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Cite as: [2014] IESC 35
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Judgment Title: Choong & anor -v- Director of Public Prosecutions Neutral Citation: [2014] IESC 35 Supreme Court Record Number: 72/14 and 74/14 High Court Record Number: 2014 202 SS, 2014 197 SS Date of Delivery: 08/05/2014 Court: Supreme Court Composition of Court: Denham C.J., Hardiman J., MacMenamin J. Judgment by: Denham C.J. Status of Judgment: Approved |
THE SUPREME COURT Appeal Nos: 72 and 74/2014 Denham C.J.
Li Jiuan Choong, and Ching Ann Low Applicants/Respondents and The People at the suit of the Director of Public Prosecutions Respondent/Appellant Judgment delivered on the 8th day of May, 2014, by Denham C.J.
1. This is an appeal by the Director of Public Prosecutions, referred to as “the DPP”, from decisions of the High Court (Butler J.) in which Li Jiuan Choong and Ching Ann Low, referred to collectively as “the applicants”, were granted bail. 2. An issue in this appeal is whether the High Court was correct to admit the respondents to bail on their own bond in a nominal amount and without independent sureties when the learned High Court judge was satisfied that they were a flight risk. 3. The Court was asked also to determine whether its decision in The People (DPP) v Bell (Supreme Court, ex-tempore, 13th June, 2013), prevented the High Court determining an appropriate and reasonable amount of bail to be required of an independent surety. Background 5. Subsequently, the applicants were charged with offences under the Misuse of Drugs legislation. 6. On the 23rd January, 2014, they were brought before Letterkenny District Court where applications for bail were made. These applications were refused on the ground that the applicants would not turn up to answer the charges before the court. 7. The applicants appealed the refusal to grant bail to the High Court. 8. The applicants’ appeal came on for hearing and was determined by the High Court (Butler J.). 9. The High Court ordered, on the 17th February, 2014, in relation to Li Jiuan Choong:-
• and further that the applicant do
• not commit any offence and otherwise be of good behaviour
• reside at an address and report daily at a Garda Station local to that address between the hours of 9.00 am and 9.00 pm each day and there sign the book for that purpose provided such address and reporting Garda Station to be notified in writing to and approved in writing by Garda Paul Harte or in his absence any other prosecuting Garda and notified in writing to the Governor of Dochas Prison and
• remain indoors and maintain a curfew between the hours of 10pm and 8am and be available if required to members of An Garda Síochána calling to said address during those hours and
• notify in writing and seek approval in writing from the prosecuting Garda or in his absence the Member In Charge of the reporting Garda station of any subsequent change or variation in (a) address (b) the reporting condition or reporting Garda Station and (c) in the curfew condition and said change to be approved in writing and
• Surrender any travel documents and undertake not to apply for any new or duplicate passport or for any other travel documentation and
• appear in Court at each and every remand until the charges shall be disposed of according to law.
I am confronted with a situation where two people have the presumption of innocence and are charged with a very serious offence, a husband and wife with a child in care; who can't speak English. I have been asked to fix bail and they are clearly a flight risk. I asked the prosecution what sum by way of a surety I can fix and they won't give me guidance. I have sought guidance elsewhere and didn't get it. I had a habit of relating the independent surety in a small way to the amount of the drugs involved, that was found to be wrong, therefore any sum that I fix by way of independent surety will be arbitrary. Therefore I am not doing that and I am setting bail in their own bond. Mr. Justice Butler then fixed bail for both of the Applicants in the following terms: Own Bond €100, lodge nil; The Applicants to reside at an address to be agreed by Garda Paul Harte or his nominee; To abide by a curfew at that address between 10 p.m. and 8 a.m.; The Applicants to sign on daily at a Garda station to be nominated by Garda Harte or his nominee between 9 a.m. and 9 p.m.; Mr. Low is to provide a mobile phone number to the Gardai and to make himself available at that number at all times; Undertake not to apply for any other travel documentation. The Court then asked the prosecution if there were any other conditions required, which reply was No. Mr. Justice Butler said he would readily grant a stay provided the appeal papers were lodged with all due haste and he granted liberty to apply if they were not. Counsel for the Applicants referred the Court to the decision in Redmond v Ireland [1992] I.L.R.M. 291, where the Supreme Court refused the application for a stay and outlined (albeit in a personal injury matter) that when deciding to grant a stay of execution ‘the court must balance conflicting considerations so that justice will not be denied to either party.’ Mr. Justice Butler said he would with regret grant the stay as the Applicants were flight risks and that the appeal would be pointless if they did flee. The Court accepted that an address may be hard to meet. He granted the stay with effect for three weeks from today's date and that any further application for a stay would then have to be made to the Supreme Court. It was submitted by Counsel for the Applicants that the application for the stay was premature as there was no address to hand yet and the Court stated that then it was all moot and he would grant the stay. The Court certified for the Interpreter and allowed for a recommendation under the Legal Aid (Custody Issues) Scheme.”
(ii) That the learned High Court Judge erred in law and/or in fact in fixing bail without the inclusion of a requirement that an independent surety do enter into a recognisance on the applicant’s behalf;
(iii) That the learned High Court Judge erred in law and/or in fact by taking into account an irrelevant consideration when granting bail, namely that the approach he had previously adopted towards the setting of bail in drug related cases had since been held to be incorrect by this Court in DPP v. Bell (Supreme Court, ex-tempore, 13th June, 2013);
(iv) That the learned High Court judge erred in law and/or in fact by taking into account an irrelevant consideration when granting bail, namely the fact that the applicant was not alleged to be the "prime mover" in the commission of the relevant offences;
(v) That the learned High Court judge erred in law and/or in fact in failing to attach any or sufficient weight to the seriousness of the charges, the strength of the evidence supporting them, the likely sentence to be imposed on conviction and the applicant's lack of ties to this jurisdiction, when he granted bail and/or set the terms of bail;
(vi) That the learned High Court judge erred in law and/or in fact in attaching excessive weight to the means of the applicant, when he granted bail and/or set the terms of bail;
(vii) That the learned High Court judge erred in law and/or in fact by granting bail and/or setting the terms of bail for the applicant without having sufficiently distinguished her circumstances from those of her co-accused. Submissions Decision 16. DPP v. Bell determined that it was an error in law for the High Court to apply a fixed policy in determining the quantum of bail in drugs related cases. In particular, that the High Court erred in operating a fixed policy of fixing the financial terms of bail at 10% of the given street value of the drugs in applications for bail in respect of charges under the Misuse of Drugs Act, rather than assessing the circumstances of each case, and that such a policy was an arbitrary and rigid test, which did not have regard to the particular circumstances of each individual case. This Court held that the High Court erred in failing to take into account relevant considerations in assessing the financial terms of bail and also failed fully to vindicate an applicant’s constitutional rights by failing to consider properly the merits of the application for bail, in failing to fix bail at a level commensurate with an applicant’s means, or in failing to impose conditions appropriate in all the circumstances. 17. This Court did not hold in The People (DPP) v. Bell, and does not now hold, that the High Court is prevented from determining an appropriate and reasonable amount of bail, in all the circumstances, to be required of an independent surety. 18. In the view of this Court, there was an error of law by the High Court in its application of the principles identified by this Court in D.P.P. v. Bell. 19. Here, in the view of this Court, the learned High Court judge erred in law in concluding that he was prevented from setting an independent surety as he was no longer permitted to apply a fixed policy in relation to an independent surety as an appropriate way to arrive at the financial terms of bail in respect of an applicant. We should now explain our reasons. 20. The decision in DPP v. Bell created no new law. It has long been established that a court, in determining the terms for bail, must consider all the circumstances of the case, and may not adopt a fixed policy as to the amount to be sought of an independent surety. 21. At the core of the law on bail is the decision in The People (A.G.) v. O’Callaghan [1966] I.R. 504. Referring to the discretionary nature of bail, Walsh J. held at p. 512:-
23. The balancing process required of a judge determining the issue of bail was addressed by Kearns J. in Broderick v. D.P.P. [2006] 1 IR 629 at p. 634:-
25. The same approach may be seen in other common law jurisdictions. For instance, in the U.S. Supreme Court decision of Bandy v. United States (1961) 7 L ed 2d 9, 82 S Ct 11 Douglas J. stated:-
29. Thus, it is the responsibility of the trial judge in each case to consider all the circumstances of the case when an application for bail is before him or her. It requires an exercise by the learned trial judge in applying the law to all the particular facts of the case. A judge should not apply an arbitrary 10% fixed policy rule as to the level of bail based on the value of illegal drugs in a drugs related case. The law requires that, in each case, the learned trial judge considers all the circumstances relevant to that applicant and the offences with which he is charged. A sum fixed for an independent surety, in accordance with the well settled principles relating to applications for bail, after consideration of all the circumstances in a case, would not be arbitrary. As is referred to by Professor Dermot Walsh above, two defendants, with similar records, facing similar charges in similar circumstances could have different amounts of bail and surety requirements, reflecting different social and financial circumstances. 30. The learned trial judge in this case erred in law in his application of the decision of this Court in The People (DPP) v. Bell. I would allow the appeal and remit the matter to the High Court for a hearing of the application for bail in accordance with law.
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