Court of Criminal Appeal dismissed appeal to Supreme Court under s.29 after ordering retrial.

COURT OF CRIMINAL APPEAL

59/04 & 65/04

McCracken J

Murphy J

Peart J

Between:

The People at the suit of the Director of Public Prosecutions

Respondent

AND

Dermot Laide and Desmond Ryan

Appellants

Supplementary judgment of the Court delivered on the 29th day of June 2005 by McCracken J.

___________________________________________________________

Mr Michael O’Higgins SC on behalf of Dermot Laide (hereinafter called “the Appellant”) has addressed the Court on two

matters arising out of the judgment of this Court delivered on 24th February 2005. Firstly, he seeks to argue that the order

of the Court, which has not yet been finally perfected, should not order the retrial of the Appellant on the charge of

manslaughter, and secondly, should he fail in this application, he seeks an order pursuant to s.29 of the Courts of Justice Act

1924 certifying that the decision of this Court involved a point of law of exceptional public importance and for this reason

permitting an appeal to the Supreme Court. The Court proposes to deal with each of these points separately.

Reconsidering a Retrial

Mr O’Higgins makes it quite clear, as he must, that he is not re-opening the appeal, is not making fresh arguments and is not

revisiting the substantive decision that the conviction was unsafe. However, he submits that the ordering of a retrial is an

ancillary or consequential order, which the Court would not have made had it considered all the arguments put forward on

behalf of the Appellant. In particular, he submits that on a proper construction of the indictment, the Appellant could only be

convicted of manslaughter on the basis of common design between the four original accused.

He is perfectly correct in arguing that this Court did not rule on that point, on the basis that the manslaughter charge was

being set aside in any event. However, the Court did comment on this point and said:-

“However, as the concept of common design was clearly explained to the jury, the Court feels it probable,

primarily because of the fact that only Dermot Laide was convicted of manslaughter, that the jury did not

convict him on the basis of common design, but on the basis of his own actions.”

In any event, the Court does not accept the submission that the ordering of a retrial in an ancillary or consequential order.

Section 3(1) of the Criminal Procedure Act 1993 sets out four options open to the Court on the hearing of an appeal against

conviction, two of which are:-

“(b) Quash the conviction and make no further order, or

(c) quash the conviction and order the applicant to be retried for the offence.”

The jurisdiction of the Court of Criminal Appeal derives solely from statute and the orders which the Court is empowered to

make are those set out in s.3(1). It is quite clear that the statute offers alternatives to the Court, either to quash the

conviction simpliciter or to quash the conviction and order a retrial. Specifically, the section does not empower the Court to

quash a conviction and subsequently consider the question of a retrial. The ordering of a retrial is a part of the substantive

order of the Court.

At the hearing of an appeal against conviction, it is always open to the appellant to argue before the Court which of these

remedies is appropriate. It was open to the Appellant to do so in the present case, and accordingly he was not precluded in

any way from making the arguments which it is sought to make at the supplementary hearing.

There are circumstances in which a Court may have an inherent jurisdiction to set aside or vary what appears to be a final

order. This may arise under the “slip rule” where there has been a manifest error in drawing up the terms of the order, and it

may also arise where the Court has been mislead, either innocently or deliberately, as to the factual background of the case,

or where the order does not accurately reflect the judgment of the Court. None of these considerations arise in the present

case. There are also circumstances where natural justice may require the reconsideration of a decision or an order. In this

regard the Court will adopt the passage from the judgment of Denham J in in Re Greendale Developments Ltd (No. 3)

[2000] 2 IR 514 where she said at page 544:-

“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to

an inherent duty to protect constitutional justice even in a case where there has been what appears to be a

final judgment and order. A very heavy onus rests on a person seeking to have such a jurisdiction exercised. It

would only be in the most exceptional circumstances that the Supreme Court would consider whether a final

judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A

case will only be reopened where, through no fault of the party, he or she has been subject to a breach of

constitutional rights.”

The Court considers that this principle applies equally to the Court of Criminal Appeal.

In the present case it could not possibly be said that there has been any breach of any constitutional rights of the Appellant.

As the Appellant has not brought himself within any of the recognisable grounds to seek to have the matter revisited, this

Court will not entertain any further arguments as to the decision to direct a retrial.

Section 29 Certificate

The right of an accused whose conviction has been overturned by the Court of Criminal Appeal and a retrial ordered to seek

a further appeal under s.29 was considered recently by the Supreme Court in The People (Director of Public Prosecutions)

v Campbell [2004] 2 ILRM 412. In that case the applicant had been convicted before the Special Criminal Court of

membership of an unlawful organisation. He applied to the Court of Criminal Appeal for leave to appeal against conviction

and sentence. The Court of Criminal Appeal allowed the appeal, quashed the conviction and ordered a retrial on the ground

that a particular line of cross-examination should not have been permitted by the Court. The applicant had also sought to

rely in the Court of Criminal Appeal on the question of whether the “Real IRA” was a proscribed organisation. The Court of

Criminal Appeal granted a certificate pursuant to s.29 raising the point of law of exceptional public importance as:-

“Does the Unlawful Organisation (Suppression) Order (SRO No.162 of 1939) issued in 1939, pursuant to

section 19 of the Offences Against the State Act 1939, have application to an organisation which came into

existence in or about the year 1997?”

The Supreme Court considered as a preliminary point whether it had any jurisdiction under s.29 to consider this point of

law. The Supreme Court had already decided in The People (Director of Public Prosecutions) v O’Callaghan [2004] 1

ILRM 438 that there could be no appeal by the prosecution where the Court set aside the conviction and ordered a retrial.

In giving his decision in the Campbell case Keane CJ said at page 417:-

“The appeal permitted by section 29 to this Court is from the “determination” by the Court of Criminal

Appeal of an appeal or other matters. It is only permitted where the “decision” involves a point of law of

exceptional public importance. The word “determination” clearly connotes the result of the appeal to the

Court of Criminal Appeal, i.e. in this case the allowing of the appeal, the quashing of the conviction and the

ordering of a retrial. If the words in the section are given their ordinary and natural meaning, as they should

be, it is difficult to infer from them an intention on the part of the Oireachtas that an accused person was

being given a right of “appeal” to this Court from a determination by the Court of Criminal Appeal which

was in his favour. Thus, the applicant in this case does not challenge the decision of the Court of Criminal

Appeal to quash the conviction and order a retrial on another ground, a posture which is wholly impossible to

reconcile with what normally happens, and must have been envisaged by the legislature to happen, on the

hearing of an appeal. The applicant, in effect, seeks to obtain from this Court a finding that the law on the

certified point is not as stated in the judgment of the Court of Criminal Appeal now purportedly under appeal.

The Special Criminal Court would then be bound to apply the law as so found by this Court in the retrial

already ordered.

That, however, is precisely the course which, in the passage I have already cited from my judgment in People

(DPP) v O’Callaghan, was described as the exercise by this Court of a form of consultative jurisdiction with

which it had not been endowed by the Oireachtas. It is clear that this also applied to the course urged upon us

by the applicant in this case.”

In that case the Supreme Court expressed some sympathy with the position of the applicant who was attempting to have a

point of considerable legal significance determined by the Supreme Court, rather than have it determined on a retrial with the

prospect of further appeals. The Court held that it had no jurisdiction to determine the point of law involved. Keane CJ

ended his judgment at page 418 with the unequivocal statement:-

“I am satisfied that section 29 of the Courts of Justice Act 1924 conferred no such right of appeal on an

applicant where his conviction had been quashed and a retrial ordered by the Court of Criminal Appeal.”

Fennelly J in a short concurring judgment at page 418 said:-

“I entirely agree with the Chief Justice that s.29 of the Courts of Justice Act 1924 confess no

jurisdiction on this Court to entertain an appeal from a determination of the Court of Criminal

Appeal which allows an appeal.”

He went on to comment that “This result is unfortunate and undesirable”.

This Court also has some sympathy for the Appellant, but what he is seeking to have decided by the Supreme Court is

whether the charge against him, by reason of the way it is worded, necessarily requires common design as an essential

ingredient of the offence. He argues that if such an ingredient is required, it is not present and cannot be present because the

other persons with whom a common design was alleged have all been acquitted of manslaughter. He argues that in those

circumstances he could not be convicted on a retrial and therefore no retrial should be ordered.

This Court cannot see how the present case can be distinguished from Campbell. Having expressed some sympathy for the

applicant in that case, Keane CJ said at page 418:-

“Those considerations, however, cannot justify the Court in attributing to the legislature an intention to

confer a right of appeal by section 29 which is plainly outside the ambit of the section as enacted.”

It appears to this Court that that judgment, which is binding on this Court, quite clearly states that there is no jurisdiction

under s.29 to certify a point of law on any grounds whatever where the Court of Criminal Appeal has set aside a conviction

and ordered a retrial. Accordingly it appears to this Court that it has no jurisdiction to make the order sought.

The Court of Criminal Appeal is a creature of Statute, and its powers are circumscribed by Statute. It is, however, always

open to the Oireachtas to extend those powers by amending legislation.