Court allows state to pay appeal and retrial costs if accused privately funds appeal despite prior legal aid certificate.

THE COURT OF CRIMINAL APPEAL

[2013] IECCA 62

135/2009

Hardiman J.

Moriarty J.

Hogan J.

Between:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor

and

TIMOTHY CUNNINGHAM

Defendant

JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 29th day of July, 2013.

1. Where a legal aid certificate has been granted in respect of the trial of an accused, does it follow that this Court is precluded from

granting that accused the costs of his successful appeal against conviction and of any retrial? The resolution of this issue presents a

net point of statutory interpretation, but one which is not straightforward. The issue arises in the following way.

2. On the 27th March, 2009, the appellant, Mr. Timothy (“Ted”) Cunningham was convicted of ten counts of money laundering

following an exceptionally long (forty-four day) and complex trial in the Cork Circuit Criminal Court. The charges arose following

allegations preferred by the prosecution that Mr. Cunningham had used money (or moneys worth) knowing or believing it to be the

proceeds of the Northern Bank robbery in Belfast on the 20th December, 2004. One of the counts - count 10 - related to a sum of

some £2.4m sterling allegedly discovered by the gardaí during a search of the appellant’s dwelling on foot of warrant issue pursuant to

s.29 of the Offences against the State Act 1939, inserted by s.5 of the Criminal Law Act 1976. The other counts related to money

allegedly transferred by Mr. Cunningham to other persons for related purposes. On conviction, Mr. Cunningham was sentenced to ten

years imprisonment.

3. By notice of appeal dated 14 May 2009 the appellant sought leave to appeal against his conviction and against the severity of the

sentence imposed. The appeal proceeded on a rather leisurely basis before this Court. By the time the appeal was ready for hearing in

April 2012, the Supreme Court had found that s.29 of the 1939 Act was unconstitutional. See Damache v. Director of Public

Prosecutions [2012] IESC 11.

4. In the light of this significant development, the appellant sought leave to amend his grounds of appeal to add a ground based on

Damache. The appellant had challenged the admissibility of the material allegedly obtained on the search in the Circuit Court but was

not in a position to argue the constitutionality of the Section at his trial because the Circuit Court has no jurisdiction in that regard.

5. The application to amend the grounds of appeal was opposed by the State and, having heard both parties, this Court gave liberty

for the amendment on the 16th April 2012 when Mr. Cunningham’s appeal against conviction was heard.

6. In a judgment delivered on the 11th May 2012 this Court allowed the appeal, quashed the convictions and ordered a new trial on

the first nine counts. See [2012] IECCA 65. The ordering of a retrial does not of course compel the prosecutor to put the appellant on

trial a second time, it merely authorises her to do so. Whether the appellant will in fact be retried on foot of this order is a matter for

the prosecutor.

7. In the ordinary way, the appellant would prima facie be entitled to the costs of a successful appeal and the costs of any retrial.

But the prosecution contend here that the present appellant is not so entitled because a legal aid certificate had been granted to him

by the Cork Circuit Criminal Court on the 18th December 2008. Furthermore, at a post conviction hearing on the 24th April 2009 a

legal aid certificate in respect of an appeal to the Court of Criminal Appeal was granted on the application of counsel for Mr.

Cunningham.

8. It appears from the foregoing that the appellant was unable to meet the costs of his defence at the extremely protracted trial in

the Circuit Court from his own resources. He was therefore defended on legal aid in that forum. Subsequent to his conviction and

sentence of ten years imprisonment a member of his family decided that she would finance the conduct of the appeal privately out of

her own resources and, this Court has been informed, she actually did this.

9. The first thing that occurred on foot of this was that new solicitors, Sheehan and Partners, a firm whose expertise in criminal

matters is widely acknowledged, came on record by leave of this Court on the 2nd March 2010. This firm has said, without dispute,

that they were wholly unaware that a legal aid certificate had been granted in respect of the appeal, and did not become aware of it

until after the delivery of the judgment allowing the appeal. It is undisputed that Sheehan and Partners agreed to act for Mr.

Cunningham on his appeal on standard commercial fee paying terms and that their fees have been discharged.

10. The issue which has emerged and which this Court is now required to resolve as a preliminary issue is whether the appellant is

precluded from an award of costs by reason of the existence of a legal aid certificate. The appellant does not, of course, seek the

costs of the original trial but seeks the cost of the appeal and of any retrial.

11. The power to order a retrial is now to be found in s.3(1)(c) of the Criminal Procedure Act 1993:

“On the hearing of the appeal against conviction of an offence the Court may -

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

12. Section 4(1) of the same Act provides:

“Where a person is ordered under this Act to be retried for an offence he may, notwithstanding any rule of law, be

again indicted and tried and, if found guilty, sentenced for that offence”.

13. The critical provision so far as the costs issue is concerned is s.4(2)(a):

“In a case to which subsection (1) relates the Court may -

(a) where a legal aid certificate does not apply in respect thereof, order that the costs of the appeal and of

the new trial in whole or in part be paid by the State, unless the Court is of opinion that the necessity for the

appeal and the new trial has been contributed to by the defence.” (Emphasis supplied)

14. In the circumstances of this case, there is no suggestion that the necessity for the appeal or for the new trial has been

contributed to by the defence. Accordingly, the issue is governed by the words emphasised in the last quotation above. It is clear,

therefore, that this Court has the power to order that the costs of the appeal should be borne by the State unless a legal aid

certificate applies, to the Appeal and the retrial, in respect of a case governed by subsection (1). In so far as that subsection relates

to a retrial following a successful appeal against conviction, it is apparent that the Court retains a general power to order the costs

of the retrial be awarded to the applicant unless the legal aid certificate applies to that retrial. Subject to one argument considered

below, it seems clear that the existing certificate does not apply to any retrial. It does not do so in its terms and the appellant has

not sought legal aid in respect of any retrial.

15. Section 3(7) of the 1993 Act further provides:

“A legal aid certificate which was granted in relation to the trial of an accused person who has been ordered by the

Court under this Section to be retried shall have effect as if it had been granted also in relation to his retrial.”

16. This subsection is expressed in mandatory language, but we do not think that an appellant must necessarily accept as a result

that if a legal aid certificate was granted on his first trial it must also apply in relation to the retrial irrespective of his wishes to fund

the retrial privately, and irrespective of his changed circumstances. It would be ludicrous if, for example, a successful appellant had

come into a great sum of money before the retrial, but was precluded from funding his defence privately, and the State were

compelled to undertake his costs of the retrial of the newly enriched appellant. Rather, the subsection is designed to operate in aid of

the accused so as to dispense with the necessity for a fresh application for a legal aid certificate should a retrial be ordered. In the

event, however, that an accused elects not to seek such a certificate for a retrial then the legal aid certificate granted for the first

retrial will not apply to it.

17. In any event, counsel on each side of the argument assented to the proposition that, for a change of legal aid representation to

be effective, it was incumbent on the new solicitor formally to seek a transfer of the legal aid certificate, thereby giving effect to the

words of the trial judge at the conclusion of the sentence hearing, certifying for a particular representation by counsel “in the event

of appeal”. That would seem to import that, in the absence of such transfer, the renewed legal aid certificate was inoperative and

inchoate in regards new defence representation. As noted above, there is no suggestion that Messrs. Sheehan and Partners were

aware of any provisional legal aid certification by the trial judge when they undertook the privately funded appeal. It would obviously

have been a serious breach of professional standards to have sought legal aid when privately funded, and that did not occur.

18. Should it thus occur that an accused elects not avail of a legal aid certification for an appeal, and (if applicable) a subsequent

retrial it follows that, pursuant to the terms of s.4(2)(a) of the 1993 Act, this Court retains a jurisdiction to order the costs of the

appeal in favour of the accused. We would accordingly determine the preliminary issue by ruling as follows:

“The Court enjoys a jurisdiction to order, pursuant to s.4(2)(a) of the 1993 Act, that the State pay the costs of

the appeal and the retrial of the accused, the grant of a legal aid certificate for the original trial notwithstanding.

This jurisdiction, of course, is predicated on the assumption that the accused will be in a position to establish that

the legal aid certificate was not availed of for the purpose of the appeal and that no such certificate will be applied

for or utilised in respect of the retrial”.