THE COURT OF APPEAL
Record Nos: 106/2011
289 & 290/2012
Ryan P
Mahon J
Edwards J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent
Applicant
Judgment of the Court delivered the 7th of April, 2017 by Mr.. Justice Edwards
Introduction
1. This Court is concerned with substantially similar motions in three separate appeals proceedings involving the applicant, in which he seeks, in each case, (i) an enlargement of time within which to appeal, and (ii) liberty to furnish grounds of appeal or to amend existing grounds of appeal (where grounds were previously specified) by adding additional grounds of appeal.
General background and procedural history
2. As indicated there are three separate sets of appeal proceedings. It is proposed to set out the background and procedural history of each one individually
Proceedings under Record No 289/2012
3. On the 18th of December 2009 the applicant was found guilty by a jury in the Central Criminal Court (Carney J. presiding) of 2 counts of rape as defined in s. 2 of the Criminal Law (Rape) Act, 1981 and one count of oral rape being rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990. The relevant bill number in these proceedings before the Central Criminal Court was CC0091/2008.
4. On the 19th of February 2010 the applicant was sentenced to 10 years imprisonment on each count, the sentences to run concurrently and to date from the 18th of December, 2009.
5. At the time of both conviction and sentence in this matter the provisions of s.31 of the Courts of Justice Act 1924 (the Act of 1924) as originally enacted were still in force. They provided:
6. Following the imposition of sentence there was no immediate application to the trial judge for a certificate that the case was a fit case for appeal. However, approximately one month later, on the 15th of March 2010, the applicant’s defence counsel appeared before the trial judge and made a late application for such a certificate stating that, on the previous occasion, “because of some distraction I inadvertently forgot to ask your lordship for leave to appeal formally”. The trial judge raised no issue about the lateness (although the rules in Order 86 r 3 RSC required that such an application should be made “at the close of the trial or within three days thereafter”), but indicated that he was refusing leave to appeal.
7. The then extant rules further provided that where a certificate had been refused, an application to the Court of Criminal Appeal for leave to appeal was required to be made within twenty one days of the refusal, i.e., in this instance, on or before the 5th of April 2010.
8. The applicant did not seek leave to appeal within time. What in fact occurred next was that the applicant wrote to the Registrar of the Central Criminal Court to complain that counsel, in seeking a certificate on his behalf that the case was a fit one for appeal, had acted without his authority and against his wishes. The applicant’s correspondence was brought to the attention of Carney J. who then ordered that the applicant should be produced before him. The applicant was produced on the 23rd of July 2010 whereupon he informed Carney J. that he wished him to set aside his refusal of the said certificate. Carney J. acceded to the applicant’s application and made an order setting aside his earlier refusal of a certificate that the case was a fit one for appeal. He pointed out to the applicant that “that has consequences for Mr. Walsh now because he’s in the position of neither having a certificate for leave to appeal or a refusal of leave to appeal to appeal against.” The applicant’s response to this was “Thank You”.
9. That was seemingly the end of the matter until just over two further years later, on the 27th of July 2012, when counsel appeared before Carney J. in the Central Criminal Court and applied on behalf of the applicant to have the court’s initial refusal of a certificate that the case was a fit for appeal, which had been set aside at Mr..Walsh’s request, re-instated. Counsel informed the court:
“The circumstances are now Mr. Walsh is clear in his mind that he made a mistake, he shouldn't have done what he did. He did wish to appeal and he didn't ~ his instructions to me are that he didn't understand the consequences of dropping himself, if you like, between a pillar and a hard place and that he thought he could appeal nonetheless and he can't appeal. He either has to get leave from you or a refusal from you and he really didn't understand that he should have done that. They're his instructions to me.”
10. Carney J., acceded to the application stating:
11. As this is a case to which the Criminal Procedure Act 2010 does not apply, the applicant was, upon obtaining an order refusing him a certificate that the case was fit for appeal, required within 21 days of the refusal to apply to the Court of Criminal Appeal for leave to appeal, i.e., on or before the 17th of August 2012. The applicant failed to do so within time and to date no explanation has been proffered for his failure to do so. However, on the 29th of August, 2012 the applicant served on the respondent, and filed with the former Court of Criminal Appeal, a “Notice of Application for an Enlargement of Time within which to Appeal” (using form No. 5 as specified in S.I. No 114 of 2012), together with a purported Notice of Appeal against both his conviction and sentence (using form No. 2 as specified in S.I. No 114 of 2012). However, neither document specified any intended grounds of appeal. Rather, they both stated “Grounds to follow”.
12. Following the service and filing of the said documents on the 29th of August 2012, no further step was taken by the applicant to progress his intended appeal until the 23rd of January 2013 when he filed intended Grounds of Appeal as follows:
“GROUNDS OF APPEAL
1. By refusing to disqualify himself, and discharge the jury panel, and jury, the trial judge failed to safeguard and vindicate the constitutional, personal and human rights, of the accused to a fair trial in due course of law.
2. That the trial judge was under a constitutional or legal obligation or duty to disqualify himself as the trial judge in all the circumstances.
3. By refusing to discharge himself and the jury panel, in circumstances where the jury panel had saw the arraignment of the accused and in particular, (i) the manner in which he had disclosed that the accused had a notorious record for sacking his legal representatives: (ii) the manner in which the accused had disclosed to the court the fact that he was in unlawful custody: (iii) the manner in which he had shown bias towards the applicant.
4. That the trial judge, was constitutionally or legally obliged to have stopped the trial and never have allowed it to proceed, in circumstances,
(i) Where he had refused to entertain complaint made by the accused for an inquiry pursuant to Article 40. 4. 2, of the Constitution 1937 into the legality of his production before the court and detention therein on the basis he was sitting in the capacity of a Central Criminal Court judge and not that of a High Court judge:
(ii) Where he could not and should not have allowed prosecuting counsel to act as the decision maker in relation to preliminary application made by defence counsel under Section 4E of the Criminal Procedure Act, of 1967), as to whether or not the accused should stand trial in respect of all counts and/or in respect of one count only:
(iii) Where prosecuting counsel had opted to proceed in respect of all four counts, despite being warned by the trial judge to the following effect, “You will do so at your peril”;
(iv) Where he had failed to have due regard for the Constitution and provisions of Section 4 of the Act, 1967 and High Court authority- in the case of Mark Murphy (Applicant) and District Judge William Early (Respondent) and Director of Public Prosecutions (Notice Party) (Record 2008 No. 1085 JR.), in his approach to said preliminary application made by defence counsel;
(v) Where defence counsel had established beyond all doubt that the court had no power or jurisdiction to try him and that the prosecutor had no power to prosecute him in respect of all four counts:
(vi) Where prosecution counsel, was unable to cite any legal authority or otherwise in opposition to High Court authority cited by defence counsel in relation to preliminary application under Section 4E:
(vii) Where he had discharged jury in the first trial due to the refusal of the chief and major prosecution witnesses namely, the alleged victim and sister having refused to engage in cross-examination and due to said sister having jumped from the witness stand and storming out of the court vowing never to return;
(viii) Where the chief witness for the prosecution had admitted under cross-examination she had not only mislead the court and jury in the first trial but had in fact committed perjury:
(ix) Where he had joined forces with the prosecution and gardaí in order to force the major prosecution witness to return to court against her will:
(x) Where the major prosecution witness had clearly demonstrated, she had no intention of returning to court to give evidence -even in the face of warrant issued by the court for her arrest warrant and under threat of incarceration and only returned to court because she was forcibly brought to court by certain members of the Gardai - not known to the accused:
(xi) Where defence counsel had strongly objected to the procedures adopted by the trial judge and prosecution and gardai in order to force the major prosecution witness to return to court:
(xii) Where he refused defence counsels' application to allow access to the notes of the interviews between Sunday World media Paul Williams and the chief and major prosecution witness on the basis: he had read one of the chief witnesses statements and the notes and could not find any difference between same, despite counsel pointing out that they were relevant to the case and of benefit to the defense and in particular, to prepare properly for his intended questioning of Paul Williams and said witness;
(xiii) Where he refused disclosure of said notes of said interviews without any claim of journalistic privilege or otherwise and in particular and objection from Sunday World media or Paul Williams and/or the prosecution and despite the prosecution having indicated to the trial judge that they should be disclosed to the defence;
(xiv) Where he refused to withdraw the case from the jury and/or a
direction upon application of defense counsel that there was no case to answer:
(xv) Where the trial of the accused was unsatisfactory in all of the circumstances: Where the trial judge conducted the trial with express bias against the accused:
And, for the further grounds and reasons to be offered, as soon after the applicant/appellant have been provided with the rest of the missing parts of his transcripts of his trial provided to him by the trial judge.
Signed: Stephen Walsh, the applicant/appellant
Dated this the 18th of January 2013”
13. Thereafter the next step taken in the proceedings by the applicant was to issue and file a Notice of Motion in early May 2016, returnable before this Court on the 23rd of June 2016, at 10.30 am, seeking:
“1. An Order granting an enlargement of time within which to appeal
2. An Order granting liberty to amend the Applicant / Appellants grounds of appeal by adding the additional grounds of appeal exhibited in the affidavits of solicitor Peter Tunney ( exhibit " PT 1 " ) and Stephen Walsh (exhibit "SW1" )
3. Such Directions as this Honourable Court may deem fit.
4. Such further or other Order(s) as this Honourable Court may deem fit.
5. An Order providing for the Costs of this application”
14. Following the hearing of this motion, together with the similar motions in the other cases, judgment was reserved.
15. The only other step taken by the applicant in the said intended appeal proceedings was the filing and service of a document described as “Skeleton submissions of the appellant - Appeal against Conviction” dated the 22nd of June 2016. This may have been done in response to an indication by this Court at a case management hearing that the applicant could file written submissions in support of his motion. The submissions do not, however, address the motion but rather address substantive issues that the applicant wishes to argue on appeal in the event that he is granted his extension of time.
Proceedings under Record No 106/2011
16. On 21st October, 2010 the applicant was further convicted by a jury before the Dublin Circuit Criminal Court (McCartan J. presiding) on two counts of indecent assault, contrary to common law and as provided for by s. 10 of the Criminal Law (Rape) Act, 1981. The relevant bill number in the proceedings before the Dublin Circuit Criminal Court was DU1172/08.
17. On the 18th of November, 2010 the applicant was sentenced to three years imprisonment on both counts, the said sentences to run concurrently inter se, but consecutively to the sentences of 10 years imprisonment imposed on the 19th of February, 2010 in the Central Criminal Court on Bill No. CC0091/2008.
18. On this occasion the applicant attempted to appeal within time. Indeed he had not even been sentenced when he evinced his intention to appeal. The applicant filed a document entitled “Notice of Application for Leave to Appeal”, against his conviction only, with the then Court of Criminal Appeal on the 1st of November, 2010. He did not in fact require “leave to appeal” as the law had been recently amended by the Criminal Procedure Act 2010, which had been commenced on the 1st of September 2010, giving him an automatic right of appeal, whereas previously he would have required either a certificate or leave.
19. Some doubts were expressed by the Office of the Court of Criminal Appeal concerning whether it was possible to appeal before sentence had been pronounced, and on account of this the matter was listed in a management list presided over by the late Hardiman J. sitting alone, who also expressed some doubt about the matter. He invited the applicant who, it is understood, was appearing in person at that point to apply that day for an enlargement of time, but the applicant declined to do so, insisting that he had validly appealed within time.
20. It is clear that although the applicant’s document was entitled “Notice of Application for Leave to Appeal” he was simply using a pre-printed form from the old dispensation, and in the interests of justice we consider that we must treat it as an actual “Notice of Appeal”. While acknowledging that it was highly unusual for an appellant to file a Notice of Appeal before he was even sentenced we accept that it represents a strong earnest of an intention to appeal and we feel that at this remove it is unnecessary to determine the procedural issue raised by this unusual step and we are prepared to simply deem the applicant to have validly appealed within time in all the circumstances.
21. This Notice of Appeal specified the following as the grounds of appeal being relied upon:
Judicial Bias;
Adverse media coverage leading up to and on the day before the trial was due to begin;
Court had no jurisdiction to try the case;
Prosecutorial misconduct
Constitutional right to due process deliberately and consciously impaired by denial of equality of arms and by the failure of former legal representatives to release my files pertaining to the case to me in advance of the trial and/or at all to the present date
And/or the failure of the State prosecutor to furnish me in advance of the trial a copy of all documentation pertaining to the case as requested by me in light of the difficulty in that regard with my former legal people failure to release such files.
22. The Notice went on to indicate that the applicant wished to be present at the hearing “subject to my being provided with the transcripts of the proceedings … to enable me submit the further reasons to be offered as soon after I am furnished with the transcripts of the trial …”.
23. Despite filing his appeal within time, and specifying a number of grounds of appeal, the applicant took no further steps to progress his appeal until he issued and filed a Notice of Motion in early May 2016, returnable before this Court on the 23rd of June 2016, at 10.30 am, in identical terms to the Notice of Motion in the proceedings under Record No. 289/2012. In fairness to him, the inclusion of a claim for an enlargement of time as one of the reliefs sought in his Notice of Motion, notwithstanding his earlier insistence that he had validly appealed in time, may well have been as a result of further consideration by him of the suggestion by Hardiman J. that he possibly needed to do so. However, in the light of our previously expressed willingness to deem his appeal as having been validly initiated within time it will be unnecessary for us to address that aspect of the motion.
24. Following the hearing of this motion, together with the similar motions in the other cases, judgment was reserved.
25. The only other step taken by the applicant in these appeal proceedings was the filing and service of a document described as “Skeleton submissions of the appellant - Appeal against Conviction” dated the 22nd of June 2016. Once again, we would observe that these submissions do not address the motion but rather address substantive issues that the applicant wishes to argue on appeal.
Proceedings under Record No 290/2012
26. On the 10th of November 2011 the applicant was further found guilty by a jury in the Dublin Circuit Criminal Court (Hogan J. presiding) of two counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (amendment) Act, 1990, two counts of the attempted defilement of a child under the age of 15 contrary to s. 2(2) of the Criminal Law (Sexual Offences) Act, 2006, one count of defilement of a child under the age of 15 contrary to s. 2(1) of the Criminal Law (Sexual Offences) Act, 2006, two counts of the attempted defilement of a child under the age of 17 contrary to s. 3(2) of the Criminal Law (Sexual Offences) Act, 2006 and four counts of defilement of a child under the age of 17 contrary to s. 3(1) of the Criminal Law (Sexual Offences) Act, 2006. The relevant bill number in the proceedings before the Dublin Circuit Criminal Court was DU 215/2010.
27. On the 20th of December 2011 the applicant was sentenced to ten years imprisonment, with the final two years suspended, on each of the sexual assault counts. He was further sentenced to twelve years imprisonment on each of the counts of defilement or attempted defilement of a child under the age of 15, with the last two years suspended. The applicant further received sentences of two years imprisonment on the counts of attempted defilement of a child under the age of 17 years of age and sentences of five years in respect of the offences of defilement of a child under the age of 17 years of age. All sentences were to run concurrently inter se but the ten and twelve year sentences were to run consecutive to the sentence imposed by the Central Criminal Court on the 19th of February 2010 on Bill No. CC0091/2008.
28. On this occasion the applicant did not attempt to appeal within time. However, some eight months later, on the 29th of August 2012, the applicant served on the respondent, and filed with the former Court of Criminal Appeal, a “Notice of Application for an Enlargement of Time within which to Appeal” (using form No. 5 as specified in SI No. 114 of 2012), together with a purported Notice of Appeal against both his conviction and sentence (using form No. 2 as specified in SI No. 114 of 2012). However, on this occasion, neither document specified any intended grounds of appeal. Rather, they again both stated “Grounds to follow”.
29. Following the service and filing of the said documents on the 29th of August 2012, no further step was taken by the applicant to progress his intended appeal until he issued and filed a Notice of Motion in early May 2016, returnable before this Court on the 23rd of June 2016, at 10.30 am, in identical terms to the Notices of Motion in the proceedings under Record No’s. 289/2012 and 106/2011, respectively.
30. Following the hearing of this motion, together with the similar motions in the other cases, judgment was reserved.
31. The only other step taken by the applicant in these intended appeal proceedings was the filing and service of a document described as “Skeleton submissions of the appellant - Appeal against Conviction” dated the 22nd of June 2016. Once again, we would observe that these submissions do not address the motion but rather purport to address substantive issues that the applicant wishes to argue on appeal in the event that he is granted his extension of time.
Overview
32. In summary therefore, this Court is presently concerned with three motions brought by the applicant, one in relation to each of his appeals or intended appeals. In respect of his intended appeals bearing Record No. 289/2012 and 290/2012, respectively, he seeks an enlargement of time within which to appeal. He does not require this in respect of the proceedings bearing Record No. 106/2011 as we deem him to have appealed within time in that matter. Then in respect of his intended appeals bearing Record No. 289/2012 and Record No. 106/2011, respectively, he is seeking leave to amend his initial grounds of appeal by supplementing them with additional grounds, and in respect of his appeal bearing Record No. 290/2012 he is in effect seeking liberty to set out grounds of appeal for the first time, the proposed additional grounds/ new grounds being those exhibited with the affidavits grounding the motion in each instance. He also seeks such directions as the Court may deem fit to grant and an order providing for the costs of the application in each case. This judgment is concerned solely with these 3 motions and is not concerned with the merits of any appeal or intended appeal by the applicant.
Applications to Enlarge Time in Cases No’s 289/2012 & 290/2012.
33. The substantive law on how applications to enlarge time for the purpose of appealing on the criminal side should be approached is as set out in The People (Director of Public Prosecutions) v. Kelly [1982] I.R. 90. In so far as Kelly deals with issues of procedure this decision has to be read in the light of the fact that a number of significant procedural changes, as well as structural changes in the criminal courts system, have taken place since it was handed down. These include the changes made by the Criminal Procedure Act of 2010, consequential changes to the rules of court, and the replacement of the former Court of Criminal Appeal by this Court following its establishment in late 2014. However, in so far as the substantive test to be applied is concerned, regardless of the procedure by means of which an application has come before the Court, the Kelly case still represents the law.
34. In Kelly, the applicant was being jointly tried with a co-accused before the Special Criminal Court in respect of the notorious Sallins mail train robbery in 1978. He was on bail and having attended the start of his trial he absconded and went abroad before its conclusion. He was convicted in his absence and sentenced to 12 years penal servitude. The co-accused, who was also convicted, appealed to the Court of Criminal Appeal. On the 22nd of May, 1980, that court announced that it was not satisfied that an inculpatory statement made by the co-accused (being the only evidence against him) was admissible in evidence and that, accordingly, his appeal would be allowed and his conviction set aside. The co-accused had contended that his statement had been procured by oppressive interrogation. The applicant subsequently returned to Ireland and applied to the Court of Criminal Appeal for leave to appeal against his conviction, and for an extension of time within which to serve his Notice of Appeal.
35. In support of his said applications he filed an affidavit alleging “beatings and pressurisation” during his interrogation prior to his trial, but he failed to aver any connection between the facts of which he complained and his conviction.
36. The Court of Criminal Appeal refused his applications. It held with respect to the application for an extension of time that the court had to decide the issue by considering only the evidence adduced at the hearing of the application, and that the applicant had failed to establish that, at the conclusion of his trial or shortly afterwards, he had formed an intention to appeal against his conviction and that such intention had been based upon reasonable grounds suggesting that his trial had been unsatisfactory. Giving judgment for that court, Gannon J. stated (at page 96):
“We examine this application on the basis of an enquiry as to whether or not the applicant, following his trial and conviction, had a genuine intention of appealing against the decision of the court of trial and, if so, whether or not he had (or would have had) reasonable grounds for the belief that his conviction could be set aside.”
And later added (at page 99):
“Whether justice requires that the time be enlarged to enable an application to be made for leave to appeal would appear to depend upon (a )whether the application is bona fide in that an intention was genuinely in mind while the trial and verdict were still fresh, and the proposed grounds for appeal existed and were in contemplation while the trial and verdict were still fresh; (b ) whether there are facts properly brought to the attention of the Court concerning the trial of the applicant which prima facie could import unfairness in the trial or an unsatisfactory trial; or (c) whether on the facts proved at the trial there are arguable grounds for finding error of law in relation to the trial of the applicant on such facts.”
37. The criteria applied by the Court of Criminal Appeal were in substance those applying to applications for late leave to appeal on the civil side, as propounded in Éire Continental Trading Co v. Clonmel Foods [1955] I.R. 170, though with perhaps a greater emphasis on the requirements of justice. However, as Henchy J. later pointed out in his judgment in the Supreme Court in Kelly, even in civil litigation it was never intended that the three conditions specified in the Éire Continental case should be regarded as the sole criteria. Rather, as Lavery J. had said in Éire Continental, at p.173 of his judgment, “they must be considered in relation to all the circumstances of the particular case.”
38. At any rate the Court of Criminal Appeal in Kelly granted a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, stating that its decision on the extension of time issue involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The point of law so certified posed the question whether the Court of Criminal Appeal had applied the correct criteria in dismissing the application.
39. The Supreme Court allowed the appeal and held that the Court of Criminal Appeal had applied the wrong criteria. The main judgment was that of O’Higgins C.J., with whom the other four judges (Walsh J., Henchy J., Kenny J. and Hederman J.) expressed their agreement on the principal issue.
40. Referring to the two passages from the judgment of Gannon J. quoted at para 28 above, O’Higgins C. J. stated (at page 106):
“Those two passages from the court's judgment point to the same conclusion, viz. , that it was the view of the court that an extension or enlargement of time should be granted only where an intention to appeal existed at the time or immediately after the conviction, and where there were grounds of appeal which could be described as arguable or substantial. It seems to me, therefore, that these are the criteria upon which the Court of Criminal Appeal acted and which, when applied, guided the court in its decision to refuse the application made by the appellant. If that be so, the court applied the tests laid down by the Supreme Court for such applications, in relation to appeals in civil cases, in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. In my view, such tests or criteria are inappropriate to a consideration whether an enlargement of time should be allowed for an appeal, or an application for leave to appeal, in a criminal case.”
41. The former Chief Justice went on to say (at page 107):
42. He added (at pp 107/108):
“In my view, the matters to be considered are the requirements of justice on the particular facts of the case before the court. A late and stale complaint of irregularity with nothing to support it can be disposed of easily. Where there appears to be a possibility of injustice, of a mistrial, or of evidence having been wrongly admitted or excluded, the absence of an earlier intention to appeal or delay in making the application or the conduct of an appellant should not prevent the court from acting. This seems to me to be the practical result of considering what the ‘justice of the case may require.’”
43. It is necessary therefore to approach the present applications for an enlargement of time within which to appeal in the manner commended in the Kelly case, and to do so it is necessary to examine the particular facts of each case and to examine where the interests of justice lie.
Case No. 289/2012
44. It is clear from the judgments in the Kelly case that the overriding consideration must be the interests of justice. The conduct of the appellant in the context of the intended appeal cannot be determinative of the issue. However, by the same token his conduct is not to be regarded as wholly irrelevant and it is part of the factual matrix to be taken into account.
45. In this case the trial concluded in February 2010 and the applicant evinced no initial intention of appealing. Indeed, he positively disavowed any intention of appealing when he was produced before Carney J. some months later and confirmed his wish to have the trial judge’s earlier refusal of a certificate that the case was a fit one for appeal set aside. Then over two years later the applicant had changed his mind, and successfully applied to Carney J. to have his earlier refusal of a certificate re-instated. Thereafter, the applicant failed to seek leave to appeal within time. No explanation for this failure is provided. While he then served a “Notice of Application for an Enlargement of Time within which to Appeal” and an intended Notice of Appeal, he did not serve a Notice of Motion to bring the matter before either the former Court of Criminal Appeal, or subsequently this Court, until the spring of 2016.
46. In the affidavit sworn by him on the 28th of April 2016 for the purpose of grounding his present applications, including (inter alia) his application for an extension of time within which to appeal, the applicant offers no reason whatever for his ostensible change of mind. Neither is any explanation put forward in the affidavit of his then solicitor, which was also filed in support of the motion.
47. The application for an extension of time is opposed, and the respondent relies in that regard on an affidavit of Patrick Geraghty, Solicitor, sworn on the 17th of June 2016. Mr. Geraghty points out that the Notices filed in these proceedings dated the 29th of August 2012 were filed on his behalf by a Mr. Derek Burke, Solicitor. However, the grounds of appeal that were filed on the 22nd of January 2013 were filed by the appellant in person. This was not withstanding that Mr. Burke remained on record until the 6th of November 2013. Moreover, he further points out, as of the date of the swearing of his affidavit, the appellant has had five other firms of solicitors come on record for him at different times.
48. The Court notes that as of the date of the hearing of the motion yet another firm of solicitors had been discharged and replaced, making a total of seven up to that point in the course of these intended appeal proceedings. It is understood that in February of this year (2017) while this judgment was reserved there has been yet another change of solicitors, now making it a total of eight to date.
49. Any consideration of what the justice of the case may require must of necessity embrace some consideration of the proposed grounds of appeal. We have therefore considered the existing intended grounds of appeal. We have also considered de bene esse the forty five additional grounds which the applicant hopes to advance in the event of being successful in the second limb of his motion, namely his application to add as additional grounds the matters set forth in exhibits “SW1” and “PT1” (they are in identical terms) to the aforementioned affidavits of the applicant, and of his solicitor, grounding the motion. Finally, we have also considered the contents of the document entitled “Skeleton submissions of the appellant - Appeal against Conviction” and dated the 22nd of June 2016 .
50. In relation to the existing intended grounds of appeal advanced in January 2013, grounds 1 to 3, and 4(xv), inclusive, all relate to the refusal of the trial judge to recuse himself and/or to discharge the jury when asked to do so, and allege bias on the part of the trial judge. Without expressing any view on their merits, the grounds advanced appear to be cogent in the sense of being at least intelligible and arguable in principle. If the applicant had appealed within time he would certainly have been able to advance them.
51. In relation to sub-ground 4(i), the failure of the trial judge to entertain an application from him for an inquiry under Article 40.4.2 could never constitute a ground of appeal against his criminal conviction. It is a separate procedure. His remedy in so far as any complaint that he was unlawfully detained was concerned, was either to apply afresh to another judge in the High Court under Article 40.4.2., or to appeal the refusal to grant him an inquiry to the Supreme Court.
52. In relation to sub grounds 4(ii) (iii), (iv), (v) and (vi), these sub-grounds relate to complaints about the court’s jurisdiction based on an allegedly flawed return for trial, and the conduct and outcome of a preliminary application made at the commencement of the trial under s.4E of the Criminal Procedure Act 1967, on foot of which the defence sought severance of different counts on the indictment on various grounds Again, without expressing any view on their merits, these sub-grounds appear to be cogent in the sense of being at least intelligible and arguable in principle. If the applicant had appealed within time he would certainly have been able to advance them.
53. In relation to sub grounds 4 (vii), (viii), (ix), (x), and (xi) these appear to be complaints that the trial judge should not have proceeded with a re-trial having regard to the circumstances in which he had had to discharge a previous jury and abort an earlier trial. Again, without expressing any view on their merits, these sub grounds appear to be cogent in the sense of being at least intelligible and arguable in principle. If the applicant had appealed within time he would certainly have been able to advance them.
54. In relation to sub grounds 4 (xii) and (xiii) these appear to relate to complaints about the exclusion of certain evidence. Again, without expressing any view on their merits, these sub grounds appear to be cogent in the sense of being at least intelligible and arguable in principle. If the applicant had appealed within time he would certainly have been able to advance them.
55. In relation to sub ground (xiv), this is a complaint that the trial judge was wrong to refuse a direction at the close of the prosecution case. Again, without expressing any view on its merits, it is cogent in its terms and had the applicant appealed within time he would certainly have been able to advance this ground.
56. We consider that where a putative appellant is out of time, and is seeking an enlargement of time within which to appeal, it is incumbent on him to do more than simply demonstrate that he wishes to pursue intelligible grounds of appeal that appear to be arguable in principle. He must, it seems to us, engage with the actual evidence given, and rulings made, as disclosed in the transcript of the trial and, in relation to any intended ground of appeal, show that the matter complained of is sufficiently grounded to justify at least some optimism that the appeal, if allowed, would succeed. The affidavits filed on behalf of the applicant do not offer that type of engagement at even the most rudimentary level. Moreover, the legal submissions filed, i.e., the document entitled “Skeleton submissions of the appellant - Appeal against Conviction” and dated the 22nd of June 2016, do not address the original intended grounds and only purport to address the forty five additional grounds that the applicant hopes to be allowed to also pursue.
57. We turn now to consider those additional grounds .These are grouped in so- called “modules” in the document exhibited.
58. Modules 1.1 (comprising complaints No’s 1-5) and 1.2 (comprising complaints no’s 6-8) relate to “custody rights” and “legal representation & legal aid in custody”, and various complaints are ventilated, e.g., a complaint (No. 2) that the Form C 72s Notice of Rights “does not adequately and clearly explain to an accused” his multiple rights; and a complaint (No. 7) that the applicant should have been accompanied by a lawyer during all interviews. However, the aforementioned affidavit of Mr. Patrick Geraghty makes the valid point, in relation to all of the complaints made in these two modules, that “no evidence was adduced by the respondent at the trial relating to anything said or done by the appellant whilst in custody”. The applicant has not sought to dispute that averment, and in the circumstances we do not see that Modules 1.1 and 1.2 disclose any intelligible or arguable basis for possibly challenging the applicant’s conviction.
59. Module 1.3 (comprising complaints No’s 9-14) relates to complaints about disclosure. Complaint No. 9 asserts an error by the trial judge by not finding that “the prosecution did not provide ‘full and frank disclosure’ of all relevant materials … prior to trial, and at trial …” The applicant does not say, however, how or in what respect the respondent is alleged to have been in default so as to have possibly justified such a ruling; and, if so, how that is alleged to have affected the fairness of the trial and the safety of the applicant’s conviction. Absent any such engagement with the actual facts, we do not see that this complaint discloses an intelligible or arguable basis for possibly challenging the applicant’s conviction.
60. Complaints No’s 10 and 11, respectively, refer to alleged failures by the trial judge “by not directing that the prosecution did not provide” post trial disclosure and “by not directing that the prosecution ought always (but did not) keep comprehensive and orderly files of all prosecution trial materials”. We do not consider that these disclose any intelligible or arguable basis for possibly challenging the applicant’s conviction.
61. Complaint No. 12 refers to an alleged failure by the trial judge “by not directing that the prosecution ought always (but did not) procure and disclose adequate forensics evidence from an array of objective and impartial expert forensic witnesses to ensure proper investigation of the alleged crime” in order to vindicate the applicant’s rights. While a trial judge may comment on the evidence adduced, or identify a lack of evidence, whether or not he does so has always been a matter entirely within his discretion. Even if the prosecution’s duty was as stated, which is debateable, we cannot, certainly at the moment, conceive how the trial judge could have been under any legal obligation to comment or offer a view as to whether or not the prosecution’s duty had been fulfilled. While the proposition might be capable of being advanced as a novel point, prima facie it goes against well established convention and no authority in support of it has been identified.
62. Complaints No’s 13 and 14 relate to an alleged failure by the trial judge to hold that the prosecution had wrongfully not disclosed the existence of legal aid certificates to the applicant. As the applicant was legally represented by a solicitor, senior counsel and junior counsel throughout his trial, we do not consider that these complaints disclose any intelligible or arguable basis for possibly challenging the applicant’s conviction.
63. Module 1.4 (comprising complaint No. 15) relates to the “Burden of Proof”. It raises an issue concerning the alleged failure of the trial judge to tell the jury that prosecuting counsel was wrong to say that “proof to mathematical certainty” was not required. The aforementioned affidavit of Mr. Patrick Geraghty makes the point that no issue was raised about this at the trial. Absent some explanation for why the point was not taken, or cogent reasons for believing that the judge’s alleged failure was so egregious that to refuse to allow it to be made now would result in a fundamental denial of justice, we do not consider that this late complaint discloses a tenable basis for possibly challenging the applicant’s conviction.
64. Module 1.5 (complaints No’s 16-23) is entitled “Legal Representation & Legal Aid during Trial and for any Appeal”. The gravamen of some of these complaints is difficult to comprehend, not least due to the use of double negatives. Complain No. 16, for example, complains that “The learned Trial Judge erred by not ruling that the accused / appellant did not waive his rights to legal representation (in order to instead represent himself as a lay litigant) as there was no proper explanation of the consequences of such a waiver to allow the accused / appellant to make an informed binding decision to waiver in writing as required by the constitution and / or the European Convention of Human Rights and / or the European Treaties such that an unfair trial and an unsafe verdict resulted.” The majority of them appear to suggest that the trial judge had been remiss in failing, after the applicant’s conviction, to advise him properly as to his rights in regard to representation and “legal aid and/or litigation finance” for an appeal, and as to certain matters of law and as to certain matters of procedure in relation to the prosecution of an appeal.
65. However, as the affidavit of Mr. Patrick Geraghty points out the applicant was represented throughout his trial in this matter by senior and junior counsel and by a solicitor. Moreover, at the first application, on the 15th of March 2012, for a certificate that the case was fit for appeal the trial judge said: “Very well, refuse leave to appeal. In the event of an appeal against that refusal, a certificate for solicitor and two counsel.” Yet again, at the further application made on the 27th of July 2012, the trial judge said: “I will refuse leave to appeal and give you a certificate for solicitor and two counsel to appeal that refusal if you think it appropriate to do so.” Further, the appellant has been legally represented in this intended appeal at virtually all stages. As pointed out, eight different solicitors have been on record for him to date in this matter. In those circumstances the complaints ostensibly being made in module 1.5 are simply unstateable.
66. Module 1.6 (comprising complaint No .24) is entitled “Habeas Corpus/legality of detention” and a complaint is made that the trial judge erred by not adjourning the trial to facilitate the applicant in applying to the High Court for an inquiry into the legality of his detention. This complaint, even if valid, could have no implications for the safety of the applicant’s conviction and is not an appropriate ground of appeal.
67. Module 1.7 (comprising complaints No’s 25 to 33) is entitled “Evidential & Forensics”. The gravamen of these complaints is that the trial judge failed to give an adequate delay warning to the jury, and one that was insufficiently contextualised concerning possible prejudices to the accused on account of the unavailability of forensic and other evidence that might have exculpated him or assisted in his defence.
68. Without expressing any view on their merits, the grounds advanced in module 1.7 appear to be cogent in the sense of being at least intelligible and arguable. However, as Mr. Geraghty points out, a delay warning was given and no requisition was raised at the trial concerning the adequacy of the delay warning that was given. Moreover, no explanation is provided for the failure to raise a requisition. In those circumstances, it is far from clear that the applicant would ultimately be permitted to rely on those grounds even if he was granted late leave to amend his existing intended grounds of appeal to include them.
69. Module 1.8 (comprising complaints No’s 34 to 40) is entitled “Prejudice”. In substance, the complaints made are to the effect that the trial judge failed to adequately instruct the jury on their need to be independent and impartial, and on the importance of approaching all aspects of the case with an open mind and without bias.
70. Again, without expressing any view on their merits, the grounds advanced in module 1.8 appear to be cogent in the sense of being at least intelligible and arguable. However, as Mr. Geraghty points out, no requisition was raised at the trial concerning the judge’s instructions to the jury in relation to these matters and no explanation is provided for the failure to raise any requisition. In those circumstances, it is again far from clear that the applicant would ultimately be permitted to rely on those grounds even if he was granted late leave to amend his existing intended grounds of appeal to include them.
71. Finally, Module 2 (comprising complaint’s No’s 41 to 45) is entitled “To be heard alone and independently”. Complaint’s No’s 41 and 42 in this module appear to overlap in large measure with the complaints comprising sub grounds 3 (ii), 4(ii) (iii), (iv), (v) and (vi) in his existing intended grounds of appeal. Complaint No. 42 is important in as much as it relates to the accidental disclosure before the jury of the fact that the applicant had spent time in prison. However, this is already raised under sub-ground 3(ii) in the original grounds of appeal. Mr. Geraghty acknowledges that complaint No. 42 was raised at the trial, but he points to the absence of any explanation from the applicant for not advancing it as a basis for appealing until very late in the day. We think that is a point well made, and we further note that there has been no engagement by the applicant in his affidavit or submissions with the context in which the impugned evidence was given, the stage of the trial at which it occurred, the actual ruling made, and in particular as to how the alternative means by the trial judge dealt with the issue was deficient. The trial judge had opted to specifically instruct the jury to disregard that evidence, to remind them of the accused’s presumption of innocence, and to instruct them that no inference should be drawn from what they had heard adverse to the accused.
72. Given the absence of any explanation from the applicant for the late attempt to advance this as a basis for appealing, and the fact that a trial judge might have been able to deal with such an eventuality in several possible ways, including the way in which he in fact dealt with it, it was incumbent on the applicant to do more than merely raise the point. On the contrary, he needed to engage with the full actual facts of what occurred, and to specify with particularity the basis for his contention that as result of the ruling of which he complains there is a real risk that his conviction may have been unsafe. He has not sought to engage in that way. We see nothing in the bald assertion that there was a refusal to discharge the jury in the circumstances indicated that would justify any optimism on his part that an appeal on this point, if allowed to proceed, would be likely to succeed.
73. Complaint 43 in this module appears to overlap in large measure with the complaints comprising sub grounds 4 (xii) and (iii) in his existing intended grounds of appeal. Complaints 44 and 45 are new complaints, but related to the complaints comprising sub grounds 4 (xii) and (iii) in his existing intended grounds of appeal, and may be regarded as an amplification of them. Again, without expressing any view on their merits, complaints 44 and 45 advanced in module 2 appear to be cogent in the sense of being at least intelligible and arguable. If the applicant had appealed within time he would certainly have been able to advance them.
74. For completeness it should be stated that while the document entitled “Skeleton submissions of the appellant - Appeal against Conviction” and dated the 22nd of June 2016, does ostensibly relate to the forty five additional grounds that the applicant hopes to be allowed to also pursue, it does not offer engagement in any meaningful way with the evidence given, and rulings made, at the trial. While it contains quotations from case law, and academic commentary both published and unpublished, that are commended as being apposite in the context of particular complaints, it does not contain a single transcript reference for the purpose of anchoring any of the alleged complaints to any evidence given or rulings made at the trial.
75. Having completed this lengthy review, the net question for this Court is, do the interests of justice require that the applicant should, at this remove from the trial, be granted an enlargement of time such as would allow him to pursue his appeal on all or any of the grounds that he has indicated that he would wish to pursue?
76. It is clear from the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Kelly [1982] I.R. 90 that the interests of justice are not ultimately to be sacrificed on the altar of rules of court, and that in an appropriate case flexibility may be shown in respect of non-compliance with the rules where not to do so might create a real risk of injustice. By the same token, however, rules of court and the time limits and procedures provided for therein, exist for very good reasons. They represent the law of the land and the general expectation is that they should be complied with, in the interests of the efficient administration of justice, in the interests of equality of treatment of litigants, and in the interests of ensuring certainty and finality with respect to the outcome of proceedings (reflected in the legal maxim interest reipublicae ut sit finis litium to which Gannon J., giving judgment for the Court of Criminal Appeal in Kelly, specifically adverted).
77. It would be inimical to those legitimate aims if rules of court, which have the status of secondary legislation, were to be permitted to be ignored haphazardly and inconsiderately. However, it has always been recognised that non-compliance with the rules is not always malign and that benign non-compliance can sometimes occur for different reasons, be it genuine error, inadvertence, misinformation, oversight or for some other understandable reason. Accordingly, the rules themselves have always had built into them the facility for an appeal court to be flexible in its approach and to forgive non-compliance with the rules where it appears just and equitable that it should do so.
78. In the version of the Rules of the Superior Courts extant at the time of the applicant’s conviction, and also at the time of the filing of his “Notice of Application for an Enlargement of Time within which to Appeal”, it is expressly provided for in Order 86, Rule 38, that:
“Non-compliance on the part of an appellant with the rules of this Order, or with any rule of practice for the time being in force, shall not prevent the further prosecution of his appeal or application unless the Court shall so direct, but such appeal or application may be dealt with in such manner and upon such terms as the Court shall think fit.”
79. Moreover, specifically with respect to the enlargement of time applications, the same rules provide in Order 86, Rule 8, that:
“(1) Except in cases where steps are required by statute to be taken in the Central Criminal Court or in the Circuit Court, the Court shall have power to enlarge the time appointed for doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed.
(2) An application to the Court for an enlargement of time within which notice of appeal or notice of application for leave to appeal may be served shall be in the Form No. 5.
(3) The form of application shall, in addition to specifying the grounds of such application, also specify the grounds on which the applicant proposes to base his appeal or application for leave to appeal.”
80. However, the mere existence of this flexibility does not entitle a putative appellant to take it for granted that an application for enlargement of time will necessarily be granted. He or she must appreciate that they are in default and that there is an onus on them to provide an explanation if they can as to why the rules were not complied with, and even if they can not do that to advance any matters tending to show that the justice of the case requires the time to be enlarged notwithstanding their non-compliance with the rules.
81. The applicant in this case has singularly failed to do any of that. He has been legally represented at almost all material times. He was extremely fortunate to have been successful in his application to Carney J. on the 27th of July 2012, in circumstances where if he had received a decision the other way it would have been unassailable. He was required to serve and file a Notice of Application for Leave to Appeal within 21 days of Carney J.’s order, yet he has provided no explanation for not doing so in time.
82. Moreover, even when he filed his “Notice of Application for an Enlargement of Time within which to Appeal” it was not accompanied by grounds of appeal, merely an indication that they were to follow. They did not in fact follow for another six months. The applicant then delayed for in excess of another three years before bringing his motion seeking an enlargement of time.
83. The Kelly case makes clear that even in a case of clear non-compliance with the rules, and perhaps even in the case of an egregious intentional disregard of the rules, such as there is strong reason to suspect has occurred in this case, the Court can still, and indeed should, enlarge the time where the interests of justice require it.
84. In making allowance for this, O’Higgins C.J., provided examples of the sort of situation where forbearance in applying the rules strictly might arise for consideration, even in such cases. He said (at page 107):
“Some examples may illustrate what I have in mind. An innocent person may have been convicted in a perfectly fair trial on evidence of a most cogent and compelling nature, leaving no possible grounds upon which the verdict could be questioned or an appeal contemplated. If, in such a case, it subsequently transpired that such evidence was perjured or mistaken, should such a person be confined to the possibility of a pardon, and stand deprived of an opportunity to establish his innocence on appeal, merely because he never contemplated such an appeal following his conviction? If, on the conviction of a number of defendants, one only appeals and establishes an irregularity in the trial, or succeeds in excluding evidence which also incriminated his co-defendants, should those who did not appeal be deprived of a late appeal merely because they had not earlier formed the intention of appealing?”
85. However, the applicant has not put forward any basis in law or fact to demonstrate “a possibility of injustice, of a mistrial, or of evidence having been wronly admitted or excluded”, to use the expression employed by O’Higgins C.J. in the Kelly case cited above. Neither has he established any other basis on which the court’s discretion could be exercised in his favour. As stated previously, there has been a signal failure by the applicant to engage, even at the most rudimentary level, with the evidence given and rulings made at the trial as disclosed in the transcript; and further that he has failed, in relation to any intended ground of appeal, to show that the matter complained of is sufficiently grounded to justify at least a possibility of injustice in some respect. In the circumstances the interests of justice do not require that the applicant should be granted the enlargement of time that he seeks in these proceedings, and we refuse the relief sought in that regard.
Case No. 290/2012
86. In this particular case the trial concluded on the 20th of December 2011. As the Criminal Procedure Act 2010 was fully in force, the applicant did not need a certificate from the trial judge, or to appeal the refusal of such a certificate. He could appeal to the Court of Criminal Appeal as of right, and had 21 days from the conclusion of the proceedings in the Circuit Court in which to do so. He clearly knew the procedure having regard to his interactions with the office of the Court of Criminal Appeal in November 2010, and subsequently before Hardiman J., in relation to his appeal in Case No. 106/11. Despite this, the first intimation that he gave of any intention or desire to appeal in this matter was when he served his “Notice of Application for an Enlargement of Time within which to Appeal” on the 29th of August 2012.
87. No intended grounds of appeal were filed with the said Notice, notwithstanding the requirement in Order 86 Rule 8(3), although it did state “Grounds to follow”, nor were any grounds ever filed subsequently, save for the grounds contained in the exhibits to the affidavits of the applicant, and of his then solicitor, purporting to ground the motion presently before the Court, and which were filed in excess of three and a half years later in the spring of 2016.
88. The grounds contained in the said exhibits (which are in identical terms) are entitled “Draft/ Additional Appeal Grounds”, suggesting that other grounds had been filed earlier. However there were none. As was the case in relation to Case No. 289/2012 the document exhibited is divided into modules comprising a total of forty five separate complaints. Modules 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7 and 1.8, inclusive, (which comprise forty of the forty five complaints in total) repeat verbatim the grounds pleaded in the same module numbers advanced in relation to Case No. 289/2012. This is so notwithstanding that Case No. 290/2012 comprised completely different charges, was heard before a different court, by a different judge, and involved different facts and evidence from that in Case No 289/2012. That grounds should be advanced in this way provides the clearest possible illustration of the failure by the applicant, yet again, to engage, even at the most rudimentary level, with the evidence given, and rulings made, at the trial as disclosed in the transcript.
89. The application for an enlargement of time is opposed by the respondent and, once again, Mr. Patrick Geraghty has sworn an affidavit to that end. He points out that in respect of the complaints in Module 1 - “Custody Rights”, the only evidence which flowed from the appellant's arrest and subsequent detention pursuant to s. 4 of the Criminal Justice Act, 1984, which the respondent relied on, related to a buccal swab which was taken from the appellant whilst in custody. Moreover, the complaints that the appellant now seeks to be allowed ventilate were never made at the trial.
90. Mr. Geraghty further points out in relation to Module 1.2 - “Legal Representation and Legal Aid in Custody”, that the appellant was provided with access to a solicitor on each and every occasion he requested it while in custody.
91. In relation to Module 1.3 - “Disclosure”, Mr. Geraghty points out that complaints No’s 10, 11, 13 and 14 relate to an alleged failure to make post trial disclosure, that nothing was in fact received by the respondent post the trial, and the applicant has failed to specify how or in what respect the respondent is said to be default. Moreover, in relation to complaints No’s 12 and 9, respectively, which ostensibly relate to pre-trial disclosure, there was full disclosure and again the applicant has failed to specify how, or in what respect, the respondent is alleged to be in default.
92. In relation to Module 1.4 - “Burden of Proof”, Mr. Geraghty points out that the comment attributed to counsel for the prosecution, about “proof to mathematical certainty” being not required, was never made in this particular trial.
93. In relation to Module 1.5 -“Legal Representation & Legal Aid during Trial and for any Appeal”, Mr. Geraghty points out that the applicant was represented for almost the entire trial in this matter by senior and junior counsel and by a solicitor. However, after the applicant had gone into evidence he dispensed with his legal team before the defence case closed. His legal team was then re-engaged for the sentencing. Moreover, at the conclusion of the sentencing hearing an application was made for the legal aid certificate to continue, which was acceded to.
94. Further, the appellant has been legally represented in this intended appeal at virtually all stages. Numerous different solicitors have been on record for him at different times to date in this matter.
95. In relation to Module 1.6 - “Habeas Corpus - Legality of Detention” which complains that the trial judge erred in not adjourning the trial to facilitate the applicant in making an application to the High Court for an enquiry under Article 40.4.2, as previously stated this complaint, even if valid, could have no implications for the safety of the applicant’s conviction and is not an appropriate ground of appeal.
96. In relation to Module 1.7 - “Evidential & Forensics” the gravamen of these complaints is that the trial judge failed to give an adequate delay warning to the jury, and gave one that was insufficiently contextualised concerning possible prejudices to the accused on account of the unavailability of forensic and other evidence that might have exculpated him or assisted in his defence. However, Mr. Geraghty points out that there was no delay issue in the case. The offences were alleged to have occurred only in 2008 and 2009. No delay warning was called for and no issue was raised at the trial alleging any delay.
97. Module 1.8 is entitled “Prejudice”. The complaints made here are to the effect that the trial judge failed to adequately instruct the jury on their need to be independent and impartial, and on the importance of approaching all aspects of the case with an open mind and without bias. Mr. Geraghty asserts that no complaint was made about this at the trial and no requisition was raised at the trial concerning the judge’s instructions to the jury in relation to these matters.
98. The document concludes with two additional modules, labelled 2.1 and 2.2, and to that limited extent is distinguishable from the document put forward in Case No. 289/2012. Module 2.1 (comprising complaints No’s 41 and 42) is headed “To be heard together with Appeal 106/11”. Complaint 41 concerns an allegation that the trial judge erred in not telling the jury that the Circuit Court has no jurisdiction to decide constitutional issues. This complaint was never raised at the trial and it is not apparent how, even if the complaint were true, it could affect the safety of the verdicts.
99. Complaint No. 42 complains that the trial judge erred by not directing the jury that “the accused had been improperly charged with offences”, and by not discharging the jury on account of “amendments to the indictments” which “were unfairly prejudicial to the accused” leading to an unfair trial and unsafe verdicts. In seeking to advance these matters as additional grounds the applicant has not sought to engage in any way with the submissions made at the trial, or with the trial judge’s rulings.
100. Finally module 2.2 (comprising complaints No’s 43, 44 and 45) provides some further case specific complaints. Complaint 43 is about an alleged failure by the trial judge to require an expert witness, Dr. Maeve Eogan, to deal with certain issues, while complaint 44 is about an alleged failure to ensure that two other purported expert witness, a Ms. Rose Campbell and a Ms. Sarah Fleming, were properly credentialed, and complaint 45 essentially repeats the complaint made at No. 42 in module 2.1.
101. In his affidavit Mr. Geraghty makes the point in relation to complaint 43 that relevant proposed evidence to be adduced from Dr. Eogan was ruled inadmissible as hearsay. Again the applicant merely puts forward a bald assertion that a ruling was erroneous, but he does not engage at all in his affidavit with what actually occurred, nor does he seek to suggest any basis on which the trial judge’s ruling was incorrect, nor any basis for suggesting that the evidence ruled out was not in fact hearsay.
102. Mr. Geraghty makes the further point in relation to ground 44 that no objection was raised at the trial to Ms. Campbell’s and Ms. Fleming’s claimed expertise.
103. We have also considered the document entitled “Skeleton submissions of the appellant - Appeal against Conviction”, dated the 22nd of June 2016, and filed in this case. It does not offer engagement in any meaningful way with the evidence given, and rulings made, at the trial. While it contains quotations from case law, and academic commentary both published and unpublished, that are commended as being apposite in the context of particular complaints, it also, and in common with the submissions in Case No. 289/2012, does not contain a single transcript reference for the purpose of anchoring any of the alleged complaints to any evidence given or rulings made at the trial.
104. In the light of all of this, the court is satisfied that the interests of justice do not require us to overlook the failures on the applicant’s part to comply with the rules of court. The non-compliance is simply not explained and has all the appearance of blatant disregard. The delay is also very significant, and the applicant has been dilatory in the manner in which he has sought to progress the matter to date. In addition, there is nothing that we can see in the proposed grounds of appeal to suggest a possibility of injustice. The applicant has manifested little or no meaningful engagement with what actually occurred at his trial.
105. In all the circumstances of this case, we refuse the enlargement of time being sought.
The applications to add or provide grounds/additional grounds of appeal
106. In the light of the rulings made above, this limb of the motions need only be considered now in relation to Case No. 106/2011.
107. Once again, our approach must be guided by the interests of justice. That having been said, however, established jurisprudence makes it clear that an appellate court should be slow to permit the addition of any ground that was not raised at the trial. The practice of transcript trawling has been repeatedly deprecated, particularly where there has been a change of legal team and a new legal team is in place. Moreover, where a point was not raised at the trial, while an appellant will not be automatically shut off from seeking to raise it on appeal, the case-law suggests that an appellant seeking to do so is required to put forward an explanation as to why the point was not raised at the trial. However, in the last analysis, even if a point was not raised at the trial, and even if no adequate explanation is provided as to why it was not raised before, an appeal court may nonetheless permit an appellant to rely on such a point as an additional ground of appeal if to disallow might lead to a fundamental denial of justice.
108. The jurisprudence to which we have referred includes The People (Director of Public Prosecutions v. Cronin [2003] 3 I.R. 377; The People (Director of Public Prosecutions v Cronin (No. 2) [2006] 4 IR 329; The People (Director of Public Prosecutions v. Foley [2007] 2 IR 486 and The People (Director of Public Prosecutions v. Griffin [2008] IECCA 112.
109. The additional grounds that the applicant now wishes to add are contained in the exhibits to the affidavits of the applicant himself, and his then solicitor Mr. Peter Tunney, grounding the motion. In the case of the applicant’s own affidavit the exhibit is SW1 and in the case of Mr. Tunney’s affidavit it is PT1. Both are in identical terms, and are entitled “Draft/ Additional Appeal Grounds”.
110. As was the case in relation to Case No. 289/2012 and Case No. 290/2012 the document exhibited is divided into modules. In this instance they comprise a total of forty seven separate complaints. Modules 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7 and 1.8, inclusive, (which comprise forty of the forty seven complaints in total) repeat verbatim the grounds pleaded in the same module numbers advanced in relation to Case No. 289/2012 and Case No. 290/2012. This is so notwithstanding that both Case No. 289/2012 and Case No. 290/2012, respectively, comprised completely different charges; and were heard by two different judges, and involved different facts and evidence. In addition, Case No. 289/2012 was heard by a different court, i.e., the Central Criminal Court.
111. It is convenient to deal with these forty grounds in the first instance. We will deal with the remaining seven grounds (in modules 2.1 and 2.2) later in this section of the judgment.
112. Yet again, there has been a complete failure in relation to these forty grounds to engage, even at the most rudimentary level, with the evidence given, and rulings made, at the trial as disclosed in the transcript. None of the forty grounds pleaded in modules 1.1 to 1.8 inclusive makes any reference to any specific evidence given by any particular witness, nor to any specific ruling made by the trial judge, at the applicant’s trial. For the most part the complaints raised are not with respect to anything that the trial judge actually did. Rather, they are couched in terms of complaints about what he did not do, e.g. that “the trial judge erred in not ruling that …” or “the trial judge erred in not directing …”. However, none of these alleged omissions were specific refusals of applications made on behalf of the applicant at the trial. On the contrary, the complaints now sought to be made were never made at the trial, and no explanation is advanced for the failure to do so. They are all complaints that have been formulated ex post facto.
113. Once again, Mr. Patrick Geraghty, has sworn an affidavit for the purpose of opposing the applicant’s motion. Dealing in the first instance with modules 1.1 & 1.2 entitled “Custody Rights and Legal Representation and Legal Aid in Custody”, Mr. Geraghty again makes the point that no evidence was adduced by the respondent at the trial relating to anything said or done by the appellant whilst in custody. Accordingly, the applicant has not demonstrated the relevance of these proposed additional grounds, or how they could form a legitimate basis for appealing.
114. In relation to Module 1.3 - “Disclosure”, Mr. Geraghty points out that complaints 10, 11, 13 and 14 relate to an alleged failure to make post trial disclosure, that nothing was in fact received by the respondent post the trial, and the applicant has failed to specify how or in what respect the respondent is said to be default. Moreover, in relation to complaints 12 and 9, respectively, which ostensibly relate to pre-trial disclosure, there was full disclosure and again the applicant has failed to specify how, or in what respect, the respondent is alleged to be in default.
115. In relation to Module 1.4 - “Burden of Proof”, Mr. Geraghty points out that the comment attributed to counsel for the prosecution, about “proof to mathematical certainty” being not required, was never made in this particular trial either.
116. In relation to Module 1.5 - “Legal Representation & Legal Aid during Trial and for any Appeal”, Mr. Geraghty points out that the applicant, having previously availed of legal representation in a separate trial, chose not to so avail in the instant case which was an informed decision on his part, and in the circumstances these grounds do not arise.
117. In relation to Module 1.6 - “Habeas Corpus - Legality of Detention”, which complains that the trial judge erred in not adjourning the trial to facilitate the applicant in making an application to the High Court for an enquiry under Article 40.4.2, this complaint, even if valid and as we have previously stated, could have no implications for the safety of the applicant’s conviction and is not an appropriate ground of appeal.
118. In relation to Module 1.7 - “Evidential & Forensics” the gravamen of these complaints is that the trial judge failed to give an adequate delay warning to the jury, and one that was insufficiently contextualised concerning possible prejudices to the accused on account of the unavailability of forensic and other evidence that might have exculpated him or assisted in his defence. However, as Mr. Geraghty points out, an extensive delay warning was, in fact, given. Moreover, at the conclusion of the trial judge's charge, the judge expressly asked the applicant whether he had any issues that he wanted to raise arising out of the charge, and the appellant said that he had not.
119. Module 1.8 is entitled “Prejudice”. The complaints made here are to the effect that the trial judge failed to adequately instruct the jury on the difficulty of defending allegations of historic child sexual abuse, and failed to emphasise sufficiently their need to be independent and impartial, and the importance of approaching all aspects of the case with an open mind and without bias. Mr. Geraghty asserts that no complaint was made about any of this at the trial and no requisition was raised at the trial concerning the judge’s instructions to the jury in relation to these matters. In addition, and in any event, the trial judge did direct the jury as to the manner in which they should approach the case, involving as it did allegations of child sexual abuse. He indicated to the jury in specific terms that they were required to be fair and objective in their deliberations regardless of the nature of the allegations.
120. In circumstances where there has been no engagement by the applicant in his affidavit with the evidence given, and rulings actually made at the trial, in all of the areas to which modules 1.1 to 1.8 relate, this Court is not disposed to allow these proposed additional grounds to be argued at this remove. No explanation has been advanced for the failure to raise these issues at the trial, and it has not been demonstrated that the failure to allow them to be argued at this point would lead to any injustice.
121. Moving then to module 2.1 comprising complaints No’s 41 and 42. These are in identical terms to the complaints advanced in module 2.1 in the proposed additional grounds referable to Case No. 290/2012. As already pointed out they are purely generic and make no attempt to engage with what actually occurred in the trial.
122. Module 2.2 in this case is entitled “To be heard separately and independently” and contains five case specific grounds. These are pleaded in the following terms:
“43.The learned trial judge erred in not immediately discharging the jury, when counsel for the prosecution indicated that the DPP did not propose to call any gardaí involved in the custodial detention(s) of the accused because there were no admissions in custody, and an unfair trial and an unsafe verdict
44. The learned trial judge erred in not immediately discharging the jury when a member or members of the public gallery (particularly the complainants family) verbally audibly prejudicially interjected while the complainant was in the witness box and an unfair trial and an unsafe verdict resulted.
45. The learned trial judge erred in not immediately discharging the jury when he directed the complainants father (in the absence of the jury) to stay outside the court after an outburst (or prejudicial audible interjection) from a member or members of the public gallery (particularly the complainants family) and an unfair trial and an unsafe verdict resulted.
46. The learned trial judge erred in directing / charging the jury that "he (the accused / appellant) could have said on oath if he was so minded that he didn't do the wrong" and an unfair trial and an unsafe verdict resulted.
47. The learned trial judge erred in directing/charging the jury that he did not believe that the case of DPP v Feichin had any bearing on their deliberations and an unfair trial and an unsafe verdict resulted.”
123. In relation to ground No. 43, Mr. Geraghty points out that it misstates what occurred at the trial. Day 1 of the transcript (19th of October 2010) reveals on p.33 that, in the absence of the jury, counsel for the respondent indicated to the court that nothing of an evidential nature arose from the applicant’s detention and that, accordingly, the respondent was not calling evidence in this regard but would tender the witnesses to the applicant if he wished to cross examine them. The applicant indicated that he wished to avail of that option. This Court has considered the transcript and notes that what Mr. Geraghty says is correct. Accordingly, this is not a proper matter to be ventilated as an additional ground of appeal.
124. Grounds 44 and 45 relate to the trial judge’s failure to discharge the jury due to interjections from the complainant’s family who were in the public gallery. Mr. Walsh was in the course of cross-examining the complainant on day 2 when the complainant became upset. Mr. Walsh applied for a discharge of the jury because he considered that the witness’s upset state could prejudice the jury. As he was making this application a member of the complainant’s family then spoke up from the body of the court and said “we’re all upset!” Mr. Walsh then added this as a further ground for seeking the discharge of the jury. Mr. Geraghty points out that the trial judge refused to discharge the jury and elected to deal with the issue in another way.
125. The applicant has not addressed in his affidavit why it is, if he was dissatisfied with how the issue was dealt with by the trial judge, he failed to include a complaint about it in his original grounds of appeal. No explanation whatever has been proffered for his default in that regard. It is manifest that this was a very minor incident in the overall context of the trial and absent any explanation for the failure to raise it before now, we do not propose to permit the applicant to raise it now.
126. The penultimate ground that the applicant now seeks to be allowed to raise (complaint No. 46) relates to an alleged comment by the trial judge that the applicant contends was inappropriate and unfairly prejudicial. It is important to appreciate the context in which the complaint is made. It arises out of the following passages from the trial judge’s charge to the jury.
“The final procedural matter to say to you, ladies and gentlemen, is, as I've mentioned it already and I did it at the point before Mr. Walsh addressed you lest you were in some way coloured in listening to him on the fact that he hadn't given evidence, there is no onus upon an accused to participate in a trial. There is no responsibility on him to assist to take part, to call evidence, or to give evidence himself. That is a right for reasons I've explained at this juncture and you cannot draw any reasonable conclusion, you cannot say, ‘Well, because Mr. Walsh has not given evidence, he's therefore hiding; he has nothing to say; he is therefore,’ if you like, ‘putting up his hands’. You can't draw that conclusion. The question for yourself that must be asked at every juncture of a criminal trial such as this is: ‘Have I been satisfied beyond reasonable doubt by the evidence adduced in this case?’, that responsibility resting on the shoulders of the Director of Public Prosecution. The answer to that question, having regard to all you've heard, if it is that, ‘I'm left with no reasonable doubt’, well, then your duty is to convict; short of it, you must acquit.
Mr. Walsh had said in addressing you that he could do nothing by giving evidence, he has nothing to say. Well, he could have said on oath if he was so minded that he didn't do the wrong. He hasn't done that, but he has challenged the prosecution by entering a not guilty plea to the charges done by the direction of the trial judge, so the Director is on proofs. He must satisfy you, he's on the position where his position is being challenged by the accused, who has put to the witness, Ms K, that what she says did not occur, and it is for you then to be satisfied that the Director has brought you to the point where you are left with no reasonable doubt in your mind that what she says did happen. Any doubt, exercise it in favour of Mr. Walsh, and acquit him.” (This Court’s emphasis)
127. Mr. Geraghty, in his replying affidavit again makes the point that at the conclusion of the trial judge's charge, the applicant was invited by the trial judge to indicate whether he had any issue that he wished to raise with him arising out of his charge. The applicant had no issue with the judge's charge. Moreover, the applicant offers no explanation in his grounding affidavit for his failure to include this as a ground of appeal in his initial grounds.
128. The final ground that the applicant now seeks to be allowed to raise (complaint No. 47) relates to the trial judge’s comments about a case relied upon by the applicant in his closing speech to the jury as being of no relevance.
129. Mr. Walsh had addressed the jury (inter alia) in the following terms:
“I'm going to refer to a judgment in relation to a case in relation Michael Feichin and the position is — this particular case, anyway, the position is this: this man, Mr. Feichin was accused of sexual assault and the position was this: the person who accused him was 10 years of age and he was convicted and he was sentenced to six years. Now, the position was he was lucky he didn't go to prison, in the sense that he got a suspended sentence, and he went away and he tried to get on with his life, but anyway, the person, the accuser went off about her life and she decided when she reached 21 years of age, she was in America, she came back from America because she couldn't live with it and then she turned around and admitted that what she had accused him of, she had made up. That's the judgment of the Supreme Court; it came before the Supreme Court. When she admitted it, the record had to be set right, it was a miscarriage of justice. But the position anyway is this: that the whole thing, it never happened at all, that's the reality of it. There is people and there is prosecutions brought against people by the DPP. There's no question about it, and this is an example of it. Now, in fairness, the DPP wouldn't have known that she was probably telling lies, that she had made the story up.”
130. In the course of his charge to the jury, the trial judge said:
“Now, Mr. Walsh has said that there had been occasions when the Director is wrong. A criminal trial is about whether or not there is evidence to support a charge. The instant case that he has quoted to you of Mr. Feichin's trial was where a complainant made the complaint, it was investigated, the trial was prosecuted and presented to a jury and the accused was convicted. Many, many years later, the complainant, having returned from abroad, retracted her complaint and the accused man was then vindicated. No complaint could be made at the feet of the prosecutor, of the investigators, or of the office of the Director of Public Prosecutions. They did their duty and ultimately brought the case to trial for determination by a jury. It was a matter for the complainant who, for one reason, initially made the complaint and substantiated it, and then subsequently retracted it. I don't believe the case has any particular bearing on the facts of this case or any bearing on your deliberations, but he uses it as an illustration to say that errors can be made. Make no error in this case, ladies and gentlemen, make a true verdict on the evidence you have heard, subject to the warnings I have given you to exercise care and caution.”
131. In response to the applicant’s motion to be allowed late in the day to ventilate a complaint that the trial judge’s remarks were somehow inappropriate, Mr. Geraghty points out yet again that at the conclusion of the trial judge's charge, the applicant was invited by the trial judge to indicate whether he had any issue that he wished to raise with him arising out of his charge. The applicant had no issue with the judge's charge. Moreover, the applicant offers no explanation in his grounding affidavit as to his failure to include this as a ground of appeal in his initial grounds.
132. In conclusion, we are satisfied that the interests of justice do not require that the applicant should be permitted to ventilate the additional grounds of appeal that he now wishes to argue, over and above those that he originally filed in Case No. 106/2011. The great majority are generic and do not engage with the evidence given, and the rulings made at the trial. In respect of those that do, the applicant has offered no explanation for his failure to plead these matters with his initial grounds of appeal. Moreover, he had the opportunity with respect to a number of them to raise a requisition in respect of the matters of which he now seeks to complain and failed to do so. In addition, he has not sought to make the case that he would be denied justice if his application were to be refused. The high water mark of what he puts forward in his affidavits is that “all the Draft additional grounds of appeal listed in " SW 1 " are necessary for the purpose of determining the real questions & issues in controversy between the parties . I further say believe and am advised that all the Draft additional grounds of appeal are in the public interest and do not prejudice anybody”. Absent any meaningful engagement with the actual run of the trial, including the evidence given, submissions made and trial judge’s actual rulings, we are completely satisfied that it is appropriate to refuse the applicant’s motion in Case No. 106/2011 seeking liberty to be permitted to rely on amended grounds. He is at liberty, however, to proceed with an appeal based upon his original grounds of appeal.
Summary
133. The Court refuses to enlarge the time to appeal in Case No. 289/2012 and in Case No. 290/2012 respectively. In is not necessary in those circumstances to determine the other main limb of the motions in those cases, namely the applications to add grounds or additional grounds of appeal.
134. The Court deems the applicant to have appealed in time in Case No. 106/2011. However, the Court refuses the application to add additional grounds of appeal. The applicant is at liberty to proceed with an appeal based upon his original grounds of appeal.
