IESC 64 · Supreme Court

THE SUPREME COURT

Record No. 353/01

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924

and

IN THE MATTER OF AN APPEAL AGAINST SEVERITY OF SENTENCE TO THE COURT OF CRIMINAL APPEAL

BETWEEN/

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

and

FRANCIS CUNNINGHAM

Applicant/Appellant

Judgment delivered on the 8th day of October, 2002 by Denham J.

1. Issue

At issue in this case is an aspect of the jurisdiction of the Court of Criminal Appeal. The Court of Criminal Appeal is a superior

court of record. It is a significant court. The Court of Criminal Appeal is the ultimate court of appeal for the majority of criminal

cases heard by the Circuit Criminal Court and the Central Criminal Court. In a few cases, such as this, a point of law of

exceptional public importance may be certified by the Court of Criminal Appeal to be determined by the Supreme Court.

2. Appeal

This an appeal by Francis Cunningham, the applicant/appellant, hereinafter referred to as the applicant, against a judgment and

order of the Court of Criminal Appeal made on the 25th July, 2001. The Court of Criminal Appeal refused the application of the

applicant for leave to appeal against sentence. Also refused by the Court of Criminal Appeal was a preliminary application by

counsel for the applicant for leave to adduce evidence in relation to mitigation of sentence as to certain events which had

occurred since the date of sentencing. On the 14th December, 2001 the Court of Criminal Appeal certified, pursuant to s.29 of

the Courts of Justice Act, 1924, that its decision, in refusing the applicant leave to adduce the evidence in relation to

mitigation of sentence concerning events which had occurred since the date of sentencing, involved a point of law of

exceptional public importance.

3. Facts

The facts as to the applicant’s conviction are not in dispute. The applicant pleaded guilty on the 8th December, 1999 to a

count of forgery contrary to s.2 of the Forgery Act, 1913. He forged a valuable security, a bank-draft, in the amount of

£45,000. The Circuit Criminal Court imposed a sentence of 5 years imprisonment. The applicant sought leave to appeal from the

Court of Criminal Appeal. During the course of the application counsel for the applicant asked the court to receive and consider

ad misericordiam a number of documents described as testimonials or certificates which had come into being since the

imposition of the sentence of five years on the applicant on the 8th December, 1999. Having considered the matter the Court of

Criminal Appeal refused leave for such material to be put before it. The court ruled that it was confined to a consideration of

the correctness of the sentence imposed by the Circuit Criminal Court, which could only be reviewed by reference to the

position which prevailed as of the date when it was imposed and this necessarily ruled out of consideration any of the material

proffered. Having then heard submissions from counsel on behalf of the applicant the court did not alter the sentence of five

years that had been imposed in the Circuit Criminal Court.

4. Point of law of exceptional public importance

The question of law of exceptional public importance is whether the Court of Criminal Appeal in considering an application for

leave to appeal against sentence is restricted to a consideration of the state of affairs which prevailed at the date of the

imposition of the sentence or whether it may consider evidence relating to the subsequent behaviour of the applicant and thus

receive material of the type proffered. The point of law of exceptional public importance certified by the Court of Criminal

Appeal for the Supreme Court is:

“Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a

sentence imposed by a court of trial, is it strictly limited to considering the state of facts existing at the date when the

sentence was imposed or may it receive evidence [in] relation to events or facts subsequently occurring relating to the

behaviour of the applicant, his state of health or otherwise which might be relevant if the court were itself deciding on

the correct sentence?”

5. Statutory Law

The Court of Criminal Appeal was established under s.3 of the Courts (Establishment and Constitution) Act, 1961. Section 12 of

the Courts (Supplemental Provisions) Act, 1961 provides:

“12.(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and subject

to the enactments applied by s.48 of this Act, have full power to determine any questions necessary to be determined for

the purpose of doing justice in the case before it.

(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied

by s.48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing

Court of Criminal Appeal.

. . .”

Section 48 of the Courts (Supplemental Provisions) Act, 1961 provides that any enactment contained in the Courts of Justice

Acts, 1924 to 1961 shall apply to the courts established under the Courts (Establishment and Constitution) Act, 1961, this

includes the Court of Criminal Appeal.

A person convicted on indictment in the Circuit Criminal Court has a right of appeal to the Court of Criminal Appeal: s.31 and

s.63 of the Courts of Justice Act, 1924. Section 63 of the Courts of Justice Act, 1924 states:

“63. An appeal shall lie from the Circuit Court in all cases tried on indictment to the Court of Criminal Appeal . . .”

The grounds for leave to appeal were set out in s.32 of the Courts of Justice Act, 1924 which provided:

“Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of

law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be

any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit,

including an order admitting the appellant to bail pending the determination of his appeal.”

This has been amended insofar as it relates to consequential orders, which amendment is not relevant to this case.

Section 33 of the Courts of Justice Act, 1924 has been replaced by s.7 of the Criminal Justice (Miscellaneous Provisions) Act,

1997 which provides:

“7. The Act of 1924 is hereby amended by the substitution of the following section for s.33:

"33. (1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the

Court of Criminal Appeal ('the court') on—

( a ) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom

the case was tried, and

( b ) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this

subsection does not reflect what took place during the trial, a report by him as to the defects which he

considers such record or transcript, as the case may be, contains,

with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.”

The jurisdiction of the Court of Criminal Appeal was described in s. 34 of the Courts of Justice Act, 1924. It provided:

“34. The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to

remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order

as to costs as may be necessary for the purpose of doing justice in the case before the court.”

This section has been appealed by the Criminal Procedure Act, 1993. Section 3 of the Criminal Procedure Act, 1993 replaces s.

34 of the Courts of Justice Act, 1924, and provides:

“3. . . .

(2) On the hearing of an appeal against sentence for an offence the Court may quash the sentence and in place of it

impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been

imposed on the convicted person for the offence at the court of trial.

(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a

conviction or sentence may—

(a) where the appeal is based on new or additional evidence, direct the Commissioner of the Garda Síochána to

have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining

whether further evidence ought to be adduced;

(b) order the production of any document, exhibit or other thing connected with the proceedings;

(c) order any person who would have been a compellable witness in the proceedings from which the appeal lies to

attend for examination and be examined before the Court, whether or not he was called in those proceedings;

(d) receive the evidence, if tendered, of any witness;

( e ) generally make such order as may be necessary for the purpose of doing justice in the case before the Court.

(4) For the purposes of this section, the Court may order the examination of any witness whose attendance might be

required under this section to be conducted, in a manner provided by rules of court, before any judge or officer of the

Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as

evidence before the Court.”

The Court of Criminal Appeal is a creature of statute. In The State (P. Woods) v. Attorney General [1969] I.R. 385 the

jurisdiction of the Court of Criminal Appeal was considered. The undisputed facts in that case were that the prosecutor had

given notice of abandonment of his appeal to the Court of Criminal Appeal. Counsel on behalf of the prosecutor submitted to the

Court of Criminal Appeal that as a notice of abandonment had been served by the prosecutor there was no appeal before the

Court of Criminal Appeal. Counsel for the Attorney General disputed the matter and asked the Court of Criminal Appeal to

substitute a different sentence. The Court of Criminal Appeal ruled that notwithstanding the service of the notice of

abandonment of the appeal it had seisin of the appeal and jurisdiction to vary the sentence. The Court of Criminal Appeal then

substituted a new sentence. The prosecutor in habeas corpus proceedings challenged the jurisdiction of the Court of Criminal

Appeal to vary the sentence after service of notice of abandonment of appeal. The High Court (Henchy J.) held that the Court

of Criminal Appeal had no jurisdiction to make the order which it did. On appeal Ó’Dálaigh C.J. stated at p.409 the often quoted

words:

“The Court of Criminal Appeal is the creature of statute and it is a court of limited jurisdiction.”

He analysed relevant statutes, being the Courts (Establishment and Constitution) Act, 1961 and the Courts (Supplemental

Provisions) Act, 1961. He referred specifically to s. 12(1) of the Courts (Supplemental Provisions) Act, 1961 which made the

Court of Criminal Appeal a superior court of record and provided that it shall have full power for the purposes of that Act and of

the enactments which are applied by s.48 of that Act to determine any questions necessary to be determined for the purpose

of doing justice in the case before it. He referred to the statutory sections providing for appeal to the Court of Criminal Appeal.

Ó’Dálaigh C.J. then held at p. 410 to 412:

“The prosecutor’s case fell under paragraph (ii) of s. 31; and it may be emphasised that the powers conferred on the

Court of Criminal Appeal by s. 34 of the Act of 1924 are exercisable in respect of ‘the case before the court’. The position

would, doubtless, be the same even if this express provision were absent. S.36 of the Act of 1924 left the question of

pleading, practice and procedure generally in all criminal cases before the Court of Criminal Appeal to be determined by

rules of court, and s. 14 of the Courts (Supplemental Provisions) Act, 1961, repeated this provision. The current rules are

to be found in Order 86 of the Rules of the Superior Courts, 1962, and the provision for abandonment of appeal, which is

contained in r. 24 is as follows:- …

In terms an appellant is authorised by the rule to abandon his appeal by giving notice thereof in the appropriate form . . .

The rule of court (r. 24) taken by itself is quite clear: it is an authority to an appellant to abandon his appeal. To do so all

he is required to do is to give notice on the prescribed form to the registrar. The form indicates that the abandonment is

effective from the date of the notice:- ‘. . . I hereby abandon all further proceedings in regard thereto as from the date

hereof.’ The rule requires that notice be given in the prescribed form, i.e. to the registrar of the Court of Criminal Appeal,

and, on receipt by the registrar of the notice, the appeal is abandoned with effect as from the date it bears. The Act

authorises a person to appeal against a refusal to grant him leave to appeal; and the rule authorises him to abandon his

appeal by giving notice of abandonment to the registrar of the Court of Criminal Appeal with effect, on receipt of the

notice of abandonment by the registrar, retrospectively to the date of the notice. In the face of this very clear provision

I cannot see how any ground in law can be found for the view that the Court of Criminal Appeal retained seisin of the

prosecutor's appeal. . . As was well said by Mr. Justice Henchy in the course of his judgment: ‘The jurisdiction of the

Court of Criminal Appeal . . . is confined to cases in which the convicted person invokes the jurisdiction of that court.’

I conclude, with Mr. Justice Henchy, that the Court of Criminal Appeal had no application for leave to appeal before it

when it sat on the 13th and 14th March, 1968, and that its order on the latter date purporting to vary the sentence

imposed by Mr. Justice Butler was a nullity.”

It is quite clear that in the above seminal case the Chief Justice held that the Court of Criminal Appeal was a creature of

statute and its powers are to be found in the statutes. As there was express power enabling an abandonment of an appeal

which had been invoked correctly the Court of Criminal Appeal had no jurisdiction to hear the abandoned appeal. The powers of

the Court of Criminal Appeal are limited to those given by statute and as statute enabled abandonment of an appeal, which had

been done, then the court had no jurisdiction.

The concept of limited jurisdiction is used to describe the fact that the jurisdiction of the Court of Criminal Appeal is limited to

that set out in statutes, that the jurisdiction is derived solely from statutes, in contrast, for example, to the inherent

jurisdiction of the Supreme Court.

In The People (Attorney General) v. Cronin [1972] I.R. 159 the Supreme Court held that the provisions of Order 86, r.8 were

ultra vires the rule making authority insofar as that rule purported to confer on the Court of Criminal Appeal jurisdiction to make

an order extending the period allowed for applying to the Central Criminal Court (or High Court) for a certificate pursuant to s.

31 of the Courts of Justice Act, 1924; and that the provisions of s. 12 of the Courts (Supplemental Provisions) Act, 1961 did

not confer such jurisdiction. Ó’Dálaigh C.J. stated, at p. 166:

“The Court of Criminal Appeal is a statutory court. Its jurisdiction is spelled out in s. 12 of the Courts (Supplemental

Provisions) Act, 1961, which replaces s. 30 of the Act of 1924 and, in effect, carries over that Court’s previous powers. .

. .”

Thus the statutory basis of the Court of Criminal Appeal was emphasised. Power or jurisdiction for the Court of Criminal Appeal

decisions has to be found in statute law. To determine the jurisdiction of the Court of Criminal Appeal it is necessary to consider

the relevant statutes.

Irish case law has provided that the Court of Criminal Appeal would overturn a sentence given by a trial court if it erred in

principle. This reflected the law in England in the early part of the twentieth century. In Sidlow (1908) 1 Cr. App. R. 28 it is

reported at p.29 that:

“The Lord Chief Justice said the question of sentence was by no means free from difficulty, but the Court would not

interfere with a sentence unless it was apparent that the judge at the trial had proceeded upon wrong principles, or given

undue weight to some of the facts proved in evidence. It was not possible to allow appeals because individual members of

the Court might have inflicted a different sentence, more or less severe. There was, in this case, evidence of one or more

substantial pieces of metal being taken by the appellant, who could not possibly have thought he had a right to take

them. The judge evidently thought the offence was not an isolated act. It could not be said that he had proceeded either

on a wrong view of the facts or on a wrong application of the law to the facts. Having regard to all the circumstances in

this case, the sentence would run from the date of the conviction.”

However, in the most recent edition of Archbold, Criminal Pleading, Evidence and Practice (2002) it is indicated that this strict

approach is not now always taken in England and Wales. The statutory basis for the law on sentencing has altered in England

and Wales. However, given the root of the analysis of much of Irish case law on sentencing it remains of interest. Archbold

[2002] states at para. 7 - 140:

“The Court of Appeal is entitled to have regard to material which was not available at the time sentence was passed and

also to have regard to what has happened since sentence was passed. Whereas the CAA [Criminal Appeal Act] 1907

provided for the quashing of a sentence where it was thought that a different sentence should ‘have been’ passed, s.11

of the 1968 Act . . . provides for a sentence to be quashed where the Court of Appeal considers that the appellant

‘should be’ sentenced differently. As to the power of the Court of Appeal to consider fresh evidence? . . . It is impossible

to be precise about the circumstances in which the Court of Appeal will have regard to fresh material or to events

occurring subsequent to the passing of sentence. However, cases occur in which the Court of Appeal says that, having

regard to a certain report, usually a prison governor’s report, the court now feels able to take a lenient course, e.g. R v

Plows, 5 Cr. App. R. (S.) 20, and R. v. Thomas [1983] Crim. L.R. 493, where the court said of a sentence of nine months

imprisonment that it was neither wrong in principle nor excessive in length, but because of the impact of the sentence on

the appellant, and as an act of mercy it could be reduced so as to permit immediate release.

In R. v. Waddingham, 5 Cr. App. R. (S.) 66, the Court of Appeal took a more traditional view of its role, refusing to have regard

to the conduct of the appellant in prison: this was a matter for the parole authority. The sentence being neither wrong in

principle nor manifestly excessive the court would not interfere.

In R. v. Ashraf, 13 Cr. App. R. (S.) 451, the Court of Appeal said that if it is contended on an appellant’s behalf that he has

provided help to the authorities, it is imperative that the court is supplied with clear details of that assistance. This could be

done either by providing the court with a transcript of the proceedings at the Crown Court disclosing exactly what had been put

before the judge or by a letter or statement from the prosecuting authority or the police.”

7. Doing Justice in the Case

The legislation in Ireland makes specific reference to the jurisdiction of the Court of Criminal Appeal to do justice in the case

before it. I described this jurisdiction of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v M.S.

[2000] 2 I.R. 592 at p. 600:

“Thus, the fundamental principle underlying the Act of 1924 on the Court of Criminal Appeal is that it has the power and

jurisdiction to do justice in the case before it. This Court of Criminal Appeal was established under the Courts

(Supplemental Provisions) Act, 1961. Section 12 of that Act of 1961 provides, inter alia:

‘(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and

subject to the enactments applied by s.48 of this Act, have full power to determine any questions necessary to be

determined for the purpose of doing justice in the case before it.

(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is

applied by s.48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by

the existing Court of Criminal Appeal.’

The Courts of Justice Act, 1924, is an enactment applied by s.48 of this Act of 1961. Consequently, the jurisdiction

described, including the requirement to do justice in a case before the court, remains the position.”

There is an express statutory jurisdiction in the court of doing justice in the case. While the Court of Criminal Appeal is a court

created by statute it has been an express and constant theme of the legislation that power is given to the Court of Criminal

Appeal to determine questions for the purpose of doing justice in the case before the court.

8. Practice

It has been the practice of the Court of Criminal Appeal in certain circumstances to accept evidence of matters which occurred

after the sentencing order. This is a practical application of the concept of doing justice in the case. In The People (Director of

Public Prosecutions) v M.S. [2000] 2 I.R. 592 a previously constituted Court of Criminal Appeal had ordered the up to date

reports which were in issue when the case came back before a differently constituted Court of Criminal Appeal which applied

the reports and determined the matter. In The People (Director of Public Prosecutions) v. O’Halloran (Unreported, Court of

Criminal Appeal, 15th February, 1999) the court considered reports relating to the applicant’s attempts to rehabilitate himself in

prison. The court was satisfied that the sentence was correct in principle yet considered the reports and reduced the

sentence. In The People (Director of Public Prosecutions) v Jethi and Singh (Unreported, Court of Criminal Appeal, 7th February,

2000) the Court of Criminal Appeal stated that it could not be said that the trial judge had erred in principle in imposing the

sentence. Particular hardship in the family was referred to. Barrington J. gave the judgment of the Court of Criminal Appeal

stating at p. 6 of the judgment:

“In all the circumstances this Court feels that while it cannot interfere with the sentences imposed by the trial Judge,

that to meet the justice and the humanity of the case it should suspend the balance of the sentence in each case,

conditional upon the applicants entering into a bond to keep the peace with all the people of Ireland during the balance of

their sentence, the bond to be in the sum of £1,000.”

8. Form of Appeal

The Court of Criminal Appeal is an appellate court. It is the ultimate court of appeal for most serious criminal trials. It is not an

appellate court which retries the defendant. It does not hold a rehearing. It is an appeal based on the transcript of the trial

court together with such matters as are permitted under the legislation. As the appeal it is not a full rehearing the rights of the

applicant are already constricted and so the statutes should not be interpreted so as to further limit the right of the applicant

to an appeal. There are penal consequences for an applicant and the statutes should be construed accordingly.

9. Principle

There is no principle excluding the taking of evidence in the Court of Criminal Appeal. Legislation provides for the taking of

evidence in the Court of Criminal Appeal in certain circumstances.

The Court of Criminal Appeal may hear evidence as to the appropriate sentence on an appeal by the Director of Public

Prosecutions if it has determined that the trial court was unduly lenient. See s. 2 of the Criminal Justice Act, 1993 which was

considered in D.P.P. c Byrne [1995] 1 I.L.R.M. 279, especially O’Flaherty J. at p. 287. If the court determines that the sentence

is unduly lenient and quashes the sentence and in its place imposes a sentence such as it considers appropriate, it must be a

‘sentence which could have been imposed on him by the sentencing court concerned’; (as per s.2(3)(a) of the Criminal Justice

Act, 1993). The appropriate sentence means appropriate in accordance with the circumstances at the time the matter is before

the Court of Criminal Appeal. This law was reviewed and described in Director of Public Prosecutions v. Egan 2 I.L.R.M. 299

Hardiman J., giving the judgment of the court, stated at p. 307, having reviewed Griffiths v. The Queen (1977) 137 CLR 293,

The People (Director of Public Prosecutions) v. Thomas McCormack CCA [2000] 4 I.R. 356 Director of Public Prosecutions v.

Byrne [1995] 1 ILRM 279,

“Moreover, if the court makes a finding of undue leniency it may substitute the sentence it considers appropriate. In that

context, the word “appropriate” means appropriate to the circumstances pertaining at the time the application for review

is heard. This emerges clearly from a number of the cases cited below. Changes in the circumstances of the defendant or

other persons involved may be relevant as may the fact that there has been a period of uncertainty or the fact that the

defendant has already been released from prison. The extent of the difference between the sentence imposed and that

found appropriate on review will also be a relevant factor. The foregoing is not intended to be an exhaustive statement of

the new factors the court may be called upon to consider.”

Equally, the Court of Criminal Appeal may hear evidence as to the appropriate sentence in the case of an appeal by a convicted

person, if the court has determined that the sentence was in error because of, for example, its severity.

I am satisfied that in addition the Court of Criminal Appeal may hear evidence of facts occurring after sentence by a trial court

even if there has been no error in principle, in exceptional cases, for the purpose of doing justice in the case.

10. Justice

The Court of Criminal Appeal is not a court established by the Constitution. It has not been submitted that it has an inherent

jurisdiction under the Constitution. However, there is a specific statutory mandate “to do justice in the case.” The words “to do

justice in the case” are at the root of the jurisdiction of the Court of Criminal Appeal.

It is for the court to determine what constitutes justice in the case before it. That issue is not a matter for another institution

of State. “Justice” is defined in Murdoch’s Dictionary of Irish Law (3rd ed. 2000) at p. 447 as:

“The impartial resolution of disputes, the upholding of rights, and the punishment of wrongs, by the law. Justice is

required to be administered in courts established by law by judges appointed in the manner provided in the Constitution:

1937 Constitution, art. 34(1).”

The Court of Criminal Appeal does not exercise the prerogative of mercy. It is no more a court of mercy than it is a court of

vengeance. Mercy is a power of the executive. Under the Constitution the concept of mercy is specifically a power of the

executive. The Constitution provides in Article 13.6:

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction

are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be

conferred by law on other authorities.”

The concepts of mercy and justice are different. Mercy, as defined in the New Shorter Oxford English Dictionary, means:

“Forbearance and compassion shown to a powerless person, especially an offender, or to one with no claim to receive

kindness; kind and compassionate treatment in a case where severity is merited or expected . . .”

Sentencing includes the concept of justice. The Court of Criminal Appeal is a court of justice. When considering all the facts of

a case with a view to determining a just sentence some factors in the concept of justice applied by the courts may be common

to the issue of mercy which may be exercised by the executive. However, they are not the same concepts. The mere fact that

some factors may overlap does not exclude an arm of government from making its appropriate decision. Thus, under the

separation of powers, the executive and its bodies exercise the prerogative of mercy. The courts, make the judicial decision of

sentencing, decide in accordance with justice. In a particular case the circumstances as a whole are finite. Within that body of

circumstances some factors may fall to be considered by the judicial branch of government as part of the sentencing process,

within a further wide body of factors relevant only to the penal process. When the executive comes to consider its executive

powers of mercy, it will also consider the circumstances of the case. Some of these circumstances may overlap the concept of

justice. However, the executive branch will also consider factors not relevant to a judicial determination. The mere overlap of

some factors in each decision making process does not exclude the other process. The jurisdiction of the Court of Criminal

Appeal contains the specific statutory jurisdiction of doing justice in the case before it. This is not the prerogative of mercy.

11. Decision

Bearing in mind the matters set out above I have reached the following decision in this case. Under statute law the jurisdiction

of the Court of Criminal Appeal is to determine any questions necessary to be determined for the purpose of doing justice in the

case. A scheme is set out in the legislation. While the Act of 1924 provides for a dual system, that is an application for leave to

appeal followed by an appeal, in general the Court of Criminal Appeal hears these two applications together. Thus an application

for leave to appeal is treated as the hearing of the appeal and both applications proceed in conjunction.

However, while this approach is good case management such management should not blur the jurisdiction of the court. The

grounds for the application for leave to appeal set out in s. 32 of the Courts of Justice Act, 1924 are just that, the grounds for

the application. It is couched in broad terms and gives a wide discretion to the court, providing for an appeal where “there

appears to the court to be any other sufficient ground of appeal”. Further, this must be considered for the purpose of doing

justice in the case.

In general an appeal is heard on the evidence before the trial court. However, there is no reason in principle why the Court of

Criminal Appeal should not hear additional evidence. The Court of Criminal Appeal may hear evidence as to the appropriate

sentence on an appeal by the Director of Public Prosecutions if it has determined that the sentence was unduly lenient. The

Court of Criminal Appeal may hear evidence as to the appropriate sentence on an appeal by a convicted person if it has

determined that there was an error in principle. In addition, the Court of Criminal Appeal clearly has jurisdiction to allow,

consider and apply additional evidence as to events occurring after sentence, in exceptional cases so as to do justice in the

case.

By their very nature exceptional cases defy definitive definition. A useful analogy may be seen in the law of the Australian State

of Victoria. In that jurisdiction additional evidence may be admitted where it throws a different light on circumstances which

existed at the time of sentence. This is most readily illustrated by reference to medical evidence. In R. v Babic [1998] 2 V.R.

79, the issue of whether additional evidence should be looked at by the appellate court arose. The evidence related to a back

injury which occurred in prison after the sentence. The court refused to admit the additional evidence. I would agree with this

decision. The judgment of the court was given by Brooking J.A., who stated:

“The present case does not concern evidence of events occurring prior to sentence, as to which it has been held by

courts of criminal appeal that, even though the new evidence is not fresh evidence, it may be received on appeal in order

to avoid a miscarriage of justice . . . The present case concerns evidence of events after sentence. Evidence of an event

occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis

being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received

because it is not admissible. The suggestion that some subsequent event has made a sentence, appropriate when

passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an

appellate court: R v Munday (1981) 2 NSWLR 177 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257 per Hunt and

Badgery-Parker, JJ; R v Many (1990) 51 A Crim R 54 at 61-2; R v Maslen & Shaw (1995) 79 A Crim R 199 at 206-7. So it

was laid down in B v Dorning (1981) 27 SASR 481 that evidence of a prisoner’s marked psychological reaction to

imprisonment cannot be used to show that the sentence is manifestly excessive, the significance of that event occurring

after sentence being a matter for the Executive, not the appellate court. See further R v O’Shea (1982) 31 SASR 129 and

R v Smith (1987) 44 SASR 587.

These authorities recognise, as did two early decision of the Court of Criminal Appeal in England (R v Green 13 CAR 200 and R v

Ferrua 14 CAR 39) that where it is sought to establish that the sentence was excessive evidence of events occurring after

sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events

may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which

existed at the time of sentence. So in Ferrua evidence from a warder of what had taken place after sentence showed how

infirm the prisoner had already been at the time of sentence and in Smith the fresh evidence showed the extent and

implications of the AIDS condition from which the appellant was already suffering at the time of sentence. A similar case is R v

Bailey (1988) 35 A Crim R 458.

The decision most often cited in Victoria on the reception of evidence of events occurring after sentence in support of an

application for leave to appeal is that of the Court of Criminal Appeal in R v Eliasen (1991) 53 A Crim R 391. That too was a case

of AIDS, where the applicant was sentenced before the results of testing for AIDS were known and after sentence those results

showed that at the time of sentence he was suffering from the disease. Crockett, J, speaking in effect for the Court, endorsed

the view taken by the Court of Criminal Appeal of South Australia in Smith that when a sentence is attacked as excessive it is

permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of facts which

were in existence at the time of sentence. Crockett, J went on to endorse also the view taken in Smith that generally speaking

ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the

offender by reason of his state of health or when there is a serious risk that imprisonment will have a gravely adverse effect on

the offender’s health.”

Applying the law to the facts of the case Brooking J.A. held:

“In the present case the applicant does not say that he suffered from a bad back at the time of sentence and that the

severity of that condition has been revealed only by subsequent events. Mr. Tehan has accepted that at the time of the

prison incident the applicant was obviously a fit and healthy man tending garden beds. The applicant relies on an accident

or incident which occurred about two months after sentence, which (he says) caused a disc injury as a result of which

prison will be a great burden upon him. This is an attempt to rely on an event after sentence as in itself showing that the

sentence has turned out to be excessive. This Court cannot (on the basis that the point is one of admissibility, not one of

practice in relation to the exercise of discretion) receive evidence of subsequent events sought to be led for this purpose.

The affidavits should not be received in evidence and in consequence the application should be dismissed.”

This test has been applied in other cases. In R. v W.E.F. [1998] 2 V.R. 385 the Supreme Court of Victoria permitted additional

evidence to be admitted because it cast light on the medical condition the applicant had at the time of his sentencing. Winneke

P. stated:

“The circumstances in which this court will entertain new evidence relating to events which are alleged to have

supervened after sentence are rare and exceptional. In normal circumstances, if it is suggested that subsequent events

have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the

consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The

authorities for this proposition have been collected and explained by this court recently in the case of R. v Babic [1998] 2

V.R. 79, per Brooking J.A. at 80-1.

However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive

evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so

much per se, but because they throw a different light on circumstances which existed at the time of sentence.”

Winneke P. found that the exception to the general rule had been satisfied. He held:

“Despite Mr. Ryan’s submission to the contrary, the evidence which we have now admitted does throw a new light, I

think, on the facts relating to the applicant’s state of health at the time of sentence and does demonstrate a significance

in those facts which was not, and could not have been, apparent to the learned sentencing judge whose sentencing

discretion was appropriate to the facts as they appeared at the time of sentence. Although his Honour was aware that

the applicant was in a state of ill health and was a diabetic, it was only after sentence that it became apparent that the

underlying condition was more acute and less stable than the circumstances at the time of sentence suggested. Since

that time symptoms of renal disease have emerged, making more likely eventual myocardial infarction or cerebral episode.

This in turn has enabled a prognosis of limited life-span to be given.”

I find this paragraph (as to the exception to the general rule) persuasive, and, I would adopt the reasoning. I am satisfied that

evidence may be heard as to events occurring after sentence for the light they throw on the circumstances which existed at

the time of sentencing. This would arise in exceptional cases.

Irish statute law itself has provided the basis to include the exceptional case. The statute provides for such order as may be

necessary “for the purpose of doing justice in the case”. Thus the general rule may be altered in the exceptional case where it

is required for the purpose of doing justice in the case. The general rule that additional evidence (that is evidence additional to

that before the sentencing judge and relating to events which are alleged to have occurred after sentence) may not be heard

in the Court of Criminal Appeal on appeal against a sentence, is varied in the exceptional case where such additional evidence is

necessary for the purpose of doing justice in the case.

The very nature of the concept of justice prohibits an inclusive list of exceptional circumstances. However, the illustration of

health matters given in R. v. W.E.F. [1998] 2 V.R. 385 is persuasive. Other circumstances which might give rise to such

exceptional circumstances as require additional evidence being admitted may arise in cases pertaining to defendants who are or

have been addicted and where an addiction (whether it be to drugs, alcohol, violence or otherwise) is relevant to sentencing.

This is consistent with the restorative nature of justice.

Exceptional circumstances do not include the routine rehabilitation of prisoners in prison. Exceptional circumstances do not

include evidence of good behaviour of a prisoner in prison, being in essence an ad misericordiam plea. Consequently the Court

of Criminal Appeal in this case was correct to refuse to consider the testimonials presented to establish the applicant’s good

behaviour in prison. I would uphold the decision of the Court of Criminal Appeal in refusing to admit the evidence. However, that

still leaves the remainder of the question of the Court of Criminal Appeal to be answered.

12. Conclusion

I would uphold the decision of the Court of Criminal Appeal not to admit the material, being testimonials etc. as to good

behaviour in prison and the rehabilitation of the applicant, as part of an ad misericordiam plea. The Court of Criminal Appeal

was correct to rule that it was confined to a consideration of the correctness of the sentence imposed by the Circuit Criminal

Court by reference to the position which prevailed as of the date when the sentence was imposed, which necessarily ruled out

of consideration the material proffered. However, the question asked by the Court of Criminal Appeal extends wider than the

facts of this case.

I would answer the question certified by the Court of Criminal Appeal as follows. In general the Court of Criminal Appeal hearing

an appeal against the severity of a sentence imposed by a court of trial is limited to considering the state of facts existing at

the date when the sentence was imposed. However, in exceptional cases, of which this is not one, for the purpose of doing

justice in the case, the Court of Criminal Appeal may receive evidence relating to events or facts subsequently occurring

relating to the behaviour of an applicant, his health or otherwise, which might be relevant if the court were itself deciding on

the correct sentence. The jurisdiction of the Court of Criminal Appeal extends to the consideration of such additional evidence

in exceptional cases for the purpose of doing justice in the case before it.