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Cite as: [2020] IECA 85

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REDACTED

THE COURT OF APPEAL

Neutral Citation Number: [2020] IECA 85

[2020 No. 21]

[2020 No. 23]

The President

McCarthy J.

Kennedy J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

RESPONDENT

PATRICK CURTIS

APPELLANT

AND

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

STEPHEN CURTIS

APPELLANT

JUDGMENT (Ex tempore) of the Court delivered on the 3rd day of April 2020 by

Birmingham P

1. Before the Court are two appeals from a decision of the High Court (Eagar J) of 2nd

January 2020, refusing bail. The appeals are linked appeals, in the sense that they arise out of

the same bail hearing in the High Court, and much of the evidence that was before the High

Court was common to both appellants, who are brothers. The appeals have been heard

together “on the papers”.

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2. The appellants are charged with similar, though not identical offences. The appellant,

Patrick Curtis, is charged as follows:

(i) Directing the activities of a criminal organisation in the State, contrary to s.

71(a) of the Criminal Justice Act 2006 – maximum penalty life imprisonment.

(ii) With knowledge of the existence of a criminal organisation, participated in

activities intending to facilitate the commission of a serious offence by that

criminal organisation or any of its members, to wit, the murder of Patrick

Hutch, contrary to s. 72(1)(b)(ii) of the Criminal Justice Act 2006 – 15 years

maximum sentence.

(iii) With knowledge of the existence of a criminal organisation, participated in

activities, being reckless as to whether such participation would facilitate the

commission of a serious offence by that criminal organisation or any of its

members, to wit, the murder of Patrick Hutch contrary to s. 72(1)(b)(ii) of the

2006 Act – 15 years maximum sentence.

(iv) With knowledge of the existence of a criminal organisation, participated in

activities intending to facilitate the commission of a serious offence by that

criminal organisation or any of its members, to wit, the murder of a person

unknown, contrary to s. 72(1)(a)(ii) of the 2006 Act – 15 years imprisonment

maximum sentence.

(v) With knowledge of the existence of a criminal organisation, participated in

activities, being reckless as to whether such participation would facilitate the

commission of a serious offence by that criminal organisation or any of its

members, to wit, the murder of a person unknown, contrary to s. 72(1)(b)(ii) of

the 2006 Act – 15 years imprisonment maximum sentence.

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(vi) Conspiracy with one or more of the following, to murder Patrick Hutch,

contrary to s. 71 of the 2006 Act, as amended, Michael Burns, Mohammad

Smew, Mark Kapper, Stephen Curtis, Ciaran O’Driscoll, Glen Thompson,

Gary Thompson, Robert Browne – 10 years imprisonment maximum sentence.

(vii) Conspiracy with one or more of the following in order to murder a person

unknown contrary to s. 71 of the said Act, as amended, Michael Burns,

Mohammad Smew, Mark Kapper, Stephen Curtis, Ciaran O’Driscoll, Glen

Thompson, Gary Thompson, Robert Browne – 10 years imprisonment

maximum sentence.

The other appellant in this case, Stephen Curtis, is charged with offences (ii) to (vii) above,

but is not charged with (i), the offence of directing the activities of a criminal organisation,

which carries the sentence of life imprisonment.

Background to the Investigation

3. The evidence on behalf of the State, objecting to bail, was given by Detective Garda

Charles. He explained the prosecution arose from an intelligence-led operation by the Garda

National Drugs and Organised Crime Bureau. The operation targeted an organised criminal

gang involved in an ongoing feud, commonly referred to as the ‘Hutch/Kinahan Feud’. He

referred to the fact that 15 people have been murdered since 24th September 2015 in relation

to the feud, and that there had also been a number of attempted murders during that same

period. He said that a criminal investigation had been underway since the beginning of

February 2018 into the activities of a group involved in the conspiracy to murder a particular

person on behalf of an organised crime group, the group being part of the wider Kinahan

organised crime group. During February and March 2018, Gardaí deployed surveillance, and

in particular, audio surveillance, on a number of vehicles. Surveillance was placed on a

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number of persons associated with the conspiracy and this included surveillance on a

particular motor vehicle which was, at the time, in the possession of a named individual,

Michael Burns. Between 26th February 2018 and 10th March 2018, audio recordings from this

vehicle established the appellants’ and co-conspirators’ involvement in the planning and

preparation of the murder of Patrick Hutch Snr. There was also physical and audio

surveillance which showed the conspirators meeting on a number of occasions. Following

these physical meetings, the audio surveillance from the car showed conspirators actively

planning the murder thereafter.

4. On the morning of 10th March 2018, Gardaí intervened. Three males were intercepted

in the rear of a van in an underground carpark close to the home of the intended target,

Patrick Hutch Snr. A number of firearms were recovered from the scene. These were: a 9mm

Beretta 92S semiautomatic pistol, a 0.38 Special Revolver, a 9mm PM-63 RAK submachine

gun, and a 9mm Makarov semiautomatic pistol, this last weapon was found in the driver’s

door of an Audi A6 vehicle in which the men had travelled. Each of the firearms was loaded.

Three phones were recovered in the underground carpark where the intervention took place,

at which point Gary Thompson, Glen Thompson, and Robert Browne were arrested. There

was CCTV evidence establishing that the three phones in question had been purchased by the

appellant, Stephen Curtis, from a particular premises on the evening of 8th March 2018. So

far as the appellant, Patrick Curtis, is concerned, who faces the additional charge of directing

the activities of a criminal organisation, the prosecution allege that this appellant played a

leadership role in the planned assassination. They allege that he was providing instruction to

other conspirators and that they were reporting back to him. He was observed meeting with

Glen Thompson and Robert Browne, who were two of the three intercepted by Gardaí with

loaded weapons two days prior to the intervention by Gardaí. There were many meetings

involving those three captured by audio surveillance. Conversations took place between them

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about the conspiracy to murder. The appellant controlled the finances, the prosecution will

allege, and supplied money for the purchase of items. Lists were found at his home which

supported this, dealing, inter alia, with ‘diesel’ and ‘phones’.

The Prosecution’s Objections to Bail

5. There was objection to bail on O’Callaghan grounds (see The People (Attorney

General) v. O’Callaghan [1966] IR 501) and also by reference to s. 2 of the Bail Act 1997.

There were two elements to the O’Callaghan grounds: that the appellants would flee and

would not present themselves for trial, and secondly, a concern about interference with

witnesses. The objection in relation to interference with witnesses was not upheld by the trial

judge. However, he did uphold the first objection to bail on O’Callaghan grounds i.e. that the

appellants were a flight risk, and also upheld the objection on the basis of s. 2 of the Bail Act

1997.

6. In resisting bail, the respondent points to the seriousness of the charges and the fact

that they would, if a conviction results, likely result in a very significant sentence. The

offences charged carry sentences ranging from life imprisonment for directing the activities

of a criminal organisation, to 15 years in respect of the offences contrary to s. 72 of the 2006

Act, to ten years in respect of charges of conspiracy to murder. The respondent draws

attention to a recent decision of this Court in DPP v. Aylmer (CoA, 10 March 2020) another

case concerning the Hutch/Kinahan feud in which the accused plead guilty to an offence

contrary to s.72 of the Criminal Justice Act 2006. The Director sought, successfully as it turns

out, to review a sentence of the Special Criminal Court on grounds of undue leniency

resulting in a net sentence of four years and nine months being imposed. This is said to be

indicative that very significant sentences would likely be imposed on conviction. As to the

strength of the case against the appellants, it is contended on behalf of the respondent that

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both were effectively caught “red-handed”, given the extent of the surveillance and phone

evidence as well as the contents of audio recordings. The respondent says that the seriousness

of the charges, combined with the strength of the evidence, provides a strong incentive to

plea. The State evidence at the hearing of the application for bail was that there was a

capacity to flee on the part of the appellants. Detective Garda Charles pointed out that from

his investigations into the Kinahan organised crime group, he was in a position to say that the

group had an ability to obtain genuine Passports using fraudulent details, and that such

Passports were readily available to members of the group. The group had the financial

resources, as well as overseas properties, which would be available to persons fleeing, to

make flight a reality. The appellant, Stephen Curtis, points out that the evidence stopped short

of suggesting, still less, establishing that he was actually a member of the Kinahan crime

group.

7. In relation to the objections under s. 2 of the Bail Act, the respondent suggested that

the statutory criteria were met. It was pointed out that the alleged offences were committed in

the course of an ongoing feud, which had already taken many lives, that Garda intervention

had saved the life of the target of this particular conspiracy, but that the object of the

conspiracy remained unachieved. As such, there was a risk that a further serious offence may

be committed if the appellants were granted bail. The commission of further serious offences

could only be avoided by the refusal of bail.

8. REDACTED

Stephen Curtis

9. The appellant, Stephen Curtis, has raised the following issues by way of his Notice of

Appeal and submissions:

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(i) The seriousness of the offence alleged, strength of the evidence and likely

sentence.

(ii) Flight risk, generally.

(iii) REDACTED

(iv) Access to money and false travel documents.

(v) REDACTED

(vi) Insufficiently distinguished from co-accused.

(vii) The apprehended offence.

(viii) Identifying evidence in support of the charge.

(ix) REDACTED

(x) REDACTED

(xi) Section 2(a) relied on without specific opinion or belief.

(xii) Failure to take into account his peripheral or secondary role.

(xiii) Pre-trial custody.

(xiv) Failure to give reasons.

(xv) Failure to consider conditions.

So far as the question of the likelihood of the appellant seeking to evade justice is concerned,

the seriousness of the charges, the strength of the case, and why it should be said that there is

an incentive to flee is self-evident. REDACTED As to the contention that the judge failed to

have regard to the fact that the allegations against him were less serious than those against his

co-accused, and that the allegation was of him playing a lesser, logistical role, it does seem to

me that the judge was fully au fait with the details of what was alleged against each appellant.

While the allegations against each appellant were not identical, it is clear that the allegations

against both accused, and specifically, against Stephen Curtis in this instance, were very

serious indeed. The appellant describes the evidence to his alleged activities as being

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“peripheral and secondary” and makes the point that the book of evidence, which was not

available at the bail hearing, it had not been served at that stage, contains only sparse

references to him. The case is to be distinguished from DPP v. Aylmer, in that, here, the

alleged criminal conduct is placed fairly and squarely in the context of a conspiracy to

murder. We find it had to see that the role alleged to have been played by Stephen Curtis, as

described by Detective Garda Charles in his evidence, could ever really be described as

“peripheral and secondary”.

10. As to the issue in relation to access to travel documents and phones, the appellant

protests that the judge effectively was tempted into engaging in speculation. We do not agree.

In considering the extent to which an individual is a flight risk, it is only sensible to have

regard to the ability and capacity of the individual to flee, if that is what he has decided to do.

So, the existence of a location to which flight is possible and access to documents and

resources is a relevant consideration. In the course of submissions, the point was made on

behalf of Stephen Curtis that insofar as there is a concern of flight, and in particular, of flight

to a location outside the jurisdiction, that the scope for travel is reduced by the current Covid-

19 crisis.

11. So far as the refusal on s. 2 grounds is concerned, the appellant, Stephen Curtis,

makes the point that in upholding this ground of objection, the Court did not sufficiently take

into account the logistical support role rather than directing role alleged to have been played

by him, REDACTED that the Court did not sufficient identify the apprehended offences

REDACTED. There was also a suggestion that the Director was relying on s. 2A of the Bail

Act 1997. This point seems somewhat misconceived, in that there was no invocation of s. 2A

of the Bail Act 1997. While s. 2A was not invoked, the Director did refer to s. 2(2)(iii) which

provides that:

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“[w]here the Court has taken into account one of the specified matters, it may also

take into account the nature and likelihood of any danger to the life or personal

safety of any person or danger to the community that may be presented by the

release on bail if a person is charged with an offence punishable by imprisonment

for a term of ten years or a more severe penalty.”

It seems to the Court that one cannot ignore the fact that these alleged offenses were

committed, on the prosecution case, in the course of a feud, that the object of the particular

conspiracy was brought close to fruition before Garda intervention, and the nature of the

firearms to which co-conspirators had access showed how real and serious the danger was.

12. The appellant, Stephen Curtis, further contends that insufficient, if indeed any, regard

was had to the expected duration of pre-trial custody if bail was to be refused. It is said that

the judge failed to consider the question of imposing bail conditions, perhaps stringent bail

conditions, which would meet such concerns as there were. Linked with this, it is said that

there was a failure to provide reasons. In fact, the judge’s reasons emerge very clearly from

the transcript. He accepted and was prepared to act on the evidence of Detective Garda

Charles. It is clear that the judge was of the view that admitting to bail, but subject to

conditions, would not adequately meet concerns. The question, really, is: was he right?

Patrick Curtis

13. As one would expect, there is a substantial overlap with the grounds relied on by the

appellant, Patrick Curtis, though his grounds are formulated in somewhat terms. While the

formulation is different, the substance is the same, with, in addition, reliance on issues that

have arisen subsequent to the refusal of bail on 2nd January 2020. He formulates his grounds

as follows:

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(i) That the judge erred in law in refusing bail where, on the evidence, it had

not been established as a matter of probability that the appellant would fail

to appear if granted bail.

(ii) That the judge erred in law and in fact in finding that the appellant was a

likely flight risk in circumstances where the evidence on which the

respondent proposes to rely had been put to the appellant in interview and

he had not sought to evade apprehension since, and where REDACTED

there was no bench warrant history.

(iii) That the judge erred in law in finding that it was reasonably necessary to

refuse bail to prevent the commission of a serious offence and failed to

have adequate regard to the presumption of innocence in favour of the

appellant.

(iv) That the judge erred in law and in fact in failing to consider adequately, or

at all, whether the evidence had established that the refusal of bail was

reasonably necessary to prevent the commission of a serious offence on

any other basis than the contested allegations giving rise to the charge.

(v) The judge erred in law in failing to properly consider and/or give weight

to the issue of whether stringent bail conditions could meet the objections

to bail, as outlined on behalf of the respondent.

14. The issues about the seriousness of the charges apply, as they do to the co-accused,

with the additional factor that this appellant faces the charge of directing the activities of a

criminal organisation, carrying the maximum sentence of life imprisonment. The contention

by the Director that the appellant would face a very significant sentence, if convicted, applies

with equal, indeed, greater force. Again, the argument is made that the case is a very cogent

one, that the appellant was, in effect, “caught red-handed”. In that regard, the Court would

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observe that in considering the strength of the case against the appellant, which is of course a

relevant consideration in assessing the extent to which there is an incentive to flee, and

therefore, a likelihood of flight, that one has to have regard to the fact that a very significant

challenge is likely to be mounted to the admissibility of the evidence in question. This

consideration applies, not just to the appellant, Patrick Curtis, but to both appellants. The

appellant says that this is a case where the presumption of innocence was not to the forefront,

and indeed, was dis-applied. In making this argument, the appellant draws attention to the

fact that the trial judge, when addressing the question of the s. 2 objection, made a reference

to “further offences”. It is said that the reference to “further offences” reveals that the judge

was, in fact, operating on the premise that Mr. Patrick Curtis was guilty of the offences

charged. The submissions go so far as to suggest that this was an explicit finding that he was

guilty of the offences charged, being offences other than the “further offences contemplated”.

15. In contending that the evidence relied on in support of the view that Mr. Patrick

Curtis, and indeed, his co-accused, would not stand trial, lacked the cogency to justify a

refusal of bail, the appellant points to the fact that the matters emerged during the

surveillance operation were put to them in interview. So, they had a good idea of the evidence

against them, and that, on one view, it was damning, but that it is the situation that when they

were released, they did not leave the jurisdiction. It was only nine months later that they were

charged following arrests which took place at their homes. A similar point was made in

relation to the s. 2 objection. It is said that if the concern was that further feud-related

offences would be committed, targeting Mr. Hutch or relatives or friends or associates of his,

that had not happened in the nine months between initial arrest and charge.

16. In terms of the background and personal circumstances of the appellant, the appellant,

Stephen Curtis, was aged 32 years and the father of three children aged 14, 8 and 4. The

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appellant, Patrick Curtis, was 38 years and was the guardian to a son aged 3 and to stepsons

aged 3 and 13. The 13-year old has epilepsy.

17. The appellant has also sought to rely on matters that have developed subsequent to the

bail hearing on 2nd January 2020. In particular, reliance has been placed on a note of 21st

January 2020 from a General Practitioner.

18. There is a further report from the same General Practitioner dated 30th March 2020.

From these reports, it emerges that Patrick Curtis first attended mental health services aged

17. The doctor commented that when Patrick Curtis was first committed to Portlaoise Prison

on 5th December, the doctor saw him on the following day. He described symptoms of

anxiety, depression, panic disorder, Obsessive Compulsive Disorder and claustrophobia. The

doctor refers to the fact that Patrick Curtis was terrified of being separated from his brother

and that he was distressed, tearful and agitated. The doctor formed the view that he was at

risk of suicide if separated from his brother, and that in response, the prison Governor agreed

to accommodate them in the same cell. The doctor refers to Patrick Curtis as suffering from

intense anxiety, intermittent panic attacks, obsessional thoughts, depressed mood and

claustrophobia. The doctor comments that in the four years that he had been dealing with

prisoners, and in his 20 years’ experience as a General Practitioner, he had never before come

across a patient with such disabling anxiety. The doctor took the unusual, indeed, some might

question the propriety of this, step of recommending that Patrick Curtis be permitted bail on

medical grounds. The initial note of 21st January 2020 canvassed that Patrick Curtis would be

better accommodated in an open setting. The Director, opposing the appeal, apart from

making the point that these issues raised as to what has emerged post-the refusal of bail ought

to be raised in the High Court by way of a renewed application based on a change of

circumstances, or alternatively, by means of some entirely different form of proceedings, says

that, if anything, the fact that the appellant finds custody particularly difficult is a further

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straw in the wind, a further indication that he will not attend for his trial, but if given an

opportunity, will seek to flee justice.

Discussion

19. In the Court’s view, the evidence that was presented that both appellants were a flight

risk and that both appellants would not stand trial, was cogent and compelling. While we

recognise that the role which it is suggested each appellant was playing was not identical, and

indeed, the offences with which they are charged are not identical, we believe the point

applies with full force in respect of both appellants. Specifically, we do not accept that the

role assigned to Stephen Curtis could properly be described as “peripheral and secondary”.

On the basis of the outline of the prosecution case that was offered to the High Court by

Detective Garda Charles, the evidence against both men appears particularly strong. We

make that comment, conscious of the fact that if the case is contested, that presumably, issues

as to admissibility of evidence will be raised. We do believe that the fact that the alleged

offences were in furtherance of the objectives of an organised crime group is a relevant

consideration. We have no reason to doubt, no more than the High Court judge did, that the

organised criminal group in question had the resources to enable individuals flee the

jurisdiction. We do not ignore the fact that the evidence in the case stopped short of

suggesting that Stephen Curtis was an actual member of the organisation, but we do not have

any difficulty drawing the inference that if someone carries out tasks of significance on

behalf of such an organisation, that one would be in a position to draw on the resources

available to that organisation, if required.

20. If there is a matter that causes us to hesitate, it is the fact that the appellants must have

been aware, from when they were first arrested, that there was what would appear to be a

strong case against them. Yet, despite the fact that they must have known that, it is the case

that they did not flee at that stage, but were available to be arrested at their homes nine

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months later. We regard this as a point of some significance, and it was a point very ably

made in the High Court by counsel on their behalf. We have given it full and careful

consideration. Nonetheless, we are satisfied that the evidence before the High Court fully

justified the conclusion that both appellants were a flight risk and that both appellants would

be unlikely to stand trial.

21. As to the objections on s. 2 grounds, we think that in assessing the risk of further

offences, that one cannot ignore the fact that this was an alleged conspiracy to commit

offences as part of and in furtherance of a feud that had already taken 15 lives. On the

prosecution case, very considerable planning and preparation went into the carrying out of the

objective of murdering the target, Mr. Hutch, and it seems to us that the conclusion reached

by the trial judge, that if admitted to bail, the appellants would not disengage from the

conspiracy, but rather, would commit further offences in pursuance of it, was one that was

open to him.

22. Specifically, we are of the view that the trial judge was entitled to take the view, as he

clearly did, that the imposition of conditions would not meet the situation. We are also

satisfied that the judge gave his reasons for coming to the view that he did, stating those

clearly and succinctly.

23. In relation to the supplemental submissions of the appellant, Patrick Curtis, we see

there as being two aspects to these. There are, firstly, the difficulties that Patrick Curtis says

he is experiencing in custody, which was the subject of the doctor’s note of 21st January

2020. Then there is the further element that it is said that the appellant must be at significant

risk of a more restrictive form of confinement, depending on whether the Coronavirus enters

the prison where he is detained. The appellant, Patrick Curtis, frankly acknowledges that in

the ordinary course of events, developments which postdate an application for bail would be

dealt with by way of a renewed bail application. However, he says, in the particular

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circumstances of the rapidly developing situation relating to the Covid-19 pandemic, that this

Court should consider the issue. The Court has given consideration to this request, but we are

firmly of the view that this is not a matter for an appellant Court. It is a change of

circumstance which was not, and indeed, could not have been considered by the High Court.

If the appellant wishes to raise this issue, then his opportunity to do so is by way of a renewed

application for bail in the High Court, contending that there has been a change of

circumstances. We would hasten to add that nothing in this judgment should be taken as

indicating that the Court is of the view that there is, or might be, a change of circumstance,

and whether, if a change of circumstances is established, that would justify or require a

different approach to admitting or refusing bail. At this stage, we would simply say that it is

not a matter to which we could or should give consideration.

24. In summary, we have not been persuaded that the High Court judge erred in refusing

bail on O’Callaghan grounds and also on s. 2 Bail Act grounds.

25. We will, therefore, dismiss the appeal.

26. It has been indicated that both appellants are making an application for the Custody

Issues Scheme and we are prepared to make such a recommendation in respect of both

appellants, in each case the recommendation will be for the scheme on the basis of a solicitor

and Senior Counsel and Junior Counsel.

Result: Dismiss Appeals