Court strikes out applicant's non-compliant motions for failing to follow strict procedural directions regarding appeal scope.

COURT OF CRIMINAL APPEAL

APPEALS NO 125 CPA/2009 AND 245/CPA/2011

MacMenamin J.

de Valera J.

McGovern J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PHILIPPE CAUNEZE

APPLICANT

JUDGMENT of the Court of Criminal Appeal delivered the 19th day of April 2013 by MacMenamin J.

1. This matter has a lengthy history. The background is described in Finnegan J.’s judgment which is appended to this judgment. Mr

Cauneze will be referred to in this judgment as “the applicant”. In the motion which is considered here, the respondent, the Director

of Public Prosecutions, seeks an order striking out proceedings in being before this court on foot of two notices of motion filed by, and

on behalf of, the applicant herein. Both motions are dated the 14th March, 2012. It is submitted they do not conform to the

directions made by this Court on the 28th February, 2012. Counsel for the Director also seeks an order directing that the applicant

proceed before this Court only in proceedings which are in conformity with the direction of this Court aforesaid. That order was to the

effect that the applicant, Mr. Cauneze, proceed only in relation to an appeal of a decision of Finnegan J., sitting alone, which said

judgment was dated the 6th December, 2011. In the alternative, counsel for the Director of Public Prosecutions seeks an order that

the applicant, having failed to comply with the directions of this Honourable Court of the 28th February, 2012, is outside the

permitted time limits within which to bring an appeal against the decision of Finnegan J.

Background

2. This case has a very long history indeed. The applicant was convicted on a single count of aggravated sexual assault on the 10th

March, 2000. He is a litigant in person. He has appeared in this court on numerous occasions seeking a range of reliefs which pertain

to that conviction, either directly or indirectly.

3. For the purposes of this application, there is before the court an affidavit of Padraic Taylor of the Solicitors Division of the Office of

the Director of Public Prosecutions. He swears that since the 10th March, 2000, this matter has been before the courts on some 32

occasions. It is unnecessary to identify each and every one of the applications brought herein. In one of the more recent and

relevant occasions, on the 17th October, 2011, this Court dismissed an application brought under s. 2 of the Criminal Procedure Act

1993 that his conviction had been a miscarriage of justice.

4. On the 3rd November, 2011, the applicant brought a fresh application under s. 2 of that Act. This was thereafter listed in the Case

Management List and, ultimately, was dealt with by Finnegan J. Finnegan J. delivered a written judgment dismissing the appeal as

frivolous and vexatious. It is unnecessary to set out in detail the basis of Finnegan J.’s decision. The court will direct that his ruling be

appended to this judgment (Appendix 1). This is the judgment under appeal.

5. On the 21st February, 2012, the applicant yet again attended the Court of Criminal Appeal Case Management List, seeking to

articulate certain concerns in relation to papers which he had attempted to lodge subsequent to the judgment of the 6th December,

2011. The matter was listed before Hardiman J. on the 28th February, 2012. On that date, Hardiman J. delivered a ruling as to the

type of application which the court had jurisdiction to deal with in the circumstances. He indicated that the applicant would be

permitted, and only permitted, to proceed to seek the following reliefs:

a. An order to review the judgment of the court dated the 6th December, 2011;

b. An order to review that judgment of the court due to the court (Finnegan J.) having allegedly confused an

original statement from Dr. Farrell, which statement the applicant says he found buried in the file held by the

solicitor for the defence (Michael O’Connor), with a “forgery” included in the book of evidence by Garda McLoughlin

who it is claimed “re-wrote” Dr. Farrell’s statement;

c. An order to review Finnegan J.’s judgment due to the alleged fact that the court in its judgment held that Dr.

Maloney on the 20th July, 1998, did not find any evidence of bruising which it is claimed constituted a miscarriage

of justice; and

d. An order to review the judgment of the court due to the court having acknowledged the fact that the bruising

which led to the conviction had been fabricated by Dr. Maloney and Garda McLoughlin which said bruising was said

to be central to the prosecution case.

It is important to reiterate, in the clearest possible terms, that these were the only issues on which the court was disposed to allow

the applicant to proceed (see Appendix 2 of this judgment).

6. In the course of his ruling, Hardiman J. specifically indicated that other matters which had been agitated by the applicant simply

could not be dealt with by this Court because it simply had no jurisdiction to consider such issues. This is identified in para. 8 of this

judgment.

7. At the conclusion of his ruling, the transcript shows Hardiman J. made a number of observations. First, he noted that the

application was to quash a conviction made a very long time ago. Second, he pointed out that Finnegan J. had found that the

conviction would have been justified by the material put before the trial court by Mr. Cauneze himself alone. Third, he observed that a

notice of appeal had been lodged but had been withdrawn. He suggested that Mr. Cauneze should take legal advice. Unfortunately

the applicant did not proceed in accordance with Hardiman J.’s rulings or advices.

8. Without prejudicing any further application, this court would observe the following:

a. The applicant would appear to have already had an opportunity to articulate any grievances which derive from

his conviction before the Central Criminal Court on the 10th March, 2000. This is not to prejudice the outcome of

any application he may still wish to make, however.

b. The applicant will have to deal with an issue, which will undoubtedly arise, regarding the elapse of time between

Finnegan J.’s ruling and the documents purporting to appeal that ruling. This court is again not required to make a

ruling on the question.

c. On the 14th March, 2012, the applicant lodged two separate documents purporting to be notices of motion. In

one, (“DPP v Philip Cauneze, In the Matter of Section 2-3 and 9 of the Act of 1993”), which has no return date, the

applicant’s request was for production of documents in original form and affidavits concerning the original trial

before the court of first instance, being the Central Criminal Court. He required production of documentation and

records in relation to what has been termed as “The Bergeron Affair” and requested named persons to attend before

this court for the purposes of examination. He identifies 11 different parties for this purpose. The applicant sought

orders restraining the sale of his family home, an order recovering sums dispersed to a solicitor, and further

requested that the court appoint a solicitor and barrister to protect his constitutional rights. To reemphasise: these

are matters over which this court has no jurisdiction. These presence of these claimed reliefs on the “notices of

appeal” just referred to are in direct contravention of the ruling of this court of the 28th February, 2012. They

cannot be permitted to proceed. The only appeal permitted is in regard to items a., b., c. and d. in para. 5 of this

judgment.

The second document is date-stamped as having been received on the 14th March, 2012, in the office of the Court of Criminal

Appeal. It bears the same heading. This is a 30 page document requesting nine separate orders pertaining to grounds upon which the

applicant seeks to “review the judgment of the court dated 6th December 2011”. The same observations apply as above.

9. In the ruling under appeal, Finnegan J. observed that:

(i) the respondent apparently failed to apprehend that he was convicted on foot of evidence which he himself gave

to the Central Criminal Court;

(ii) it was the applicant, who chose to give evidence in his own defence, which evidence appeared to be accepted

by the verdict of the jury;

(iii) the applicant was acquitted on all other matters alleged by the injured party on the charges which fell outside

the terms of his own evidence.

Again, without prejudicing the appeal, if it proceeds (or is permitted to proceed), this court would simply observe that it is essential

that Mr. Cauneze, or any person aiding him, reads the transcript of his own direct evidence and cross-examination at the trial.

10. This court has no hesitation in acceding to the applications brought by the Director. The court again re-emphasises that in the

event that the applicant seeks to process the matter further, he will have to surmount the obstacles which are identified here; in the

ruling of Hardiman J. referred to above; and, indeed, to address the issues which are identified in the judgment delivered by Finnegan

J., now some very considerable time ago.

11. Insofar as the applicant wishes to bring any further applications, that relief must be confined simply to the four issues identified

and no other issues. The court will therefore strike out both of the notices of motion which have been brought by the applicant

herein. Whether other applications are brought by the Director of Public Prosecutions is a matter for another day. The parties will be

aware that any court has the power to make orders restraining abuse of process, and frivolous and vexatious proceedings