Court of Criminal Appeal refused certification for Supreme Court appeal on alibi jury direction points of law.

COURT OF CRIMINAL APPEAL

[CCA No. 270/2012]

MacMenamin J.

Moriarty J.

Herbert J.

IN THE MATTER OF AN APPLICATION FOR CERTIFICATION PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924,

AS AMENDED

BETWEEN:

FERGAL MCNULTY

Applicant/Appellant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Judgment of the Court delivered on the 29th day of October, 2014 by Mr. Justice John MacMenamin.

1. The applicant seeks an order pursuant to s.29 of the Courts of Justice Act, 1924 (“the 1924 Act”), as amended by the provisions

of the Criminal Justice Act, 2006, seeking a certificate for leave to appeal to the Supreme Court on a point of law.

The Statutory Provisions

2. S.29 of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act 2006 provides as follows:

(1) Subject to subsection (9A) of this section, no appeal shall lie to the Supreme Court from a determination by the Court

of Criminal Appeal of any appeal or other matter except in accordance with this section.

(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision

of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting

authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of

exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the

Supreme Court.

3. The three points in question are said to be:

1. Where a defence of alibi has been raised and the evidential burden satisfied, should the trial judge instruct the jury on

the relationship between the alibi defence and the burden of proof to the effect that there is no onus on the Accused to

establish he was not present? In which case, is the onus on the prosecution to prove that the Accused was present thus

disproving the defence of alibi?

2. Where a defence of alibi has been raised and the evidential burden satisfied, should the trial judge charge the jury that

before proceeding to convict the accused, the prosecution is required to demonstrate that the alibis were not telling the

truth and to prove beyond reasonable doubt that the alibis ought to be disbelieved?

3. In cases where the prosecution relies on identification/recognition evidence and a defence of alibi has been raised and

the evidential burden satisfied, should the jury be charged to the effect that where the jury rejects the alibi defence that

such rejection does not lend support to the recognition/identification evidence upon which the prosecution is based?

Circumstances

4. On the 30th July 2012, the applicant herein was sentenced to eight years imprisonment having been found guilty of the offence of

assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 and the offence of intentionally or

recklessly causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997. The applicant was convicted

of a vicious attack on his former partner who identified him as the assailant.

5. The Applicant appealed his conviction to this Court on the basis of two alleged errors on the part of the trial judge. First, it was

urged on his behalf, that the trial judge had erred in failing to charge the jury to the effect that the burden of disproving the defence

of alibi lay at all times with the prosecution. Second, the applicant argued that the trial judge erred in rejecting the application for a

direction of ‘not guilty’ at the close of the prosecution case due to the allegedly weak nature of the identification evidence and the

fact that the prosecution case rested solely on same.

6. This Court rejected the appeal in an ex tempore judgment delivered on the 10th March, 2014. With regard to the first ground of

appeal, the Court was satisfied that the trial judge’s exposition of the law was correct. The trial judge emphasised that there was no

onus on the accused to disprove the prosecution case, but rather at all times the onus of proof lay on the prosecution to prove its

case. This Court concluded that the judge made this clear to the jury, clearly, emphatically and repeatedly.

7. In relation to the second ground of appeal, the Court pointed out that the identification evidence was, in fact, recognition

evidence. The victim knew the applicant and recognised him. This was not, therefore, identification of some unknown person. Further

to this, the Court was satisfied that the visibility conditions at the time of the incident, and the fact that the victim had two sightings

of her assailant, rendered it safe to leave such evidence to the jury.

The Legal Authorities

8. In People (Attorney General) v Curran (Court of Criminal Appeal, unreported 19th February, 2013) O’Donnell J., speaking for the

Court, laid emphasis on the necessity for the point of law to effect not only the decision in issue, but be of wider impact. He pointed

out:

“Occasionally, indeed exceptionally, a point of law of importance will arise, which transcends the individual facts of the

case, and can be said to present a clear issue which arises in the case and determines it and which is likely to arise in

further cases in the same or related areas, and in which, unusually, it is desirable that the issue be resolved conclusively

by an appeal to the Supreme Court. The very fact that this section requires not only that the point of law be of

exceptional importance, but also that it is desirable in the public interest that an appeal be taken to the Supreme Court,

reinforces the exceptional nature of the jurisdiction.”

9. More recently the law relating to s.29 appeals was again identified by McKechnie J in DPP v Patchell [2014] IECCA 6 paras.16-20

and repeated by him in his judgement of the same date DPP v O’Connor [2014] IECCA 4 para. 21, to the following effect:

“16. 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 (D.P.P v. Littlejohn [1978] I.L.R.M 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 Pleanála (No. 2)

[2001] 1 I.R. 704). Whilst indeed it may be true to say, as the Court of Criminal Appeal did in The People (D.P.P.) v.

McCarthy & Ors. [2010] I.E.C.C.A. 51 (“McCarthy”), that if a point 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.

17. In any event 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 displace 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 rerunning what was argued in the Court of Criminal Appeal. It must therefore only be on rare and very limited

occasions that the certifying process can be invoked.

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 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 would it have on the ultimate disposal of the case.

19. Quite evidently, if the suggested point of law is not at the 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.

20. In the Court's view these points are no more than an elaboration of the section's true positioning within, as

applicable in this case, the criminal process as a whole.”

10. In McKevitt v DPP [2014] IECCA 19 this Court (MacMenamin J.) again confirmed that it cannot be said to be “in the interests of

justice” to grant leave on a point of law, where no miscarriage of justice has taken place and where, even in the event the applicant

were successful in bringing the point of law before the Supreme Court, it would not assist him in relation to his own particular case.

Granting leave under s.29 in such circumstances would be futile.

11. As evident from both the wording of the statutory provision and the case law, there are two limbs to the test for one to succeed

in reaching the threshold for the granting of a certificate pursuant to s.29. The two limbs – described as the “twin requirements” by

McKechnie J in O’Connor (para.25) – are:

1. A point of law of exceptional public importance

2. It is desirable in the public interest that the person should take an appeal to the Supreme Court

12. The burden of proof rests with the applicant in establishing to the court that the double requirements are met. The court must be

satisfied exactly why the point of law is one of exceptional public importance, and further, why it is desirable in the public interest

that an appeal to the Supreme Court should lie.

13. A point of law of exceptional public importance will exist where the point reaches beyond the four corners of the applicant’s case

and is likely to arise in future cases involving the same or related issues. The ‘exceptional’ nature relates to the gravity and

importance of the issues involved. The point of law must be one which is contested and requires clarification in the interests of

justice. Where clarity in the law is required it could be said to be desirable in the public interest that such further appeal is taken.

14. The point of law must be material to the decision such that the applicant’s case turns on it. In the case of DPP v K, Unreported

Court of Criminal Appeal, 29th July 2002, Murphy J held that even where a point of law may be of public importance or ‘benefit from

judicial clarification’ but is moot with respect to the applicant, and such appeal would not benefit the applicant, a s.29 certificate will

not be granted. This is also evident in the McKevitt decision, whereby futility will defeat an application. Further, he court must have

relied upon the point of law in issue in their reasoning and it must not be extraneous to the decision.

15. It is important to emphasise in the context of this case that the point of law on which certification is sought must involve a

dispute as to an actual issue or element of law; and not as to the application of any point of law to facts of the case. It must not

involve a criticism of the law as it was applied to the applicant’s case. Where the application of the law is in issue, such takes on the

form of a re-appeal and is not permitted by, nor is it the purpose of, s.29.

16. It should by now be very clear that there are two important elements involved here. First, there must be a point of law of

exceptional public importance. The applicant bears the burden of proof in this respect. A legal point might well be of great importance

to the person concerned. This will not render the point of public importance. Secondly, the public interest must render it desirable

that a further appeal be taken. (Cf Thomas O’Malley, The Criminal Process (Round Hall, 2009) p.942). 17. This means that there is a

legal issue which arises from the appeal on which it is in the public interest that the law should be clarified. Insofar as these

somewhat overlapping tests are concerned, the requirements may be satisfied when a point arises in one case which has arisen, or

may arise, in a number of other cases. The tests are not satisfied merely because an issue of law arises in an appeal. The Court of

Criminal Appeal is vested with the task of finally determining the correctness or otherwise of the decisions under appeal. The s.29

jurisprudence, therefore, will arise only in very rare and exceptional cases. (See DPP v Eamonn Kelly (unreported, Court of Criminal

Appeal, 11th July 1996) Blayney J and DPP v. Littlejohn [1978] ILRM 147).

18. In the case of The People (DPP) v McCarthy & Ors [2010] IECCA 51 pp. 2-3, this Court held that the Court must be satisfied that

the decision on which an appeal is sought:

“Involved a point of law of law of exceptional public importance” and, in addition, that it is “desirable in the public

interest that the person should take an appeal to the Supreme Court.” It is not easy to conceive of a point of law which

would satisfy the first part of the test but not the second. The second part of the test underscores the exceptional

character of the certificate requested of the court. At a minimum an applicant must be able to point to a significant

point of law which is involved in the decision.

The proposed point of law must have been involved in the decision of the court in the sense that the court’s ruling on

the point formed part of the reasoning leading to the rejection of the application. In other words, it must be possible to

identify a point of law upon which the Court relied and which it applied in making its decision. Implicitly also, the point of

law must have been contested. In a literal sense, every application for leave to appeal raises some point of law. Where

the law is not in dispute, but an unsuccessful applicant criticises the manner in which the court has applied it to the

facts, the section does not apply.

It is not sufficient for the applicant to show that the court incorrectly applied the law to the facts of the case. That

would be tantamount to permitting the repetition of the original hearing… Section 29 does not permit an appeal, where

the appellant merely wishes to dispute the manner in which the Court of Criminal Appeal applied the law to the facts.”

(emphasis added)

Application to the Circumstances

19. Having accepted that the authority of The People Attorney General v Casey (No 2) [1963] I.R. 33 deals with the warning to be

given to a jury in matters of identification evidence, and the case of People (DPP) v Burke & O’Leary [1986] 3 Frewen 92 which

addresses the warning to be given to a jury in relation to alibi evidence, the applicant contends that there must be an obligation on a

trial judge to give a direction on the relationship between the two.

20. This Court would comment that the actual words the judge uses to bring this about are a matter for him or her. That is a matter

for discretion. The function of this Court on an appeal is to see to it that the legal position is clear to the jury and that there is no

error in principle.

21. In this application, the applicant sought to rely on a number of cases from the United Kingdom in making his case. It is said that

the case of R. v. Pemberton (1994) 99 Cr. App. R. 228 is authority for a duty on a trial judge to correctly charge the jury regarding

alibi and identification/recognition evidence. However, in fact, the English Court of Appeal found nothing more than a Turnbull

direction was required in the circumstances of the case where no direction in any specific manner or form had been given to the jury

in relation to the alibi evidence. Similarly, in the case of R. v. Duncan, Times Law Reports, 24th July 2012, it was said there was a

failure by the trial judge to address the issue of alibi. But in Duncan it can be seen that there is nothing more than a duty adequately

to charge the jury and the specific form and manner of same depends on the facts of the case (see also Lesley [1996] 1 CAR 39,

Burge & Pegg [1996] 1 CAR 163 and Harron [1996] 2 CAR 457).

22. While three points of law were put forward by the applicant as requiring a certificate, the central issue on which the applicant

makes his case, and underlying all three points, is that the jury ought to be charged to the effect that if they reject alibi evidence

put forward by the defence, this does not automatically lend support to the identification evidence put forward by the prosecution.

23. In the instant case, this Court found in its judgment, specifically, that the trial judge had separated the alibi evidence from the

accused’s own evidence. The trial judge had repeatedly emphasised the duty of the prosecution. The submissions in this case simply

do not address the s.29 tests in any meaningful way. In fact, the point which is sought to be certified, arising in various

characterisations in all three of the points, demonstrates that what is in issue is a matter which goes to the judge’s discretion. How

the judge applies principles, provided they are correctly applied, is a matter for him or her, provided the issues are explained clearly.

These cases are highly fact specific and the question in each case hinges on the manner in which the trial judge discharges his or her

function.

24. This Court found on the appeal that the jury were adequately charged. It follows that the applicant’s case does not turn on

points of law, as asserted. This Court is of the view that the issue on which a certificate is sought is, rather, on the application of

points of law to the particular facts of the applicant’s case, and not a point of law which requires clarification in the public interest.

25. Having regard to all these circumstances, it cannot be said that this is a point of law of “exceptional public importance”. Nor can

it be said that it is “desirable in the public interest” that this appeal should be brought to the Supreme Court. In all the

circumstances, the Court will refuse the application.

26. In the instant case, the applicant has failed to address both limbs of the test set out both in s.29 of the Courts of Justice Act,

1924, and confirmed in the case law. The court was not directed to any wider implications of the issues involved, but rather the focus

was directed, as it had to, to the applicant’s own circumstances. The applicant failed to outline to the Court, any gravity and

importance of the issues he sought to address. Further, no reference was made to the second limb of the test, that “it is desirable in

the public interest that the person should take an appeal to the Supreme Court”. The Court declines to make the order sought.