Court of Appeal dismisses motion to addendum judgment on legal issue omitted from original ruling.

THE COURT OF APPEAL

CRIMINAL

[2016 No. 244]

The President

Birmingham J

Edwards J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

DENIS CASEY

RULING of the Court issued by the President on 4th October 2017

1. The court gave judgment in this case and that of another accused on 30th June 2017 and fixed 27th July 2017 for hearing of the

appeal in respect of severity of sentence. The appellant notified the court that he would not be proceeding with his sentence appeal,

but served a notice of motion for that date grounded on an affidavit of his solicitor, Mr. Conlon. The court received the motion and

the responding affidavit filed on behalf of the Director of Public Prosecutions without hearing any argument and has considered the

matter. The motion seeks:

“An Order providing that the Court, by way of addendum to its judgment in the above entitled matter, dated 30th day of

June 2017, determine whether criminal liability can be imposed upon an accused on the basis of a professional standard

that is applied only in extremely rare circumstances.”

2. In his grounding affidavit for the motion, Mr. Conlon says that the matter the subject of the requested Order is of particular

importance and was omitted from the judgment that this Court delivered. The appellant wishes to appeal to the Supreme Court but is

concerned that the Supreme Court “will decline to entertain the ground on the basis that it was not addressed in the judgment of this

honourable Court and did not form part of same”.

3. Mr. Conlon sets out material from the trial of the appellant and he refers to material that he says was before this Court on the

hearing of the appeal. He concludes his affidavit with the following paragraphs:

“Regrettably, the issue of whether criminal liability can be imposed on an accused, in this case, the Appellant, on the

basis of a professional standard that is applied only in extremely rare circumstances, was not the subject of a

determination and/or ruling in the judgment of this honourable Court. In the circumstances, the appellant seeks an Order,

by way of addendum to the Court’s judgment, determining whether criminal liability can be imposed on an accused on the

basis of a professional standard that is applied only in extremely rare circumstances.

For the avoidance and all doubt, I wish to make it clear that in bringing the application herein, the Appellant is not seeking to re-open

the appeal and he is not seeking to make fresh arguments. It is a matter which the Appellant wishes to canvass before the Supreme

Court. There is an apprehension on the part of the Appellant and his legal advisers that the Supreme Court will decline to entertain

the ground on the basis that it was not addressed in the judgment of this honourable Court and did not form part of same. In the

circumstances, I pray this honourable Court for an Order in the terms of the Notice of Motion herein.”

4. In a replying affidavit on behalf of the Director of Public Prosecutions, Mr. Matthews, solicitor, says that the application seeks to

re-open, not only the judgment of this Court, but also the voir dire hearing in the Circuit Court and to alter radically the defence put

forward by Mr. Casey at the trial. In support of this proposition, Mr. Matthews cites excerpts from the transcript of the trial. Mr.

Matthews disputes the point as to whether Mr. Casey had raised this particular defence in the course of his trial.

5. This deponent contends that the application misstates the significance of the evidence of the expert accountant, Mr. Hunt, in the

case. After further references to the events of the trial, Mr. Matthews asserts that the application bears no relation to the conduct

of the trial. He concludes as follows:

“10. Mr. Conlon avers at paragraph 15 of his Affidavit that paragraphs 9.19-9.28 of his written legal submissions to this

honourable Court expressly raise this issue as a point of appeal. I say that these paragraphs do not in fact expressly raise

this issue as a point of appeal and in this regard, I beg to refer to paragraph 85 of the Prosecution’s legal submissions

correctly summarising the complaint actually made by Mr. Casey in respect of Mr. Hunt’s evidence.

11. I therefore say and believe and I am advised that the within application is wholly lacking in merit and is a clear

attempt to re-open the judgment of the judgment of this honourable Court for the purposes of addressing an issue that

was not pursued before the court of trial and, furthermore, was not in fact pursued in the manner suggested during the

course of the appeal.”

6. As stated above, the court received the motion papers without argument. The court was of the view that this was not a matter on

which there should be dispute and a resolution by the court. The appellant had made an application in his notice of motion and the

court received it and considered it. Having done so, the court is satisfied that it cannot accept the invitation to revisit its judgment,

whether to amend it or amplify it or make additions or to embark on a new consideration. This is not a case where the appellant seeks

to revisit the case on the ground that justice demands that he be allowed to do so in circumstances where a factual error has been

made that undermines the basis of the judgment. Neither is it suggested that there is any factual error contained in the judgment. It

is instead a proposition or an assertion in respect of a legal issue or implication that the appellant says arose in the case and in the

appeal and in respect of which the judgment is deficient because it fails to address it. In the court’s view, that is not a suitable

matter or a proper matter for a reconsideration or a re-visitation of the judgment.

7. The court does not understand the suggestion that the Supreme Court might decide not to accept the case or to reject the appeal

on the basis of an omission that this Court allegedly made and which was erroneous. It is open to the appellant to apply to the

Supreme Court, citing as one of the reasons for the appeal the alleged omission from the judgment of what he contends is an

important matter.

8. This Court could not accede to the application without doing the very thing that the appellant declares that he does not want to

happen. That is to revisit the judgment with a view to rewriting it or amending it and in one way or another, re-opening the appeal.

9. It is also important that this Court should not itself become a party to an appeal or an application to the Supreme Court. The court

has no function in seeking to explain itself or defend its judgment or to offer an interpretation, but must remain neutral and aloof. The

court does not accept that the implication contained in the motion is correct, but neither does it dismiss any such suggestion. Those

are matters entirely for consideration by the Supreme Court in an application for admission and in the course of an appeal, if that

arises.

10. Finally, the court notes that the motion seeks an order by the court directed to itself, which would clearly not be appropriate.

The manner in which the motion is expressed may indeed reflect its essentially anomalous nature.

11. Accordingly, the court refuses the application.