Court dismisses fifth s.2 application as vexatious abuse of process due to lack of new facts.

THE COURT OF APPEAL

Peart J.

Birmingham J.

Mahon J.

190CPA/16

IN THE MATTER OF SECTION 2 OF THE CRIMINAL PROCEDURE ACT 1993

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Philippe Cauneze

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 13th day of November 2017 by Mr. Justice Birmingham

1. This is another application brought by Mr Cauneze pursuant to s. 2 of the Criminal Procedure Act 1993 in response to his

aggravated sexual assault conviction on 10th March, 2000. It is the third such application to be dealt with by the Court of Appeal and

overall it is the fifth application pursuant to s. 2 that has been brought by Mr Cauneze. In the course of a judgment delivered on 21st

December, 2015 this Court set out in considerable detail what it described as an extraordinarily convoluted background to the

application. The Court concluded its judgment, “regrettably, it must be said that this attempt to relitigate what has already been

decided is vexatious and an abuse of process” and then proceeded to dismiss the application.

2. Despite that observation by the Court, Mr Cauneze saw fit to bring a further application and that further application is the subject

of a judgment dated 15th April, 2016. That judgment concluded:

“The Court said on the last occasion that this was vexatious and an abuse of process. At this stage it is a flagrant abuse

of process and is entirely vexatious.”

And the Court then proceeded to dismiss that application.

3. Mr Cauneze’s response was to bring a further application, the fifth such application. In the course of its judgment of 21st

December, 2015 this Court had commented:

“Nothing whatever has been produced which could possibly be regarded as a new or newly discovered fact.”

That was the situation then, it was the situation in April, 2016, and it remains the situation now. The issues that Mr Cauneze points

to today as being new have in fact been recurring themes in all prior applications. Mr Cauneze has persistently criticized the

authenticity of the transcript of this trial. Assertions that the book of evidence has been falsified do not take the matter any further.

4. This matter has gone on so long that it is perhaps at this stage worth recalling the observations made by Finnegan J. in the course

of his ex tempore judgment of 6th December, 2011. Finnegan J. commented:

“A major difficulty for the applicant on this application is that at his trial he gave a full and frank account of his

recollection of the events of the evening which gave rise to him being charged with the offence. The trial judge remarked

that his own evidence provided ample evidence for the jury to convict him and indeed that if they believed his evidence,

it would require them, in fulling their oath as jurors, to convict him of the offence. The applicant was charged with other

more serious offences and the jury, it would appear, had no difficulty in accepting that the applicant’s account of the

evening was correct in that they found him not guilty of the other more serious offences, but taking him at his word,

found him guilty of the offence which is the subject matter of this application. The fact that on his own evidence he is

guilty of the offence of which he was convicted presents a considerable obstacle to the applicant proceeding on this

application. Added to the circumstances, it is difficult to see how any new or newly discovered fact could be of

significance in relation to his conviction.”

5. The position is that this Court has twice commented that applications brought by Mr Cauneze were vexatious. That is also clearly

the case in respect of the current application and this current application too must be dismissed.