The Court of Appeal dismissed Timothy Rattigan’s application seeking a retrial over his murder conviction, granting a motion by the Director of Public Prosecutions (DPP) to dismiss the proceedings as bound to fail.
In an ex tempore judgment delivered on 15 February 2016, Mr Justice Birmingham said the court had jurisdiction to dismiss an unstateable application, but that power should be used sparingly and only in clear cases. The court concluded that this was such a case.
Rattigan was convicted in the Central Criminal Court in 2005 of murdering Joan Casey. His application under section 2 of the Criminal Procedure Act 1993 relied on the Supreme Court’s 2012 decision in Damache v DPP, which concerned the constitutional validity of search warrants issued under section 29 of the Offences Against the State Act.
At Rattigan’s trial, the prosecution presented evidence that a detective superintendent had issued a section 29 warrant. Gardaí used it to enter a Tallaght address in April 2004 and arrest Rattigan. Items seized included runners that forensic evidence linked to doors at the murder scene, a spray can said to be similar to one used on an imitation firearm, and a firearm bearing fingerprints of significance to the case.
Rattigan argued that Damache represented a substantial change in the law and a new fact for the purposes of his application. He said the warrant was unconstitutional and that evidence obtained through the search should have been excluded. The judgment records that his trial counsel had challenged the independence of the warrant issuer on grounds that anticipated the argument later accepted by the Supreme Court in Damache. The trial judge rejected the challenge under the law as it was then understood.
The DPP relied on the Court of Criminal Appeal’s 2013 decision in McKevitt, arguing that Damache was not a newly discovered fact under section 2 and did not apply retrospectively to finalised cases. The Court of Appeal agreed. It said McKevitt had considered the possibility that the applicant there had raised the section 29 issue at trial, and concluded that the cases were “on all fours”. It adopted McKevitt’s reasoning and conclusions.
The DPP also argued that a later Supreme Court judgment, J.C., made Rattigan’s application moot. Rattigan’s counsel said admissibility under the changed legal position should be addressed at trial with oral evidence. The Court of Appeal did not decide that issue, saying it was unnecessary once it concluded the application was bound to fail. Its order dismissed the section 2 proceedings; the judgment did not order a retrial or determine the admissibility of the evidence under the post-J.C. legal position.