Supreme Court dismisses appeal against sentence when certificate of exceptional public importance relates only to conviction.

THE SUPREME COURT

No. 154/04

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

Macken J.

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

Respondents

v

JOHN GILLIGAN

Applicant/Appellant

JUDGMENT of MR JUSTICE FENNELLY delivered on the 10th day of July, 2006.

1. The Appellant was convicted on 15th March 2001 by the Special Criminal Court on six counts of possession of a controlled drug,

namely cannabis, for the purpose of sale and supply contrary to section 15 of the Misuse of Drugs Act, 1977 and five counts of

unlawful importation of a controlled drug, namely cannabis contrary to sections 21 and 17 of the same Act. That Court sentenced him

to terms of imprisonment of twenty eight years imprisonment in respect of each count of sale and supply, to run concurrently, and

twelve years imprisonment in relation to each count concerning importation, also to run concurrently.

2. The Appellant appealed to the Court of Criminal Appeal against both his conviction and the prison sentences imposed. That court,

in a judgment delivered on 8th August 2003, dismissed the appeal against conviction. In a later judgment delivered on 12th November

2003, the Court of Criminal Appeal reduced the terms of twenty eight years imprisonment to twenty years, but affirmed the other

sentences.

3. On the application of the Appellant, the Court of Criminal Appeal certified, pursuant to section 29 of The Courts of Justice Act 1924

(hereinafter “the 1924 Act”) that its decision of 8th August 2003, refusing leave to appeal against conviction involved points of law of

exceptional public importance and that it was desirable, in the public interest, that an appeal be brought to the Supreme Court. The

points of law certified were:

(i) In what circumstances and to what extent is evidence which may have been obtained from witnesses under a state Witness

Protection Programme inadmissible and/or inconsistent with trial in due course of law as guaranteed by Article 38.1 of the

Constitution?

(ii) Is corroboration in the sense described in R v Baskerville [1916] 2KB 658 required in respect of the testimony of accomplice

witnesses who have participated in a state Witness Protection Programme? If not what is the appropriate test in relation to

such witnesses?

4. There was no certificate regarding the sentences imposed on the Appellant. The Appellant, in his notice of appeal to this court,

relied not only on the certified grounds, but, as stated by Denham J, in her judgment of 23rd November 2005, but “a full set of

grounds of appeal was lodged with this Court, comprising the same grounds of appeal as were argued before the Court of Criminal

Appeal.”

5. This Court heard the appeal of the Appellant against his conviction. In a judgment, Denham J, with which all member of the Court

agreed, dismissed the appeal against conviction.

6. The Appellant informed the Court of his intention to pursue his appeal against the severity of his sentence. The Court invited the

parties to make submissions concerning its jurisdiction to entertain the appeal against sentence.

7. The Appellant was represented at the hearing of the appeal by Mr James Lewis Q.C., who relied, in the first instance on Article 34,

s.4, ss. 3 of the Constitution. He also submitted that the construction of section 29 of the 1924 Act is flexible and denotes no

limitation on the scope of the appeal. He relied on the decision of this Court, particularly the judgment of Walsh J, in People (Attorney

General) v Giles [1974] I.R. 422. That case shows, he argued, that an appellant may advance grounds of appeal against conviction

where the certified question relates to sentence and vice versa. Mr Lewis accepted at the hearing that the judgment of Walsh J in

Giles is strictly speaking obiter. He submitted, further that this Court should not have its jurisdiction limited by a lower court. In

particular, it would have to have power to rectify a patent error or to put right an injustice.

8. Mr Peter Charleton, Senior Counsel, for the Respondent said that the Director of Public Prosecutions had no position on the

interpretation of section 29. He submitted, nonetheless, that the judgment of Walsh J was obiter and that it should not be followed.

9. A question concerning the jurisdiction of the Court and is a matter which it is appropriate that the Court raise of its own motion.

10. Although the Appellant relies on the provisions of the Constitution in relation to appeals to this Court, they do not appear to me

to be relevant. Article 34, s.4, ss. 3 of the Constitution provides:

"The Supreme Court shall, with such exceptions and subject to such regulations as may prescribed by law, have appellate

jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as

may be prescribed by law."

11. Since the High Court was concerned neither with the trial and conviction of the Appellant nor with the determination of his

appeal, the first part of that provision has no application. The second part of the provision leaves it to the legislature to prescribe any

appellate jurisdiction of this court. The Oireachtas has provided for an appeal from all decisions of the Special Criminal Court. It has

designated the Court of Criminal Appeal as the appeal court and has provided for a limited right of appeal to this court. I cannot

discern any constitutional issue relevant to the Appellant’s right of appeal. He has had a full appeal to the Court of Criminal Appeal

and, so far as his conviction is concerned, a full appeal to this Court.

12. The concrete question which arises is whether the Appellant can circumvent the statutorily declared finality of the determination

of the Court of Criminal Appeal regarding his sentence, by relying on the points certified by that court, which relate entirely to the

validity of his conviction.

13. I will consider section 29 of the 1924 Act and the other statutory provisions governing the Court of Criminal Appeal. I will also

consider the well-known decision of this Court in the Giles case.

14. Section 29 of the 1924 Act is as follows:

“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.”

15. The Court of Criminal Appeal was newly established under the Constitution by section 3 of the Courts (Establishment and

Constitution) Act, 1961. The Courts (Supplemental Provisions) Act, 1961 transferred the jurisdiction of the former Court of Criminal

Appeal to the court, thus newly established. The same act applied to it the range of enactments, including section 29, which had

applied to the former court. Thus, in practical terms, the Court of Criminal Appeal is very much the same court as was created in

1924. However, section 3 of the Criminal Procedure Act, 1993 modified the powers of the Court of Criminal Appeal. That section

replaced section 34 of the 1924 Act with powers providing separately for appeals respectively against conviction and sentence. It

reads:

"(1) On the hearing of an appeal against conviction of an offence the Court may—

(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be

decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred), or

(b) quash the conviction and make no further order, or

(c) quash the conviction and order the applicant to be re-tried for the offence, or

(d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other

offence and that the jury must have been satisfied of facts which proved him guilty of the other offence—

(i) substitute for the verdict a verdict of guilty of the other offence, and

(ii) impose such sentence in substitution for the sentence imposed at the trial as may be authorised by law for the other

offence, not being a sentence of greater severity.

(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."

16. The judgment of Walsh J has, for long been accepted as authority for the proposition that an appellant, who has secured a

certificate from the Court of Criminal Appeal that its 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,” is entitled, on the hearing of his appeal in the

Supreme Court to argue any other appeal point which he has taken before the Court of Criminal Appeal. As it happens, the facts in

Giles were the converse of the present case. The certified point concerned the legality of the sentence. The appellant advanced

other grounds, concerning his conviction, which he had placed before the Court of Criminal Appeal. He abandoned these but sought to

introduce a new ground, also relating to the correctness of his conviction. The Court unanimously refused leave to introduce this

ground and the appeal was dismissed.

17. The importance of Giles for the present case lies in the analysis, by Walsh J, of the language of section 29. Neither Fitzgerald CJ

nor Henchy J expressed agreement with that analysis. The judgment of Walsh J is, therefore, obiter. It does not constitute a binding

precedent for the interpretation of section 29. Nonetheless, like any pronouncement of that great judge, it deserves respect and

careful consideration. I should make one further observation before embarking on that analysis. It is not necessary, for the purposes

of the present appeal, to decide whether an appellant, armed with a certificate specifying a point of law of exceptional public

importance relating to his conviction, may or may not pursue other points relating to conviction. This Court permitted the present

Appellant to follow that course on his appeal against conviction. I propose to confine the analysis to the question raised, namely

whether the Appellant may avail of the certificate granted in relation to his conviction, in order to appeal against the severity of his

sentence.

18. I now turn to the wording of section 29. Its principal operative provision is that the “determination by the Court of Criminal

Appeal of any appeal shall be final and no appeal shall lie from that court to the Supreme Court…” (emphasis added). The section

then provides for the exception, using the following language:

“……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.”

19. Walsh J analysed this language, at page 427 of the report of his judgment as follows:

“It is important to note that the wording of s. 29 of the Act of 1924 refers to "the determination by the Court of Criminal

Appeal" and "the decision." It speaks of "the determination" by the Court of Criminal Appeal being final and conclusive unless a

certificate is given which states that an appeal should lie. The appeal lies against the decision of the Court of Criminal Appeal

and there is nothing in the statute which confines it to the point of law certified, if any. The decision "involves" the point of

law but, according to the Act, it is against "the decision" that the appeal lies. The "point of law" is not the decision. The

decision is the order made in respect of the conviction and/or sentence, as the case may be.”

20. The crucial part of the reasoning is that the appeal, which may exceptionally be taken, is taken, not against the determination of

the appeal, but against the decision. With great respect, I cannot find any basis for that conclusion. At a later point of his judgment,

Walsh J acknowledges the distinction between appeals against conviction and against sentence. At page 430, he said:

“The decision of this Court in Earls's Case15 [People (Attorney General) v Earls 1969 I.R. 414] makes it clear that the judicial

view in this country also is that an appeal against sentence is different from an appeal against conviction, and that an appeal

against one does not import the other. In my view, the decision of the Court of Criminal Appeal which has dealt with both an

appeal against conviction and an appeal against sentence can be considered as one involving two appeals. It does not,

however, follow that an appeal in respect of sentence is ruled out where a certificate has been given in relation to conviction

only.”

21. I agree that there is a sharp distinction between appeals against conviction and sentence. They are different in their nature and

in their effects. The first relates to the guilt or innocence of the appellant; the second concerns the severity of the punishment to be

imposed. Appellants frequently bring one type of appeal only. This distinction is accentuated by section 3 of the Criminal Procedure

Act, 1993, quoted above, which was not, of course, in existence at the time Giles was decided. I cannot agree, however, that the

appeal provided for by section 29 is taken against a decision of the Court of Criminal Appeal which is in some way to be distinguished

from that court’s determination ……of any appeal…” Section 29 provides that “no appeal shall lie from that court, unless……” The

word, “determine” or “determination” is repeatedly used to describe the judgment or conclusion of the Court of Criminal Appeal on an

appeal: see sections 28, 30, 32 and 33 of the 1924 Act. Section 3(2) of the Courts (Establishment and Constitution) Act, 1961

speaks of the Court of Criminal Appeal of “hearing and determining any particular appeal…”

22. In my opinion, where a certificate is granted, section 29 permits “an appeal [to be] be brought to the Supreme Court,” from the

“determination by the Court of Criminal Appeal of any appeal…” Where the determination relates to conviction, and a certificate is

granted, an appeal may be brought against conviction; where the determination relates to sentence, and a certificate is granted, an

appeal may be brought against sentence. But an appeal may not be granted against either conviction or sentence based on a

certificate relating to a determination of the other.

23. That is the position in the present case. The certified points concerned conviction only. The jurisdiction of this court to hear the

appeal is regulated by statute. In my view the court has no jurisdiction to entertain the appeal against sentence.