C86 Director of Public Prosecutions -v- Timmons [2013] IECCA 86 (14 January 2013)

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Cite as: [2013] IECCA 86

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Judgment Title: Director of Public Prosecutions -v- Timmons

Neutral Citation: [2013] IECCA 86


Court of Criminal Appeal Record Number: 28/09

Date of Delivery: 14/01/2013

Court: Court of Criminal Appeal

Composition of Court: McKechnie J., de Valera J., McGovern J.

Judgment by: McKechnie J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
McKechnie J.


Notes on Memo: Refuse application to amend grounds of appeal against conviction





COURT OF CRIMINAL APPEAL
[C.C.A. No. 28 of 2009]

McKechnie J.
de Valera J.
McGovern J.
The People (at the Suit of the Director of Public Prosecutions)
Prosecutor/Respondent
And

David Timmons

Accused/Appellant

Judgement of the Court (Ex Tempore) delivered the 14th day of January, 2013 by McKechnie J..

General Background:
1. On the 12th day of December, 2008, Mr. Timmons was convicted, by jury verdict, in the Dublin Circuit Criminal Court, of the offence that he conspired to commit a crime, that is to say, the unlawful possession of a controlled drug for the purposes of sale or supply, contrary to s. 15 of the Misuse of Drugs Act 1977, as amended, and the regulations made thereunder. On the 28th January, 2009 he was sentenced to eight years imprisonment in respect thereof. A notice of appeal against both conviction and sentence was filed on the 13th February, 2009. With the consent of both the appellant and the respondent, the Court (Macken J., Budd J., and Hannah J.) decided to proceed with the appeal against conviction in the first instance, leaving over for subsequent consideration, the issue of sentence, if the same should arise. The judgment on that appeal was delivered on the 12th April, 2011 (
[2011] IECCA 13). Following a lengthy review of each ground of appeal and a detailed consideration of the submissions made in support thereof, the application for leave to appeal against conviction was dismissed on all grounds.

2. For reasons not entirely clear, the sentencing aspect of the appeal had not been moved or disposed of prior to the issuance of the notice of motion herein. In light of the relief which the motion prayed for, that matter remains adjourned and as yet, has not been determined or pronounced upon by this Court.

3. On the 23rd day of February, 2012, the Supreme Court delivered judgment in the case of Damache v. The D.P.P. & Ors. [2012] 2 I.R. 266 (“Damache”). The issue pronounced upon was the constitutional validity of s. 29(1) of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976 (“s. 29 of the 1939 Act”). Under the provisions of that section, a member of An Garda Síochána, being not below the rank of superintendent, could issue a search warrant (a “s. 29 warrant”) in respect of, inter alia, a person’s private dwelling house, if the conditions specified in the subsection were met.

4. On its face, the section did not differentiate between members for this purpose, save for specifying a minimum rank. This meant that a superintendent, or evidently, a member of higher rank, who was heavily involved in the underlying investigation, could himself/herself issue such a warrant. Such a procedure was challenged as being constitutionally flawed on the basis that a s. 29 warrant could only issue under the independent and impartial supervision of a qualifying member. The reason for this requirement, it was submitted, was to ensure that the issuing officer had no material interest in the decision and accordingly would be objectively positioned to satisfy himself that the statutory conditions had been met and that the conflicting interests of the State and the subject-person, if such arose, could be neutrally assessed.

5. The Supreme Court so agreed and granted the following declaration:-

        “…that s. 29(1) of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.” (p. 285).
6. Following that judgment, the appellant issued the within notice of motion whereby he sought to amend or enlarge grounds numbers two to four of the notice of appeal previously referred to, so that in effect he could obtain the benefit of the Damache decision. If permitted to do so, he intends to argue that prosecution evidence adduced at his trial, and which is later referred to, should never have been admitted and that if excluded, his resulting conviction is legally unsustainable. That is the result which the applicant seeks and it is the motivating factor which lay behind this motion.

7. In determining this application, which strictly speaking is one of amendment only, the Court nevertheless has also given careful consideration to whether, even if successful in that regard, Mr. Timmons could avail of the Damache decision.

Submissions:
8. The submission made in support of this application, at least at the level of generality, is to suggest that the Court itself must feel a “sense of unease” or “disquiet” in the knowledge that evidence used to convict the appellant was obtained in breach of his constitutional rights. Surely, it is said that intervention is required as otherwise a residual feeling of “concern” will result, if nothing is done. At the more specific level, it is suggested that, by virtue of the sentencing appeal being as yet undetermined, the position of the appellant is unique: as a result, the conviction aspect of the appeal could again be looked at, as it has not been finalised. Moreover, the passage of time from conviction to the present is not so distant, as to disentitle Mr. Timmons from relying on Damache. In addition, Mr. Timmons cannot be faulted for not raising the matter earlier, as neither the trial court nor the Court of Criminal Appeal have any jurisdiction to consider a constitutional question; it would therefore have been an exercise in futility to raise a Damache like point in either of those Courts. This also means that the principles set out in The People (D.P.P.) v. Cronin (No. 2) [2006] 4 IR 329 (“Cronin (No. 2)”), which are relevant to the present context, should not operate as a bar to raising this ground, even if it is considered a new one. See: The People (D.P.P.) v. Maloney (Unreported, ex tempore, Court of Criminal Appeal, O’Flaherty J., 2nd March, 1992). Finally, reference should also be made to para. 32 infra et seq., which it might be said contains an additional supporting argument addressed to this submission.

9. Several cases are quoted as part of the written submissions and were, at least to a degree, opened before this Court: these include The People (D.P.P.) v. Cunningham [2012] 2 I.L.R.M. 406 (“Cunningham”), The People (D.P.P.) v. Kavanagh & Ors. [2012] IECCA 65, The People (D.P.P.) v. O’Brien [2012] IECCA 68 and D.P.P. v. Hughes [2012] IECCA 69.

10. On behalf of the Director of Public Prosecutions (“D.P.P.”), it is submitted that as this Court in its judgment of the 12th April, 2011 (para. 1 supra), conclusively determined the appeal against conviction, that aspect of the case has been definitively disposed of. Accordingly, and notwithstanding the extant appeal against sentence severity, it is not now possible to re-open the jury finding in this case.

11. Secondly, it is pointed out that the constitutionality of s. 29 of the 1939 Act was not raised at trial or on appeal, nor was it the subject-matter of any court challenge external to the criminal process. Thirdly, irrespective of the objection made at trial to the admission of the search warrant evidence, the amendment now sought must be considered as introducing a new ground of appeal for the first time. Accordingly, the principles outlined in Cronin (No. 2) apply.

12. In support of these arguments, the written submissions filed on behalf of the D.P.P., as with those filed on behalf of the appellant, refer to several cases, including those identified above. In addition, a number of others are also mentioned, for example Murphy & Anor. v. Attorney General [1982] I.R. 241 (“Murphy”), and McDonnell v. Ireland & Ors. [1998] 1 I.R. 134 (“McDonnell”).

13. In conclusion, it is urged that in the presenting circumstances, the appellant lacks any standing to seek to invoke the decision in Damache.

The Decision:
14. The extent of the Damache decision, as determined in the judgment was the declaration of unconstitutionality: the Court did not deal with the wider consequential effect of the decision, nor was it required to do so. Such was however considered authoritatively and for the first time in Cunningham.

15. On the 27th March, 2009, Mr. Cunningham was convicted on several charges of money laundering, including count no. 10, relating to a sum of £2.4 million sterling, which was found in his house during a search carried out pursuant to a s. 29 warrant. The notice of appeal against conviction and sentence followed quickly, but for reasons not relevant the appeal itself, was not thereafter processed with any notion of vigour. In fact, the notice was at one stage struck out for want of prosecution, but was re-entered in the appeal list, on the 28th November, 2011.

16. In April, 2012, following Damache, a notice of motion issued seeking to amend the grounds of appeal, as filed, to include an allegation that s. 29 was unconstitutional and that as a result the evidence obtained on foot of the warrant was likewise constitutionally objectionable and therefore inadmissible in law. Without prejudice to its applicability or to its ultimate impact, the amendment was allowed. Subsequently the Court of Criminal Appeal considered, and on the 11th May, 2012 gave its judgment, inter alia, on whether Mr. Cunningham could rely on the Damache decision.

17. The following relevant factors were not seriously in dispute on the appeal:-

        (i) that both at trial and in his original notice of appeal, the search warrant was challenged on the basis, firstly, that it failed to identify the applicant’s residence as the place to be searched, and secondly, that it was a colourable device used to avoid the necessity of obtaining a warrant from the court or from a peace commissioner;

        (ii) that the constitutionality of s. 29 of the 1939 Act was not raised at trial, and until the amendment was allowed, it was not included in his appeal grounds;

        (iii) that no proceedings independent of the criminal process had been taken by Mr. Cunningham at any time to challenge the constitutionality of the section; finally, it should however be noted,

        (iv) that in his first set of submissions filed in October, 2011, questions had been raised as to the constitutionality of the section.

18. On this last point the D.P.P. complained that the insertion of this reference in the submissions was in the knowledge of the impending decision in Damache and was included solely so that if the decision was favourable, Mr. Cunningham might be in the position to obtain the benefit of it. Whilst indeed that may have been so, nothing turns on it, for as the Court pointed out, it would have been quite an alarming omission for his lawyers not to do so, in the circumstances then known or anticipated.

19. In opposing the application of Damache to Mr. Cunningham’s situation, the D.P.P. made several submissions which do not require repetition in detail here. Briefly it can be said however, that the principle submission was to the effect that the circumstances giving rise to the Supreme Court’s judgment in A. v. The Governor of Arbour Hill Prison [2006] 4 IR 88 (“A.”) were comparable to those in that case, and accordingly, as with Mr. A., the argument as advanced should be rejected. Further, by virtue of the appellant’s conduct, in particular that referred to at (i), (ii), and (iii) at para. 17 above, relief should also be denied.

20. Before referring to the judgment of Hardiman J. in Cunningham, a word should be said about A., where the Supreme Court unanimously held that Mr. A. was not entitled to rely on the earlier declaration given in C.C. & Anor. v. Ireland & Ors. and P.G. v. Ireland & Ors. [2006] 4 IR 1 (“C.C.”), that s. 1(1) of the Criminal Law Amendment Act 1935 (“the 1935 Act”), was inconsistent with the Constitution. In C.C., the accused person – himself a teenager – who had been charged with unlawful cardinal knowledge of a girl under 15 years of age, freely admitted to having consensual sexual intercourse with her when interviewed by the gardaí. He said that she had told him that she was over the statutory age and he believed her. Before trial, but after charge, he instituted High Court proceedings in which, inter alia, he advanced two claims: firstly, that on the true construction of the section, a defence of a mistaken belief as to age, reasonably held, was available, but secondly, that if it was not, the section was thus unconstitutional. In the Supreme Court’s view, the section did not permit of the interpretation as suggested and as a result, for the reasons given, the section was declared unconstitutional.

21. Some days after the delivery of that judgment, Mr. A., a man who was in his late 30’s at the time of the alleged offence, sought to take advantage of its conclusions by arguing that, as s. 1(1) of the 1935 Act was inconsistent with the Constitution, the statutory foundation for his own conviction had ceased to exist and accordingly he was no longer being detained in accordance with law. In rejecting this argument, the Court pointed out that on the facts, a defence of mistaken belief as to age was never available, as to his knowledge, the girl in question was a classmate of his daughter. Of much more significance in the present context however was the fact that he had pleaded guilty and had never attempted to appeal, with the appeal period having long since expired. He had actually served about half of his three year sentence at the time. Therefore, the case of Mr. A. had long since reached finality.

22. In such circumstances, Murray C.J. at p. 143 of the report had this to say on the subject:

        “In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is a general principle.” (emphasis added).
      Hardiman J. at p. 190, and Geoghegan J. at p. 196, agreed, saying respectively, that “on concluded cases” and “in a completed criminal case”, the consequences of such type declaration, for a criminal conviction regularly obtained in accordance with the law as it then was and understood to be, being one secured without challenge, were those as stated by the Chief Justice. In essence, save for the parties to the specific litigation or to related litigation, such a declaration applied prospectively only.
23. In Cunningham, Hardiman J. rejected the comparators said to have existed between that case and the case of A., with the “… major point of contrast …” being that Mr. Cunningham’s appeal was “… still extant and undecided.” Accordingly, the appellant said, that his case had “not reached finality” (p. 413). That being the situation, he was in principle entitled to avail of the declaration: this conclusion however was capable of being disturbed by reference to certain particular actions or conduct on his part, such as that constituting election/approbation, acquiescence or estoppel, to name but some: Corrigan v. Irish Land Commission [1977] I.R. 317 and The State (Byrne) v. Frawley [1978] I.R. 326 and of course, A. itself. As Mr. Cunningham was not guilty of any such conduct he was entitled to avail of the Damache point.

24. The case of The People (D.P.P.) v. Kavanagh & Ors. [2012] IECCA 65 (“Kavanagh”), is also relied upon. Mr. Kavanagh and his two co-accused were jointly tried and all convicted of certain offences for which each of them received a lengthy term of imprisonment. Their convictions were materially based on evidence obtained under a s. 29 warrant, which had been issued by a senior member of the investigative team. When their appeal came on for hearing, the Damache decision had been given: they sought to rely on its consequences and were permitted to so do, with the following matters being particularly noted:-

        (i) during the course of the trial, Counsel for each accused person adopted the submissions of his fellow Counsel, which had been made on behalf of his particular client. This course of action, which had the approval of the trial judge, was intended to save time and avoid repetition. Thus, each submission was to be taken as having been individually made on behalf of each appellant;

        (ii) the search warrant (in that case) was challenged at trial on certain grounds, but of particular significance was the submission of Counsel for a co-accused, in which he tried to raise the constitutionality of s. 29 of the 1939 Act on the same grounds as were later decided upon in Damache. However, and understandably, the trial judge declined to entertain the argument, in view of Article 34.3.2 of the Constitution; and finally

        (iii) that submission also constituted a ground of appeal which was included in the notices of appeal and which incidentally had been delivered prior to the Damache decision.

25. In the circumstances and for those reasons, the appellants could rely on Damache: the appeals were extant and the precise issue had been raised in a manner in which all three could be identified with. Further, there was no prohibitory conduct which would disentitle them to the relief sought.

26. Another case highlighted was that of Mr. Hughes (D.P.P. v. Hughes [2012] IECCA 69 (“Hughes”)), who on the 1st November, 2011, pleaded guilty to counts 14 and 15 in the indictment and received a five year sentence on the former conviction and a concurrent two year sentence on the latter. There was no appeal on either conviction or sentence until, following Damache, an enlargement of time for so-doing was applied for. Having described the type of personal recognition or acceptance of guilt which a plea in that direction conveys, and having taken the broader considerations of justice into account when applying the civil standard of Eire Continental Trading Company Ltd. v. Clonmel Foods, Ltd. [1955] I.R. 170, on the criminal side, the Court of Criminal Appeal repeated and further affirmed all of what it had previously said in Cunningham. Having pointed out that the constitutional issue was not agitated at trial, that a plea of guilty had been entered, that no appeal was lodged within the required time, and that in any event, the Damache point could have no bearing on count 14 as the premises in question was not a family home, the Court continued:

        “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.”
      Justice did not therefore either require or permit time to be extended for the lodging of an appeal.
27. Finally, the last case which I shall mention is that of The People (D.P.P.) v. O’Brien [2012] IECCA 68 (“O’Brien”), the reference to which may be confined to a summary of the most pertinent matters which a court will search for, before reliance on a Damache like point in a third party conviction will be permitted. The Court said that:
        “The matter [namely the relevant issue] has been raised at the court of trial and the appellant has taken no steps which suggest that he has acquiesced in or otherwise waived the point by, for example, pleading guilty to the charge.

        The criminal proceedings against the appellant have not been finalised and either a trial or an appeal from conviction is still pending”.

      As Mr. O’Brien satisfied both of these conditions, he was permitted to rely upon Damache and on that basis his conviction was set aside and a retrial ordered.

The Instant Case:
28. There is no doubt but that there is a direct factual connection between this case and s. 29 of the 1939 Act, in that a search warrant was issued under that section by a superintendent who was involved in the investigation of the criminal activity which gave rise to Mr. Timmons’ subsequent conviction on the charge above referred to. In the execution of the warrant, the appellant’s private dwelling house was searched and mobile phones and a notebook were found. Information was obtained from both, which despite objection as to its admissibility, was tendered in evidence and relied upon by the prosecution to help establish the guilt of the accused on the conspiracy charge. Therefore, it must be accepted that there are similarities between the evidential foundation upon which Damache was based and that found to exist in the instant case.

29. Whilst the D.P.P. accepts that such exists at the level of principle, she makes the point in her submissions, being one not hotly disputed by the moving party, that the contested evidence, although relevant and supportive, was not corroborative of the main thrust of the prosecution’s case against Mr. Timmons. It was therefore not central to his conviction. Consequently, it could not be said to have had a material influence on the jury’s view of the guilt or innocence of Mr. Timmons, or in any review by the Court of Criminal Appeal of his conviction. If that is the situation, as it appears to be, that in itself might be sufficient to dispose of this motion, as in the Court’s opinion, the appellant would have to demonstrate that the evidence in issue was capable of being at least influential – though not necessarily decisive – before any amendment would be allowed. However, the Court does not propose to determine the application solely on what the D.P.P. asserts, but rather, will further consider the issue on its merits.

30. Leaving aside for the moment the question of what effect the continuing existence of the sentence appeal has on the overall submission that the appellant can invoke the decision in Damache, it is instructive at this juncture to look at the manner in which the s. 29 issue was raised at trial and how it has been relied upon thereafter up to the present application.

31. It seems not in dispute but that an issue arose during the currency of the hearing regarding the information obtained from the mobile phones and the notebook found in the bedroom of the appellant. That issue was ventilated in a way which focused on the defence trying to establish the inadmissibility of such evidence, on a number of grounds, all of which were rejected by the presiding judge. In the notice of appeal as it presently stands, fourteen grounds of complaint are raised.

32. Whilst acknowledging that the constitutionality of s. 29 of the 1939 Act was not as such raised at trial or as a ground of appeal, it is said nonetheless by Counsel on behalf of Mr. Timmons that grounds nos. 2 to 4 of the appeal notice, relating to the admissibility of the search warrant evidence are sufficiently proximate to the amendment sought that they should be allowed. I take this to mean, at the most generous level of understanding, that the form in which the objection was raised and the manner in which it was subsequently phrased in the notice of appeal, are sufficiently close to articulating the constitutional point that the amendment is but an express pleading of that which is already implied.

33. From a careful consideration of the grounds of appeal however, all of which are set out in the Court’s judgment on the conviction appeal, it is clear beyond question that ground no. 4 is entirely irrelevant to this submission and that ground no. 3 can either be subsumed into the preceding ground, or be treated as merely peripheral. This means that howsoever the point is raised, it is to be found in the wording of ground no. 2 only.

34. That ground reads “ 2. That the learned trial judge had committed a fundamental error in law by admitting into evidence material, or information, obtained from mobile phones and from a notebook, all located in the residence of the applicant, and had thereby failed to ensure that the applicant had a fair trial”. In the Court’s view this cannot in any way be read as constituting an attack on the validity of the warrant, much less a constitutional assault on the authorising section. It seems, as was virtually admitted, that this ground is premised on a number of common law exclusionary rules, regarding evidence. That this is so is evident from the submissions made in support of ground no. 2 at the appeal hearing, and the manner in which the Court in its judgment dealt with that ground and those submissions. In short, it was argued that the trial judge was wrong in admitting such evidence as it was irrelevant and was more prejudicial than beneficial; that it showed no personal connection with the accused or temporal relationship with the underlying events and finally that if admitted, these objections made on behalf of the defence could not properly be addressed by way of charge. It is therefore self-evident that neither expressly nor by implication could one read this ground of appeal or the submissions made in support thereof, as including within their remit any challenge, either to the warrant, or much more significantly, to the section itself.

35. Thus the situation as it pertained immediately prior to the issue of this motion, was that the constitutional point was not raised, either as part of the criminal process or in any process separate to it.

36. Before dealing with the specific points which require resolution, it is necessary to say something about the nature of the general submission made at the outset by Counsel on behalf of the appellant. That submission, which is referred to at para. 8 above and which incidentally is not easily understood, suggests that there is some overriding duty on the Court, certainly on the criminal side, to intervene in circumstances (like those which presently exist), where a conviction, once thought to be safe and satisfactory, may no longer be so. Implicit in this may be the suggestion that some sort of review should be initiated and undertaken by the Court of its own motion or even more radically that even if incapable of review under existing jurisprudence, some method must be found to redress the grievance said to exist, no matter how novel or far-reaching that might be. It is quite difficult to see any basis for this argument, particularly in an adversarial system which is governed by well-established principles, both substantively and procedurally, where it is for the parties themselves, not only to engage the Court but to do so, in a fact specific and legally focused way. In the absence of greater clarity and without at least some level of authority being presented, it is not possible to take this submission any further. In any event, the jurisdiction of this Court has been invoked by the issuance of the motion with the appellant being free to advance any relevant arguable point capable of sustaining his submission. Such will of course be considered by this Court. Therefore, as a matter of reality, it is not necessary for Mr. Timmons to endeavour to advance such a difficult argument, as the result sought to be achieved is otherwise available to him.

The Determining Point:
37. As appears from the aforegoing review of some of the relevant case law, matters such as whether the point at issue was raised at trial or on appeal, or in separate proceedings, were factors which the Court considered, as were the actions of the appellant, such as might constitute election, acquiescence, estoppel and the like. Many of these, in some form, are present in the instant case, but the most decisive factor for resolution is whether it can be said that the appeal against conviction is extant at the present time. A decision on this point will be determinative of this application.

38. In considering the issue, it is not necessary to review the earlier case law on the consequences which flow from a declaration that either a statutory provision has not been carried forward under Article 50 of the Constitution, or is one in respect of which a declaration of repugnancy has been made under Article 15.4.2 of the Constitution. Cases such as Murphy and McDonnell are well-known for having established a set of principles in this area. For present purposes it is sufficient to rely on A., where, as previously stated, the Supreme Court made it clear that once a prosecution has reached “finality”, then the decision in question must be taken as having been lawfully made, even when, as happened in C.C., the underlying provision upon which that prosecution was moved, is later declared unconstitutional. That proposition of law has guided the decision of the Court of Criminal Appeal in Cunningham, and in all of the other cases above mentioned and must thus be followed and applied in this case.

39. On the question of finality there is no doubt but that there has been a practice in this Court for some time – a practice with which we entirely agree – that where an appeal raises both conviction and sentence issues, the latter aspect of the appeal is frequently stood aside until such time as the Court rules on the conviction point. This is not always done, but where a separation of grounds is convenient and saves time it is beneficial to both parties to do so. Sometimes, such a course is suggested by either the prosecution or the defence and whilst the Court is itself free to impose this option, it generally will seek the parties’ consent before so doing. That is what happened in this case. Consequently, Mr. Timmons moved his conviction appeal, concentrating solely on challenging the finding of guilt. He did so through fourteen grounds of appeal. The Court, having considered each of these grounds, came to the conclusion that none were sustainable. It did so by reference to the law as it was understood to apply and as it was applied at that time. This occurred in April, 2011. It is therefore quite surprising to find the appellant now arguing that this aspect of his appeal is still alive and that it can be re-opened and reviewed, by reference to circumstances occurring almost one year later.

40. No authority has been opened to this Court in support of such a submission and we doubt very much that any exists. As stated, the issue of guilt has been determined, not only at first instance by the trial court and the jury, but also on appeal. Apart from a potential application under s. 29 of the Courts of Justice Act 1924, as amended, that is the end of a convicted person’s legal right of access to the court to have the issue of his/her guilt determined. Consequently, at the level of principle, we are satisfied that the decision given in April, 2011 was final in every sense and certainly final as technically understood in the face of a subsequent application to re-open the matter.

41. Staying at the level of principle, the situation might be looked at from a slightly different perspective by asking whether in the absence of Damache, it would have been possible for the appellant during the hearing of his sentence appeal, to ask this Court to revisit the conviction judgment, or for that matter, could the D.P.P. make a similar request? The answer, quite unequivocally, would be no.

42. There are however other reasons why the same conclusion must be reached. The first is the clear statutory wording of the opening portion of s. 29 of the Courts of Justice Act 1924 which reads:

        “The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final …”.
      It has not been suggested, nor could it be, that the word “final” in this provision could have any meaning other than what it conveys; namely that the determination given is conclusive of all the matters so determined.
43. In addition, reference can also be made to Pringle v. Ireland & Anor. [1994] 1 I.L.R.M. 467, where Murphy J. at p. 473 considered that the word “final”, as it applied inter alia to the Court of Criminal Appeal, put the relevant decision of that Court “beyond review by any other judicial body”. Hardiman J. in Cunningham said much the same, adding at p. 416 that:
        “The courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. … It therefore appears that where there is … a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limit for doing so.”
      Consequently this Court is entirely satisfied that the conviction appeal of Mr. Timmons has been finally and conclusively determined by this Court in its judgment of April, 2011 and consequently, that at no time thereafter was there ever a live or extant appeal on that issue.
44. In such circumstances, and applying what the Supreme Court said in A., as well as the various decisions of this Court in Cunningham, Kavanagh, Hughes and O’Brien, we are satisfied that the present application is unsustainable and must be refused.

45. Finally, as the appeal has been concluded it is to be very much doubted if Cronin (No. 2) could have any application.

46. In conclusion, the application will be dismissed.



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