The Court of Criminal Appeal has refused an application by Paul O’Connor to certify a point of law for appeal to the Supreme Court over the effect of the Damache ruling on his conviction.
O’Connor was convicted in July 2011 of robbing more than €10,000 from a bookmaker’s premises in June 2009 and sentenced to 10 years in prison. His appeal against conviction remained pending on other grounds.
After the Supreme Court’s 2012 decision in Damache declared unconstitutional a law allowing certain Garda superintendents to issue search warrants, O’Connor sought to add that issue to his appeal. In a February 2013 judgment, the Court of Criminal Appeal considered the issue substantively, with the agreement of both sides, and ruled that he could not rely on the declaration in his case.
The court gave two reasons: defence counsel had conceded at trial that the warrant was lawfully obtained, and the issue had not been raised at trial in a way that justified its being raised for the first time on appeal under the principles in The People (D.P.P.) v. Cronin (No. 2). The court said the concession was not a matter for criticism, but that O’Connor could not now take a position diametrically opposed to the one adopted at trial.
O’Connor then asked the court to certify this question for the Supreme Court: whether a convicted person had to raise an objection before conviction to benefit from a later declaration that a statutory provision was unconstitutional. He argued that the earlier judgment had misapplied the principles in A. v. The Governor of Arbour Hill Prison and that no general requirement to put every possible legal objection on the trial record should apply.
The court said certification under section 29 of the Courts of Justice Act 1924, as amended, required a point of law of exceptional public importance and that it be desirable in the public interest for the Supreme Court to hear it. Applying principles set out in a companion judgment in D.P.P. v. Patchell, it said the proposed point must have wider importance and material relevance to the case’s eventual outcome.
The court concluded that even if the Supreme Court answered the proposed question in O’Connor’s favour, that would not advance his position because the Damache issue had already been decided against him on separate grounds. It also considered the point too tied to his individual circumstances to meet the certification test. The application was refused. The judgment did not determine O’Connor’s remaining appeal grounds.