COURT OF CRIMINAL APPEAL JUDGMENT/DPP -v- Thomas Hughes
Neutral citation (2012) IECCA 69
Court of Criminal Appeal
Judgment was given by Mr Justice Adrian Hardiman on July 2nd, 2012, with Mr Justice Michael Moriarty and Mr Justice Gerard Hogan concurring.
Judgment
Justice does not require that the time for appeal be extended for an appellant to appeal conviction for offences to which he had pleaded guilty.
Background
The accused pleaded guilty in the Special Criminal Court in November 2011 to the offences of possessing explosives and a firearm in Monivea, Athenry, Co Galway, in January that year. He was sentenced to five years and two years imprisonment, to run concurrently, and did not appeal within the specified 21 days.
In February 2012, the Supreme Court ruled in Charaf Damache -v- DPP, Ireland and the Attorney General, striking down as unconstitutional section 29 (1) of the Offences Against the State Act, as it permitted a search of a person’s home on foot of a warrant issued by a garda involved in the investigation, rather than an independent person. The second count on which this appellant was convicted, possession of a firearm, involved material found in his home on foot of a search warrant issued by a person who was not independent.
The appellant gave as his reason for not appealing within the specified time the fact that he could not instruct a solicitor as he was imprisoned in Portlaoise Prison. He sought an extension of time in which to appeal.
Mr Justice Hardiman said that this explanation was “hopelessly inadequate”, given that the majority of those who appealed did so when detained, and Portlaoise Prison maintained a supply of forms to facilitate prisoners contacting solicitors.
He said the court had little doubt but that the intention to appeal only arose after the Damache judgment. The court would approach the application on the basis of this and the fact that the appellant had pleaded guilty.
Decision
Mr Justice Hardiman pointed out that this issue had previously been considered. The effect of a pleas of guilty was an acknowledgement by the accused, fully advised by solicitor and counsel, of his factual and legal guilt of certain of the offences with which he was charged. Here the applicant was seeking an extension of time to appeal against his conviction of offences to which he had pleaded guilty, to permit him to take advantage of a later finding in a case involving another person and where he had not argued this issue at his own trial.
The courts had considered on other occasions the situation that arose when, after a person had been convicted, the law underlying the offence was found unconstitutional. The Supreme Court had stated that where the State relied in good faith on a provision, and the accused did not seek to impugn it, the final decision must be deemed to be lawful.
In the interests of legal certainty and in defence of the enduring regularity of proceedings fully legal at the time, the application should be struck down. No system of law could operate if decisions intended to be final could subsequently be set aside on the basis of developments which occurred afterwards.
All these arguments were strengthened by the fact that the applicant had pleaded guilty. The fact that section 29 of the Act had been struck down did not affect this. This section related only to the mode of search which revealed the evidence. When guilt was admitted, it relieved the prosecution of the necessity to produce that evidence.
The applicant had not sought to challenge the law, as Mr Damache did. Had he done so, it would only have related to his dwelling, where the gun was found, and not the premises where the explosives were found. The explosives had attracted the longer sentence and this would have been longer had he not pleaded guilty.
The considerations set out in previous cases provided ample basis for declining to reopen the case, and an extension of time was refused.
The full judgment is on courts.ie.
Pádraig Dwyer SC and Kieran Kelly BL, instructed by Sheehan and Company, for the appellant; Paul Greene SC and Garnet Orange BL, instructed by the Chief Prosecution Solicitor, for the DPP