsequently imposing an appropriate sentence on the other. 87. In terms of the statutory jurisdiction of the Court, the Applicant's approach fails to give weight to the fact that before exercising the jurisdiction conferred by Section 34 of the Act of 1924, substituted by Section 3 of the Criminal Procedure Act, 1993, to "impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial…….." the Court must first have quashed the original sentence. The alternative sentence which it might then impose would be imposed "in place of" the original sentence. The Section does not, in my view, purport in any way to change the basis on which the Court approaches the question of whether or not the original sentence should be quashed; this requires that the sentence be wrong in principle. Sub-section (3) of the new Section 34 does indeed confer significant powers on the Court but the exercise of these powers is subject to a condition precedent that the new material be relevant to the particular application the Court has before it. The material here is explicitly agreed not to relate to whether the sentence originally imposed was wrong in principle, but to arise only "ad misericordiam" and cannot therefore be relevant to a decision as to whether the sentence should be quashed. 88. I would add that I do not consider either that the Section is ambiguous in any respect or that it is a penal section requiring any unusual approach to its construction. It is a section conferring a jurisdiction on a court where jurisidiction is entirely statutory and in my view falls to be construed in accordance with the ordinary canons. 89. Although the case of DPP v. Egan, cited above, was the subject of extensive oral and written submissions, these did not focus on the part of the judgment most relevant for present purposes. At page 307 of the report it is said:-"In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy, and not a matter for an appellate court".
"....... The function of this Court (The Court of Criminal Appeal) on an application by the Director of Public Prosecutions to review a sentence on the ground of undue leniency is quite different from that performed by the trial court in imposing a sentence in the first instance. Specifically, the Court has no power to impose a greater sentence than the trial judge's purely because the members of the Court of Criminal Appeal, if they had been dealing with the matter at first instance, would have thought a more severe sentence appropriate. This precisely mirrors the principle on which the Court of Criminal Appeal deals with an appeal by the Defendant against severity of sentence. In each case the Court is precluded from simply substituting its own judgment for that of the trial judge. In a defendant's appeal the Court cannot reduce the sentence simply because its members would have imposed a lighter one had they been dealing with the matter at first instance. An error of principle is required."
Application of the above principles.90. It appears to me, in light of the principles summarised above, that the Appellant is attempting to introduce at the "error in principle" stage of the appeal material which would be relevant (if at all) only at the "appropriate sentence" stage. He will not get to this stage unless he establishes an error in principle. Moreover, that error must be in the approach actually adopted by the learned trial judge to sentencing. By definition, this approach could not possibly include facts which were not in existence at the relevant time. 91. It is clear from the judgment of the Court of Criminal Appeal dismissing the Appellant's appeal in this case that the only error of principle alleged to exist in the learned trial judge's approach was a failure to impose a sentence more in proportion to that received by the co-accused. No appeal has been taken against the finding of the Court of Criminal Appeal that no such error in principle occurred. The evidential material to which the present appeal relates was sought to be introduced entirely ad misericordiam. It is in that context, and no other, that it is now contended that the Court of Criminal Appeal erred in omitting to consider the material. 92. Since the material in question was wholly directed at evoking the mercy or leniency of the Court of Criminal Appeal, it could not be said to have any bearing whatever on the question of whether the learned trial judge's sentence was erroneous in principle. Since that was the only issue before the Court of Criminal Appeal it follows that that Court was entirely correct to reject the evidence since it failed to meet the first and most basic test of admissibility, which is relevance to the matter in issue. 93. In the citation from Finlay C.J. above, it is clearly laid down that matters relating to mercy and leniency, sought on a basis of fact which was not and could not have been opened to the trial court, were not relevant to the Court of Criminal Appeal in addressing whether there has been an error of principle. Equally, it is pointed out that such matters may be very relevant to the Executive or any body advising it, in relation to the exercise of the prerogative of remission or commutation of sentence. On the hearing of this appeal Mr. O'Loughlin SC did not dispute that the Executive was entitled to consider all of the matters sought to be put before the Court of Criminal Appeal, but suggested that it was open to the Court to consider them as well. I believe that this confuses the role of the Court and of the Executive in precisely the manner criticised by Finlay C.J. As was said by Denham J. in DPP v. KK (Court of Criminal Appeal unreported 17th October, 2001):-
94. I would only add that, in my view, such matters are not only best dealt with through the Executive but can only be dealt with in that way. 95. If it were otherwise, and it was open to a sentenced prisoner to ask a court to review a sentence which is not wrong in principle on the basis of how he has got on in prison, that would be a form of review overlapping to an unacceptable degree the Executive power of commutation and remission. This power must be regarded as an exclusive one unless it is conferred elsewhere by law. 96. It is true that in cases such as MS and Jethi the Court of Criminal Appeal has appeared to take into account matters arising subsequent to sentencing. It is not apparent to me from the reports that the Court had jurisdiction to do so. In the first case, in particular, it was expressly found that the trial judge had not erred in principle and it appears to me that that should have been the end of the matter. There can be no doubt that in both cases there were excellent reasons suggesting an earlier release than originally envisaged, the welfare of the Appellant and of society as a whole in the first case and extraordinary personal features suggesting that mercy be extended in the second. But both of these matters, it appears to me, are for the Executive. 97. Indeed, in MS a contention to that effect was made on behalf of the Director of Public Prosecutions and was answered by the statement that "while the Executive had power to grant remission it is well known that this is not given to sexual offenders". If there were in existence a rigid policy whereby the Executive precluded itself from considering even the most extreme circumstances suggesting the early release of an offender, simply on the basis that his offence belonged to a particular category, that is a matter which might be agitated by way of judicial review: see Corish v. The Minister for Justice and Ors. (High Court unreported O'Neill J. 13th January, 2000), in the context of temporary release. But it has not been suggested that any such policy exists in relation to offences of forgery, and even if it did, that could not be a reason for implying a jurisdiction in a court that is entirely a creature of statute, which it does not otherwise possess."........ Policy as to the reintegration of offenders in society is best dealt with through Executive bodies who have the facility to obtain information and to monitor the situation".
Conclusion.98. I would answer the certified question of the Court of Criminal Appeal as follows:-
"Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a Court of trial, it is strictly limited to considering the state of facts existing at the date when the sentence was imposed and it may not receive evidence in relation to events or facts subsequently occurring relating to the behaviour of the Applicant, his state of health or otherwise which might be relevant if the Court were itself deciding on the correct sentence".
99. The position will be different if the stage is reached where the Court has allowed an appeal against sentence, and quashed the sentence originally imposed. It may then proceed, in the exercise of its statutory power, to substitute an appropriate sentence of its own. In doing so the Court is entitled to consider all relevant factors then existing and properly before it, including matters arising subsequent to the original sentence. This is precisely because the Court is then "itself deciding on the correct sentence", in the words of the certified question. This will not arise unless and until the original sentence has been found to be wrong in principle. In this context, the approach of the Court in imposing an appropriate sentence is similar to that adopted at the same stage of a DPP's application for review on the ground of undue leniency. A prisoner can never be regarded as more constrained in the matters he can urge in relation to sentence than the Director. 100. It is important that the precise nature of the jurisdiction of the Court of Criminal Appeal be clearly understood and clearly explained by practitioners to Applicants and Appellants. jh106(e)