Court of Appeal: Article 40.4 application challenging conviction rejected as ‘totally misconceived’

About this case:

• Citation:
  [2021] IECA 352
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

The court also commented on the insistence of the appellant to represent himself during the hearing, despite the fact that solicitor and counsel were available through legal aid.

Background

The appellant had previously been convicted for assault contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 and was sentenced to four-and-a-half years’ imprisonment with the final year suspended. Following the sentencing hearing, the application brought an Article 40.4 application in the High Court seeking to overturn the conviction.

The appellant did not engage a solicitor and counsel for the application and instead requested that his son be allowed to make submissions on his behalf. The trial judge allowed the son to make submissions due to the poor health of the appellant at the time. However, the submissions consisted of “a pot pourri of grounds”, which did not contain any evidence that the Circuit Court was deprived of jurisdiction and were more properly the subject of an appeal.

The sole issue raised by the appellant which went to jurisdiction was that there were errors on the committal warrant regarding the appellant’s name and date of birth. The appellant also complained that the warrant was missing a seal of court and was signed by a person who had no authority to do so. It was held that a committal warrant did not require a seal of court, even though the document itself made reference to bearing a seal. The court determined that the errors in the committal warrant were trivial and did not cause unfairness or confusion to the appellant.

The decision was appealed to the Court of Appeal. The appellant again sought to have his son represent him at the hearing, but this was rejected by the court. The court noted that the appellant was “fluent and articulate” at several appearances in the management list and that he should have to represent himself if he chose not to obtain legal representation.

Court of Appeal

Delivering judgment in the case, the Court of Appeal began by making it “abundantly clear” to the appellant that his son would not be allowed to make submissions despite the wishes of the appellant. It was noted that the appellant did not proceed to make submissions and instead, he “sought to interrogate the Court.” The appellant only referred to the committal warrant issue by asking rhetorical questions and, absent any other submissions from the appellant, the court was required to determine the case based on the papers.

It was held that the appellant had adopted a “scatter gun approach” to the grounds of appeal in the case and that the majority of the issues “could never be expected to result in the release of the applicant pursuant to Article 40”. It was held that the “long and short” of the case was that appellant stood trial before a jury, was convicted and sentenced.

The court agreed that there was requirement that the committal warrant required a seal of court. Further, the court noted the evidence of the Combined Office Manager for the Court Service, who stated that the warrants were normally signed by him or a “nominated signatory” under the Rules of Court.

The court also held that, even if there was an issue with the warrant, it would not be sufficiently serious to require the immediate release of the appellant. The appropriate course of action was to remedy any defect in the document in circumstances where the appellant stood trial and was convicted.

The court held that it was fundamentally important for accused people to be represented by professional lawyers. However, this was a case where the appellant displayed a consistent preference to represent himself.

The court held that the present case was similar to Kelleher v. Governor of Portlaoise Prison (Unreported, Supreme Court, 30th October 1997), where it was held that the issues raised in an Article 40 application should have been raised in an appeal. The court quoted from O’Flaherty J. who, in a two-line judgment, stated that the proceedings were “totally misconceived and should never have been brought”.

The court held that the appellant always had the alternative remedy to appeal the decision and that, despite the willingness of the DPP to consent to the filing of a late appeal, the appellant had chosen to “prevaricate”.

However, it was also held that the appellant should not be “shut off from an appeal as a result of his own foolishness”. Accordingly, if the appellant brought an application to enlarge time for an appeal, the appeal would be given priority in the management list.

Conclusion

The appeal was dismissed.