Court of Criminal Appeal refused certification for Supreme Court appeal on jury direction and common design issues.

COURT OF CRIMINAL APPEAL

APPEAL NO. 137/00

Denham J.

Kelly J.

Ó Caoimh J.

APPLICATION FOR CERTIFICATION

UNDER SECTION 29 OF THE

COURTS OF JUSTICE ACT, 1924

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

WILLIAM KENNY

APPLICANT

Judgment of the Court delivered on the 5th day of February, 2004 by Denham J.

1. This court delivered judgment on the 7th day of October, 2003 and dismissed the application of the applicant for leave to

appeal against his conviction.

2. On 8th day of October, 2003 notice of application for a certificate pursuant to section 29 of the Courts of Justice Act,

1924 was filed and served and this application was heard by the court on the 11th December, 2003.

3. The applicant has been remanded on continuing bail throughout these applications.

4. The jurisdiction for this application arises under section 29 of the Courts of Justice Act, 1924. It provides:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it

has power to determine shall be final, and no appeal shall lie from that court to the

Supreme Court, unless that court or the Attorney General shall certify that the decision

involves a point of law of exceptional public importance and that it is desirable in the public

interest that an appeal should be taken to the Supreme Court, in which case an appeal may

be brought to the Supreme Court, the decision of which shall be final and conclusive.”

5. Thus the question for the court is whether a decision of this court involves a point of law of exceptional public importance

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

6. The onus rests on the applicant to establish that a point of law of exceptional public importance is at issue and that it is

desirable in the public interest that an appeal be taken to the Supreme Court: People (Director of Public Prosecutions) v.

Littlejohn [1978] I.L.R.M. 147, 148.

7. In written submissions counsel for the applicant raised seven grounds of application. However, on presenting the

application orally to the court counsel limited the application to the first three grounds, which he identified as the strongest

grounds.

7(i) The first ground submitted by counsel for the applicant was: “Whether in all the circumstances the Learned Trial Judge

acted in breach of the Constitution and of the provisions of the Juries Act, 1976, during the empanelling of the jury, in

communicating with prospective jury members otherwise than in a manner audible in open court, by entering into individual

dialogue with certain prospective jury members who had approached the Learned Trial Judge following a general invitation

to do so?”

This must be seen in the context that the issue on the appeal against the conviction before this court was set out in ground

19 of the grounds of appeal; where it was submitted that the learned trial judge erred in law during the empanelling of the

jury, in communicating with prospective jury members otherwise than in a manner audible in open court, by entering into

individual dialogue with certain prospective jury members who had approached the Learned Trial Judge.

The judgment of this court considered a statutory enactment, s. 15(3) of the Juries Act, 1996 which states, inter alia, that

the judge “shall invite any person who knows that he is not qualified to serve or who is in doubt as to whether he is qualified

or who may have an interest in or connection with the case or the parties to communicate the fact to the judge (either orally

or otherwise as the judge may direct or authorise) if he is selected on the ballot.”

This court was satisfied that the section provides in plain language that a judge may invite panel members to communicate

with him either orally or otherwise as directed or authorised. The legislation gives a discretion to the court. The problems

which jurors may wish to convey to a judge in empanelling a jury are many, ranging from sensitive medical matters to

illiteracy. Counsel for the applicant submitted that there were no guidelines for the judge on this matter, and inferred that he

was seeking guidelines from the Supreme Court.

This court in its judgment delivered on 7th October, 2003 pointed out that the judge has a discretion under the legislation.

While justice should be administered in public there may need to be a balance achieved in relation to an individual juror so

that information may be communicated to the judge either orally or otherwise as the judge may direct or authorise. A variety

of difficulties and practical matters may arise in empanelling a jury. There is no doubt that the manner in which a jury is

empanelled is a matter of public importance and of public interest. However, the diversity of matters which may arise in

empanelling a jury was recognised by the legislature in the manner in which a discretion was given to the court – the

legislature did not establish a strictly regulated situation. The court has endorsed this approach in its determination and has

pointed out that the circumstances which may arise before an empanelling judge are many. It is a situation where a judge is

required to exercise discretion in a constitutional manner, which will depend on the circumstances of the case. In light of the

clear statutory provision this court is not satisfied that the applicant has raised any point of law of exceptional public

importance on which it is desirable in the public interest that an appeal be taken to the Supreme Court. Consequently, the

court will refuse the application on this ground.

7(ii) The second ground submitted by counsel for the applicant related to the treatment of hostile witnesses. In its judgment

this court set out the ruling and charge of the trial judge and held that the procedure adopted in the trial was in compliance

with The People (A.G.) v. Taylor [1974] I.R. 97. In the judgment of the court, on the facts and circumstances particular to

the case, this court upheld the trial judge’s determination. Counsel for the applicant submitted inter alia that there is a public

debate proceeding now on the treatment of hostile witnesses because of events in another case and submitted that the court

should permit the instant case to be appealed to the Supreme Court. However, the interest of the public is not to be equated

with public interest. Nor does the fact that a matter is of interest to the public mean that it is a point of law of exceptional

public importance. The court is not satisfied that there is any such point of law on the facts of the present case, and would

refuse the application on this ground.

7(iii) The third ground submitted by counsel for the applicant was “Whether it is lawful, proper or fair for a trial judge in a

criminal trial to direct a jury that a particular interpretation of or inference from facts is open to the jury in circumstances

where: (a) the prosecution has specifically conceded that there was no evidence to ground such an inference or

interpretation; (b) the Learned Trial Judge had directed verdicts of not guilty in respect of co-accused in the same trial inter

alia on the grounds that no such inference or interpretation could be drawn; and (c) the Learned Trial Judge had given no

notice to counsel for the applicant prior to counsel’s speech to the jury of the Learned Trial Judge’s intention to direct the

jury that a possible interpretation of the evidence was that a criminal common design had been entered into at the public

meeting prior to events which lead to the commission of offences by persons other than the applicant.” Counsel on behalf of

the applicant submitted that the consequence is that a trial judge is permitted to charge a jury without notice to the parties in

a manner inconsistent with the way in which the case has been run.

This is an entirely new issue in the case. The appeal before this court was on the basis of a submitted misdirection by the

learned trial judge. Counsel for the applicant submitted in the appeal that the charge as to the law on common design given

by the trial judge was a misdirection. On the facts of the case this court was satisfied that that application should be

dismissed. Counsel has now raised a wholly different question. In the application for leave to appeal this issue was not

argued before the court. The point of law the subject of a certificate under section 29 must be a point of law which was

argued before the Court of Criminal Appeal: Director of Public Prosecutions v. Higgins (Supreme Court, 22nd November,

1985 at p. 6); People (D.P.P.) v. Kelly, (Court of Criminal Appeal, 11th July, 1996). While this question illustrates a degree

of ingenuity by counsel it is not a point of law which arose before this court. Consequently, the court has no jurisdiction to

refer such question to the Supreme Court.

8. For the reasons given the court refuses the application for certification under section 29 of the Courts of Justice Act,

1929. As already noted, the applicant has been on bail during these applications and this matter will be addressed by the

court at the conclusion of this judgment.