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Irish Court of Criminal Appeal
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Cite as:  IECCA 69
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Judgment Title: DPP -v- Thomas Hughes
Neutral Citation:  IECCA 69
Court of Criminal Appeal Record Number: 141/12
Date of Delivery: 02/07/2012
Court: Court of Criminal Appeal
Composition of Court: Hardiman J., Moriarty J., Hogan J.
Judgment by: Hardiman J.
Status of Judgment: Unapproved
Outcome: Refuse of extension of time
THE COURT OF CRIMINAL APPEAL
Hardiman J. 141/12
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered the 2nd day of July, 2012, by Hardiman J.
This is the applicant’s application for an enlargement of time within which to appeal against conviction. The sequence of events in relation to those convictions is of critical importance.
On the 1st November, 2011, in the Special Criminal Court (Butler J. presiding) the appellant pleaded guilty to counts 14 and 15 in the Indictment preferred against him and a co-accused. These counts were as follows:
(1) Count 14
Statement of Offence
Possession of an explosive substance contrary to s.4 of the Explosive Substances Act, 1883 as amended by s.15(4) of the Offences Against the State (Amendment) Act, 1998.
Particulars of Offence.
You, Thomas Hughes, on the 26th day of January, 2011 at Hundred Acres, Monivea, Athenry in the County of Galway had in your possession an explosive substance to wit Ammogex containing ammonium nitrate, in such circumstances as to give rise to a reasonable suspicion that you did not have it in your possession for a lawful object.
(2) Count 15.
Statement of Offence
Possession of a firearm without a firearm certificate contrary to s.2 of the Firearms Act, 1925 as amended by s.27 of the Criminal Justice Act, 2006.
Particulars of offence.
You, Thomas Hughes, on the 26th day of January, 2011 at 28 An Tuairin, Dublin Road, Tuam, in the County of Galway had in your possession or under your control a firearm being a six millimetre m.e. Flobert calibre Alfa-Proj Model 640 revolver bearing serial number 6640001003 without a firearm certificate granted under the Firearms Acts, 1925-1990 and for the time being in force.
The applicant received a five year sentence on Count 14 and a two year sentence to run concurrently on Count 15. These sentences were imposed on the 6th December, 2011.
The applicant did not appeal either conviction or sentence within the time limited for such appeal, that is, within 21 days.
On the 23rd February, 2012 Denham C.J. gave the judgment of the Supreme Court in the case of Ali Charaf Damache v. DPP, Ireland and The Attorney General.
At para. 59 of that judgment it is recited that, for the reasons set out in the judgment:
The relevance of the last mentioned development to the present case is that the searches of the two premises which led to the finds of materials which form the basis of Counts 14 and 15 were issued under s.29, and by a person who could not be described as independent. The second of these counts relates to material found in a search of the applicant’s home. The first of the counts, apparently the more serious, relates to premises which were not his home or “dwelling” within the meaning of the Constitution.
Failure to appeal.
The applicant did not take any step to appeal his conviction or sentence either within twenty-one days of his conviction on his own plea of guilty, or within twenty-one days of his sentence. Instead, outside the time limited for appeal, on the 26th April, 2012, he filed an application for the enlargement of time to appeal. He stated that the ground on which he applied for such enlargement was:
It must be said that, considered as a statement of the reasons why no appeal against the appellant’s conviction was lodged within the time limited for such appeal, the above statement is hopelessly inadequate. Firstly, it relates wholly to an alleged intention to appeal sentence, whereas the present application relates to conviction. It then states that the reason why no appeal, as was allegedly intended, was in fact lodged was that “… I did not instruct my solicitor in time as I was incarcerated in Portlaoise Prison”.
Although this Court has experience of appeals against conviction in cases where a custodial sentence was not imposed, it remains the case that the great bulk of appeals are lodged by or on behalf of people who have been committed to prison following their convictions. Prisoners so committed have ample opportunities for communication with their solicitor, and ample opportunities themselves to lodge an appeal from prison. Indeed, the prisons maintain a supply of the appropriate form for that purpose. Accordingly, the statement that the applicant did not instruct his solicitor in time because he was incarcerated is illogical, inadequate and false as a reason for the failure to lodge the appeal in time.
The Court has little doubt that no intention to appeal conviction was formed until after the decision of the Supreme Court in Damache on the 23rd February, 2012. This conclusion, indeed, becomes inevitable when it is realised that the entire thrust of the written and oral submissions made on behalf of the applicant in this case related to that decision. Thus, the first sentence under the heading “Basis of the Application”, at para. 2 of the applicant’s written submissions is as follows:
This Court has on two recent occasions considered applications by appellants to rely upon Damache on appeal in circumstances where that case, or the point decided in it, was not or could not have been relied upon at the trial. In the second of those cases (DPP v. Kavanagh (Court of Criminal Appeal,  IECCA 64, Denham C.J. referred to DPP v. Cronin (No. 2) and held:
The effect of the foregoing is this: the applicant seeks an extension of time to appeal his conviction for offences of which he acknowledges himself guilty so that he can take advantage of a later finding, at the suit of another person, that the provisions of s.29 of the Offences Against the State Act 1939, as amended, are unconstitutional. He himself did not agitate this point at or prior to his trial.
If the Rules in relation to extensions of time to appeal that apply in Civil cases were applicable here, then the finding of the Court to the effect that the applicant’s intention to appeal only arose after the decision in Damache would be fatal. See Eire Continental Trading Company v. Clonmel Foods  IR 171.
However, on the basis of the arguments of counsel for the applicant and the authority cited by him, the Court is satisfied that a broader and less technical approach is mandated to such an application in relation to an appeal against a criminal conviction. The Court is entitled to look to the broad considerations of the justice of the case even if it is satisfied, as we are, that no intention to appeal was formed within the time limited for doing so.
Over the years, both the Supreme Court and this Court have had occasion to consider the situation that arises when, after a person has been convicted (whether on a plea of guilty or after a trial) the statutory provision constituting the offence, or the statutory provision mandating the mode of trial, or permitting the gathering of evidence in a particular fashion, is found unconstitutional at the suit of a third party. There is also relevant authority in the case of Murphy v. the Attorney General  IR 241 which dealt with the question of the effect on other tax payers liabilities of a declaration, obtained at the suit of Mr. and Mrs. Murphy, of the unconstitutionality of certain provisions relating to the taxation of married couples. Other relevant authorities are cited in those decisions.
In A. v. The Governor of Arbour Hill Prison  4 IR 88, A. had been charged with an offence under s.1(1) of the Criminal Law (Amendment) Act, 1935. He pleaded guilty and received a sentence. He was still in custody serving that sentence when another person called
C.C. obtained a declaration that the subsection mentioned was inconsistent with the Constitution, in C.C. v. Ireland  4 IR 1. A. claimed that the striking down of the Section constituting the offence of which he was convicted meant that his detention had become unlawful and was successful in this contention in the High Court. But, on appeal, the Supreme Court unanimously decided that A. was not retrospectively entitled to the benefit of the decision in C.C. At the time of that decision, A. had no appeal extant. The applicant here, equally, has no appeal extant and will not have such an appeal unless he is successful in this application.
In A., Murray C.J. stated “the general principle” at p.143 of his judgment:
But he continued on the following page:
Plea of guilty.
All of the considerations set out above suggest that, in the interest of legal certainty, and in defence of the enduring regularity of proceedings fully legal and regular at the time when they occurred, the applicant’s present application should be refused. No system of law could operate if decisions intended to be final could subsequently be set aside on the basis of developments which occurred only after their completion. Indeed, as is expounded in my judgment in A. v. The Governor of Arbour Hill Prison, cited above, the fear of disturbing important events decided long in the past would be a disincentive to needed change or might otherwise tend to inhibit a finding of unconstitutionality in an appropriate case (see, e.g. the comments of O’ Higgins C.J. in de Búrca v. Attorney General  IR 38, 62-63 and in Byrne,  I.R. 326, 340-342). In this regard the Court would merely respectfully endorse the views of Geoghegan J. in A. ( 4 IR 99, 203).
To this, applicant rejoins that he entered the plea of guilty in the belief that s.29 had been validly enacted and was good and operative law. He was entitled to that view, he says, because there is a presumption of constitutionality, and because the constitutionality of the measure had, at the time of his plea, been upheld by the High Court.
In my view, these considerations in no way deprive the fact that he pleaded guilty of the force I have attributed to it above. Section 29 related only to the mode of search which revealed the evidence of his guilt. When that guilt was admitted, it relieved the prosecution of the necessity to produce that evidence.
Mr. Damache, the successful plaintiff in the constitutional challenge to s.29, elected to challenge the Section. This applicant did not do so. There may be many reasons for this consistent with the applicant having been confidently advised. For example, the view may have been taken that the point, even if a good one, would avail the applicant only in relation to the search of his dwellinghouse, where a firearm was discovered, and not in relation to the search of the premises which were not his dwellinghouse, where the explosives which attracted the longer sentence were found. In that event, the applicant would certainly have received a longer sentence on conviction than that which he in fact received on a plea of guilty. In this respect, the case is indistinguishable from that of Burns v. Judge Early  2 ILRM 321. In that case, the plaintiff, who had pleaded guilty, sought to invalidate his trial on the grounds of an unconstitutionality discovered in a later case. It was held that the acquiescence constituted by his plea debarred him from relief.
Justice does not require that the time for appeal be extended in order to permit the appellant to appeal to convictions for offences of which he confesses himself guilty. The considerations set out in the cases cited, and in particular the well known passage set out from the judgment of Henchy J. in Murphy v. Attorney General, provide ample basis for declining to reopen this case by extending the time for appeal, or otherwise.