Reasons of the Court given on the 18th January, 2012 by Denham C.J.
1. This appeal against a refusal of bail by the High Court was brought by Trevor McCabe, the applicant/appellant, referred to as “the appellant”, and came before the Court on the 19th January, 2010, when the appeal was dismissed. It was stated that reasons would be delivered at a later date. These are the reasons for the dismissal of the appeal.
2. On the 13th July, 2009, the case came into the list at the High Court sitting as the Central Criminal Court (Carney J.) for mention, on an application to fix a date for a new trial, because there was a disagreement recorded in the trial on the 1st July, 2009. The High Court ordered that the matter be adjourned to the list to fix dates on the 27th July, 2009, and the Court refused an application for bail.
3. The appellant sought an order in this Court:-
4. The grounds filed for the said appeal were:-
(i) that the learned trial judge erred in law and/or in fact in refusing to admit the appellant to bail and in holding that he was bound by the decision of Butler J;
(ii) that the learned trial judge erred in law and/or in fact in failing to hold that terms of the previous bail application had expired where the appellant was put in charge of the jury at his trial;
(iii) that the learned trial judge erred in law and/or fact in failing to take into account that the appellant would not receive an early trial;
(iv) that the learned trial judge erred in law and/or in fact in failing to hold that the failure of the jury to reach a unanimous or majority verdict and their discharge amounted to a change in circumstances;
(v) that the learned trial judge erred in law and/or in fact in failing to take into account that the trial of the appellant would not take place until 2010;
(vi) that the learned trial judge erred in law and/or in fact in failing to hold that there was ample evidence that the appellant would not abscond from the jurisdiction;
(vii) that the learned trial judge erred in law and/or in fact in failing to hold that the appellant had sufficient ties with the jurisdiction as a reason for remaining in the jurisdiction;
(viii) that the learned trial judge erred in law and/or in fact in failing to accept that the Garda concerns in relation to the granting of bail could be met by making the bail terms subject to strict conditions;
(ix) that the learned trial judge erred in law and/or in fact in failing to accept that the appellant would be able to meet the charges against him;
(x) that the learned trial judge erred in law and/or in fact in failing to hold that the State had failed to prove the case beyond reasonable doubt;
(xi) that the learned trial judge erred in law and/or in fact by attaching too much weight to the evidence of the State;
(xii) that the learned trial judge failed to hold that the Garda evidence was based on hearsay.
Background Facts
5. The appellant was arrested on the 27th May, 2008, at Lower Gardiner Street, Dublin, was initially detained at Store Street Garda Station, Dublin and was then conveyed to Monaghan Garda Station.
6. The appellant was formally arrested under s. 4(3) of the Criminal Law Act, 1997, with the offence of murder, and was charged with the said offence at Monaghan Garda Station on the 30th May, 2008.
7. The appellant was conveyed to Monaghan District Court on the 31st May, 2008, where Garda Sergeant J. Heslin gave evidence of the arrest, charge and caution of the appellant.
8. An unsuccessful application to admit the appellant to bail was made to the High Court (Butler J.), sitting at Cloverhill in the City of Dublin, by counsel on behalf of the appellant on the 12th January, 2009.
9. The appellant was indicted and arraigned before the Central Criminal Court in Dublin on the 15th of June, 2009, on the charge of murder of Darren McGrath, contrary to common law.
10. The appellant was tried before judge and jury at the Central Criminal Court between the 15th June, 2009, and the 1st July, 2009.
11. The jury in the said trial were in deliberation for three days and failed to reach a unanimous verdict or a majority verdict, and the trial judge discharged the jury on the 1st July, 2009.
12. A further unsuccessful application to admit the appellant to bail was made to Carney J. sitting at the Four Courts, Dublin, on the 13th July, 2009, which was the subject matter of this appeal.
13. In the High Court, sitting as the Central Criminal Court, before Carney J., evidence was given by Inspector Curley that Butler J. had refused bail on the 12th January, 2009, after grounds were raised that the appellant posed a significant flight risk and would not stand trial.
14. Carney J. stated:-
“There was a finding of fact made by Justice Butler that he [the appellant] was a flight risk. I have no jurisdiction to set it aside. I cannot override his decision.”
15. Counsel for the State also told the Court that the State would not be ready for the next available trial date, as there were difficulties for An Garda Síochána in this complex case.
Submissions
16. Submissions were made to the Court on behalf of both the parties.
Responsibility
17. The Court was informed that a date for trial had been fixed with priority for the 15th March, 2010. The Court was informed that a trial date of the 11th January, 2010, had been available for trial, but counsel was prosecuting another case at that time.
18. While the Court can see the desirability of maintaining a continuation of the same counsel on a complex case, the Court is concerned that proper regard was not given by the Director of Public Prosecutions and counsel to the fact that a person was lodged in prison, not convicted of an offence, and who may not be convicted. The Court accepts that the convenience and accommodation of counsel is a legitimate concern, but that factor should receive relatively minor weight in a case such as this where the appellant had been in prison since May 2008. The Court considered that due regard was not taken of the fact that the appellant was in custody. The Court raised concerns that the date for trial of the 11th January, 2010, was not taken. Counsel and the Director of Public Prosecutions have a responsibility to assist the Court listings and to ensure that the court system is not unduly delayed, and, in particular, that all reasonable steps are taken to obtain a trial as soon as reasonably possible. The Director of Public Prosecutions and counsel have a responsibility in facilitating due process within a reasonable time. The Director of Public Prosecutions having carriage, so to speak, of prosecutions before courts of trial, has both the opportunity and special responsibility to actively assist courts in this regard.
Counsel’s Submissions
19. Counsel for the appellant submitted that the appellant should be allowed bail and that the High Court had erred. Counsel agreed that the appellant had been found one week after the event, not at home, but in Dublin, and that he had in his possession the passport of another. This was the only basis for him being considered a flight risk, as his family address was in Co. Tyrone.
Counsel submitted that two people were seen leaving the scene of the alleged murder, and neither was the appellant; further, that forensic evidence of a deceased man was found on clothing of another man, and not on the appellant, and that the other man is a witness for the prosecution.
Also, that the appellant wore combat fatigues, yet the witness described a black jacket and jeans.
In addition, in the first trial, the jury disagreed.
Decision
20. The Court considered carefully the application made on behalf of the appellant. The Court dismissed the appeal and refused to admit the appellant to bail. In reaching this decision, the Court took a number of factors into consideration. The Court considered it an important factor that the trial of the appellant was fixed for the 15th March, 2010, which was within two months of the hearing of the application. Evidence grounding the determination that the appellant was a flight risk had been given in the High Court and, in the circumstances, it was within a trial judge’s jurisdiction to rely on such evidence, to reach such a conclusion.
21. It is clear from counsel’s note that there was a full hearing of the application for bail before Carney J. on the 13th July, 2009. Evidence relating to the crime of which the appellant was charged was given, evidence was given by Inspector Curley, who was cross-examined as to his evidence in relation to the offence charged, and as to whether the appellant was a flight risk.
22. At an earlier date, on the same facts as to the issue of flight risk, Butler J. had refused an application for bail. Carney J. said that a finding of fact had been made by Butler J. that the appellant was a flight risk. Carney J. held that he had no jurisdiction to set it aside and that he could not over-ride that decision. In this finding Carney J. fell into error, he did have jurisdiction. There was jurisdiction in the High Court to hear a further application for bail, as time had elapsed since the last application, as there had been a trial before the Central Criminal Court in which the jury had failed to reach a verdict and been discharged, as the retrial was delayed, and as the prosecution had rejected a proffered date. These are circumstances where a court, on request, has jurisdiction to hear and determine a fresh bail application. The High Court did have jurisdiction to hear and determine this new application for bail. In all the circumstances, however, including that the evidence and facts as to the issue of flight risk were the same, the Court does not consider there are grounds for interfering with the decision of Carney J. to refuse bail.
23. It is open to a person to bring subsequent bail applications if circumstances have changed, but in relation to the core issue in this case, there had been no material change in the issues raised, such as the flight risk and the evidence available.
24. The Court expressed grave concern to counsel, at the hearing of the appeal, at the length of time which the appellant was in custody as an unconvicted person, pending trial. The Court once again emphasises in this case its concern as to the length of time which accused persons may be required to spend in custody while awaiting trial.
25. While being concerned as to the lack of urgency on the part of the Director of Public Prosecutions and his counsel to facilitate the earliest date available for trial, especially as the appellant was in custody, the Court considered that in all the circumstances the appeal should be dismissed, on the understanding that the trial was fixed for the 15th March, 2010.
