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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions -v- Mulvey [2014] IESC 18 (25 February 2014)
URL: http://www.bailii.org/ie/cases/IESC/2014/S18.html
Cite as: [2014] IESC 18
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Judgment Title: Director of Public Prosecutions -v- Mulvey Neutral Citation: [2014] IESC 18 Supreme Court Record Number: 451/13 High Court Record Number: 2013 1732 SS Date of Delivery: 25/02/2014 Court: Supreme Court Composition of Court: Denham C.J., MacMenamin J., Dunne J. Judgment by: Dunne J. Status of Judgment: Approved
Notes on Memo: Allow and Set aside - remit to High Court | ||||||||||||||||
THE SUPREME COURT [Appeal No. 451/2013] THE HIGH COURT
IN THE MATTER OF AN APPLICATION FOR BAIL [Record No. 2013/1732 SS] Denham C. J. MacMenamin J. Dunne J. BETWEEN DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND
DAVID MULVEY APPLICANT/APPELLANT Judgment of Ms. Justice Dunne delivered on 25th day of February, 2014 Background The applicant was arrested on foot of six charges on the 25th August, 2013. The charges relate to allegations of violent behaviour, demanding the payment of money with menaces, entering a building as a trespasser, violent disorder, wrongfully intimidating a named individual and damaging her son’s property and finally, criminal damage. The matters complained of are alleged to have occurred at a house on Ballygall Parade, Finglas with the exception of the incident involved in the first charge. It is alleged that at approximately 4.30 in the afternoon of Sunday, 25th August, 2013, the applicant and three other persons entered the house of the injured parties and demanded €8,000 on foot of an alleged drug debt owed by an individual who used to reside at the house. The individual’s mother and brother were in the house at the time. It is alleged that threats were made to a number of people and a car was damaged. The applicant was brought before the District Court on the 26th August, 2013 and an application for bail was made but refused. An appeal from that refusal was made to the High Court which was returnable for the 2nd September, 2013. That application was adjourned for one week and on the 9th September, 2013, the application was withdrawn as it was intended to make a further application for bail to the District Court in circumstances where the four complainants in respect of the charges furnished a joint affidavit of the 6th September, 2013 withdrawing their statements of complaints made on the 25th August, 2013. Indeed, prior to the furnishing of that affidavit, the four complainants had attended Finglas Garda Station and on videotape, made statements withdrawing their original statements of complaint. No issue was taken in the District Court on the question of the jurisdiction of the District Court to entertain a further application for bail. The question of bail was ultimately considered before the District Court on the 27th September, 2013. Bail was objected to on the grounds enumerated in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 (“the O’Callaghan grounds”) and pursuant to the provisions of s. 2 of the Bail Act 1997. Bail was refused save in respect of one of the charges. It appears that the District Court Judge refused bail on the grounds set out in s. 2 of the 1997 Act. The applicant appealed to the High Court and the matter came on for hearing on the 14th October, 2013. On that occasion, evidence was given on behalf of the DPP by Sergeant O’Donovan and the applicant also gave evidence. Following the hearing, bail was refused. That decision is the subject of this appeal. It would be helpful at this point to set out the basis of the objections to the applicant’s application for bail, the evidence given and the reasons provided for the refusal of bail. The DPP objected to bail on the grounds provided for in s. 2 of the 1997 Act and on the O’Callaghan grounds. The Court has been provided with counsel’s agreed note of the evidence and the decision of the High Court made on the 14th October, 2013 which has been approved by the trial judge. It is common case that the objection to bail on the grounds set out in s. 2 of the 1997 Act did not form part of the decision to refuse bail. Thus, the decision to refuse bail was based on O’Callaghan grounds and, in particular, on the basis that the complainants/witnesses had been intimidated, resulting in the withdrawal of their statements. The evidence Sergeant O’Donovan was cross-examined on behalf of the applicant and agreed that the applicant had been at liberty since 2010 and that this was the first occasion since his release from prison that he had been the subject of an arrest. Although Sergeant O’Donovan had discussed the seriousness of the charges, it was accepted that the DPP had yet to give directions on the matter as to the court in which the charges were to be proceeded with. [The Court was informed in the written submissions on behalf of the Director of Public Prosecution that the applicant has now been sent forward for trial and that the matter will be listed in the Circuit Court for the first time on 12th March, 2013.] Sergeant O’Donovan accepted that the case was one based on the evidence of the witnesses, that in the absence of those statements, the case could not have been brought and that the witnesses had sought to withdraw the statements. Although Sergeant O’Donovan had never seen the affidavit sworn by the alleged injured parties on the 6th September, 2013, he did not take any issue with the contents of the affidavit. Sergeant O’Donovan accepted that four of the applicant’s previous convictions, which were of a serious nature, arose from two incidents in 2006 and 2007 at a time when the applicant had a drug problem. He did not dispute the suggestion that the applicant was drug free by the time his case came before the Court in 2007 or that he had attended a clinic in Blanchardstown in regard to his problem with drugs. He also accepted that the applicant’s other three previous convictions were for summary offences and that the applicant now had a full driving licence and insurance and that he was engaged in various charity events. Sergeant O’Donovan was questioned about the applicant’s history in respect of bench warrants and it was put to him that the applicant had been in custody on the 13th March, 2006 when one of those issued and that he may not have received summonses in respect of the other two matters. This was not accepted by Sergeant O’Donovan but he did accept that the applicant had not been charged with any offence in relation to his failure to appear. He reiterated that his concerns would not be alleviated by the suggestions made on behalf of the applicant as to possible terms and conditions of bail. Evidence was then given by the applicant. He confirmed that he had been out of custody since 2010, that he had committed no further offences and that he was now drug free. When asked about the subject of intimidation, a matter which had been raised by the learned High Court Judge while Sergeant O’Donovan was giving evidence, the applicant gave evidence that he did not know anything about intimidation. He did not know anything about the mother of the household where the alleged incident occurred having cancer and he had never been told this by her son. He gave evidence to the effect that he was in custody at the time of the first of the three bench warrants referred to and so far as the other two were concerned, he was on drugs when they issued. His previous offending related to the time when he had been abusing drugs but he was no longer doing so. He confirmed the fact that he was willing to abide by the appropriate conditions if admitted to bail. The applicant was not cross-examined on his evidence. Decision of the trial judge The O’Callaghan Grounds
2. The nature of the evidence in support of the charge; 3. The likely sentence to be imposed on conviction; 4. The likelihood of the commission of further offences while on bail; 5. The possibility of disposal of illegally acquired property; 6. The possibility of interference with prospective witnesses or jurors; 7. Failure by the accused to answer bail on previous occasions; 8. The fact that the accused was caught red-handed; 9. Objection to bail by the Attorney General or the policy authorities; 10. The substance and reliability of the bailsmen offered; 11. The possibility of a speedy trial. Submissions Reliance was also placed on the decision of the Supreme Court in the case of The People (Director of Public Prosecutions) v. McLoughlin [2010] 1 IR 590. In that case the applicant had been charged with assaulting a person causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. There was an objection to bail before the High Court. One of the grounds of objection was that prior to the trial of another accused, the applicant’s brother, for the same offence and arising from the same incident, there was intimation of witnesses and the injured party withdrew his statement. The prosecution indicated that the witnesses were not in court to give evidence as to the alleged intimidation as they had not been contacted by the Gardaí. An objection was raised to the admission of hearsay evidence and the case was adjourned to give the prosecution an opportunity to bring the witnesses to court. On the adjourned date, the prosecution submitted that none of the witnesses who had allegedly been intimated were present in court because they were afraid to come. The defence objected to the admission of hearsay evidence but the trial Judge heard the evidence de bene esse. At the conclusion of the evidence of a number of Gardaí as to the alleged intimidation, the trial Judge ruled the hearsay evidence admissible and refused bail on the basis that the fears expressed by the Gardaí may have been genuine. The refusal of bail was appealed to the Supreme Court on the grounds that no relevant and/or admissible evidence was adduced that it was probable that the applicant would intimidate witnesses if admitted to bail. The appeal was allowed by the Supreme Court and the matter was remitted to the High Court. It was held that when objecting to the granting of bail, the prosecution must establish its objection as a matter of probability and the evidence supporting that objection must have a degree of cogency which satisfied the Court itself that the objection had been made out as a probability, which finding should be stated expressly by the Court. In the course of his judgment in that case, Hardiman J. (at para. 58) observed as follows:
‘. . .naturally a court must pay attention to the objections of the Attorney General, or other prosecuting authority, or the police authorities, when considering an application for bail. The fact that any of these authorities objects is not of itself a ground for refusing bail and indeed to do so for that reason would only be, as Mr. Justice Hanna pointed out in The State v. Purcell [1926] I.R. 207, to violate the constitutional guarantees of personal liberty. Where, however, there are objections they must be related to the grounds upon which bail may validly be refused. Furthermore they cannot be simply made in vacuo but when made must be supported by sufficient evidence to enable the court to arrive at a conclusion of probability and the objections made must be open to questioning on the part of the accused or his counsel. It is not sufficient for the opposing authority or witness to have a belief nor can the court simply act upon the belief of someone else. It must itself be satisfied that the objection is sufficient to enable the Court to arrive at the necessary conclusion of probability’.(emphasis added). 59. That passage seems to me to be absolutely central in our system of judicial control of liberty or custody of a person who has been charged with, but not convicted of, a criminal offence. It is authority for two central propositions, firstly that the prosecution must establish their objection to bail as a matter of probability and secondly, that the evidence supporting the objection must have the degree of cogency which satisfies the court itself that the objection has been made out as a probability. If the court could deprive a person of liberty simply by noting that the government, or the Director of Public Prosecutions, or one or more Gardaí sincerely believe that the objection is made out, then the court would be abdicating its duty in favour of those persons or bodies.” Counsel on behalf of the Director of Public Prosecutions accepted that there was no evidence before the Court of actual intimidation and submitted that had there been such evidence, it would have been hearsay evidence in circumstances where the alleged injured parties had not come to court and given evidence that they had in fact been intimidated. The High Court, however, had the details and evidence as to the furnishing of statements by the injured parties and the affidavit of those alleged injured parties withdrawing their statements to the Gardaí. There was a proximity of events that allowed the learned trial Judge to consider the question of intimidation. In the circumstances it was submitted that the learned trial Judge was entitled to draw an inference that in the circumstances there was intimidation of the alleged injured parties. The point made on behalf of the applicant by way of response was that is was not known nor was there any evidence to indicate the reason for the withdrawal of the statements by the alleged injured parties. In those circumstances, it was contended that one could not draw the inference drawn by the Court. Conclusions
It is now necessary to focus on the decision of the learned trial Judge in this case. The State’s objection to bail was based on O’Callaghan grounds and on the provisions of s. 2 of the 1997 Act. Evidence was given to the Court of the fact that previously, the applicant had been the subject of three bench warrants; there was evidence as to the making of statements by the alleged injured parties on the date of the alleged incident, the 25th August, 2013 and of the attendance by the injured parties at Finglas Garda Station a few days later seeking to withdraw those statements. This was followed by the furnishing of a sworn document sent to the applicant’s solicitor in which they reiterated their request to withdraw their statements in the case. I am satisfied that it was open to the learned trial Judge to draw the inference from the facts given in evidence before him as to the making of complaint by the alleged injured parties and as to the withdrawal of the statements of complaint within days, that the reason for the withdrawal of the statements was intimidation. Allowing that it was open to the learned trial judge to draw the inference that the alleged injured parties had been intimidated, it does not necessarily follow that the applicant’s application for bail should have been refused. I have already referred to the decision in the case of The People (Director of Public Prosecutions) v. McLoughlin and to the judgment of Hardiman J. in which he pointed out that there are two central propositions to be considered in relation to bail application, namely:
It is worth considering a further passage from the judgment of Keane J. in The People (Director of Public Prosecutions) v. McGinley [1998] 2 I.R. 408 at p. 414 which concerned the admission of hearsay evidence:
On the facts of this case, it was the learned trial Judge who first adverted to the issue of intimidation and the applicant was then examined by his counsel on the matter of intimidation. He gave evidence that he did not know anything about intimidation and he was not cross-examined on his evidence. The State does not appear to have relied on the possibility of interference with prospective witnesses in objecting to bail. I would highlight the words of Hardiman J previously cited, in the passage from The People (DPP) v. McLoughin:
Bail is not the automatic right of an individual awaiting trial but it is an important aspect of the individual’s constitutional right to liberty, a right which can only be restricted on limited grounds supported by cogent evidence. There is a balance between the individual’s right to freedom and the public’s right that the integrity of the trial process be protected. Walsh J., speaking in O’Callaghan about the refusal of bail on the ground that a person might commit further offences whilst on bail, had this to say at p. 510:
The trial Judge, in considering the facts before him, was entitled to be concerned that the alleged injured parties had been intimidated but as pointed out, in the absence of evidence to demonstrate that the applicant was involved in or connected to any intimidation, the decision of the learned trial Judge cannot stand and I will allow the appeal and set aside the judgment of the High Court. I would remit the matter to the High Court. Before concluding this judgment, I would like to make one observation. The State, when objecting to an application for bail on O’Callaghan grounds, may advance evidence seeking to establish all or any of the grounds set out in O’Callaghan. Here, it appears that the evidence was directed to the nature or seriousness of the charges against the applicant, the strength of the evidence against the applicant (which was acknowledged to have been affected by the withdrawal of the statements by the alleged injured parties), the applicant’s failure to answer to bail previously and the overall objection of the State to bail. It does not appear that the possibility of interference with prospective witnesses was a ground expressly relied on by the State at any stage of the proceedings before the learned trial Judge. If the State wishes to rely on a particular ground related to an applicant in any given case, the State should, in the course of the bail application, set out clearly which of the O’Callaghan grounds it seeks to invoke. That is not to say that an issue could never arise during the course of the hearing in appropriate circumstances. If the O’Callaghan grounds are invoked in general terms without indicating specific grounds relied on in a given case, the task of the Judge hearing the application is not made easy, particularly, if one bears in mind the large volume of bail applications that have to be dealt with by a judge in the High Court in the course of the regular bail list. However, if the State sets out clearly the specific grounds relied on in a particular case, the minds of all those involved in the bail application will be focused on the evidence required to establish or challenge those grounds and this will make easier the task of assessing that evidence for the decision maker. On the contrary, it would have the advantage of clarifying the issues before the court for all the parties concerned. It is not unduly burdensome to ask that such a practice be adopted when the State intends to object to bail.
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