THE COURT OF APPEAL
Birmingham J.
Mahon J.
Edwards J.
113CPA/14
In the matter Section 2 of the Criminal Procedure Act 1993
Director of Public Prosecutions
respondent
applicant
Judgment of the Court (ex tempore) delivered on the 15th day of February 2016 by Mr. Justice Birmingham
1. In this case Mr. Rattigan has brought an application pursuant to s. 2 of the Criminal Procedure Act 1993, in respect of his murder conviction in the Central Criminal Court on the 8th July, 2005. Before the court today is a motion brought by the Director of Public Prosecutions seeking to dismiss the application as one not based on any new or newly discovered fact and therefore one that is unstateable and unarguable and bound to fail.
2. That the court has jurisdiction to make such an order is clear from the decision in McKevitt v. DPP. However, it is clear from that decision of the Court of Criminal Appeal and also from the decision of this Court in the case of O'Reilly v. DPP, that it is a jurisdiction to be exercised sparingly and only in clear cases.
3. The background to the s. 2 application and to today’s motion is, that as indicated on the 8th July, 2005, Mr. Rattigan was convicted of the murder of Joan Casey in her home in Avonbeg Park, Tallaght, on the 3rd April 2014. Following his conviction he sought leave to appeal and on the 9th March, 2006, the Court of Criminal Appeal refused to grant leave to appeal.
4. The contention that there has been a miscarriage of justice and that a re-trial should be ordered, which is what is sought, arises from the decision of the Supreme Court in Damache v. DPP [2012] 2 I.R. 266. The issue is raised now in circumstances where at trial there was evidence that Detective Superintendent Declan Coburn gave evidence of having issued a warrant pursuant to s. 29 of the Offences Against the State Act, on the 17th April, 2004. On the 19th April, 2004, gardaí entered the premises at 13 Avonbeg Gardens, purporting to do so on foot of the authority of a s. 29 warrant. There Mr. Rattigan was arrested and then detained pursuant to s. 30 of the Offences Against the State Act. During the course of the search a number of items of evidential significance were seized, including a pair of runners. Expert evidence subsequently linked these forensically to the front door and bedroom door of 11 Avonbeg Park, the murder scene. A colour spray was also located. In relation to this spray can there was evidence that it was similar to a spray that was used on an imitation firearm that was found during the course of the investigation. Also fingerprints were found on a firearm of significance in the case.
5. At trial in issue in relation to the warrant was raised by counsel for a co-accused, Mr. Grogan, Ms. Aileen Donnelly S.C. as to the validity of search warrants that had been issued by the Detective Superintendent. The contention being that they were invalid as they were not issued by a person independent of the investigation. That argument was expressly adopted by Mr. Tony Sammon, S.C. who was counsel for Mr. Rattigan. It is clear from the transcripts that the arguments that were advanced on behalf of Mr. Grogan which were then adopted on behalf of Mr. Rattigan anticipated the arguments that would eventually find favour with the majority of the Supreme Court in Damache.
6. The trial judge, the late Mr. Justice Carney rejected the arguments. Given the state of the law as it was then understood to be, it is hard to see how he could have done otherwise. Section 29 of the Offences Against the State Act, enjoyed a presumption of constitutionality. It is to be noted that the issue of the s. 29 warrant did not feature in the application to the Court of Criminal Appeal for leave to appeal. It is also to be noted that while Mr. Rattigan and his co-accused presented arguments that foreshadow the arguments that would be presented in Damache and were to be successful in Damache that Mr Rattigan unlike Mr. Damache did not bring plenary proceedings challenging the constitutionality of s. 29 of the Offences Against the State Act.
7. Following on from the judgment of the Supreme Court in Damache which was delivered on the 23rd February, 2012, Mr. Rattigan presented a statement grounding an application pursuant to s. 2 of the Criminal Procedure Act, on the 4th April, 2014. The grounds are there set out at paras. E1 and E2 and when the matter goes up on the website, as it will in due course, the grounds will be quoted:
“E1. New facts which have transpired from the trial in the case of Damache v. DPP [2012] 2 I.R. 266 showing that it would be unsafe to continue to accept as being established beyond reasonable doubt that the applicant is guilty of the offence of the murder of Joan Casey insofar as such conviction is grounded on the ruling by the Court of Trial and this Honourable count on appeal therefrom that the warrants issued in the course of the investigation were issued, in accordance with law and which said warrants were executed to secure the only evidence against the appellant capable of grounding his conviction. The appellant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence in the appellant’s trial which was obtained in a search of a dwelling at 13, Avonbeg Gardens, Tallaght, on the 19th April, 2004, carried out pursuant to a search warrant obtained under s. 29 of the Offences Against the State Act 1939 (as amended), the said section being repugnant to the Constitution, thus rendering the applicant’s trial unsafe and unsatisfactory by reason of the admission of evidence so obtained in breach of the applicant’s constitutional rights.
E2. Further, the applicant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence concerning fingerprints and “Nike Air Max” runners taken from the applicant following the applicant’s arrest at 13, Avonbeg Gardens, Tallaght, following the search of the said address where the search warrant employed to search the said address unconstitutional, thereby rendering the evidence obtained and presented in the trial to be inadmissible.
2. New facts, transpire from the Damache case which undermines the legal basis upon which the evidence was adduced during the course of the applicant’s trial and which grounded the applicant’s conviction for the offence of murder
(i) The fingerprints and runners relied upon by the prosecution to obtain the applicant’s conviction, were obtained on foot of a s. 29 search warrant, were unconstitutionally obtained the fruits of this search ought to have been excluded from evidence.
(ii) The trial judge erred in law in holding that the warrants were issued lawfully and in accordance with law.
(iii) The evidence adduced by the prosecution, during the course of the applicant’s trial, should have been deemed unconstitutional and therefore inadmissible as evidence.
(iv) The applicant’s conviction is unsound in law in that same was obtained in circumstances where the prosecution, despite challenge as to the lawfulness of the search warrants pursuant to s. 29 of the Offences Against the State Act 1939, as amended, failed to establish the lawfulness of the said warrants, in consequence of which failure, evidence obtained during the currency of the Accused’s detention as grounded upon the said arrest and execution of the said search warrants, ought to have been deemed inadmissible in law by the learned Trial Judge and by this Honourable on appeal therefrom.”
8. The Director of Public Prosecutions responded by way of notice of motion dated the 3rd October, 2014. The grounding affidavit relied on refers to the case of McKevitt [2013] IECCA 22 and asserts that the McKevitt decision deals definitively with the issues that are raised in the present case as it establishes that the decision of the Supreme Court in Damache cannot be categorised as a newly discovered fact, within the meaning of s. 2 of the Criminal Justice Act 1993, and also established that the Damache case is of limited application and in particular it establishes that Damache has no application to finalised cases.
9. On behalf of Mr. Rattigan it is contended that subsequent to the Damache decision there has been a substantial change in the law as regards s. 29 warrants and that the fact that s. 29 warrants are no longer lawful, has to constitute a new fact as envisaged by s. 2 of the Criminal Procedure Act 1993.
10. The centrality of the McKevitt is recognised on both sides. Indeed Mr. Rattigan is quite clear and unequivocal in contending that the Court of Criminal Appeal in McKevitt erred in its decision and that, at least by implication that this Court should decline to follow it. Moreover the applicant Mr. Rattigan says that the McKevitt case is distinguishable, in that he unlike Michael McKevitt had specifically challenged the validity of s. 29 warrants and indeed had done so on the precise grounds that would find favour later. It is therefore appropriate to consider the decision in McKevitt in greater detail. At para. 22 of the judgment of the court which was delivered by McMenamin J. and in subsequent paragraphs the court reviewed the various cases where the question of whether a new or newly discovered fact had been established was an issue, referring in that context to cases such as DPP v. Kelly [2008] 3 I.R., where an exhaustive review of all the authorities to date was conducted, referring also to DPP v. Mileady [1995] 2 I.R.; DPP v. Pringle [1995] 2 I.R.; DPP v. Gannon [1997] 1 I.R.; DPP v. McDonagh [1996] I.R. and DPP v. Shortt [2002] 2 I.R.
11. At para. 35 the Court of Criminal Appeal identified the issues that it felt arose on a review of the authorities. It did so in these terms:-
“The following questions or tests arise on the basis of the authorities:-
(a) Can a judgment of the Supreme Court be described as a matter of fact or evidence without doing violence to those terms?
(b) Can such a judgment, delivered nine years after the trial, be seen as appertaining to an evidential issue which could or might have been adduced at the trial which might have raised a doubt in the minds of the deciding court?
(c) Does the judgment appertain to matters which might have come within the realm of trial disclosure?
(d) Does that judgment come within the category of admissible expert opinion evidence under s. 2 in the sense described in The People (Director of Public Prosecutions) v. Kelly [2008] IECCA 7 , [2008] 3 IR 697”
12. The DPP says that each of the questions posed can be answered and indeed has to be answered with a clear and unequivocal “No”.
13. Having posed those questions the Court of Criminal Appeal then proceeded to say:-
“In the view of the court, to pose the questions in this way demonstrates the frailty of the applicant's case that the Damache judgment can come within the definition of a newly discovered fact which could give rise to an apprehension that there had been a miscarriage of justice.
In fact, an objective analysis of the authorities demonstrates the limited range of matters captured by s. 2 of the Act of 1993. The legislative intendment relates to material which could, should or might have been adduced at a trial of an evidential or factual nature, and which, seen objectively, would render the conviction a miscarriage of justice such that it should be quashed.
In the view of the court, to characterise the judgment in Damache as a ‘newly discovered fact runs counter to all the authorities. A Supreme Court judgment delivered in 2012 cannot on any tenable basis be characterised as a ‘newly discovered fact’, appertaining to the trial or the prosecution of that trial such as would render the conviction a ‘miscarriage of justice’.
However, the s. 2 application faces a further fatal frailty. It is this: even were the court to be persuaded that the judgment in Damache judgment was a newly discovered fact, it is a determination of law applicable only in a narrow range of situations which arose in cases which were pending or which still remained before the courts. The Damache judgment cannot, even arguably, be said to be retrospective for a period of 10 years or more. The determination as to constitutional repugnancy cannot be ‘read back’ into decisions made by courts many years before the judgment declaring such repugnancy was delivered. It is necessary to explain now why this proposition becomes unarguable.
Even if the Damache judgment were to be extended by some strained process of taxonomy, it cannot in its very terms be retrospectively applied to the applicant's conviction. In C.C. v. Ireland [2006] 4 IR 1 , the Supreme Court held that s. 1(1) of the Criminal Law (Amendment) Act 1935 was repugnant to the Constitution. The section did not allow for a defence of reasonable belief regarding age to be raised by an accused when charged with unlawful carnal knowledge of a girl under the age of 15 years. The extent to which that declaration of repugnancy could be held to be retrospective or applicable to other cases decided prior to C.C. was addressed in the subsequent decision of the Supreme Court of A. v. Governor of Arbour Hill Prison. The observations of the Supreme Court in the A. case are entirely on point here.” (Emphasis added)
14. The question of whether this case is to be distinguished or can be distinguished from McKevitt has been addressed by counsel. Counsel for the Director draws attention to what is stated at para. 48 of the judgment in McKevitt. There the Court of Criminal Appeal commented:-
“For the purposes of arguability, this court will go so far as to assume that, rather than there having been any suggestion of acquiescence and waiver, the applicant had in fact continued to be represented and had raised the s. 29 point. How does this render the case arguable?”
He then goes on to answer the question that he poses.
15. The significance of this paragraph is clear. This is not a case of a court, by way of aside referring to a factual scenario different to the one before the court. This was a case of the Court of Criminal Appeal setting out in very clear terms the basis on which it was choosing to address its task. That it might have approached the case on a different basis is neither here nor there. This Court finds itself in complete agreement with the reasoning and conclusions of the Court of Criminal Appeal in McKevitt. This case and the McKevitt case are indeed on all fours and this Court reaches the same conclusion and for the same reasons.
16. Now it is the case that since the s. 2 application was initiated that the Supreme Court has delivered judgment on the 15th April, 2015, in the case of J.C. The DPP contends that this is a further reason for acceding to her motion as she says that Mr. Rattigan’s application is now moot. The Director does accept that the effect of the decision is not to make evidence that would previously have been excluded admissible per se. For his part, Mr. Rattigan says that this is not the appropriate forum to consider this issue in regards to admissibility against the changed legal landscape post J.C. and that the appropriate place for that exercise to take place is at trial, where there would be viva voce evidence.
17. In a situation where this Court sees the issue before it as very clear cut and where there is no doubt that the s. 2 application would have been dismissed as one bound to fail at all stages since the 3rd October, 2014, when the DPP brought a motion, the court does not find it necessary to address this issue further.
18. In summary then, this Court has no hesitation in acceding to the motion of the Director of Public Prosecutions and in dismissing the proceedings that have been brought by Mr. Rattigan pursuant to s. 2 of the Criminal Procedure Act 1993.
