The Court of Criminal Appeal has refused William Kenny’s application for a certificate that would have allowed an appeal to the Supreme Court, after it had previously dismissed his application for leave to appeal against his conviction.
In a judgment delivered on 5 February 2004, Denham J. said the certification application was heard on 11 December 2003. Kenny had been on continuing bail during the applications. Under section 29 of the Courts of Justice Act, 1924, the applicant had to establish that the decision involved a point of law of exceptional public importance and that an appeal was desirable in the public interest.
Although seven grounds were included in written submissions, counsel relied orally on three. The first concerned a trial judge’s communications with prospective jurors during jury selection. The Court of Criminal Appeal said section 15(3) of the Juries Act, 1976 allowed a judge to direct or authorise how prospective jurors communicated concerns, including sensitive medical matters or illiteracy. It said the legislation gave the trial judge discretion and that its exercise depended on the circumstances. The court accepted that jury selection was a matter of public importance, but found no point meeting the statutory test for certification.
The second ground concerned the treatment of hostile witnesses. The court said it had previously held that the trial procedure complied with People (A.G.) v. Taylor and upheld the trial judge’s determination on the case’s facts. It rejected the argument that public debate about hostile witnesses made the case suitable for a Supreme Court appeal, saying public interest was not the same as public attention and that no qualifying point of law had been shown.
The third proposed ground concerned a jury direction about an alleged criminal common design. The court said this question differed from the misdirection issue argued in the earlier appeal and had not been argued before it. It held that a point for certification must have been argued before the Court of Criminal Appeal, and said it had no jurisdiction to refer this new question.
The court refused the certification application. The judgment ends by saying Kenny’s bail status would be addressed at its conclusion; the source does not state what further decision, if any, was made on bail.