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Judgment Title: Director of Public Prosecutions -v- Patchell
Neutral Citation:  IECCA 6
Court of Criminal Appeal Record Number: 87/11
Date of Delivery: 23/01/2014
Court: Court of Criminal Appeal
Composition of Court: McKechnie J., de Valera, J., McGovern J.
Judgment by: McKechnie J.
Status of Judgment: Approved
Notes on Memo: Reasons stated for refusal of S29 application
THE COURT OF CRIMINAL APPEAL
[C.C.A. No. 87 of 2011]
In the Matter of an Application Pursuant to s. 29 of the Courts of Justice Act 1924, as Amended
de Valera J.
The Director of Public Prosecutions
Judgment of the Court delivered on the 23rd day of January, 2014 by Mr. Justice William M. McKechnie.
1. This application is moved pursuant to s. 29 of the Courts of Justice Act 1924, as amended (“the 1924 Act”) (para. 15 infra), for the purposes of seeking a certificate which, if granted, will enable the appellant to further appeal to the Supreme Court from the decision of this Court delivered on the 4th February, 2013. It is said that the suggested point of law upon which the application is made falls within the provisions of this section.
2. Mr. Patchell was convicted on the 8th April, 2011 by unanimous jury verdict, of murder contrary to common law, of assault, causing harm and of assault causing serious harm, contrary to ss. 3 and 4 respectively of the Non-Fatal Offences Against the Person Act 1997. He was sentenced to life imprisonment on the murder conviction and to separate terms of imprisonment on the assault charges which are concurrent to each other, and both of which are concurrent to the life sentence, with all commence on the 14th April, 2011.
3. By notice in writing dated the 30th May, 2011, the appellant sought leave from this Court to appeal his conviction, relying on the grounds then specified in the said notice. In July, 2012 he made an application to amend his notice of appeal by adding an additional ground which was intended to enable him, at the substantive appeal hearing, to argue that the Supreme Court’s decision in Damache v. D.P.P. & Ors.  2 I.R. 266 (“Damache”) was applicable to the circumstances of his case and thus that he is entitled to rely upon it. That was the sole issue of this Court’s judgment as above referred to, with all other grounds of appeal being unaffected thereby.
4. To understand and place in context this present application, some more details must be given of the background.
5. In February, 2012 the decision in Damache was delivered, which effectively held that a search warrant granted under s. 29 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”), when affecting the family home, could not be issued by a member of An Garda Síochána unless, in addition to holding the specified rank, that person was independent of the underlying investigation to which the warrant related. In other words, the issuing officer should not have a material interest in the decision on whether or not to grant such a warrant.
6. A similar type of warrant had been obtained and executed in the case of Mr. Patchell, on which occasion he was also arrested. He argues that without the cover of this warrant, the gardaí had no legal authority to be in his home at the time and thus no power to arrest him as they did. Consequently such arrest and his subsequent detention were unlawful and as a result, any admissions, statements or confessions allegedly made by him whilst in garda custody should be classified as inadmissible and thus excluded from the prosecution’s evidence. On this basis, he sought permission to argue the Damache point.
7. This was not the first application of this nature to come before the Court of Criminal Appeal following the Damache judgment. A number of cases, in particular The People (D.P.P.) v. Cunningham  2 I.L.R.M. 406 (“Cunningham”); The People (D.P.P.) v. Kavanagh & Ors.  IECCA 65 (“Kavanagh”); and The People (D.P.P.) v. O’Brien  IECCA 68 (“O’Brien”) had to consider similar submissions, though not on exactly the same grounds.
8. From these cases it seems reasonably clear that if the criminal process has reached finality (in the sense meant by Murray C.J. in A. v. The Governor of Arbour Hill Prison  4 IR 88 (“A.”) at p. 143), then a convicted person has no basis for seeking to avail of a declaration of unconstitutionality subsequently given in third party proceedings. It is where an extant appeal exists that the debate ensues. In fact for the purposes of this case, the issue can be even further refined by focusing on two points: firstly, whether an appellant must have raised or be deemed to have raised the Damache point; and secondly, and independently of that, can “conduct” itself, otherwise disentitle that person from relying on such declaration.
9. The case law shows that Mr. Cunningham was allowed to amend his notice of appeal and to argue the point even though he had not raised the constitutionality of s. 29 of the 1939 Act either at trial or by way of separate proceedings. He did however refer to it in his submissions to the Court of Criminal Appeal filed some four months prior to February, 2012 – a factor referred to, if not even stressed in the court’s judgment. Mr. Kavanagh was considered to have raised the point at his trial, and as he had not otherwise debarred himself by conduct, he too was permitted to rely upon it.
10. In the O’Brien case, where the appellant had raised the constitutionality of s. 29 of the 1939 Act at both his trial and in independent proceedings, albeit unsuccessfully, Hardiman J., in giving the Court’s judgment, suggested that generally speaking, an appellant would be allowed to gain the benefit of such a constitutional declaration where:
11. In applying the above principles, this Court in the instant case refused Mr. Patchell’s application. It did so essentially on two grounds: namely that the appellant had not previously raised the point, in any way or in any form; and secondly, that he had engaged in a course of conduct which in itself disentitled him from relying upon it.
12. The conduct referred to relates to a concession made during the course of his trial to the effect that no issue was being taken as to the lawfulness of his arrest or as to the validity of his detention. In other words, neither evidence nor submission from the prosecution were required in this regard. The terms of this concession were then expressly made known to the jury, with the trial judge highlighting the very considerable timesaving which such concession resulted in. This Court felt that to permit the amendment would have been entirely inconsistent with this strategy, which was no doubt motivated by and taken in the best interests of the appellant.
13. The above is only a very brief summary of what the Court said: for convenience the full decision is reproduced as Part B of this judgment.
14. Arising out of the aforegoing, the appellant now seeks to have certified the following question:
15. The relevant provisions of s. 29 of the 1924 Act, as substituted by s. 22 of the Criminal Justice Act 2006, which was later amended by s. 59 of the Criminal Justice Act 2007 and s. 31 of the Criminal Procedure Act 2010 (“s. 29 of the 1924 Act”), are those contained in sub-paras. (1) and (2) and read as follows:
(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court … certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”
17. In any event it is clear that the point of law cannot only be peculiar to the particular facts of any given case and that it must have the capacity of widespread application in its subject area. The point must have a gravity and importance to it which enables the Court to rightfully classify it as “exceptional”. Further, the jurisdiction must be considered as such and in no circumstances is it intended to displace the first level of appeal, or, outside of its express parameters, to permit a second strand of appeal. It is not designed to gain, and should not be used as, an opportunity of rerunning what was argued in the Court of Criminal Appeal. It must therefore only be on rare and very limited occasions that the certifying process can be invoked.
18. In addition it seems to the Court that when considering an application under the section, it is important to ascertain:
(ii) the necessity of obtaining the Supreme Court’s view on the suggested point; and, irrespective of that view
(iii) what effect would it have on the ultimate disposal of the case.
20. In the Court’s view these points are no more than an elaboration of the section’s true positioning within, as applicable in this case, the criminal process as a whole.
21. The Court would firstly note that the application is moved on identical grounds and supported by exactly the same arguments as those which were addressed to it on the original hearing of the notice of motion. Apart from the most general and almost peripheral reference to the provisions of s. 29 of the 1924 Act, the entire hearing was taken up with what can only be described as effectively a rerun of the issues which this Court had previously rejected. No submissions were filed and no real attempt was made to debate the scope or remit of the section, or how the suggested point of law could meet the threshold or criteria set out in its provisions. The impression is that this process is being used as a platform to once again air the matter, without a full appreciation of the exceptional character of the section. It is of the first importance to constantly appreciate the latter point when considering such an application. Otherwise, there is a real danger of a continuing proliferation of such applications, many of which are entirely unmeritorious. That is a situation which of course this Court cannot permit to continue.
22. Firstly, the suggested question in this case, with its wording imprecise, does not reflect the original argument and has built into it an assumption which may not be sound. The dicta in the case law above identified speaks of the point at issue being raised in a manner not exclusively tied to the trial court, but also for example being raised in separate proceedings, either by plenary summons or on the judicial review side. In fact, even in the manner in which Mr. Cunningham raised it on his appeal. Secondly, the preceding motion which gives rise to this application seeks only an opportunity, at the substantive hearing, to argue the point: it was not of course the purpose of the motion, even if successful, to debate what the ultimate conclusion might be. And thirdly, even if so permitted, it could not be assumed that the declaration in Damache could be of decisive influence in Mr. Patchell’s case. Therefore, it is clear that some difficulties exist with the actual wording of the suggested question itself.
23. That being so however it seems to this Court that whether the statutory infirmity must be raised prior to the declaration of unconstitutionality (as relevant in this case) is a matter which has and is well capable of being dealt with in the normal way by the Court of Criminal Appeal, in any appeal before it. Kavanagh and O’Brien highlight the importance of this having to be done: this Court in its February, 2013 judgment likewise does so. The issue has been taken thus far in the context of the circumstances which each of these cases has given rise to. Any future case is likely to have a variation in circumstances which will be dealt with in the usual way by the presiding court. The law traditionally evolves in an incremental way, and in this area, on this particular point, the Court does not see why it should be any different. As there are no conflicting judgments on the issue, there is therefore no need in that regard to certify the point as a matter requiring legal certainty. Whilst the matter involves a point of law, and is undoubtedly of importance for the appellant, it falls well short of meeting the standard set out in the section. Accordingly the Court would reject the application on this ground.
24. There is however another and even more fundamental reason why this application must be rejected: it is based on the appellant’s acknowledged assertion in the Court of trial that he was not challenging the legality of his arrest or detention (paras. 12 supra and 27 infra).
25. The law on this aspect of the application is well settled and has been so for some time, with decisions from both the Supreme Court and the Court of Criminal Appeal on the point. Corrigan v. Irish Land Commission  I.R. 317, The State (Byrne) v. Frawley  I.R. 326 (“Byrne”) and A. are but a number of such cases. In Byrne, Henchy J., at p. 349 of the report stated that:
26. To summarise the situation therefore: where an appellant, during the currency of his trial, adopts a certain course of action or engages in a particular course of conduct or otherwise evidences a clear intention of pursuing a definite strategy, and does so, he will not thereafter be permitted to resile from such a position and, for self advantage, to act in a manner entirely inconsistent with his previous actions. Many of the cases describe such activities as constituting – depending on circumstances – an acquiescence or an estoppel, an election or an approbation or a waiver – although a formal categorisation is probably not required.
27. What occurred in this case is that by the appellant’s activity, he must be regarded as having acknowledged the validity of his arrest and detention, and evidently did so as part of his strategy in defending these proceedings in the expectation of obtaining some jury advantage thereby. That being the situation, he cannot now be permitted to argue that such arrest and detention were unlawful.
28. Even however if there should be some doubt about this Court’s application of the above principles, that in itself would not be sufficient to merit a certification. The Court of Criminal Appeal in McCarthy, dealt with this point in the following manner:
29. In these circumstances it would follow that quite independently of what view the Supreme Court might take on the suggested question if certified, the same would have no material bearing on the ultimate disposal of this application. Accordingly, if the principles of law on s. 29 of the 1924 Act, as above espoused, are correct, there could be no question of this Court acceding to the present application. It would be an exercise in futility to so do.
30. Accordingly, the application is rejected.
Judgment of the Court (ex tempore) delivered on the 4th day February, 2013 by McKechnie J.
31. On the 8th day of April, 2011, the appellant was convicted by unanimous jury verdict of the following counts contained in the indictment, to wit:
(i) “STATEMENT OF OFFENCE
PARTICULARS OF OFFENCE
David Patchell on a date on or about the 19th of January 2009 at Kilmartin Drive, Tallaght in Dublin murdered Stephen O’Halloran.”
PARTICULARS OF OFFENCE
David Patchell on a date on or about the 19th of January 2009 at Kilmartin Drive, Tallaght in Dublin assaulted Paul Core, causing him bodily harm.”
PARTICULARS OF OFFENCE
David Patchell on a date on or about the 19th of January 2009 at Kilmartin Drive, Tallaght in Dublin assaulted Anthony Harte causing him serious harm.”
32. Subsequently he was sentenced to life imprisonment on the murder conviction and to seven years on counts nos. (iv) and (v), both to run concurrently and concurrent to the life sentence, and to commence as and from the 14th April, 2009.
33. By notice in writing dated the 30th day of May, 2011, the appellant sought from this Court leave to appeal against conviction. He did so by relying on a number of grounds as set out in the said notice. In addition, whilst that appeal was pending he issued a notice of motion dated the 10th July, 2012, in which he seeks to amend his notice of appeal by adding an additional ground which, if successful, would enable him to argue the Damache point, so called following the decision of the Supreme Court in the case of Damache v. D.P.P. & Ors.  2 I.R. 266 (“Damache”), delivered on the 23rd day of February, 2012. Accordingly, whilst there are a number of issues pleaded, they can all be condensed for the purposes of the instant hearing into two main grounds; the first of which for convenience can be referred to and described as “the Damache point”.
34. The second is an allegation that the trial judge erred as a matter of law in the limited way in which he allowed the jury to consider the issue of duress, as it applied to the evidential circumstances of the appellant’s case, and in particular and obviously, to count no. (i) on the indictment. This ground of appeal is separate from the first ground and its arguability is not in any way dependent on the outcome of the motion application, which is solely the subject matter of this judgment.
The Damache Point:
36. Mr. Damache challenged the constitutionality of this provision so operated, on the basis, inter alia, that a s. 29 warrant could only issue under the independent and impartial supervision of a qualifying member, meaning a member who effectively had no involvement in the investigation and who therefore had no material interest in the decision to issue or not, as the case may be. The Supreme Court so agreed and granted the following declaration (at p. 285 of the report):
37. On the first issue there are therefore two aspects to this application: firstly, whether in the presenting circumstances the appellant should be permitted to amend his notice of appeal in the manner requested; and secondly, even if successful in this regard, whether the consequences of Damache extend to the legality of his arrest and detention. Evidently, if the amendment is not allowed, the second aspect does not arise either as part of this application or at all.
38. For the purposes of a decision on this point, it is not necessary to say very much about the background circumstances other than that Mr. Patchell’s arrest was effected in the family home, in circumstances where the sole legal authority for the gardaí’s presence was a s. 29 search warrant, which, at least at the prima facie level, would be captured by Damache. The argument therefore which he wishes to advance is that the Supreme Court’s decision has the effect of rendering his arrest and detention unlawful, and consequently, any admissions, statements or confessions allegedly made by him whilst in garda custody must be classified as inadmissible and thus excluded from the prosecution’s evidence. As can therefore be seen, this argument is not quite the same as advanced in cases such as The People (D.P.P.) v. Cunningham  2 I.L.R.M. 406 (“Cunningham”) or The People (D.P.P.) v. Kavanagh & Ors.  IECCA 65 (“Kavanagh”), but it does have a strong resemblance to The People (D.P.P.) v. O’Brien  IECCA 68 (“O’Brien”); all of these cases will again be referred to later in the judgment.
39. Counsel on behalf of the appellant says that up to the present time, the legal position regarding what circumstances must exist, before a third party can seek to rely on Damache, has been clear cut in only two respects. Firstly, reliance will not be allowed where the individual in question has pleaded guilty to the charges in issue and where he has not independently challenged the constitutionality of s. 29 of the 1939 Act. Secondly and likewise, he will not be permitted to rely on the principle where the prosecution has reached finality, which might occur either when a conviction has been entered and the appeal period has expired without activation, or where, subject only to a possible application under s. 29 of the Courts of Justice Act 1924, as amended, an appeal has been finally determined by this Court. Accordingly, save in those circumstances, a person like the appellant should be entitled to argue Damache.
40. Counsel went on however to suggest that by reason of a decision given by this Court, as presently constituted, it would now appear that a further debarring issue centres on whether or not the individual has raised the Damache point in the court of trial. This is a reference to some observations made in a judgment of this Court given earlier today in D.P.P. v. O’Connor (Unreported, Court of Criminal Appeal, McKechnie J., 4th February, 2013) (“O’Connor”).
41. Disregarding O’Connor for a moment, it is claimed that as there was no plea in this case, the appellant should, subject to the following, be entitled to argue Damache. The caveat, described as “[t]he only possible impediment” to so doing, arises from The D.P.P. v. Cronin (No. 2)  4 IR 329 (“Cronin (No. 2)”). However, as there was no purpose in raising the Damache point in the court of trial, due to the jurisdictional limitations of that Court, the only “failure” within Cronin (No. 2) which could be attributable to the appellant, was his failure to separately institute proceedings challenging the constitutionality of the section. That fact alone is not however sufficient to debar him, as Cunningham and Kavanagh show. In any event, as a matter of justice, Cronin (No. 2) should be stood down in favour of permitting the amendment.
42. The D.P.P. joins issue with this submission, and having asserted the application of Cronin (No. 2), goes on to rely heavily on O’Brien. Moreover, it was stated on her behalf that, as the appellant took a position and made a strategic decision to expressly waive any issue as to the validity of the warrant, or his arrest or detention, and thus obtained the benefit of such a strategy before the jury, such a course of conduct should disentitle him from now relying on the point.
(ii) Mr. Kavanagh, was considered to have directly raised the constitutional point at trial, as he was “identified with” his co-accused in the manner in which all three had conducted common aspects of their defences. In addition, since he had not otherwise disqualified himself by conduct, he was likewise entitled to argue the issue;
(iii) Mr. Hughes (D.P.P. v. Hughes  IECCA 69) on the other hand had pleaded guilty, had been sentenced and had not appealed by February, 2012. His trial had therefore reached finality: accordingly, he was not permitted to amend.
44. As indicated, there is one further case, namely O’Brien, where the main circumstances have a close parallel to Mr. Patchell’s position, in that Mr. O’Brien was arrested during a search of his family home, which was carried out under a s. 29 warrant. What the Court had to decide was whether the arrest and subsequent detention were lawful, as otherwise no adverse inference from his silence during interview, could be drawn at his trial. It is of course admissions, rather than silence, which are of concern to Mr. Patchell. In any event, both at trial and indeed by way of separate proceedings, Mr. O’Brien – quite unlike the present appellant – had sought to challenge the constitutionality of s. 29 of the 1939 Act, and whilst his efforts on both fronts yielded no results, nonetheless, as a matter of fact, he had so endeavoured. On his appeal to the Court of Criminal Appeal, that Court, having referred to Cunningham and Kavanagh, summarised what the position was regarding a person’s entitlement to rely on the Damache point. Hardiman J., suggested that generally speaking, an appellant would be allowed to gain the benefit of the constitutional declaration, where:
46. This view, at least in part, has public policy considerations behind it. Whilst the criminal justice system is not in any way perfect and indeed has many imperfections within it, and whilst it is critical to ensure that an individual charged with a criminal offence obtains a trial in due course of law, it is also and likewise important to make provision for the finality of this process. This is so not only from the point of view of the accused person and the victim, but also within the context of the overall system as a whole. Therefore, given the adversarial nature of how such trials proceed, it is not in this Court’s view an excessive encroachment into the process, to require an appeal point to have been ventilated either independently or as part of, the trial process. Save where a fundamental injustice would result, failure or omission to raise a Damache-like point in circumstances presently under review will normally mean that such point cannot be raised at appeal.
47. In summary, one can therefore say that, where within the appeal period there has been no appeal or where the appeal has reached finality, it will not be possible in such circumstances for a convicted person to seek to reap the benefit of a subsequent court ruling such as that given in Damache. Conversely, however, where the appellant has an extant appeal which remains undetermined, and where the point in issue has been raised – either at trial or independently of it – he/she will in principle be entitled to rely on such decision, subject only to conduct which might disentitle him/her from so doing. “Conduct”, as understood in this passage includes any act or action, omission or inactivity, which in the circumstances gives rise to an estoppel, waiver, acquiescence, election or the like, on the part of the individual in question. In particular in this context, a plea of guilty can have special significance, as can decisions made during the run of the trial which are calculated to advantage the accused person.
48. What might be less clear are the consequences which follow where the issue has not been raised in any form, prior to the appeal (apart from in preparation for it), thus giving no indication that such point of law is part of one’s defence to the indictment. Cronin (No. 2) suggests that in such circumstances a subsequent agitation of the point is not permissible, save to avoid a fundamental injustice being caused. What Kearns J. said at p. 346 of the report, namely that “an appeal is concerned only with a review of the trial and the rulings made therein”, was repeated by the Court of Criminal Appeal in Kavanagh. Furthermore, apart from Cunningham, the other decisions of the Court of Criminal Appeal above noted, and which allowed the amendment, were all cases where, by or during the trial, the accused person had evinced a clear and definite intention of incorporating the issue in question, as part of his defence argument. On that basis, the absence of antecedent reliance on the particular point, whatever it might be, must undoubtedly have consequences for the appellant.
49. It was explained by Counsel for Mr. Patchell that the strategy adopted for trial purposes was set in the context of the law as then understood and in a manner designed to best advantage his client. He asserts that not long before the trial, a decision of this Court (The People (D.P.P.) v. Birney & Ors.  1 IR 337 (“Birney”)) gave confidence to practitioners that s. 29 of the 1939 Act was not in any way at immediate risk. There was therefore he says no reason and certainly no perceived advantage in raising the point, much less in raising it at a constitutional level. Whilst I am not at all sure that Birney could be read to that effect – particularly if one has regard to what Morris J. said in what is referred to as the “Burnfoot Module” of the Morris Tribunal Report (2008), at paras. 6.22 to 6.23 – nonetheless even if it could, that in itself cannot be an answer to the failure or omission to raise the point during trial or within the trial period. Further, whilst Counsel, in conjunction with his client, may have good reason for adopting a particular course of conduct, such decisions are the lifeblood of any trial, but once taken and implemented, must, at least generally, be respected and adhered to.
50. There is a further matter in this appeal which has quite definite significance for this application. It relates to another aspect of the defence strategy and how the jury were addressed thereon. On day 1, p. 22 of the transcript, the judge is recorded as saying the following to the jury, which in turn is self-explanatory of what had preceded it:
52. It must immediately be stated that no criticism whatsoever can relate to these concessions, if such can be so described, offered only we are told in light of the law as then understood. Such no doubt were decided upon in the best interest of Mr. Patchell and in the expectation that he would obtain a litigation advantage thereby. In fact, it is quite clear that the trial judge also saw merit in this approach and did so to such an extent that he repeated in front of the jury the advantages – including the time saved – of what had thereby occurred. Such an approach is one which this Court entirely agrees with and would encourage wherever possible. However, there is of course no obligation to so do, but when invoked it must be assumed that it is also in the best interest of the client, as it was perceived to be in this case.
53. The decision last mentioned quite evidently was taken with deliberation, and must be regarded as a tactical or strategic one, designed to influence the jury’s view of Mr. Patchell. It clearly impressed the trial judge, who added his voice of approval to it. It was therefore a calculated judgment call, like many others which must be made during the course of most criminal trials. Once made however, such a decision has consequences not only for the run of the trial, but also for any appeal from a resulting conviction, if one should so follow.
54. On any reading of the above passage, it is clear that the defence was not requiring the prosecution to cover by evidence, or if need be by submission, the arrest and detention of the appellant. In other words, it was being accepted that the same had been conducted in accordance with law. Implicit within this was a representation that even if there was a legal point at issue or otherwise available for argument, the same was not being relied upon or pursued. On that basis the trial proceeded and continued to finality.
55. In this Court’s view, it would now be quite wrong to allow the appellant to resile from that position and effectively to assert the contrary. Once a strategy has been unfolded to the jury, and once the case has been conducted on that basis, the affected party will not be permitted to negate that situation and on appeal, to adopt an alternative approach (Kavanagh at para. 59). As Geoghegan J. stated in Cronin (No. 2), at p. 339:
56. This Court respectfully agrees with this view, and being like-minded that no injustice has occurred, will refuse the application to amend a notice of appeal.
57. In any event, having considered the entirety of the papers as submitted, it seems to us that largely, this was always a single issue case from the accused’s point of view. Noting that the submissions went further than what I have previously outlined, it appears that the central point – the central contest – was essentially referable to the question of duress. That of course is a point which is still very much capable of full argument, and the inability of Mr. Patchell to rely on Damache does not in any way take from the real substance of the appellate point which emerged during the course of trial.
58. In conclusion, we refuse the application insofar as it relates to the Damache point.