Judge Keenan Johnson
Longford Circuit Court Judge Keenan Johnson ruled that he did not have the jurisdiction to deal with an order of the Court of Criminal Appeal that a local man be retried on a possession of child pornography charge.
Thomas McNally, Foynes Court, Longford appeared before the court with a notice of motion to strike out the proceedings against him for reasons that they were unlawfully before the court and for reasons of delay.
The motion also informed Judge Johnson that he make no order in respect of the proceedings because he did not have the jurisdiction to deal with the matter.
The matter before last week’s sitting centered around a previous trial where Mr McNally appeared charged with two counts of possession of child pornography.
He was charged with possession of child pornography in Longford on February 6, 2006 and possession of child pornography on February 7, 2006.
He was convicted on count one and the second charge was quashed.
After spending three months in prison in respect of the matter, Mr McNally was then released on bail.
The court heard last week that the original order of the Court of Criminal Appeal directed that Mr McNally be retried on count two, but this charge had been quashed, so it should have directed he be retried on count 1.
[A perfected order in respect of this was then issued on September 8, 2016].
Defence Counsel Mr Paul Dwyer BL appeared on behalf of Thomas McNally at last week’s circuit court and argued that there had been “an all round breach of his client’s rights” in respect of the order of the Court of Criminal Appeal.
Mr Dwyer BL said he was also arguing the matter on jurisdictional grounds.
In providing a background to the case, Defence Counsel said the issue dated back to 2006 when Mr McNally and his daughter, Tanya Mulryan, had been indicted on two counts before the courts - one that related to material that had been found a number of miles from Longford town, and a second charge centered around material that was discovered in a car belonging to Ms Mulryan.
The court heard how Mr McNally had been arrested in February 2006, but later “cleared of the offences”.
“Mr McNally denied the offences, while Ms Mulryan accepted responsibility for both the material and for handwriting on the material,” added Mr Dwyer.
“In 2009 my client sought leave for Judicial Review and later that year Mr McNally was diagnosed with cancer.
“The matter came up for trial in April 2011 and proceeded to conviction - he was sentenced to jail but appealed the sentence and it was two years later before the defendant made it to the Court of Criminal Appeal.
“Mr McNally served three months in prison out of an 18 months sentence that was under appeal and then he was released on bail.”
Longford Circuit Court then went on to hear that the case was heard in February 2014 and a decision was reserved on count one, while count two was quashed.
“Then in November 2014, a final judgement was made in the Court of Criminal Appeal and all counts were quashed, but a retrial was then ordered in respect of count one,” continued Mr Dwyer.
“A notice of results was issued on November 27, 2014 and went to Longford Circuit Court, but it was incorrectly drafted and states that my client would be retried on count number two instead of count number one.
“The following day the new Court of Appeal was established - a transitional period followed and we would argue that this would have allowed us to go back to the court and amend the issue in respect of count number two.”
Meanwhile, the court heard that thereafter, Mr McNally appeared in numerous courts throughout the midlands and on each occasion, Defence Counsel asked the State to put forward an indictment in respect of the matter, but that indictment had never been forthcoming.
“Meanwhile, Tanya Mulryan’s trial went ahead,” continued Mr Dwyer, before pointing to the fact that it then emerged that the material in the case was no longer part of the prosecution's case [in respect of Mr McNally].
“Notwithstanding the admissions of Tanya Mulryan, most specially we sent a letter to the DPP outlining the issues in October 2015 and a full year went past without any response.
“In the summer of 2016, Mr McNally made an application to have his bail money and computer returned and he was informed that the matter was going to be relisted before Longford Circuit Court.”
The court heard how in 2016 - two years after the Court of Criminal Appeal had been abolished [a new Court of Appeal was established] - the DPP went to the former registrar of the Court of Criminal Appeal and asked her to issue an order to reflect what occurred in November 2014.
“At that time she was not the registrar of the Court of Criminal Appeal,” fumed Mr Dwyer.
Defence Counsel, meanwhile, also said that the order had a slip on its face because it referred to a ‘court’ instead of a ‘count’ throughout, and was imperfect on its face because it did not direct a trial on any count.
“The Supreme Court says that slips or amendments need to be done through notice and I would argue that the passage of time is too long now,” Mr Dwyer continued.
“While it may have been appropriate to direct a trial in November 2014, it is not appropriate to direct a trial in 2017 because of the passage of time.”
Defence Counsel then told the court that it was now apparent that the State was taking the case before Judge Johnson on the “mistaken presumption” that Judge Johnson had made an order in respect of the matter during a court hearing in Sligo in 2015.
“I want to point out that you, Judge, you made no such order and that you did in fact strike the matter out,” added Mr Dwyer.
During his ruling on the matter, Judge Johnson said that while he took on board everything that Mr Dwyer was saying, he did have in front of him the perfected order and on the face of it, it gave the Judge jurisdiction to retry the matter.
“But should this order not be before the Court of Appeal and should I look behind this order?,” the Judge then asked Mr Dwyer.
“This court is entitled to look at the order, but it does not have any jurisdiction on the matter,” added Mr Dwyer.
“We should have been put on notice in respect of this order - we were not - and this order does not reflect the Court of Appeal.
“When this court struck out the matter in 2015 you said this court did not have the jurisdiction to deal with it and there is no order to have Mr McNally tried.
“Fair procedures have not been followed and this order before you, Judge, was effectively gained through the back door.
“It is not a valid order.”
Counsel for the prosecution, Mr Hayden BL while admitting that notice should have been given to Mr Dwyer’s client in respect of an amended order, it was clear that there had been, in effect, no change to that order.
“Judgement has been made - that of a retrial of Mr McNally on count one and if there has been any delay with regards to these matters, it is on the part of the defendant,” Mr Hayden BL added.
“The function of the registrar of the Court of Criminal Appeal is an administrative one that allows for proper judicial procedures to take place; it does not carry out judicial or quasi-judicial procedures.”
Following all the arguments in respect of the case before him, Judge Johnson moved to make no order.
“It beggars belief,” the Judge added, “that somebody in the DPP’s office did not see the urgency of this and immediately send it on to Mr Connellan’s office”.
Judge Johnson also pointed to the fact that he was “very familiar” with the history of the case.
“Last time I struck this out, but really what I should have done was made no order,” he continued.
“The State did not pursue this matter in the manner a criminal prosecution should be pursued and it has dragged on for so long now; I also accept that the order I made was a bad order.
“All of this only came to light when Mr McNally tried to recoup his bail money and I absolutely accept that Mr McNally should have been put on notice.
“So on that basis, I am making no order.”