Court of Criminal Appeal refused to certify questions on newly discovered facts and constitutional unconstitutionality for Supreme Court review.

COURT OF CRIMINAL APPEAL

[CCA No. 263/CPA/12]

MacMenamin J.

McGovern J.

Edwards J.

BETWEEN

MICHAEL McKEVITT

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of the Court of Criminal Appeal delivered the 20th day of May, 2014, by MacMenamin J.

In this application the court is asked to certify two questions set out below as being matters of exceptional public importance such

that it is in the interests of justice that they be heard and determined by the Supreme Court. These matters are:

“(i) Whether a subsequent judgment which establishes that unconstitutionally obtained evidence was adduced

against a convicted person at trial could amount to a “newly discovered fact” within the meaning of S. 2 of the

Criminal Procedure Act 1993

(ii) Whether a convicted person must have expressly raised or demonstrated, either at their trial or prior to their

conviction, their objection to the use of an unconstitutional statutory provision, in order to avail of a later

declaration of unconstitutionality of the said provision obtained by another litigant”.

The circumstances in which this application arises are described in the judgment of this court delivered on 19th April 2013. It is

unnecessary to reiterate them here. The gist of this application is to the effect that the judgment of the Supreme Court in DPP v

Damache [2012] might arguably amount to a “newly discovered fact” within the meaning of S. 2 of the Criminal Procedure Act 1993.

Second that the principles annunicated in The People (DPP) v Cronin (No 2) [2006] 4 I.R. 329 should apply in such a situation.

In Damache this court held that S. 29 of the Offences against the State Act 1939 was inconsistent with the Constitution of Ireland.

The section permitted a member of An Garda Síochána not below the rank of Superintendent to issue a search warrant in certain

specified circumstances. The Section did not stipulate that such a warrant might only be issued by members of that rank who are

independent of the relevant investigation. The Section was found to be repugnant to the Constitution on the basis that the

administrative act of issuing a warrant should not be carried out by a Garda Superintendent who was involved in an investigation or

prosecution as this offended against the principles of fair procedures and nemo udex in sua causa.

As the earlier judgment of the court set out the search carried out on the applicant’s house now more than 10 years ago took place

on foot of a warrant issued by Detective Superindent Peter Maguire of An Garda Síochána who was involved in the investigation and

prosecution of the applicant. On the basis of judgment in Damache the applicant sought to contend that there had been a

miscarriage of justice in his case which came within S. 2 of the Criminal Procedure Act 1993. He contended that the court relied on

corroborative relating to material found in the house which should have been ruled inadmissible as it been obtained under a statutory

provision which was subsequently found to be repugnant to the Constitution. This court concluded that the application made by Mr.

McKevitt was without merit. Regrettably the court must make a similar finding in relation to this application.

The applicant now seeks to make the case that there was no obligation to raise the Damache point at the trial. It is said that the

judgment is a newly discovered fact. In the view of this court this application is entirely misconceived. In the course of its judgment

this court quoted judgment of Murray C.J. in A v Governor of Arbour Hill Prison [2006] 4 I.R. 88. In that judgment the Supreme Court

made clear that when an Act is declared unconstitutional a distinction is made between the making of such a declaration on the one

hand, and its potential retrospective effect on cases which have been already been determined by the court. The distinction must be

made in the interests of legal certainty, to avoid injustice, and having regard to the overriding interests of common good in an ordered

society.

Expanding on this Murray C.J. stated at paragraph 125 of A. under the heading the general principle

“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does

not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her

including the constitutionality of the Statute before the case reaches finality, on appeal or otherwise, then the final

decision in the case must be deemed and to remain lawful notwithstanding any subsequent ruling that the Statute, or a

provision of it, is unconstitutional. That is the general principle”.

Murray CJ went on to state

“I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declares

a statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly exceptional

reasons related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular cases or a

particular class of cases be not allowed to stand.”

The constitutional status of S. 29 of the Offences against the State Act was not challenged at the trial or in any judicial review

proceedings. At the time of the applicant’s trial in 2003 the law was, as it was subsequently expressed to be, in The People (DPP) v

Birney and Ors [2007] 1 I.R. 337. In Birney the Court of Criminal Appeal specifically held that s.29 of the Offences Against the State

Act did not preclude a Superintendent who was in charge of an investigation from issuing a search warrant in the course of an

investigation in which he was allowed (see the judgment of this court at p.372). The law as it stood at the time provided that the

procedure which had been adopted by the Detective Chief Superintendent in issuing the s.29 warrant was lawful.

In the course of its judgment herein this court considered the range of cases addressed the question of what constituted a newly

discovered fact. It is unnecessary to reiterate them here. The court held that a decision of the Supreme Court in DPP v. Damache

could by no stretch of the imagination identified as a newly discovered fact.

What is more fundamental however are the terms in which the Supreme Court reached its conclusion? This court has already

concluded that there was no miscarriage of justice in Mr. McKevitt’s case. It cannot be said then that an application to the Supreme

Court on either of the issues canvassed is, “in the interests of justice” insofar as they arise in this case. Secondly it cannot be

suggested that what arises here is a matter of “exceptional public importance”. By reason of the fact that the Supreme Court has

already pronounced in the issue in the passages from A. v The Governor of Arbour Hill Prison cited above. Even if one were to redefine

the word “fact” so that it arguably might equate to judgment how could it avail the applicant. This is not a situation where the

interests of justice require that the matter be determined. Moreover it cannot be held to be a matter of exceptional public importance

by reason of the fact that the Supreme Court has already pronounced on the consequences a finding of unconstitutionality in

circumstances such as these. Were the declaration of unconstitutionality to be recategorised as a newly discovered fact could it in

anyway assist the applicant? The answer to that question must be no.

The validity or arguably of the second question hinges on the first one. In fact both of the issues are encompassed in the quotation

from Murray C.J. in the A. case which this court might add (was cited in the earlier judgment herein). In all the circumstances the

court does not consider that the matters which arise are of exceptional importance nor is it in the interests of justice that they

should be heard and determined by the Supreme Court.

The court would add that in the course of the passages cited earlier Murray C.J. specifically stated that the principle which is

enunciated arose in circumstances where

“The accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law

be open to him or her including the constitutionality of the statute before the case reaches finality, on appeal or

otherwise.”

Here the accused did not impugn the conduct of the prosecution on the grounds of the constitutionality of the statute. The case has

reached finality many years ago and the matter cannot now be revisited.

More recently in DPP v Patchell the Court of Criminal Appeal Unreported 4th February 2013 this court (McKechnie J.) set out a number

of principles which are equally relevant to this case.

The court observed:

“As appears from the express wording of the Section, for an application to be successful the moving party, upon whom

the onus of proof rests (DPP v Little John [1978] ILRM 147), must demonstrate that the point is a point of law and is one

not only of exceptional public importance but also that it should be determined in the public interest. Both requirements

must be established; it being insufficient to establish either one only (Kenny v An Bord Pleanala (No 2) [2001] 1 I.R. 704).

Whilst indeed it may be true to say as the Court of Criminal Appeal did The People (DPP) v McCarthy and Ors [2010]

IECCA 51 (McCarthy) that if a points satisfies the first aspect of the test then it is most likely that it will also satisfy the

other; nonetheless it may well be that in certain situations – at a particular time or in particular circumstances – it

would not be in the public interest to have it determined. Therefore I feel that it is more responsive to the Section to

treat the requirements as being disjunctive”.

The court went on to state:

“17. In any events it is clear that the point of law cannot only be peculiar to the particular facts of any given case and

that it must have the capacity of widespread application in its subject area. The point must have a gravity and

importance to it which enables the court to rightfully classify it as “exceptional”. Further the jurisdiction must be

considered as such and in no circumstances is it intended to space the first level of appeal, or, outside of its express

parameters, to permit a second strand of appeal. It is not designed to gain, and should not be used as, an opportunity

of re-running what was argued in the Court of Criminal Appeal was invoked.”

The court went on to say:

“18. In addition it seems to the court that when considering an application under the Section, it is important to ascertain

(i) what precise relevance to the point of law in question has on the critical issue still pending in the case;

(ii) the necessity of obtaining the Supreme Court’s view on the suggested point; and irrespective of that view

(iii) what effect it would have on the ultimate disposal of the case”

The court concluded:

“19. Quite evidently, if the suggested point of law is not at heart of the argument it is difficult to see how it could satisfy

the requirements of the section. Likewise there could be no question of seeking from the Supreme Court its opinion on

some abstract hypothetical or moot issue. Furthermore if the point does not have a decisive influence on the ultimate

disposal of the case or at least a material bearing to that end, it is difficult to see how and why the exceptional

jurisdiction of the section should in such circumstances be applied”.

As this court has pointed out the points which are sought to be raised do not satisfy either of the statutory criteria. It is self evident

that this case is not a “pending case” in any real sense of the word.

The point which the applicant now seeks to raise is on foot of a conviction by the Special Criminal Court as long ago as the 6th

August 2003. Although the matter has been before the courts in many guises since then, in the view of this court the point which is

now sought to be certified does not have any merit and the court will refuse the application.