Court of Criminal Appeal allows DPP review application as service was deemed timely by delivery to court officer.

Kearns J.

Budd J.

MacMenamin J.

THE COURT OF CRIMINAL APPEAL

[213CJA/04]

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993

AND

IN THE MATTER OF BILL NUMBER CC0058/03

BETWEEN

THE PEOPLE

(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

AND

JOHN MCCABE

RESPONDENT

JUDGMENT of the court delivered on the 8th day of June, 2005 by Mr. Justice Kearns

This is an application by the Director of Public Prosecutions seeking a review in respect of a sentence imposed by the

Central Criminal Court (Carney J.) on Monday, the 11th October, 2004. On that occasion the respondent had pleaded guilty

to aggravated sexual assault contrary to s.3 of the Criminal Law (Rape) (Amendment) Act, 1990, on a young woman at

Dundalk on the 13th September, 2002. On that occasion, the respondent was sentenced to 4 years imprisonment, which

said sentence was suspended when evidence was given to the trial judge that the victim was prepared to accept a sum of

€15,000 offered to her in court by the respondent as compensation.

The application brought by the Director of Public Prosecutions is brought under s.2 of the Criminal Justice Act, 1993. An

objection has been taken at the outset by the respondent who alleges that the application is out of time. Section 2(ii) of the

said Act of 1993 reads as follows:-

“An application under this section shall be made, on notice given to the convicted person, within 28 days from

the day on which the sentence was imposed.”

While in this case a copy of the notice of application was served on the respondent’s solicitors by registered post on the 5th

November, 2004, the original notice of application was not lodged with the registrar in the office of the Court of Criminal

Appeal until the morning of Monday, the 8th November, 2004.

On behalf of the respondent it was argued that the application was not lodged within time, because under the Interpretation

Act, 1937, the computation of time must run from the day when sentence was imposed and include that date. If correct in

that submission, it was submitted that the appeal which was lodged on the 8th November was out of time as the last of the

28 days thus calculated fell on the 7th November, 2004.

Section 11(h) of the Interpretation Act, 1937, provides:-

“Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless

the contrary intention appears, be deemed to be included in such period, and, where a period of time is

expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears,

be deemed to be included in such periods.”

Heavy reliance was placed by the respondent upon the well known case of McGuinness v. Armstrong Patents Ltd. [1980]

IR 289 to argue that the period was inclusive, and not exclusive, of the first day. In that case the plaintiff suffered personal

injuries in a road traffic accident. The proceedings were issued against two defendants. The plaintiff then learned that it was

being alleged that the accident had been caused by a mechanical failure in the car which had been manufactured by a third

defendant, a company registered outside the jurisdiction. The accident happened on the 21st June, 1972. Having obtained

leave to add the third defendant as a party, the plaintiff on the 23rd June, 1975 issued a concurrent summons against the

third named defendant. The 21st and 22nd June, 1975, were dies non juridicus, being a Saturday and Sunday respectively,

when the court offices were closed. The critical issue in that case was to determine whether the three year period fixed by

the Statute of Limitations, 1957 was to be calculated inclusive or exclusive of the date of the accident on the 21st June,

1972. McMahon J held that it was inclusive of the date of the accident, stating (at 292-3):-

“I would gladly adopt any construction of this provision which would achieve uniformity in the laws of

England and of Ireland in computing periods of time, but I do not see how the provision can be construed in

that way. The period of time specified in s.11, sub-s.2(b) of the Act of 1957 is expressed to be a period ‘from

the date on which the cause of action accrued’ and not from the accrual of the cause of action. I can not

distinguish the period so defined from a period specified in the manner described in the Act of 1937, namely,

a period of time ‘expressed to begin on or be reckoned from a particular day’. The legislature must be

presumed to have intended that the periods of limitation in the Statute of Limitations, 1957, should be

calculated in accordance with the rules of construction contained in the Act of 1937”.

In Criminal Assets Bureau v. McS [unreported, High Court, Kearns J, 16 November, 2001], a similar issue arose.

Section 933(1)(c) of the Tax Consolidation Act, 1997, provided for a period of 15 days from the date of issue of a refusal

of an appeal by the Inspector as the specified period for the purpose of further appealing such refusal to the Appeal

Commissioners. In that case, the time for appeal was ticking away in circumstances where the person affected was unaware

that the written refusal had issued until the notification reached him. Even though that was the case, I felt obliged to state (at

p.29):-

“On consideration of s .933(1)(c), one is immediately struck by the fact that in this case, at least, there is no

evidence to indicate what the date of the issue of the notice of refusal by the inspector might have been. There

is only the letter of the 7th January, which, having regard to the fact that its contents could not have been

communicated to the defendant prior to the following day if posted in the ordinary way, had the effect in real

terms of truncating the 15 day period for bringing an appeal under the section against the refusal.

Be that as it may, it seems to me that the court can only take the date of the letter as being the date of issue by

the inspector of the notice of refusal. The question is whether that date is to be included or excluded in the

computation of the 15 day period.

It seems to me that Mr. Nesbitt’s submission on this point must be correct, namely, that this issue essentially

falls to be determined under s.11 of the Interpretation Act, 1937. While the issue of a notice of refusal is an

act, the computation period is expressed in the section to commence with a date which clearly is a particular

day (in this instance the date of issue) and that being so, I must hold that when proceedings were launched on

the 22nd January, 1998, the 15 day period had expired.”

Having relied upon these two decisions, counsel on behalf of the respondent emphasised that under the terms of the Act, no

scope or leeway was provided to the Court of Criminal Appeal to extend the time for the bringing of an application by the

Director under s.2 of the Act of 1993. While it was conceded that this was an obvious lacuna in the Act, it was one upon

which the respondent was entitled to rely.

In response, it was submitted that the period from Monday, 11th October to Monday, 8th November, included no less than

eight dies non juridicus. In particular, the last two days, Saturday and Sunday, were two such days, the court offices then

being closed. In those circumstances it was submitted that the notice was given “within 28 days from the date on which the

sentence was imposed”.

Counsel further submitted that McGuinness v. Armstrong Patents [1980] IR 289 was not particularly helpful, because the

Statute of Limitations, 1957, contained an express negative prohibition in the context of enacting a limitation period: “An

action claiming damages for negligence, nuisance or breach of duty… shall not be brought after the expiration of three

years from the date on which the cause of action accrued.”

It was submitted that the case provided limited assistance when interpreting the words “within 28 days” in s.2 of the Act of

1993, which said words were argued to be more in the nature of rules of court than anything else. It was submitted that as

Carney, J had imposed sentence after 4 pm on the 11th October, the 28 days were still unexpired when the Director’s notice

of application was lodged in the office of the Court of Criminal Appeal on the morning of the 8th November.

Decision

The Criminal Justice Act, 1993 does not provide for an extension of time for the bringing of an application by the Director

under section 2. We do not believe, therefore, that the Court of Criminal Appeal, being a statutory court, has any inherent

jurisdiction to extend the time where the statute does not so provide.

The court also accepts as correct the submissions of counsel for the respondent that the day on which sentence was

imposed must be regarded as the first day of the specified period. This is the clear import of section 11 (h) of the

Interpretation Act, 1937, namely, that the period specified is inclusive of that date and not exclusive of it.

The section in its relevant portion provides as follows:-

“Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless

the contrary intention appears, be deemed to be included in such period…”

This has been held to be the case in both McGuinness v Armstrong Patents [1980] I.R. and Criminal Assets Bureau v McS

[unreported, High Court, Kearns J, 16 November, 2001], as is clear from the passages from both cases cited above.

McGuinness v Armstrong also makes it clear that in this context one does not have regard to portions of a day or the time

on the clock on the first day when computing the relevant period, in this case the period of 28 days. As McMahon J stated

(at pp 292-3):-

“The period of time specified in s.11, Sub-s. 2(b) of the Act of 1957 is expressed to be a period “from the date

on which the cause of action accrued” and not from the accrual of the cause of action. I can not distinguish

the period so defined from a period specified in the manner described in the Act of 1937, namely, a period of

time “expressed to begin on or be reckoned from a particular day”. The legislature must be presumed to have

intended that the periods of limitation in the Statute of 1957 should be calculated in accordance with the rules

of construction contained in the Act of 1937. I can not regard the resultant shortening of each period of

limitation by a part of a day, compared with the length of the period if counted from the actual time when the

cause of action accrued, as indicating any contrary intention on the part of the legislature. Therefore, I must

reluctantly conclude that the period of three years from when the date of the cause of action accrued expired

on the 20th June, 1975.”

In simple terms, McMahon J did not calculate the period from the time of the accident itself, but from the commencement

of the day when it occurred, a view which he felt compelled to take by reason of the Interpretation Act, 1937. It was the

same view which I formed in Criminal Assets Bureau v McS, namely, that in the absence of any contrary intention in the

particular statute, the foreshortening of a particular period by reference to a particular date or day was in accordance with

the 1937 Act.

However, what McGuinness v Armstrong Patents gives to the respondent with one hand (by deeming the first day to be

included) it takes away with the other by reason of an identical factual circumstance common to both that case and the

present one.

In McGuinness the concurrent summons could not in any event have issued on the anniversary of the accident 3 years

earlier, because the 21st was a Saturday. As McMahon J noted (at 292):-

“It was impossible to issue the summons on the 21st or 22nd June, 1975 (being respectively a Saturday and a

Sunday) when the Court Offices were closed. The third defendants accept that, in these circumstances, a

summons issued on the 23rd June, 1975, should be treated as issued within the period of three years if the day

of the accident is excluded in the calculation of that period: Pritam v S. Russell & Sons [1973] Q.B. 336”

Thus the defendants did not even argue the point but that, if the last day of the specified period was a dies non juridicus,

the claim would not be statute barred if it had not already become statute barred prior to that date. In other words, where

the last day falls on a Sunday, the following day is deemed to be the last day. Such provision is also contained at Order 122,

r 3 of the Superior Court Rules which provides:-

“Where the time for doing any act or taking any proceeding expires on a Saturday, Sunday, or other day on

which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that

day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly

done or taken if done or taken on the day on which the offices shall next be open”

In the present case the 28 day period, calculated inclusively of the date of sentence, expired on Sunday, the 7th November,

2004. It is unnecessary for the purpose of this judgment to consider the relevance, if any, of the other dies non juridicus

once the last day falls on such a day, as it does here.

In Pritam v S Russell & Sons Ltd [1973] 1 All ER 617, the plaintiff’s husband was killed at work on 5th September, 1967.

On 7th September, 1970, the plaintiff issued a writ against her husband’s employers claiming damages for negligence and

breach of statutory duty. She could not issue her writ on the 5th or 6th which were Saturday and Sunday, the court offices

being closed. The defendants contended the action was statute barred. However, the Court of Appeal held that where a

statute prescribed a period within which an act was to be done and the act was one which could only be done on a day on

which the court offices were open, the period would be extended, if the court office was closed for the whole of the last day

of the prescribed period, until the next day on which the court offices were open. It followed that the plaintiff had until 7th

September 1970 in which to issue her writ, and she was therefore in time. It is important to stress that the Court of Appeal

so decided notwithstanding that the period was prescribed by statute and not by rules of court.

In the course of his judgment Lord Denning MR stated:-

“The important thing is to lay down a rule for the future so that people can know how they stand. In laying

down a rule, we can look to parallel fields of law to see the rule there. The nearest parallel is the case where a

time is prescribed by the rules of court for doing any act. The rule prescribed both in the county court and the

High Court is this: if the time expires on a Sunday or any other day on which the court office is closed, the act

is done in time if it is done on the next day on which the court office is open. I think we should apply a similar

rule when the time is prescribed by statute. By so doing, we make the law consistent in itself, and we avoid

confusion to practitioners”

The court believes that decision was correct and should be followed in this jurisdiction.

The issue has also received consideration from this court in DPP v. McKenna (unreported judgment of CCA, 6th February,

2002, Geoghegan J.) where almost identical facts were present. In that case, an employee in the office of the Chief State

Solicitor had gone to the office of the Court of Criminal Appeal on the 18th December, 2000, and there lodged a Director’s

appeal under s.2 of the Act of 1993. In that case the sentences had been imposed on the 21st November, 2000. On the

afternoon when she attended, the office would not accept the papers, apparently on the basis that a faxed copy of the notice

of application only was available, though she may also have been informed that the respondent had to be first served

personally. However, the solicitor was assured that if she were to lodge the document the following day she would still be in

time. Thus, while the respondent was personally served later that day, the notice was only lodged the following day.

Counsel for the Director of Public Prosecutions argued that the attempted lodgment of the documents was an adequate

application and that both grounds of refusal to process the application by the court official were ill-founded. The court

determined that the actions of Ms. O’Shea on the 18th December, which she explained in her evidence, constituted the

making of the application for the purposes of the time limit, and that her evidence was prima facie evidence of an

application being made on the 18th December, 2000. It was then for the respondent to satisfy the court that this was not so,

which said onus had not been discharged.

Of interest, however, in that case is the fact that the court had due regard to the Rules of the Superior Courts in relation to

the Court of Criminal Appeal. In particular, Geoghegan J. noted (at p.3):-

“It can, for instance, legitimately be assumed in the absence of rules that an application to the Court of

Criminal Appeal by the DPP is initiated by the lodgment of the appropriate notice in the Court of Criminal

Appeal Office even though the Act as such does not specifically say so. It is of some relevance therefore to

consider what the existing Rules of the Superior Courts provide for the ordinary notice of appeal or notice of

application for leave to appeal. Order 86, r.4 of the Rules of the Superior Courts provide that a person

desiring to appeal to the court shall serve on the registrar a notice of appeal in the form number 2 and that a

person desiring to apply to the court for leave to appeal shall serve on the registrar a notice of application for

leave to appeal in the form number 3. What is interesting is the use of word ‘serve’ which is somewhat unusual

in the case of a registrar. Order 86, r. 32(6) goes on to provide that in every case in which an appellant is not

in prison or is represented by a solicitor, his notice of appeal or notice of application for leave to appeal has

to be served on the registrar personally ‘or by delivering the same to the proper officer at the office of the

court at the Four Courts, Dublin’. In every other instance service can be effected either personally or by

sending the document by prepaid post addressed to the person on whom it is to be served. In this particular

case the relevant State solicitor inaccurately headed the notice of application as ‘notice of appeal’ and used

the language of ‘appeal’ throughout the notice. Quite rightly no objection is taken about this. It is, however,

an illustration of what presumably is the position pending any special rules namely, that the existing rules of

the Superior Courts are adapted suitably for the purposes of these notices of application to review brought by

the Director of Public Prosecutions. In the opinion of the court delivery of the notice to the proper officer of

the Court of Criminal Appeal should be regarded as the initiation of the application. The court considers that

that is what Ms. O’Shea was doing on the 18th December.”

The case is not merely confirmatory of the view formed in the present case but also is of interest in highlighting the

requirement on the Director’s representative to attend the offices of the Court of Criminal Appeal for the purpose of lodging

the notice, a further reason for concluding that a day when the office is closed should not be taken into account, at least

when it is the last day of the specified period.

For these various reasons the court will hold that the Notice was served in time and will fix a date for the hearing of the

application.