The Court of Criminal Appeal has refused an application by Eamon Cooke for a certificate to appeal to the Supreme Court over the dismissal of his criminal appeal in 2009.
In a judgment delivered on 28 July 2015, Mr Justice John MacMenamin said the proposed questions did not meet the statutory test for a section 29 certificate: they had to involve a point of law of exceptional public importance and make an appeal desirable in the public interest.
Cooke had been convicted by a jury in Dublin Central Criminal Court in 2007 on 52 counts of indecent assault concerning two complainants, identified in the judgment as AMK and SK. The alleged offences took place between May 1974 and May 1978. The Court of Criminal Appeal dismissed his appeal on 11 May 2009. The judgment says an earlier conviction concerning the same complainants had been quashed in 2006 because the trial judge’s charge had not addressed delay.
Cooke sought certification on two questions. The first concerned the adequacy of the trial judge’s warning to the jury about the effects of delay, including whether the issue had been fully considered on appeal despite reliance on the decision in DPP v Cronin. The second asked whether the proviso in section 3(a) of the Criminal Procedure Act 1993 could apply where a jury was not directed on an essential matter of law.
The court said the first question was bound up with events at this particular trial and sought to revisit matters already considered in 2009. It noted that the 2009 court had considered the delay warning and found it adequate in the circumstances. The 2015 judgment also records that the applicant had served the sentence imposed for these offences, making the proposed appeal moot in relation to that sentence.
On the second question, the court said the proposed point rested on an incorrect premise: the proviso had been applied in the 2009 judgment only as an alternative, after the court found the warning adequate. It said there had been no fundamental error or miscarriage of justice in the case, and that the applicable law was settled.
The court concluded that the application would amount in substance to another appeal on how established law had been applied to the facts. It refused the application. The decision concerns certification to appeal; it does not reopen or alter the 2009 dismissal of the criminal appeal.