Irish Court of Criminal Appeal
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URL: http://www.bailii.org/ie/cases/IECCA/2006/C70.html
Cite as: [2006] IECCA 70
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. -v- Michael McEvoy [2006] IECCA 70 (29 May 2006) URL: http://www.bailii.org/ie/cases/IECCA/2006/C70.html Cite as: [2006] IECCA 70 |
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Judgment Title: D.P.P. -v- Michael McEvoy Composition of Court: Macken J., Lavan J. Murphy J. Judgment by: Macken J. Status of Judgment: Approved
Outcome: Refuse app. to add additonal grounds | ||||||||||
23 COURT OF CRIMINAL APPEAL 195/04 Macken J. Lavan J. Murphy J. Between: The People at the Suit of the Director of Public Prosecutions Respondent AND Michael McEvoy Applicant Judgment of the Court delivered on the 29th day of May 2006 by Macken J. ____________________________________________________________________ The Applicant was convicted on the 6th October 2004 after a trial lasting several days before a jury at the Circuit Criminal Court in Tralee, County Kerry. On the 13th October 2004 he was sentenced by the learned trial Judge, Haugh J., to five years imprisonment in respect of five separate counts on indictment, all to run concurrently. The offences, and the manner in which they took place, were considered by the trial Judge to be very serious and arose in the following circumstances. In December 1999 a Mr. O’Reilly, in the company of his young son and a friend, were driving to a location in County Kerry. On the journey a truck in which they were travelling was stopped by a group of men, travelling in a car. While his friend and his young son were forced by one of the men to remain in the truck and a mobile phone was taken from them, the other men assaulted Mr. O’Reilly causing him considerable injury, including breaking his arm. One week later, on the 19th December 1999, a Mr. Browne was travelling in a van with two co-employees on his way back to work after lunch also in County Kerry. He was approached by a co-accused, in the proceedings, who was travelling in another car, and was asked to step out of the van which he did. His two co-employees were encouraged to or otherwise left the scene. Mr. Browne was requested to sit into the car other and when he refused to do so the co-accused and the Applicant attempted to force him into the car during which struggle Mr. Browne was physically assaulted. An application for leave to appeal against conviction was lodged dated the 17th December 2004. This consisted of five grounds. Another application, on motion, to add four additional grounds of appeal and which is the subject of this judgment, was filed on the 3rd June 2005. In respect of this second application, the Director of Public Prosecutions has raised an issue as to whether the Court could or should entertain these additional grounds at all, because (a) these grounds (which in reality cover one primary ground) were not raised in the course of the trial and therefore do not relate to nor were they based on any issue arising in the course of the trial. The Applicant in his written submissions accepts that these grounds were not raised as issues in the course of the trial. In light of the jurisprudence governing the matter, it seemed appropriate to the Court that it should first hear this preliminary issue raised by the Respondent. In a nutshell, the Applicant’s argument on this application can be summarised as follows: The events in respect of which the Applicant was found guilty took place at Knocknagoshel, County Kerry, and the charges so specified. A search warrant issued on the 18th day of February 2000 under the hand of District Judge Kelleher. He was, at the relevant time, the District Judge assigned to District Court Area 17. The search warrant was invalid, because the property or the place the subject matter of the search warrant was in Tulla, County Clare, in District Court Area 12, and District Judge Kelleher, the judge assigned to District Court Area 17 therefore lacked jurisdiction to issue it, his jurisdiction on the issuing of warrants being limited to property in District Court Area 17. In support of his legal argument on the foregoing, counsel for the Applicant relies on certain dicta in the case of Creaven & Ors. V Criminal Assets Bureau & Ors [2005] 2 ILRM 53. According to the Applicant’s argument, the search warrant, being issued without jurisdiction and therefore invalid, could not in consequence have led to a lawful presence or search by gardaí at the premises in County Clare at which the Applicant was arrested, nor to a lawful arrest. Any subsequent actions on the part of the gardaí arising out of that unlawful presence and arrest were also unlawful, including the detention itself, and the interviews during detention, as well as their content. The alleged admissions made by the Applicant during his detention were not lawfully procured and therefore could not validly have been admitted in the course of the trial. This court notes that the search warrant was executed on the 19th February 2000. At the end of the search the Applicant was arrested. He was later interviewed, and made certain alleged admissions in the course of the interviews which, in the trial, the learned trial Judge admitted, and left to the jury. The Applicant submits further and in addition to the foregoing, that the presence of the gardaí at the Applicant’s home in County Clare was exclusively for the purposes of executing the search warrant and could not therefore have led any arrest. Therefore the arrest was, in any event, for this additional reason, unlawful, with the same consequences contended for as those set out above. In support of this latter submission, counsel on behalf of the Applicant relies on the decision in the case of DPP v Laide and Ryan (unreported, CCA, 24th February, 2005) Having regard to these arguments, it is contended on behalf of the Applicant that he should be permitted to include the additional grounds in the application for leave to appeal. Ms. Orla Crowe, junior counsel for the Respondent, submits that, although fully represented at the trial, no issue was raised by the Applicant, either as to the validity of the application for the search warrant itself, or as to the validity of the Applicant’s arrest, on any of the grounds now contended for. On the contrary, concessions and admissions were made on behalf of the Applicant in respect both of the warrant and of his arrest, during the course of the trial. There could therefore be no appeal arising out of the trial on the grounds now suggested, essentially because they do not in fact arise out of any issue in the trial itself, the jurisprudence making it clear that this is not permitted. On this preliminary issue, this Court, as well as the Supreme Court, has on several occasions rejected applications for leave to appeal based on grounds not raised in a trial. Both Courts have reiterated the undesirability of permitting this, pointing out in many recent cases that such appeals appear to be based on a trawl through the transcripts of a trial, many months later and in circumstances where legal representation has changed. It would appear that in this case also, this application to add additional grounds of appeal arises as a result of a close examination of the transcript well subsequent to the trial, upon a change of representation, either of solicitor or counsel, or perhaps both, the sequence of the change of representation, vis a vis the date of the second notice, not being entirely clear at present from the affidavit filed grounding the motion. The first of the cases frequently cited in this respect is the People v Madden [1977] I.R. 336 in which the learned Chief Justice, O’Higgins C.J. in clarifying the role of this Court, stated:
Firstly, the ground of appeal now sought to be agitated, was not raised, argued or ruled upon in the Court below. If it was intended to run with the point, the necessary ground work had first to be done in the court of first instance. Given that counsel had no difficulty in eliciting information relevant to the ground of appeal through the cross-examination of garda witnesses in the previous proceedings, it may safely be said that no difficulty lay in the way of the defence doing precisely that in the instant case. … The court must conclude that the decision not to contest fully the State’s case or adduce evidence which might ground the present appeal was not an error or oversight but rather a strategic or tactical decision made by the appellant’s advisers … Accordingly, this court is satisfied that this case in no way comes within the parameters of “oversight or error” on the part of legal advisors which has, in one case at least, persuaded the Court of Criminal Appeal to allow argument on a point in the course of appeal which had not been made at trial (The People v Noonan [1948] 2 I.R. 439).” “… If this court were to allow this appeal to be argued in the manner sought, it is quite clear that the exercise would be one totally unrelated to any ruling or determination made at the court of trial. Furthermore, there is not a scintilla of evidence to ground the appeal on the point taken. This court cannot have judicial notice in some way of matters not dealt with in evidence or borrow evidence from other trials or sentencing hearings for the purpose of determining an appeal against conviction. Thus while there are background historical matters which may explain why this point is being taken now, it does not in any way detract from the requirement both to lead evidence and obtain a ruling on the point from the court below and we do not accept that it was not possible to do so.”
I agree with the view of the Court of Criminal Appeal that the appellant was defended with skill and competence at the trial. It would be wrong now to set aside the conviction of foot of matters which were deliberately never raised in requisitions unless this court were of the view that a fundamental injustice has been caused. I do not hold any such view.”
Without some such limitation cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. For these reasons and for the reasons offered by Hardiman J. when this case was in the Court of Criminal Appeal this court should abhor the practice and strongly discourage it.”
However, counsel for the Applicant, Mr. O’Higgins, Senior Counsel, who was not his counsel during the trial, argues that exceptional circumstances arise in the present case, because he alleges an error or oversight of substance must have occurred here, and the jurisprudence permits the Court to allow additional grounds to be raised in such exceptional circumstances. This is based on the following proposition. It is accepted by counsel for the Applicant that if there were a tactical decision made, deliberately, not to raise a point as a defence, such as those now sought to be raised an Applicant could not be heard to complain of such absence, by means of an application such as this. However the point now sought to be raised, it is argued, was central to the trial. It appears clear, it is contended, that there could have been no “downside” to its being raised during the trial. It could only be concluded therefore that it was not so raised in consequence of counsel in the trial not being “clued into” to the point, and therefore it was not raised through oversight or inadvertence. Counsel submits that this oversight or inadvertence can be explained and understood by reason of the fact that the law on the point, which he classifies as an obscure point, was unclear until the recent decision of the Supreme Court in Creaven v Criminal Assets Bureau & Ors [2005] 2 ILRM 53, when it was clarified. The Court should therefore be uneasy about such a situation and should permit a ground of appeal arising in such exceptional circumstances to be added to the existing grounds. On this argument counsel for the Respondent submits that here there is no question of there having been any general inadvertence or oversight on the part of any of the Applicant’s legal advisors. There were express admissions and concessions made on behalf of the Applicant in the course of the trial. The Applicant was fully represented by a solicitor as well as by Senior and Junior counsel, as indeed were the two co-accused in the same trial, which took place before a very experienced trial Judge. Counsel for the Respondent cites several of the above cases in support of the argument that no exceptional circumstances exist, and contends that if it were the case, as here, that the admissions and concessions made in the course of the trial could later be sought to be withdrawn during an appeal, those admissions and concessions would have no value at all, and the course of any trial could be readily set at nought, together with the sentence arising from it. Here there are no valid or real grounds put forward on behalf of the Applicant to establish that the point of law now sought to be raised was not considered by the Applicant’s legal team prior to making the concessions and admissions actually made. Moreover, counsel submits that the law in relation to the issues now sought to be raised was well established at the time and therefore would have been well known to the Applicant’s legal advisors, and nothing had been presented to the Court on behalf of the Applicant which would suggest otherwise. Conclusions The Court commences its consideration of this application by referring again to the decision in DPP v Madden, supra., where it is clearly stated that this Court makes its decision by reference to the transcript of the trial which is now made available to this court in all appeals, and it is appropriate that this Court should also reach its findings by reference to the transcript also, subject to what is said below. The Court considers first the admissions and concessions made in the course of the trial. The salient extracts from the transcript are those appearing at Day 2, that it to say the 22nd September 2004 in the course of a voir dire and in particular the exchanges between counsel during or prior the evidence of Sergeants Ashe and Queally, as well as those on Day 5. At the trial, the Applicant’s then counsel conceded that there was no issue in relation to the warrant. This is apparent from Book 2, pp. 33 and 34 of the transcript in the course of the examination of Sergeant Donal Ashe on the part of the prosecution.
MS. MORAN: No. MR. SUTTON: I can proceed then. I call Sergeant Ashe.” Further, in relation to the evidence given by Sergeant Ashe, the following sequence of questions and answers ensued at pp. 33 and 34: 216. When did the search take place? - On 19th February, 2000. 217. Were you party to that search? - I was. 218. You are, I think, the investigating Garda in respect of these offences, is that correct? - That’s right. 219. And were you in charge of this investigation? - Well, a search warrant was applied for.
- It was granted by Justice Humphrey Kelleher. 221. Who applied for that? - Inspector McCarthy.
- I went to the home of Michael McEvoy at Rhine, Tulla, County Clare.
229. You went to Clare and you went to Rhine, Tulla, County Clare. Did you execute the warrant? - I did, yes.” In the course of the cross examination of Sergeant Ashe on behalf of the Applicant, the arrest warrant was again referred to, and he was asked whether details of the offences charged were included in the warrant. This was confirmed by him, as being: “Serious bodily injury, assault on one Bertie O’Rahilly at Drommada, Knocknagoshel, County Kerry on 12th December 1999”. He also confirmed that the warrant was issued pursuant to s.10 of the Criminal Justice (Miscellaneous Provisions) Act 1977, and that it was intended to search for evidence in relation to the assault. Evidence of a similar nature to that given in relation to the application for the arrest warrant, to the search actually carried out and as to the Applicant’s arrest as well as the admissions made by him, was also given in open court in the usual way, as is evident from Day 5 of the transcript, it not being necessary to cite all the extracts. However, on that day, in the absence of the jury, counsel for the prosecution stated: “… it would appear that from what (counsel for the applicant) said earlier on today there is no issue about the arrest and no issue about the extension and there is no issue about the detention”. No objection on behalf of the Applicant was made to this statement. While admissions and concessions were made both as to the issuing of the warrant and to its execution as well as to the formal arrest of the Applicant, however, specific objections were nevertheless raised on his behalf arising out of both as to the execution of the warrant and as to his arrest, but on grounds quite different from those now sought to be relied upon. The objections included (a) that his arrest was not made as soon as possible on the day of the search, (b) as to his status during the course of the fairly lengthy search of his premises, on the basis that the Applicant was in reality not free to leave the premises, and was in practical custody. These complaints were rejected by the learned trial judge, on a voir dire, inter alia, on the basis of the credibility of the Applicant. Specific complaints were also made, again heard as part of a voir dire, concerning (a) the duration of and the oppressive nature of interview(s) with him in Tralee garda station, (b) an alleged unlawful extension of time secured for questioning him, having regard to the time of his arrest, and (c) issues as to his right to consult with a solicitor at a particular stage in the course of interviews. Again, the learned trial judge rejected all of these objections. As is clear, much of the foregoing evidence was disclosed during a voir dire arising in the course of the trial. Nevertheless the concessions and admissions made are clear. Further, in the course of his ruling on the voir dire, the learned trial judge stated:
All these transcript extracts are referred to in some detail so as to set out the actual context and the reality of the trial, such matters being considered as important in the established jurisprudence governing this type of application. The reality of this trial, on the transcript, establishes that the question of the search warrant and of the arrest and custody of the Applicant were all to the forefront of the trial, elements of these matters occupied a reasonably lengthy period of time, extending over two or more days in all, and certain issues on the warrant and the Applicant’s arrest were vigorously contested by the Applicant. It is very difficult indeed to conclude in such circumstances that, whereas several legal issues associated with the arrest warrant, its execution at premises in County Clare, and the arrest and detention of the Applicant, were not only identified as being of central importance, but were the subject of voir dires and objections, other legal issues also arising on the warrant and its execution as well as the arrest and detention of the Applicant, such as those now invoked, were, through inadvertence or oversight, somehow overlooked. Nothing in the transcript suggests that that was so, and viewed against the reality of the trial itself, as disclosed on the transcript, it is not possible to ascertain where such inadvertence or oversight can be reliably identified. In reality, what the Applicant seeks here is to persuade the Court to conclude that, although matters which might have constituted a good defence were unsuccessfully raised by the Applicant, another issue which might also have constituted a different but possibly good defence, and which might or would have been raised by a different legal adviser but was not, such additional defence was not raised due to inadvertence or oversight. And that argument is based, primarily, on the basis that there was no “downside” to its being raised during the course of the trial in the first place, and that the law was allegedly obscure. The Court is not able from the transcript or otherwise to conclude that there was such oversight or inadvertence of substance. Moreover, the hearing of this present application was adjourned on a previous occasion, so as to allow the former legal team furnish an affidavit, if desired. Sometimes of course this is done where there is an allegation or a suggestion that the instructions of an accused have not been followed or where a party suggests duress in the adoption of a certain approach or defence in a trial, and so as to permit such matters to be resolved, if they be in issue, but is not ordinarily prescribed as a matter of course. The provision of such an affidavit is not intended as a means of adducing additional evidence external to the trial itself as disclosed on the transcript. In this particular application, no such affidavit was, in any event, filed on behalf of any member of the Applicant’s legal team, and no suggestion is made to this Court that the instructions of the Applicant to his legal team in respect of his defence were not followed. . However, because it is also submitted on behalf of the Applicant that these grounds, not raised in the course of the trial, should be permitted to be raised, in the interests of ensuring that an injustice would not occur, it is appropriate to deal briefly with the two primary arguments put forward in support of the grounds now sought to be added. The first of these concerns the claim made on behalf of the Applicant that the law on the jurisdiction to issue search warrants was unclear, and that it has since been clarified by dicta in the decision of the Supreme Court in the case of DPP v Creaven, supra.. Ms. Catherine Almond, solicitor on record for the Applicant, in her affidavit sworn on the 13th October 2004 to support the motion for leave to adduce additional grounds, deposed, inter alia, as follows:
11. I say and believe that if the applicant is not permitted to argue the additional grounds of appeal he will be seriously prejudiced in the conduct of his appeal to this Honourable Court.”
The Court does not consider that, based on the decision in the case of Creaven v Criminal Assets Bureau & Ors, supra., in particular when read with the provisions of Section 10 of the Act of 1977, the Applicant has established that exceptional circumstances exist which justify permitting the addition of new grounds, not raised in the course of the trial, to be added to the existing application for leave to appeal. The second separate basis upon which the Applicant contends this application should be permitted on exceptional grounds, arises from the judgment of this Court in the case of DPP v Laide and Ryan, supra., a decision of this Court delivered by McCracken J. That was a case in which the Court found, on appeal, that when a garda(i) attends at premises to execute a search warrant, an arrest at the same time may not be lawful. Counsel for the Applicant appears to argue that in all cases where there is a search warrant which is in the course of being executed, a lawful arrest cannot be made at the same time, or at the termination of the search, which is what occurred in the present case. Alternatively, it is argued that this cannot be so, in the absence of evidence to support the same. This Court is not satisfied that such an argument is a correct reflection of what the Court said in that regard in DPP v Laide, supra. In that case, it was established that the gardaí had very specific instructions which were limited, in the sense that, on the evidence, the search was for the exclusive purpose of securing a piece of evidence, indeed a very particular piece of evidence, and no other, and no evidence existed that there was a dual purpose intended or envisaged. It was held that, that being so, the presence of the gardaí on the premises in question in such limited circumstances, could not give rise to a lawful arrest. The position in the present case is quite different, in that, having regard to the admissions and concessions made in the course of the trial, there was, in fact, no need or requirement for the prosecution to adduce any evidence on the application for the arrest warrant, on the arrest warrant itself, on its execution, or on the actual arrest of the Applicant, other than in respect of those matters challenged by the Applicant. In that regard, it is clear from the earlier part of this judgment, that the challenge to the search and to the admissibility of the admissions found to have been made by the Applicant were based on legal grounds different altogether to those now sought to be relied upon. As is also evident from the transcript, including those parts cited above, certain witnesses whose names had appeared in the book of evidence, and who would or could have been called in relation to the execution of the warrant, or as to the presence of the gardaí on the premises, were not in fact required to be called, in light of the concessions and admissions made. As a result it was not necessary to adduce evidence as to whether the intent of the gardaí when going to the property in question was to search and arrest, or to search exclusively for certain items only and not to arrest. Here, for reasons which flow from the reality of the trial itself, there was no necessity for evidence which, in other circumstances, might or might not have supported the Applicant’s reliance on the decision of this Court in DPP v Laide, supra., even assuming the Applicant’s argument on the latter judgment to be correct. It is speculative indeed to suggest, in the absence of such evidence, that the sole and exclusive reason for the search was to find specific materials or property only, and that there was no intention also to arrest the Applicant when he was in fact arrested. Indeed the tenor of the evidence, according to the transcript, would appear to suggest the contrary. In the foregoing circumstances, the Court is of the view that there are no grounds established upon which it would be appropriate or proper to permit the Applicant to raise these new matters, which were never raised in the course of the trial and therefore never became an issue in the trial, as part of any appeal. A suggestion was made by counsel on behalf of the Applicant in the course of the oral exchanges in Court, that if the Court were mindful to reject this application, it should adjourn the matter to permit the original legal team to be reinstated and appear for the Applicant and to respond to any questions which the Court might have on the reasons for not raising these issues as part of a defence. It does not appear to the Court that this is an appropriate approach to adopt at this time, the Applicant having already engaged an entire new legal team of both solicitor and counsel, some time ago. Such an approach would be tantamount to an investigation by the Court of the particular line of defence adopted by a party in the course of a trial, in consultation with his defence team, a matter which – absent complaint on the part of a party that his instructions were not followed – does not commend itself to this court, and would be contrary to the line of jurisprudence cited in the first part of this judgment. In light of the foregoing findings, the application for leave to add the additional grounds mentioned in the Notice of Motion dated the 3rd June 2005 is refused. | ||||||||||