Court of Criminal Appeal allows amendment to appeal regarding s.29 warrant legality but dismisses other grounds.

THE COURT OF CRIMINAL APPEAL

[C.C.A. No. 168 of 2011]

McKechnie J.

de Valera J.

McGovern J.

The Director of Public Prosecution

Prosecutor/Respondent

And

Paul O’Connor

Accused/Appellant

Judgment of the Court delivered the 23rd day of January, 2014, by Mr. Justice William M. McKechnie.

1. On the 15th July, 2011, the appellant was convicted of a single count of robbery contrary to s. 14 of the Criminal Justice (Theft

and Fraud) Act 2001, in that, on the 28th June, 2009 he stole over €10,000 from the premises of a certain well known bookmaker,

known as Victor Chandler. He subsequently received a ten year sentence in respect of this offence. By the date of the motion next

referred to, he had served a notice in writing seeking leave to appeal against his conviction, but the substantive hearing in respect

thereof had not as yet taken place.

2. Following the decision of the Supreme Court in Damache v. D.P.P. & Ors. [2012] 2 I.R. 266 (“Damache”), a notice of motion was

issued on behalf of Mr. O’Connor in which he sought to amend his existing notice of appeal by adding three grounds thereto. One of

the grounds related to the legal basis upon which evidence of certain telephone records was adduced during the course of his trial: as

the omission to include this ground in the original notice of appeal was purely an oversight, this Court acceded to that application.

The second matter in respect of which he sought an amendment related to a complaint that since the indictment was not properly

signed, the same was invalid. In view of the Criminal Justice (Administration) Act 1924 and the rules appearing in the First Schedule

thereto, this argument was unsustainable and therefore the application in respect thereof was rejected.

3. By far the most important amendment sought however related to what can conveniently be described as “the Damache point”, so

called in light of the decision of the Supreme Court given in that case in February, 2012 (para. 2 supra). Briefly described, provision

had been made in s. 29(1) of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976 (“s. 29 of

the 1939 Act”), for a member of An Garda Síochána, not below the rank of superintendent, to issue a search warrant (“a s. 29

warrant”) in respect of, inter alia, a person’s private dwelling house, where the conditions specified in the subsection were met. No

differentiation was made as to who the issuing officer might be: accordingly, even one who was at the heart of the investigation

could operate the section.

4. Mr. Damache was successful in challenging the constitutionality of this provision on the basis that such a warrant could only issue

by an otherwise qualifying member but one who at the same time was independent of the investigation. In essence, that is to say

that such an individual could not have a material interest in the underlying decision on whether or not to grant the warrant.

Accordingly, as the provision was not operated in this way, the section was declared unconstitutional (“the Damache point” or “the

Damache issue”) in the case of Mr. Damache.

5. In light of that decision, the appellant, as stated, sought to amend the notice of appeal already filed, by adding the Damache

point.

6. The application in this regard was moved under O. 86, r. 4 of the Rules of the Superior Courts, 1986 and technically speaking was

one which sought an amendment only. However, during the course of the hearing, the Court enquired of Counsel for both parties as

to whether, in the event of it deciding to determine the Damache point in a more substantive way, either would have further

submissions to make in that context. Counsel on behalf of the appellant responded that, in light of the very full submissions which had

already been filed, and given the presentation which he was about to embark upon, such would cumulatively constitute a full

representation of what his client needed to say at the substantive level on the Damache point. Accordingly on that basis and with

the agreement of both parties, the Court decided to determine the point as a matter of substance and went on to do so. Evidently,

such a course was adopted in the full knowledge of the appellant’s outstanding appeal on other grounds, including the ground relating

to the telephone records, which at that time and apparently still, remain(ed) to be determined.

7. In its judgment of the 4th February, 2013 (“the main judgment”) the Court approached the Damache issue by firstly commenting

on whether or not the point sought to be relied upon had to in some way be raised as part of the record before an appellant would be

permitted to argue its application as part of his appeal, and secondly, by determining whether, either by reason of a course of

conduct embarked upon at trial (later described), and/or on foot of the principles outlined in The People (D.P.P.) v. Cronin (No. 2)

[2006] 4 I.R. 329 (“Cronin (No. 2)”), he was entitled to have the benefit of the declaration.

8. On the first issue it is stated at para. 25 of the main judgment that “it seems to this Court that before an accused can argue the

Damache point, on appeal, he should have raised the issue in some shape or form during the course of the trial or in a manner

independent of it”. In support of this viewpoint this Court referred to the case of The People (D.P.P.) v. Cunningham [2012] 2 I.L.R.M.

406 (“Cunningham”), where the Court of Criminal Appeal was satisfied to regard the three ways in which the Damache point was

raised (para. 15 of the main judgment) as being sufficient for its purposes, although it must be recognised that the constitutional

point was not, as such, ventilated at trial. The point however was clearly raised in The People (D.P.P.) v. Kavanagh & Ors. [2012]

I.E.C.C.A. 65 (“Kavanagh”) in that, given the manner in which the trial was conducted, the appellant was entitled to take the benefit

of the relevant submission made on behalf of a co-accused. Likewise it had been expressly raised in The People (D.P.P.) v. O’Brien

[2012] I.E.C.C.A. 68 (“O’Brien”). Apart therefore from some uncertainty about Cunningham, this Court knew of no case in which

permission was granted to raise the point, where it had not been articulated under some guise, at an earlier stage in the criminal

process.

9. The Court then went on to deal with the consequences of a particular decision which was taken, and acted upon, during the

course of the trial. It will be recalled that when the Director of Public Prosecutions indicated her intention of calling evidence with

regard to the s. 29 warrant, Counsel on behalf of Mr. O’Connor said:

“… [I am in a position] … to concede that Sgt. Grant applied for a search warrant in accordance with law and was

granted the search warrant in accordance with law, and I do that in anticipation of releasing unnecessary witnesses to

the kind of formality to prove that”.

In light of that concession, the relevant witnesses were stood down and no issue was ever taken as to the validity of the warrant.

10. The Court then considered the consequences of that decision: at para. 27 of the main judgment it stated as follows:

“In addition however, there is also a question of conduct in this case: whether such should be characterised as

acquiescence, waiver or acceptance, probably does not matter at the end of the day. Whichever way it is considered,

and whether it amounts to a concession or otherwise, there is no doubt but that during the course of trial, defence

Counsel made the statement which is referred to at para. 8 above [being that as above quoted]. It must immediately be

emphasised that Counsel cannot in any way be criticised for making this statement and in that context the Court is not

unmindful of the case law on s. 29 of the 1939 Act which preceded Damache. Notwithstanding, it is obvious that this

Court cannot know precisely what prompted such a concession: it may well have been for a tactical or strategic reason,

or indeed, it may have been in an effort to save time and to facilitate the smooth running of the trial. Whichever, it must

be presumed to have been designed to further the defence approach, and to strengthen the appellant’s position before

the jury. That being so, he cannot now be permitted to raise an argument which runs diametrically contrary to the

position which he previously adopted, for to do so would be inconsistent with the principles of law above mentioned.”

11. This was therefore a separate ground upon which the Court decided that the appellant could not avail of the Damache point.

12. There was a further reason why the Court refused to apply the declaration in this case: it was based on Cronin (No. 2) and its

views on this point are set out at para. 28 of the main judgment. That paragraph reads as follows:

“Furthermore, there is of course the … Cronin (No. 2) … point, the essence of which is that the Court of Criminal Appeal is

“concerned only with a review of the trial and the rulings made therein” and accordingly, a point not raised at trial will

only be permitted at the appeal stage, if to do otherwise, would be to cause a substantial injustice. As none so exist in

this case, this Court will not permit the appellant to rely on the Damache point.”

13. For all of the above reasons the Court decided that the appellant could not avail of, and that the declaration of

unconstitutionality did not apply to the appellant’s circumstances.

14. Subsequent to the delivery of that judgment in February, 2013, the appellant moved an application before this Court to have a

particular point of law certified under s. 29 of the Courts of Justice Act 1924 Act, as amended (para. 20 infra) (“the 1924 Act”), so

that the appellant’s conviction could in effect be further appealed to the Supreme Court. The proposed question is phrased as

follows:

“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”.

15. In support of this application helpful submissions were filed on behalf of Mr. O’Connor and were ably expanded upon by Mr. Patrick

Dwyer, S.C. during the course of the hearing before this Court.

16. It is submitted by the appellant that this Court had misapplied A. v. The Governor of Arbour Hill Prison [2006] 4 I.R. 88 (“A.”) in

relation to the circumstances in which an appellant such as Mr. O’Connor could obtain the benefit of a declaration of

unconstitutionality in third party proceedings to which he is a stranger. It is said that the true test in this regard is that as set out in

the headnote of the report in A., which reads as follows:

“[W]here … the accused did not seek to impugn the bringing or conduct of the prosecution, on any grounds that might in

law have been open to him or her, including the constitutionality of the statute, before the case reached finality, on

appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any

subsequent ruling that the statute, or a provision of it, was unconstitutional.”

17. It is claimed that this passage does not contain any requirement to place an objection on the record: to impose such an

obligation on lawyers with regards to every potential infirmity of the law, simply to preserve the position of their client, would make it

exceedingly difficult for advisors, and in any event would be injurious to the overall health of the criminal justice system. Therefore no

such obligation should be part of the law.

18. Secondly, it is said that Cronin (No. 2) was never intended to incorporate within its parameters circumstances such as those

surrounding this application, in particular where a declaration of unconstitutionality is involved: the principles of Cronin (No. 2) are

designed only to prevent from being raised for the first time on appeal points which were entirely divorced from the run of the case

and which otherwise, could not fairly be said to have arisen out of the trial. It is claimed that the contentious phrase in that case

which is often quoted, does not mean what it says at para. 46; namely that:

“the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other

suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.”

In any event it is pointed out that such is not the only function of the Court of Criminal Appeal: it should also seek to vindicate the

constitutional rights of an appellant and where not so vindicated, should grant all appropriate relief to correct the situation.

19. Finally, even though no specific question is sought to be certified with regard to the issue of disentitling conduct, nonetheless,

issue is taken with the correctness of this Court’s approach to that issue in its main judgment.

20. The relevant provisions of s. 29 of the 1924 Act, as substituted by s. 22 of the Criminal Justice Act 2006, which was later

amended by s. 59 of the Criminal Justice Act 2007 and s. 31 of the Criminal Procedure Act 2010 (“s. 29 of the 1924 Act”), are those

contained in sub-paras. (1) and (2) and read as follows:

“29. - (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 … 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.”

21. As the hearing of both the motion to amend the notice of appeal and the present motion took place before the same Court

composition and at the same time as similar applications were moved in the case of D.P.P. v. Patchell (Unreported, Court of Criminal

Appeal, McKechnie J., 4th February, 2013) (“Patchell”), this Court refers to the judgment delivered today in that case in which it sets

out what in its view are the correct principles which should apply to an application moved under s. 29 of the 1924 Act. For

convenience, the relevant portions of that judgment are here reproduced:

“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.”

22. The Court is satisfied that these principles equally apply to this application.

23. The question which is sought to be certified, in essence, asks whether it was necessary for Mr. O’Connor to have placed on the

record his constitutional objection to the terms and operation of s. 29 of the 1939 Act, before he could seek to avail of the

declaration of unconstitutionality made in Damache in respect of that section. His argument on this issue, as is clear from the main

judgment, is that no such prior ventilation is required. Even if he is right in this regard, what must be considered however is what

would result were the certificate to be granted and answered by the Supreme Court in a manner favourable to his position:

presumably in such circumstances the appellant would be able to argue, as part of his substantive leave application, that the

declaration applied to his circumstances and that such would have consequences for the safety of his conviction.

24. However, as is quite clear from the main judgment, this Court did consider, at a substantive level and with his consent, whether

the declaration applied to the accused’s case and it held against him on this point. The reasons were not confined to what the

suggested question seeks to address, but rather they included the grounds that firstly, by his conduct he was disentitled from relying

on the declaration, and secondly, and in any event, that Cronin (No. 2) covered the matter. As a result therefore, he has had an

opportunity to and did make submissions on the point both, at the level of principle and also as specific to his individual

circumstances. Accordingly, that point has been finally determined, not in the sense that he has been prohibited from raising it, but

rather that the submissions which were made in that regard were unsuccessful. In these circumstances, it seems to this Court that

even if it was otherwise minded to certify the question – which it is not – any resulting judgment favourable to the accused could not

advance his position in his pending appeal before this Court.

25. Even however if there should be some doubt about the correctness of the Court’s interpretation and/or application of the law,

such would fall short of meeting the twin requirements of s. 29 of the 1924 Act. As explained in Patchell, even if the issue had not

been already determined against the appellant in this case, the point which he raises, whilst undoubtedly of importance to him, is not

such so as to transcend, in any meaningful way the individual circumstances in which he finds himself, and thus could not merit

certification under the section.

26. The above conclusion is sufficient to fully dispose of this application and therefore it is not necessary to dwell at any length on

the other matters as raised. It is sufficient to say that the Court’s application of the principles in Cronin (No. 2) is in accordance with

and is supported by much authority, including, in the Damache context, the judgment of this Court in D.P.P. v. Bolger [2013]

I.E.C.C.A. 6. In any event, whether that be the case or not, the fact of the matter is that the issue has been considered at a

substantive level by this Court.

27. Finally, and once again without prejudice to the point last made, this Court is likewise satisfied that the application should be

rejected, as it has been, on the grounds of the strategy or tactics adopted by Mr. O’Connor during the course of his trial.

28. On the latter issue it will be recalled that when the prosecution indicated its intention of calling the relevant evidence with regard

to the validity of the s. 29 warrant, Counsel on his behalf immediately placed on the record that he was in a position “to concede that

Sgt. Grant … applied for a search warrant in accordance with law and was granted the search warrant in accordance with law, …”

and that he adopted this course so as to release unnecessary witnesses to prove “the kind of formality” which would be involved.

This can only be described as an express declaration of the appellant’s stated position on the issue at that time, a position which the

Court does not in any way criticise. Such decisions fall on the shoulders of Counsel on a daily basis during the course of a criminal trial

and on many occasions there are several variable matters, all of which influence what decision is ultimately arrived at and what

position is thereby adopted. It can hardly be doubted but that the approach as pursued was taken in the best interests of Mr.

O’Connor and was motivated to obtain some benefit therefrom for him, before the jury and in their eyes. It would, in this Court’s view,

be entirely inconsistent with that stance to permit him now in effect to reverse his position in such a diametric way and to argue that

his arrest and detention were unlawful. The situation as it had been had moved irreversibly by the end of trial, and even though an

extant appeal remains, the consequences therefrom cannot be undone.

29. In these circumstances, the Court will refuse this application.