Supreme Court of Ireland Decisions

Judgment Title: DPP -v- McKevitt

Neutral Citation: [2009] IESC 29

Supreme Court Record Number: 467/06

Court of Criminal Appeal Record Number: 2003 174 CCA

Date of Delivery: 26 March 2009

Court: Supreme Court

THE SUPREME COURT

Murray C.J. 467/06
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.

BETWEEN

THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

The appeal of the above named appellant from a decision of the Court of Criminal Appeal, pursuant to s. 29 of the Courts of Justice Act 1924 (as amended) was dismissed by this Court on the 30th July 2008. The reasons for the dismissal of the appeal were set out in a judgment of Mr. Justice Geoghegan with whom all other members of the Court agreed. The original trial and conviction of the applicant took place before the Special Criminal Court.

On the 2nd day of December 2008 the appellant submitted to the Office of the Supreme Court an application to set aside the decision of this Court dismissing the s. 29 appeal and for a re-hearing of the appeal. The application is grounded upon an affidavit sworn by his solicitor.

Article 34.4.6 of the Constitution provides “The decision of the Supreme Court shall in all cases be final and conclusive.”

That is a clear constitutional statement that the decisions of this Court are in principle final. Prima facie this Court has no jurisdiction to hear an application to set aside a decision which finally determines proceedings before it. Very exceptionally the Court has jurisdiction to review a decision in the special circumstances referred to in the case-law summarised below.

It is convenient to note at this point that in this matter the Court is not concerned with the kind of collateral proceedings which may be taken at first instance where a party seeks to set aside final judgment obtained by another party on the grounds that it was obtained by fraud. In any event setting aside such proceedings, on the grounds of fraud as Murphy J., stated in Tassan Din –v- Banco Ambrosiano S.P.A. [1991] I.R. 569 “does not truly represent an exception to this constitutional provision, an order obtained by fraud is a mere nullity”. (See also Kenny –v- TCD, Supreme Court, Unreported 10th April 2008). Nor is this application concerned with the Court’s jurisdiction to correct an accidental slip in a judgment as drawn up or the correction of an order of the Court so that it correctly states what the Court actually decided and intended.

The Court is being asked in this case to exercise its inherent jurisdiction to set aside a final decision, a jurisdiction which the Court may only exercise in the exceptional circumstances specified in its case-law.

As regards those exceptional circumstances in which the Court could have jurisdiction to review an earlier decision notwithstanding the terms of Article 34.4.6 the relevant case-law was summarised in the judgment (nem diss) delivered in P –v- P, The Supreme Court, Unreported, 31st July 2001 in the following terms:

"Constitutional considerations:

However, the position may be otherwise when a final order is challenged on the grounds that the judicial proceedings in question were gravely flawed by reason of a fundamental breach of fair procedures and justice guaranteed by the Constitution. This question was expressly addressed by this Court in the judgments of Denham, J. and Barron, J. in the Greendale case with whom both Barrington, J. and Lynch, J. agreed.

In that case Denham, J. (at page 542) held that “The Supreme Court has jurisdiction and a duty to protect constitutional rights. This jurisdiction may arise even if there has been what appears to have been a final Order. However, it would only arise in exceptional circumstances. The burden on the Applicants to establish that exceptional circumstances exist is heavy.”

Later in her judgement she concluded “It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or Order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”

Barron, J. in the same case held (at 545) that there may be circumstances which might exclude the application of Article 34.4.6 concerning the finality of decisions of the Supreme Court. He then added:

“Nevertheless, where such circumstances exist, this Court must be free to so declare and to indicate the procedures whereby such circumstances should be investigated. Not to be able to do so would conflict with the guarantee of fair procedures enshrined in the Constitution.

The Constitution requires the decisions of this Court to be final and conclusive for good reason. There must be certainty in the administration of justice. Uncertainty can lead to injustice. In my view, these provisions must prevail unless there has been a clear breach of the principles of natural justice to which the Applicant has not acquiesced and such that a failure to take steps to remedy such breach would, in the eyes of right minded citizens damage the authority of this Court. I believe that the jurisprudence of this Court has always been to this effect.”

In the Bula case Bula Ltd –v- Tara Mines (Supreme Court, Unreported, 3rd July 2000). McGuinness, J. expressing her agreement with those judgments stated “In summary, whilst very great weight must be given to the principle of finality and to the provisions of Article 34.4.6., this court has a jurisdiction to review and if necessary to set aside what appears to have been a final order in circumstances where the Court’s duty to protect constitutional rights or natural justice arises. Such circumstances can only be to a high degree exceptional, and a very heavy onus lies on the Applicants to establish that such exceptional circumstances exist.”

The judgments of this Court in Greendale and Bula establish that a final order may be rescinded or varied where a party discharges the burden of establishing that there are exceptional circumstances showing that such a remedy is necessitated by the interests of constitutional justice.”

When a party seeks to set aside a final decision of this Court a question as to whether the Court has jurisdiction to entertain such an application must always arise having regard to the terms of Article 34.4.6.

There are two particularly important factors to be addressed when considering whether this Court has, in the circumstances of a particular case, jurisdiction to consider a re-opening of its decision. Firstly the application must patently and substantively concern an issue of constitutional justice other than the merits of the decision as such. Secondly, the grounds of the application must objectively demonstrate that there is a substantive issue concerning a denial of justice in the proceedings in question consistent with the onus of proof on an applicant.

Accordingly, insofar as this Court has potential jurisdiction, in the exceptional circumstances referred to in the case-law, to review one of its earlier decisions, an applicant must show cogent and substantive grounds which are objectively sufficient to enable the Court to enter upon an exercise, by way of a hearing of an application on the merits, of that wholly exceptional jurisdiction. (For example, a mere assertion of subjective bias on the part of the Court by a dissatisfied litigant could not be a ground upon which the Court could have jurisdiction to hear and determine an application).

Where an applicant fails to discharge the onus on him or her the Court has no jurisdiction to deal with the matter and the application must be considered as manifestly unfounded.

Summary Refusal

Although in absolute terms their numbers remain small, there has been an increase in the number of applications to the Court which may properly be considered to be manifestly ill-founded either because the Court has no jurisdiction in any circumstances to deal with the matter or if there is a potential jurisdiction, the applicant has failed to disclose any objective basis for the exercise of that jurisdiction. The former case, where there is no jurisdiction under any circumstances, may typically arise when a litigant seeks to appeal a decision of the High Court which determined an appeal from the Circuit Court. Section 39 of the Courts of Justice Act 1936 provides that a decision of the High Court on an appeal from the Circuit Court shall be final and conclusive and not appealable. As a consequence of that provision this Court cannot under any circumstances, entertain an appeal from a decision of the High Court in such a matter (see Andrews Productions Limited –v-Gaiety Theatre Enterprises Limited 1973 I.R. 295; P –v- P and C.MVJF (Supreme Court, Unreported, 5th October 2007)).

In Clohessy –v- Clohessy (nem diss) (Supreme Court, Unreported, 31st July 2008) Murray C.J., stated, with regard to an attempt to bring such an appeal, “It is the entitlement and always has been the entitlement of the Office of the Supreme Court to refuse to entertain appeals from such decisions of the High Court or any form of application that is designed or endeavours to advance an appeal which is so manifestly outside the jurisdiction of the Court. That is the position under the law. We do not have jurisdiction and cannot entertain any matter in which we do not have jurisdiction.” Thus the Office of the Supreme Court may refuse to accept an application relating to a matter which manifestly falls outside the jurisdiction of the Supreme Court although the Court itself remains entitled, in its discretion, to rule directly on such an application, by summarily refusing it on the grounds that it is manifestly unfounded.

Similar considerations apply where the Court has potential jurisdiction by virtue of the special and exceptional circumstances referred to above where an application is, in its own terms, manifestly ill-founded. There also the Office of the Supreme Court may refuse to accept an application where it is manifest that the Court has no jurisdiction. Again the Court, in the exercise of its discretion in a particular case, may rule summarily on the matter. A summary ruling, in this context, means a ruling by the Court, having taken into account all that is stated in such an application, including any supporting affidavit, that the application is manifestly ill-founded without the necessity of holding a hearing on the matter in which further legal argument is heard from all parties to the proceedings as if it were a hearing of the application on its merits. This was the approach adopted by this Court in Philp –v- Ryan & Ors (Supreme Court Ruling, Unreported, 18th January 2005). In that case there was an application to the Court in which it was sought, not to set aside the order of the Court, but to address the Court on, and seek correction of, certain observations or findings which had been made in the course of the judgment delivered in that case. In that case the Court summarily ruled that the application should be refused.

The Present Application

The present application to set aside the decision already delivered in the appeal brought by the appellant is grounded upon the presence of an incorrect statement of fact in one particular passage of the judgment in that case.

The relevant passage, with the relevant incorrect statement of fact underlined is the following, and occurs in the judgment where the issue under consideration related only to a late disclosure in the course of the trial to the defence of certain documentation concerning surveillance carried out on the appellant.

"The catalyst for the complaint in this particular case was the late disclosure in the course of the trial of notes of garda surveillance of the appellant’s residence on the 17th February, 2000. The prosecution had assumed and it would seem had reasonably assumed that it would not be disputed that the appellant knew Mr. Rupert but rather it would be suggested that their association was innocent. In the event, the cross-examination of Mr. Rupert took the form that the appellant had never met him and did not know him. This was despite the fact that the prosecution had photographic evidence of Mr. Rupert and the appellant entering a house separately and then leaving it together and the sighting of them together in the company of their wives. Once it emerged that that was the line of defence, the surveillance documentation was disclosed. This seemed to the Special Criminal Court and to the Court of Criminal Appeal reasonable and not seriously prejudicial to the accused. I agree. But more importantly, there was an offer by the trial court to have Mr. Rupert recalled for further cross-examination. That was declined."

“12. I say that the above quoted passage is based on a factual assumption that is entirely false and incorrect, this being that photographic evidence placing Mr. Rupert and the appellant together existed and was tendered in evidence at the appellant’s trial.

13. I say that the respondent’s written submissions in respect of this appeal lodged with this court in advance of the hearing of this appeal on the 24th January, 2008 refer incorrectly to photographic evidence showing the appellant and Mr. Rupert together in terms that are strikingly similar to the language used by the court when referring to photographic evidence. The relevant passage appears at page 14 of the respondent’s submissions, which are exhibited for ease of reference and states as follows:

‘In light of the fact that there was photographic evidence of Mr. Rupert and the appellant entering a house separately and then leaving it together a sighting of them together in the company of their wives; and that Mr. Rupert identified a computer and a receipt for it which were found in the appellant’s house, Mr. Rupert having brought it for the appellant and installed in his house, it was assumed that the defence which would be run was that the appellant knew Mr. Rupert, but that their association was innocent.’

14. I say that, in the light of the enormity of the misstatement in relation to photographic evidence set forth in the above quoted passage, I wrote to the Chief Prosecution solicitor by letter dated the 31st January, 2008 identifying the said misstatement and requesting that it be rectified. (Letter then exhibited) I say and believe that the prosecution never replied to the said letter and made no effort either prior to or at the hearing of the appeal to rectify this misstatement or to bring it to the attention of the courts. I say that the prosecution’s failure to act in this regard is particularly notable in light of the fact that I had previously requested the Chief Prosecution solicitor to take steps in relation to certain factual misstatements that had appeared in the judgment of the Court of Criminal Appeal delivered on the 9th December, 2005, and it had refused to do so. (Correspondence then exhibited)

15. I say and believe that no reference was made to the existence of such photographic evidence in the oral submissions made on behalf of the prosecution before this court …”

Before addressing that question it should be noted that a statement of fact that the prosecution had “photographic evidence of Mr. Rupert and the appellant entering a house separately and then leaving it together and the sighting of them together, “ was stated in those terms in the submissions filed on behalf of the D.P.P. in the appeal. It is evident that that is how the particular error found its way into the judgment. It is quite normal for a judgment, particularly in an appeal involving questions of law only, to rely on or reflect summaries of facts (which are invariably a matter for the trial Court) which are agreed or not in dispute. It appears that the solicitor for the appellant, prior to the hearing of the appeal and after receiving a copy of the D.P.P.’s submissions, wrote directly to the solicitor for the D.P.P. pointing out the error in his submissions. Most regrettably the D.P.P. did not bring to the attention of the Court the misstatement contained in the submissions filed on his behalf notwithstanding that it had been brought to his attention. This was compounded by the fact that neither solicitor nor counsel for the appellant brought the matter to the attention of the Court when it became apparent, as evidently it must have, that the D.P.P. had not done so. Obviously the primary responsibility for correcting any erroneous statement of fact lies with the party making it once it is aware of it but the other parties to proceedings are not entitled to remain passive when they have knowledge of the error and are also under a duty to bring the error, or at least state that the relevant fact is disputed, expressly to the attention of the Court. In particular they must do so when they are not aware (as was the case here) that the party responsible for it had not done so. However, these failures do not affect the question as to whether the proposed application should be refused as being manifestly unfounded.

Turning to this question it must be recalled that the matter of photographs and sightings arose in connection with one of the discrete grounds of appeal to the effect that the trial process was unfair and the conviction unsafe because of the late disclosure by the D.P.P. of notes of Garda surveillance of the appellant’s residence on the 17th February, 2000. The reason which had been given at the trial for the late disclosure was that the prosecution had assumed, on the basis of sightings and other evidence, that it would not be disputed that the appellant knew the American agent, Mr. Rupert, but rather that the defence would take the form that his association with Mr. Rupert was innocent. It transpired at the trial that it was put by the defence to Mr. Rupert that he and the appellant had never met. As noted above, the judgment given in this matter stated: “Once it emerged that that was the line of defence the surveillance documentation was disclosed. This seemed to the Special Criminal Court and to the Court of Criminal Appeal reasonable and not seriously prejudicial to the accused. I agree. But more importantly, there was an offer by the trial Court to have Mr. Rupert recalled for further cross examination. That was declined.”

Again, to put the matter in context, it is important to note the following passage from the judgment.

“Counsel for the appellant seemed to be adopting the approach that if in some way the trial Court’s approach to issues relating to disclosure was legally defective a conviction should be quashed and the appeal allowed. I do not believe that that approach is correct. A trial Court at a pre-trial stage or even when an issue arises during a trial is concerned with the question of whether there is a real risk of an unfair trial. An appellate court, however, must do the matter somewhat differently. It must consider whether having regard to the alleged non disclosure there was in fact a degree of unfairness which rendered the conviction unsafe using that expression in a general sense. It is, therefore, no longer a question of risk for the future rather it is a question of looking at what in fact has happened and assessing whether there has been an unsafe conviction having regard only to an alleged unfairness of trial.”

The issue under consideration here only concerns the timing of the disclosure to the defence of the notes of surveillance on the date in question and not whether such sightings were in fact made by the Gardaí. That was a question of fact for the Court of trial and the fact that members of the Gardaí made such sightings was not in issue in the appeal.

Secondly, and much more important, was the point made in the judgment that the real issue concerning disclosure of the surveillance notes for a Court of Appeal was whether the lateness of the disclosure prejudiced a fair trial. That is a question that is independent of the reasons for the late disclosure. It was a question to be decided objectively by reference to the course of the entire trial and not, as pointed out, to a risk of an unfair trial. The decision in this case was that the lateness of the disclosure of the surveillance documentation was not sufficiently prejudicial as to put in question the fairness of the trial. The reference to the Gardaí having photographs cannot be said to be material to that conclusion.

It has been necessary by reference to the judgment to place the error relied upon in the context of that part of the judgment which dealt with the issues raised by the appellant concerning alleged inadequate disclosure of material by the prosecution and in particular with regard to the surveillance notes. The Court is quite satisfied that no reasonable interpretation of the judgment could lead to the conclusion that the decision of the Court in this case was, or could have been, in any way affected by the incorrect reference to photographs of what the Gardaí saw in their sightings and recorded in the relevant documentation. It is equally manifest that the error in question had no bearing on the other limited grounds of appeal and of course had nothing to do with any issue as to the guilt or innocence of the appellant. The Court considers the application to be unmeritorious and opportunistic.

It also follows that the reference in the affidavit of the appellant’s solicitor at paragraph 18 to the perception of the Court’s decision by “an objective third party” is unfounded apart altogether from any question as to whether such third party perception could be considered relevant to this matter.

For the foregoing reasons the Court, having fully taken into account the matters referred to in the application and the grounding affidavit does not consider it necessary or appropriate to hear submissions from either party and refuses the application on the grounds that it is manifestly unfounded.