Court of Criminal Appeal refused certification for Supreme Court appeal as the legal question was hypothetical and not raised at trial.

THE COURT OF CRIMINAL APPEAL

Appeal No. 58/2011

Denham C.J.

Edwards J.

O’Malley J.

Application for Certification under Section 29 of the Courts of Justice Act, 1924, as amended, for the purposes of an Appeal

to the Supreme Court

Between/

The People (at the suit of the Director of Public Prosecutions)

Respondent

and

Warren Dumbrell

Applicant

Judgment of the Court delivered on the 30th day of January, 2015, by Denham C.J.

1. Warren Dumbrell, the applicant, and referred to as “the applicant”, applied to the Court for an order pursuant to s. 29 of the Courts

of Justice Act, 1924, as amended, certifying that the decision of the Court of Criminal Appeal in this matter, delivered on the 4th July,

2014, dismissing the applicant’s appeal against conviction, involves a point of law of exceptional public importance and that it is

desirable in the public interest that an appeal should be taken to the Supreme Court.

2. The points of exceptional public importance sought to be certified were as follows:-

(i) Whether in the course of a trial and if an accused person is seeking to introduce previous convictions of a person

whose previous convictions are relevant to an issue in the case, do you drop your shield as a result of s. 33 of the

Criminal Procedure Act, 2010?

(ii) If so, does s. 33 of the Criminal Procedure Act, 2010, apply to all criminal offences before a court during the

course of a trial whereby an accused person seeks to introduce the previous convictions of a person whose

previous convictions are relevant to issues in the case and do you lose your shield in all circumstances.

(iii) If so, whether s. 33 of the Criminal Procedure Act, 2010, goes against the principles outlined in The People (The

Director of Public Prosecutions) v. Mc Grail [1990] 2 IR 38 at page 50, where reference is made that your shield is

not dropped if the matters complained of relate directly to the evidence given at hearing.

3. The Court heard counsel move the motion on the 22nd October, 2014. Mr. O’Higgins S.C. appeared on behalf of the applicant and

Mr. Burns S.C. appeared on behalf of the Director of Public Prosecutions.

4. Section 29 of the Courts of Justice Act, 1924, as substituted by s. 22 of the Criminal Justice Act, 2006, which was later amended

by s. 59 of the Criminal Justice Act, 2007 and s. 31 of the Criminal Procedure Act, 2010, and is referred to as s. 29 of the Act of

1924, provides:-

(1) Subject to subsection (9A) of this section, no appeal shall lie to the Supreme Court from a determination of the

Court of Criminal Appeal of any appeal or other matter except in accordance with this section.

(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the

decision of that Court to the Supreme Court if that Court … certifies that the decision involves a point of law of

exceptional public importance and that it is desirable in the public interest that the person should take an appeal to

the Supreme Court.

5. The Court has heard the appeals by Warren Dumbrell, the applicant on this motion, and Jeffrey Dumbrell, who were both appellants

from the convictions and sentences imposed on the 22nd February, 2011, by the Central Criminal Court (Butler J.) for the offence of

murder, for which they were each sentenced to life imprisonment, to run from the 1st November, 2006.

6. At the hearing of the appeals the Court received individual submissions filed by each of the appellants, who were separately

represented.

7. The Court delivered judgment on the 4th July, 2014, which judgment is entitled and reported as Director of Public Prosecutions v.

Dumbrell & Anor [2014] IECCA 22.

8. The first question raised on this motion was:-

(i) Whether in the course of a trial and if an accused person is seeking to introduce previous convictions of a person

whose previous convictions are relevant to an issue, do you drop your shield as a result of s. 33 of the Criminal

Procedure Act, 2010?

9. In the hearing of the appeal, the applicant raised a ground that the learned trial judge erred in law or in a mixed question of law

and fact in failing to afford to the applicant the opportunity to adduce the previous convictions of the deceased to show that he had

a proclivity for violence and for carrying knives and thereby deprived the applicant the opportunity to put the previous convictions of

the deceased to prosecution witnesses.

10. The applicant served a notice on the prosecution pursuant to s. 33(b) of the Criminal Procedure Act, 2010, indicating that it was

proposed to impute the character of the deceased. There was legal argument at the trial. On the second day of the trial the learned

trial judge made a ruling. He ruled that he believed it was stepping over the line to bring in the previous convictions of the deceased;

it did not make it more likely that he was carrying a knife on that occasion; and that there had already been a degree of relevant

cross-examination.

11. However, during cross-examination, of the second named appellant, Mr. Jeffrey Dumbrell, he stated:-

“Mr. Cawley has 106 previous convictions for carrying knives and for firearm offences.”

12. After a short adjournment, counsel for the Director of Public Prosecutions introduced into evidence the previous convictions of the

second named appellant, Mr. Jeffrey Dumbrell. Thus, the shield of Mr. Jeffrey Dumbrell was dropped.

13. However, there was no issue raised, or argued, or decided upon as to whether the applicant should drop his shield, whether as a

result of s. 33 of the Criminal Procedure Act, 2010, or otherwise.

14. In fact, the applicant obtained to a certain degree a benefit by the evidence of the deceased’s previous convictions.

15. Thus, the first question raised by the applicant is not his to argue. He does not have a basis upon which to advance this point.

The only appellant to drop his shield was Jeffrey Dumbrell. The applicant’s shield was not dropped. Thus, the question the applicant

raises is hypothetical. This is not a basis which meets the requirements of s. 29 of the Act of 1924. The Court of Criminal Appeal does

not determine answers to hypothetical questions under this jurisdiction. Consequently, the Court would refuse to certify the first

question.

16. The second and third questions arise only on a determination of the first question. As this does not arise in the circumstances the

Court would not certify the second and third question.

17. Consequently, the Court will refuse to make an order pursuant to s. 29 of the Act of 1924.