Guilty plea bars collateral challenge to conviction after statutory appeal period expires.

[2012] IECCA 69

THE COURT OF CRIMINAL APPEAL

141/12

Hardiman J

Moriarty J.

Hogan J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

THOMAS HUGHES

Applicant

JUDGMENT of the Court delivered the 2nd day of July, 2012, by Hardiman J.

1. This is the applicant’s application for an enlargement of time within which to appeal against conviction. The sequence of events in

relation to those convictions is of critical importance.

2. On the 1st November, 2011, in the Special Criminal Court (Butler J. presiding) the appellant pleaded guilty to counts 14 and 15 in

the Indictment preferred against him and a co-accused. These counts were as follows:

(1) Count 14

Statement of Offence

Possession of an explosive substance contrary to s.4 of the Explosive Substances Act, 1883 as amended by s.15(4) of

the Offences Against the State (Amendment) Act, 1998.

Particulars of Offence.

You, Thomas Hughes, on the 26th day of January, 2011 at Hundred Acres, Monivea, Athenry in the County of Galway had

in your possession an explosive substance to wit Ammogex containing ammonium nitrate, in such circumstances as to give

rise to a reasonable suspicion that you did not have it in your possession for a lawful object.

(2) Count 15.

Statement of Offence

Possession of a firearm without a firearm certificate contrary to s.2 of the Firearms Act, 1925 as amended by s.27 of the

Criminal Justice Act, 2006.

Particulars of offence.

You, Thomas Hughes, on the 26th day of January, 2011 at 28 An Tuairin, Dublin Road, Tuam, in the County of Galway had

in your possession or under your control a firearm being a six millimetre m.e. Flobert calibre Alfa-Proj Model 640 revolver

bearing serial number 6640001003 without a firearm certificate granted under the Firearms Acts, 1925-1990 and for the

time being in force.

3. The applicant received a five year sentence on Count 14 and a two year sentence to run concurrently on Count 15. These

sentences were imposed on the 6th December, 2011.

4. The applicant did not appeal either conviction or sentence within the time limited for such appeal, that is, within 21 days.

Legal Development.

5. On the 23rd February, 2012 Denham C.J. gave the judgment of the Supreme Court in the case of Ali Charaf Damache v. DPP,

Ireland and The Attorney General.

6. At para. 59 of that judgment it is recited that, for the reasons set out in the judgment:

“The Court would grant a declaration that s.29(1) of the Offences Against the State Act, 1939 (as inserted by s.5 of the

Criminal Law Act, 1976) and referred to as s.29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a

search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent

person.”

Relevance to present case.

7. The relevance of the last mentioned development to the present case is that the searches of the two premises which led to the

finds of materials which form the basis of Counts 14 and 15 were issued under s.29, and by a person who could not be described as

independent. The second of these counts relates to material found in a search of the applicant’s home. The first of the counts,

apparently the more serious, relates to premises which were not his home or “dwelling” within the meaning of the Constitution.

Failure to appeal.

8. The applicant did not take any step to appeal his conviction or sentence either within twenty-one days of his conviction on his

own plea of guilty, or within twenty-one days of his sentence. Instead, outside the time limited for appeal, on the 26th April, 2012, he

filed an application for the enlargement of time to appeal. He stated that the ground on which he applied for such enlargement was:

“I intended to appeal the sentence initially but I did not instruct my solicitor in time as I was incarcerated in Portlaoise

prison”.

9. It must be said that, considered as a statement of the reasons why no appeal against the appellant’s conviction was lodged within

the time limited for such appeal, the above statement is hopelessly inadequate. Firstly, it relates wholly to an alleged intention to

appeal sentence, whereas the present application relates to conviction. It then states that the reason why no appeal, as was

allegedly intended, was in fact lodged was that “I did not instruct my solicitor in time as I was incarcerated in Portlaoise Prison”.

10. Although this Court has experience of appeals against conviction in cases where a custodial sentence was not imposed, it remains

the case that the great bulk of appeals are lodged by or on behalf of people who have been committed to prison following their

convictions. Prisoners so committed have ample opportunities for communication with their solicitor, and ample opportunities

themselves to lodge an appeal from prison. Indeed, the prisons maintain a supply of the appropriate form for that purpose.

Accordingly, the statement that the applicant did not instruct his solicitor in time because he was incarcerated is illogical, inadequate

and false as a reason for the failure to lodge the appeal in time.

11. The Court has little doubt that no intention to appeal conviction was formed until after the decision of the Supreme Court in

Damache on the 23rd February, 2012. This conclusion, indeed, becomes inevitable when it is realised that the entire thrust of the

written and oral submissions made on behalf of the applicant in this case related to that decision. Thus, the first sentence under the

heading “Basis of the Application”, at para. 2 of the applicant’s written submissions is as follows:

“The applicant instructs (sic) that he is entitled to rely on the decision in the case of Ali Charaf Damache v. The DPP

Ireland and the Attorney General [2012] 1 IESC 11”.

12. The Court will, accordingly, approach this application on that basis. It must also approach the application in the context of the

applicant’s plea of guilty in November, 2011.

13. This Court has on two recent occasions considered applications by appellants to rely upon Damache on appeal in circumstances

where that case, or the point decided in it, was not or could not have been relied upon at the trial. In the second of those cases

(DPP v. Kavanagh (Court of Criminal Appeal, [2012] IECCA 64, Denham C.J. referred to DPP v. Cronin (No. 2) and held:

“Some decisions by an accused during a trial have an important consequence for an appeal. For example, if the accused

enters a plea of guilty at a trial that is a relevant factor. Such a plea is a choice by an accused. Once the plea is made

and the conviction order follows, that is the foundation of fact for any consideration on any appeal”.

14. Indeed, the effect of the plea of guilty goes somewhat further. It is an acknowledgment by the accused, fully advised by solicitor

and counsel, of his factual and legal guilt of certain of the offences with which he is charged.

15. The effect of the foregoing is this: the applicant seeks an extension of time to appeal his conviction for offences of which he

acknowledges himself guilty so that he can take advantage of a later finding, at the suit of another person, that the provisions of

s.29 of the Offences Against the State Act 1939, as amended, are unconstitutional. He himself did not agitate this point at or prior to

his trial.

16. If the Rules in relation to extensions of time to appeal that apply in Civil cases were applicable here, then the finding of the Court

to the effect that the applicant’s intention to appeal only arose after the decision in Damache would be fatal. See Eire Continental

Trading Company v. Clonmel Foods [1955] IR 171.

17. However, on the basis of the arguments of counsel for the applicant and the authority cited by him, the Court is satisfied that a

broader and less technical approach is mandated to such an application in relation to an appeal against a criminal conviction. The

Court is entitled to look to the broad considerations of the justice of the case even if it is satisfied, as we are, that no intention to

appeal was formed within the time limited for doing so.

Legal Context.

18. Over the years, both the Supreme Court and this Court have had occasion to consider the situation that arises when, after a

person has been convicted (whether on a plea of guilty or after a trial) the statutory provision constituting the offence, or the

statutory provision mandating the mode of trial, or permitting the gathering of evidence in a particular fashion, is found

unconstitutional at the suit of a third party. There is also relevant authority in the case of Murphy v. the Attorney General [1982] IR

241 which dealt with the question of the effect on other tax payers liabilities of a declaration, obtained at the suit of Mr. and Mrs.

Murphy, of the unconstitutionality of certain provisions relating to the taxation of married couples. Other relevant authorities are cited

in those decisions.

19. In A. v. The Governor of Arbour Hill Prison [2006] 4 IR 88, A. had been charged with an offence under s.1(1) of the Criminal Law

(Amendment) Act, 1935. He pleaded guilty and received a sentence. He was still in custody serving that sentence when another

person called C.C. obtained a declaration that the subsection mentioned was inconsistent with the Constitution, in C.C. v. Ireland

[2006] 4 IR 1. A. claimed that the striking down of the Section constituting the offence of which he was convicted meant that his

detention had become unlawful and was successful in this contention in the High Court. But, on appeal, the Supreme Court

unanimously decided that A. was not retrospectively entitled to the benefit of the decision in C.C. At the time of that decision, A. had

no appeal extant. The applicant here, equally, has no appeal extant and will not have such an appeal unless he is successful in this

application.

20. In A., Murray C.J. stated “the general principle” at p.143 of his judgment:

“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not

seek to impugn the bringing or conduct of the prosecution on any ground that may in law be open to him, including the

constitutionality of the Statute, before the case reaches 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, is unconstitutional. That is the general principle”.

21. The principle thus stated is quite consistent with, and may be said to follow, the judgment of Henchy J. in Murphy v. The

Attorney General, cited above. There, the Supreme Court had found unconstitutional certain revenue provisions, the effect of which

was to tax married couples more heavily than couples on the same income who are unmarried cohabitants. The question naturally

arose as to what was the status of taxes levied and paid without protest prior to this decision. Henchy J. at p.313 of the Report

asserted that invalidity attaches from the date of enactment of the relevant provision and that it will normally “provide no legal

justification for acts done or left undone or for transactions undertaken in pursuance of [the condemned provision]”.

22. But he continued on the following page:

“But it is not a universal rule that what has been done in pursuance of a law which has been held to be invalid for

constitutional or other reasons will necessarily give a good cause of action: see, for example, the decision of this Court in

The State (Byrne) v. Frawley [1978] IR 326. While it is central to the due administration of justice in an ordered society

that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act

without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal

proceedings, the law has to recognise that there may be transcendent considerations which make such a course

undesirable, impracticable, or impossible.”

23. Later on the same page, Henchy J. continued:

“For a variety of reasons, the law recognises that in certain circumstances, no matter how unfounded in law certain

conduct may have been, no matter how unwarranted its operation in a particular case, what has happened, has

happened and cannot or should not be undone. The irreversible progressions and by-products of time, the compulsion of

public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their

rights, the quality of legality - even irreversibility, that tends to attach to what has become inveterate or has been widely

accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an

inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise

void, law into an acceptable part of the corpus juris. This trend which represents an inexorable process that is not

peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to turn back the hands of the

clock. As an eminent historian vividly put it, speaking to the pointlessness of seeking to undo or reshape the facts of

history: ‘the statue has taken its shape and can never go back to the quarry’.”

24. The case cited by Henchy J. in the first of the foregoing passages, The State (Byrne) v. Frawley cited above, is also of great

interest. Byrne was convicted by a jury in the Circuit Criminal Court. While this trial was ongoing, the Supreme Court decided the case

of de Burca v. Attorney General, which struck down the law excluding women from the types of persons eligible to serve as jurors.

Knowledge of this decision was imputed to Byrne. Nevertheless, his trial continued without any point being taken about the

composition of the jury. He did not take this point on appeal either. Subsequently, however, he applied for an order for his release

pursuant to Article 40.4.2.of the Constitution. He was unsuccessful both in the High Court and the Supreme Court on the basis that

having elected to accept the jury sworn at his trial, and having made no complaint on his appeal, he was precluded from asserting

that the jury had been unlawfully constituted. Henchy J. said:

“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I

consider that he is precluded by that election from claiming that the jury lacked constitutionality: see the decision of this

Court in Corrigan v. Irish Land Commission [1977] IR 317. The prisoner’s approbation of the jury was affirmed by his

failure to question its validity when he formulated grounds of appeal against his conviction and sentence and when his

application for leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial

that he first put forward the complaint that the jury had been formed unconstitutionally. Such a volte face is

impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the

prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not

now entitled to assert the contrary”.

25. Here, too, the prisoner did not assert the Damache point until five months after his guilty plea. He had not appealed at all within

the time limited. He is in a worse position than Byrne was, in that he has actually pleaded guilty and thereby admitted his guilt.

Moreover, it would appear that Damache would apply here only to Count 15, which related to a search of his house, and not to Count

14, which related to premises which were not his dwelling within the meaning of the Constitution. But it was on Count 14 that he

received a five year sentence with which the sentence on the other Count is concurrent. As a result, even if he could successfully

appeal his guilty plea, the law would limit this appeal to Count 15, so his sentence would remain the same.

Plea of guilty.

26. All of the considerations set out above suggest that, in the interest of legal certainty, and in defence of the enduring regularity of

proceedings fully legal and regular at the time when they occurred, the applicant’s present application should be refused. No system

of law could operate if decisions intended to be final could subsequently be set aside on the basis of developments which occurred

only after their completion. Indeed, as is expounded in my judgment in A. v. The Governor of Arbour Hill Prison, cited above, the fear

of disturbing important events decided long in the past would be a disincentive to needed change or might otherwise tend to inhibit a

finding of unconstitutionality in an appropriate case (see, e.g. the comments of O’ Higgins C.J. in de Búrca v. Attorney General [1976]

IR 38, 62-63 and in Byrne, [1978] I.R. 326, 340-342). In this regard the Court would merely respectfully endorse the views of

Geoghegan J. in A. ([2006] 4 I.R. 99, 203).

“In conclusion, I am of the view that concluded proceedings whether they be criminal or civil based on an enactment

subsequently found to be unconstitutional cannot normally be reopened. As I have already indicated, I am prepared to

accept that there may possibly be exceptions. But in general it cannot be done. Nor as the Chief Justice and Hardiman J.

have pointed out is there any precedent for a collateral challenge of this kind. I am also firmly of the opinion that if the

law were otherwise there would be a grave danger that judges considering the constitutionality or otherwise of

enactments would be consciously or unconsciously affected by the consequences, something which in the view of Walsh

J. [in de Búrca] and endorsed by O’Higgins C.J. should happen.”

27. All these considerations are greatly strengthened by the fact that the applicant in this case pleaded guilty. He did so quite freely

and willingly, and having been advised by solicitor and counsel of his own choosing. By doing so, he acknowledged that he was guilty

of possession of explosives and a firearm as alleged against him. The seriousness of these charges needs no additional emphasis. To

state the obvious, but sometimes the obvious requires to be stated, a plea of guilty is “a plea by the accused that he committed the

offence”. See Murdochs Dictionary of Irish Law 5th Edition, Tottel Publishing 2009.

28. To this, applicant rejoins that he entered the plea of guilty in the belief that s.29 had been validly enacted and was good and

operative law. He was entitled to that view, he says, because there is a presumption of constitutionality, and because the

constitutionality of the measure had, at the time of his plea, been upheld by the High Court.

29. In my view, these considerations in no way deprive the fact that he pleaded guilty of the force I have attributed to it above.

Section 29 related only to the mode of search which revealed the evidence of his guilt. When that guilt was admitted, it relieved the

prosecution of the necessity to produce that evidence.

30. Mr. Damache, the successful plaintiff in the constitutional challenge to s.29, elected to challenge the Section. This applicant did

not do so. There may be many reasons for this consistent with the applicant having been confidently advised. For example, the view

may have been taken that the point, even if a good one, would avail the applicant only in relation to the search of his dwellinghouse,

where a firearm was discovered, and not in relation to the search of the premises which were not his dwellinghouse, where the

explosives which attracted the longer sentence were found. In that event, the applicant would certainly have received a longer

sentence on conviction than that which he in fact received on a plea of guilty. In this respect, the case is indistinguishable from that

of Burns v. Judge Early [2003] 2 ILRM 321. In that case, the plaintiff, who had pleaded guilty, sought to invalidate his trial on the

grounds of an unconstitutionality discovered in a later case. It was held that the acquiescence constituted by his plea debarred him

from relief.

Conclusion.

31. Justice does not require that the time for appeal be extended in order to permit the appellant to appeal to convictions for

offences of which he confesses himself guilty. The considerations set out in the cases cited, and in particular the well known passage

set out from the judgment of Henchy J. in Murphy v. Attorney General, provide ample basis for declining to reopen this case by

extending the time for appeal, or otherwise.