Supreme Court dismisses application to set aside final decision due to manifestly unfounded error claim.

THE SUPREME COURT

Murray C.J. 467/06

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-v-

MICHAEL McKEVITT

APPELLANT

RULING of the Court delivered by Murray C.J. on the 26th day of March, 2009

The appeal of the above named appellant from a decision of the Court of Criminal Appeal, pursuant to s. 29 of the Courts

of Justice Act 1924 (as amended) was dismissed by this Court on the 30th July 2008. The reasons for the dismissal of the

appeal were set out in a judgment of Mr. Justice Geoghegan with whom all other members of the Court agreed. The original

trial and conviction of the applicant took place before the Special Criminal Court.

On the 2nd day of December 2008 the appellant submitted to the Office of the Supreme Court an application to set aside

the decision of this Court dismissing the s. 29 appeal and for a re-hearing of the appeal. The application is grounded upon an

affidavit sworn by his solicitor.

Article 34.4.6 of the Constitution provides “The decision of the Supreme Court shall in all cases be final and conclusive.”

That is a clear constitutional statement that the decisions of this Court are in principle final. Prima facie this Court has no

jurisdiction to hear an application to set aside a decision which finally determines proceedings before it. Very exceptionally

the Court has jurisdiction to review a decision in the special circumstances referred to in the case-law summarised below.

It is convenient to note at this point that in this matter the Court is not concerned with the kind of collateral proceedings

which may be taken at first instance where a party seeks to set aside final judgment obtained by another party on the

grounds that it was obtained by fraud. In any event setting aside such proceedings, on the grounds of fraud as Murphy J.,

stated in Tassan Din –v- Banco Ambrosiano S.P.A. [1991] I.R. 569 “does not truly represent an exception to this

constitutional provision, an order obtained by fraud is a mere nullity”. (See also Kenny –v- TCD, Supreme Court,

Unreported 10th April 2008). Nor is this application concerned with the Court’s jurisdiction to correct an accidental slip in a

judgment as drawn up or the correction of an order of the Court so that it correctly states what the Court actually decided

and intended.

The Court is being asked in this case to exercise its inherent jurisdiction to set aside a final decision, a jurisdiction which the

Court may only exercise in the exceptional circumstances specified in its case-law.

As regards those exceptional circumstances in which the Court could have jurisdiction to review an earlier decision

notwithstanding the terms of Article 34.4.6 the relevant case-law was summarised in the judgment (nem diss) delivered in P

–v- P, The Supreme Court, Unreported, 31st July 2001 in the following terms:

"Constitutional considerations:

However, the position may be otherwise when a final order is challenged on the grounds that the judicial

proceedings in question were gravely flawed by reason of a fundamental breach of fair procedures and

justice guaranteed by the Constitution. This question was expressly addressed by this Court in the

judgments of Denham, J. and Barron, J. in the Greendale case with whom both Barrington, J. and Lynch,

J. agreed.

In that case Denham, J. (at page 542) held that “The Supreme Court has jurisdiction and a duty to protect

constitutional rights. This jurisdiction may arise even if there has been what appears to have been a

final Order. However, it would only arise in exceptional circumstances. The burden on the Applicants to

establish that exceptional circumstances exist is heavy.”

Later in her judgement she concluded “It would only be in 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.”

Barron, J. in the same case held (at 545) that there may be circumstances which might exclude the

application of Article 34.4.6 concerning the finality of decisions of the Supreme Court. He then added:

“Nevertheless, where such circumstances exist, this Court must be free to so declare and to indicate the

procedures whereby such circumstances should be investigated. Not to be able to do so would conflict

with the guarantee of fair procedures enshrined in the Constitution.

The Constitution requires the decisions of this Court to be final and conclusive for good reason. There

must be certainty in the administration of justice. Uncertainty can lead to injustice. In my view, these

provisions must prevail unless there has been a clear breach of the principles of natural justice to which

the Applicant has not acquiesced and such that a failure to take steps to remedy such breach would, in

the eyes of right minded citizens damage the authority of this Court. I believe that the jurisprudence of

this Court has always been to this effect.”

In the Bula case Bula Ltd –v- Tara Mines (Supreme Court, Unreported, 3rd July 2000). McGuinness, J. expressing her

agreement with those judgments stated “In summary, whilst very great weight must be given to the

principle of finality and to the provisions of Article 34.4.6., this court has a jurisdiction to review and if

necessary to set aside what appears to have been a final order in circumstances where the Court’s duty

to protect constitutional rights or natural justice arises. Such circumstances can only be to a high degree

exceptional, and a very heavy onus lies on the Applicants to establish that such exceptional

circumstances exist.”

The judgments of this Court in Greendale and Bula establish that a final order may be rescinded or varied

where a party discharges the burden of establishing that there are exceptional circumstances showing that

such a remedy is necessitated by the interests of constitutional justice.”

The first question for a court when a litigant or party seeks to initiate proceedings or any form of application is whether the

court has a jurisdiction to deal with the matter. In the vast majority of cases it will be evident that no issue as to jurisdiction

arises.

When a party seeks to set aside a final decision of this Court a question as to whether the Court has jurisdiction to entertain

such an application must always arise having regard to the terms of Article 34.4.6.

There are two particularly important factors to be addressed when considering whether this Court has, in the circumstances

of a particular case, jurisdiction to consider a re-opening of its decision. Firstly the application must patently and

substantively concern an issue of constitutional justice other than the merits of the decision as such. Secondly, the grounds

of the application must objectively demonstrate that there is a substantive issue concerning a denial of justice in the

proceedings in question consistent with the onus of proof on an applicant.

Accordingly, insofar as this Court has potential jurisdiction, in the exceptional circumstances referred to in the case-law, to

review one of its earlier decisions, an applicant must show cogent and substantive grounds which are objectively sufficient to

enable the Court to enter upon an exercise, by way of a hearing of an application on the merits, of that wholly exceptional

jurisdiction. (For example, a mere assertion of subjective bias on the part of the Court by a dissatisfied litigant could not be a

ground upon which the Court could have jurisdiction to hear and determine an application).

Where an applicant fails to discharge the onus on him or her the Court has no jurisdiction to deal with the matter and the

application must be considered as manifestly unfounded.

Summary Refusal

Although in absolute terms their numbers remain small, there has been an increase in the number of applications to the

Court which may properly be considered to be manifestly ill-founded either because the Court has no jurisdiction in any

circumstances to deal with the matter or if there is a potential jurisdiction, the applicant has failed to disclose any objective

basis for the exercise of that jurisdiction. The former case, where there is no jurisdiction under any circumstances, may

typically arise when a litigant seeks to appeal a decision of the High Court which determined an appeal from the Circuit

Court. Section 39 of the Courts of Justice Act 1936 provides that a decision of the High Court on an appeal from the Circuit

Court shall be final and conclusive and not appealable. As a consequence of that provision this Court cannot under any

circumstances, entertain an appeal from a decision of the High Court in such a matter (see Andrews Productions Limited –

v-Gaiety Theatre Enterprises Limited 1973 I.R. 295; P –v- P and C.MVJF (Supreme Court, Unreported, 5th October

2007)).

In Clohessy –v- Clohessy (nem diss) (Supreme Court, Unreported, 31st July 2008) Murray C.J., stated, with regard to an

attempt to bring such an appeal, “It is the entitlement and always has been the entitlement of the Office of the Supreme

Court to refuse to entertain appeals from such decisions of the High Court or any form of application that is designed or

endeavours to advance an appeal which is so manifestly outside the jurisdiction of the Court. That is the position under

the law. We do not have jurisdiction and cannot entertain any matter in which we do not have jurisdiction.” Thus the

Office of the Supreme Court may refuse to accept an application relating to a matter which manifestly falls outside the

jurisdiction of the Supreme Court although the Court itself remains entitled, in its discretion, to rule directly on such an

application, by summarily refusing it on the grounds that it is manifestly unfounded.

Similar considerations apply where the Court has potential jurisdiction by virtue of the special and exceptional circumstances

referred to above where an application is, in its own terms, manifestly ill-founded. There also the Office of the Supreme

Court may refuse to accept an application where it is manifest that the Court has no jurisdiction. Again the Court, in the

exercise of its discretion in a particular case, may rule summarily on the matter. A summary ruling, in this context, means a

ruling by the Court, having taken into account all that is stated in such an application, including any supporting affidavit, that

the application is manifestly ill-founded without the necessity of holding a hearing on the matter in which further legal

argument is heard from all parties to the proceedings as if it were a hearing of the application on its merits. This was the

approach adopted by this Court in Philp –v- Ryan & Ors (Supreme Court Ruling, Unreported, 18th January 2005). In that

case there was an application to the Court in which it was sought, not to set aside the order of the Court, but to address the

Court on, and seek correction of, certain observations or findings which had been made in the course of the judgment

delivered in that case. In that case the Court summarily ruled that the application should be refused.

The Present Application

The present application to set aside the decision already delivered in the appeal brought by the appellant is grounded upon

the presence of an incorrect statement of fact in one particular passage of the judgment in that case.

The relevant passage, with the relevant incorrect statement of fact underlined is the following, and occurs in the judgment

where the issue under consideration related only to a late disclosure in the course of the trial to the defence of certain

documentation concerning surveillance carried out on the appellant.

"The catalyst for the complaint in this particular case was the late disclosure in the course of the trial of

notes of garda surveillance of the appellant’s residence on the 17th February, 2000. The prosecution had

assumed and it would seem had reasonably assumed that it would not be disputed that the appellant knew

Mr. Rupert but rather it would be suggested that their association was innocent. In the event, the cross-

examination of Mr. Rupert took the form that the appellant had never met him and did not know him.

This was despite the fact that the prosecution had photographic evidence of Mr. Rupert and the appellant

entering a house separately and then leaving it together and the sighting of them together in the company

of their wives. Once it emerged that that was the line of defence, the surveillance documentation was

disclosed. This seemed to the Special Criminal Court and to the Court of Criminal Appeal reasonable

and not seriously prejudicial to the accused. I agree. But more importantly, there was an offer by the

trial court to have Mr. Rupert recalled for further cross-examination. That was declined."

In relation to this passage the appellant’s solicitor says the following at paragraphs 12 and 15 inclusive of his affidavit

grounding the proposed application:

“12. I say that the above quoted passage is based on a factual assumption that is entirely false and

incorrect, this being that photographic evidence placing Mr. Rupert and the appellant together existed

and was tendered in evidence at the appellant’s trial.

13. I say that the respondent’s written submissions in respect of this appeal lodged with this court in

advance of the hearing of this appeal on the 24th January, 2008 refer incorrectly to photographic

evidence showing the appellant and Mr. Rupert together in terms that are strikingly similar to the

language used by the court when referring to photographic evidence. The relevant passage appears at

page 14 of the respondent’s submissions, which are exhibited for ease of reference and states as follows:

‘In light of the fact that there was photographic evidence of Mr. Rupert and the appellant entering a

house separately and then leaving it together a sighting of them together in the company of their wives;

and that Mr. Rupert identified a computer and a receipt for it which were found in the appellant’s house,

Mr. Rupert having brought it for the appellant and installed in his house, it was assumed that the defence

which would be run was that the appellant knew Mr. Rupert, but that their association was innocent.’

14. I say that, in the light of the enormity of the misstatement in relation to photographic evidence set

forth in the above quoted passage, I wrote to the Chief Prosecution solicitor by letter dated the 31st

January, 2008 identifying the said misstatement and requesting that it be rectified. (Letter then

exhibited) I say and believe that the prosecution never replied to the said letter and made no effort either

prior to or at the hearing of the appeal to rectify this misstatement or to bring it to the attention of the

courts. I say that the prosecution’s failure to act in this regard is particularly notable in light of the fact

that I had previously requested the Chief Prosecution solicitor to take steps in relation to certain factual

misstatements that had appeared in the judgment of the Court of Criminal Appeal delivered on the 9th

December, 2005, and it had refused to do so. (Correspondence then exhibited)

15. I say and believe that no reference was made to the existence of such photographic evidence in the

oral submissions made on behalf of the prosecution before this court …”

It is important to note at this point that the error complained of is not that the sightings by the Gardaí of the appellant did not

take place or that there was no evidence of them at the trial but solely to the reference to there being photographic evidence

of the sightings. The D.P.P. has conceded, in correspondence exhibited by the appellant’s solicitor, that the reference to

photographic evidence in his written submissions was erroneous. For reasons which are set out below that the Court

considers it absurd to suggest that the incorrect statement made the slightest difference to the outcome of the appeal.

Before addressing that question it should be noted that a statement of fact that the prosecution had “photographic evidence

of Mr. Rupert and the appellant entering a house separately and then leaving it together and the sighting of them

together, “ was stated in those terms in the submissions filed on behalf of the D.P.P. in the appeal. It is evident that that is

how the particular error found its way into the judgment. It is quite normal for a judgment, particularly in an appeal

involving questions of law only, to rely on or reflect summaries of facts (which are invariably a matter for the trial Court)

which are agreed or not in dispute. It appears that the solicitor for the appellant, prior to the hearing of the appeal and after

receiving a copy of the D.P.P.’s submissions, wrote directly to the solicitor for the D.P.P. pointing out the error in his

submissions. Most regrettably the D.P.P. did not bring to the attention of the Court the misstatement contained in the

submissions filed on his behalf notwithstanding that it had been brought to his attention. This was compounded by the fact

that neither solicitor nor counsel for the appellant brought the matter to the attention of the Court when it became apparent,

as evidently it must have, that the D.P.P. had not done so. Obviously the primary responsibility for correcting any erroneous

statement of fact lies with the party making it once it is aware of it but the other parties to proceedings are not entitled to

remain passive when they have knowledge of the error and are also under a duty to bring the error, or at least state that the

relevant fact is disputed, expressly to the attention of the Court. In particular they must do so when they are not aware (as

was the case here) that the party responsible for it had not done so. However, these failures do not affect the question as to

whether the proposed application should be refused as being manifestly unfounded.

Turning to this question it must be recalled that the matter of photographs and sightings arose in connection with one of the

discrete grounds of appeal to the effect that the trial process was unfair and the conviction unsafe because of the late

disclosure by the D.P.P. of notes of Garda surveillance of the appellant’s residence on the 17th February, 2000. The reason

which had been given at the trial for the late disclosure was that the prosecution had assumed, on the basis of sightings and

other evidence, that it would not be disputed that the appellant knew the American agent, Mr. Rupert, but rather that the

defence would take the form that his association with Mr. Rupert was innocent. It transpired at the trial that it was put by

the defence to Mr. Rupert that he and the appellant had never met. As noted above, the judgment given in this matter stated:

“Once it emerged that that was the line of defence the surveillance documentation was disclosed. This seemed to the

Special Criminal Court and to the Court of Criminal Appeal reasonable and not seriously prejudicial to the accused. I

agree. But more importantly, there was an offer by the trial Court to have Mr. Rupert recalled for further cross

examination. That was declined.”

Again, to put the matter in context, it is important to note the following passage from the judgment.

“Counsel for the appellant seemed to be adopting the approach that if in some way the trial Court’s

approach to issues relating to disclosure was legally defective a conviction should be quashed and the

appeal allowed. I do not believe that that approach is correct. A trial Court at a pre-trial stage or even

when an issue arises during a trial is concerned with the question of whether there is a real risk of an

unfair trial. An appellate court, however, must do the matter somewhat differently. It must consider

whether having regard to the alleged non disclosure there was in fact a degree of unfairness which

rendered the conviction unsafe using that expression in a general sense. It is, therefore, no longer a

question of risk for the future rather it is a question of looking at what in fact has happened and

assessing whether there has been an unsafe conviction having regard only to an alleged unfairness of

trial.”

There are two considerations which arise from that passage . Firstly, the trial Court was entitled on the evidence before it to

conclude that the state of mind of the prosecution was such that they did not expect the fact that the appellant knew Mr.

Rupert to be contested and, that this was reasonable in the light of the prosecution’s knowledge based on their sightings on

the date in question. The Court of trial having concluded that the expectations of the prosecution were reasonable having

regard to the actual sightings made by the Gardaí, the reference in the judgment of this Court to the fact that the Gardaí may

also have had photographs of what they saw could not make a material difference to the state of mind of the prosecution as

found by the Court of trial, based on the actual sightings. In short, the Gardaí having made the sightings themselves, the

existence or absence of photographs of what they saw could not affect the state of mind of the prosecution in that respect.

The issue under consideration here only concerns the timing of the disclosure to the defence of the notes of surveillance on

the date in question and not whether such sightings were in fact made by the Gardaí. That was a question of fact for the

Court of trial and the fact that members of the Gardaí made such sightings was not in issue in the appeal.

Secondly, and much more important, was the point made in the judgment that the real issue concerning disclosure of the

surveillance notes for a Court of Appeal was whether the lateness of the disclosure prejudiced a fair trial. That is a question

that is independent of the reasons for the late disclosure. It was a question to be decided objectively by reference to the

course of the entire trial and not, as pointed out, to a risk of an unfair trial. The decision in this case was that the lateness of

the disclosure of the surveillance documentation was not sufficiently prejudicial as to put in question the fairness of the trial.

The reference to the Gardaí having photographs cannot be said to be material to that conclusion.

It has been necessary by reference to the judgment to place the error relied upon in the context of that part of the judgment

which dealt with the issues raised by the appellant concerning alleged inadequate disclosure of material by the prosecution

and in particular with regard to the surveillance notes. The Court is quite satisfied that no reasonable interpretation of the

judgment could lead to the conclusion that the decision of the Court in this case was, or could have been, in any way

affected by the incorrect reference to photographs of what the Gardaí saw in their sightings and recorded in the relevant

documentation. It is equally manifest that the error in question had no bearing on the other limited grounds of appeal and of

course had nothing to do with any issue as to the guilt or innocence of the appellant. The Court considers the application to

be unmeritorious and opportunistic.

It also follows that the reference in the affidavit of the appellant’s solicitor at paragraph 18 to the perception of the Court’s

decision by “an objective third party” is unfounded apart altogether from any question as to whether such third party

perception could be considered relevant to this matter.

For the foregoing reasons the Court, having fully taken into account the matters referred to in the application and the

grounding affidavit does not consider it necessary or appropriate to hear submissions from either party and refuses the

application on the grounds that it is manifestly unfounded.