Mc Donagh -v- Governor of Cloverhill Prison, [2005] IESC 4 (2005)

Docket Number:13/05 & 12/05
Party Name:Mc Donagh, Governor of Cloverhill Prison
Judge:McGuinness J.
 
FREE EXCERPT

THE SUPREME COURT

Record No. 13/05

McGuinness J.

Hardiman J.

Fennelly J.

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2. OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

MARTIN McDONAGH

APPELLANT/APPLICANT

and

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

AND

THE SUPREME COURT

Record No. 12/05

McGuinness J.

Hardiman J.

Fennelly J.

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2. OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

PATRICK McDONAGH

APPELLANT/APPLICANT

and

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENTJudgment of the Court delivered by Mrs Justice McGuinness the 28th day of January 2005

This is an appeal from the judgment and order of the High Court (7th January 2005 McMenamim J.) in the matter of two applications pursuant to Article 40.4.2. of the Constitution whereby it was ordered and adjudged that the applicants were being detained in accordance with law.

Each applicant stands charged with the offence of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. Both applicants appeared before the District Court on 6th January 2005. The prosecution opposed bail in both cases; the applicants were remanded in custody by the District Court. This court was informed that both cases were dealt with together by the judge of the District Court (Judge Coughlan). The applications pursuant to Article 40 were dealt with together by the High Court and the appeals of both applicants were heard together by this court on the 17th January 2005. Having heard submissions of counsel for the applicants and for the respondent this court allowed the appeal and ordered the release of both applicants. The court reserved the stating of reasons for its decision. The court noted that the applicants were to appear on remand in the District Court on the 27th January 2005 in connection with the charges already mentioned. It was accepted by counsel on both sides that this remand appearance was unaffected by the release of the applicants from custody by this court.

The Proceedings in the District Court

No issue arises as to the facts concerning the proceedings in the District Court as set out in the affidavit grounding the Article 40 application which was sworn by Shalom Binchy, solicitor for the applicants.

Having set out the facts of the charge and having deposed that the offences were prosecuted by Garda Shane Davern of Coolock Garda Station, Ms Binchy in her affidavit continues as follows:"4. I further say that Garda Davern made an application to District judge Coughlan that the applicants be remanded in custody. He grounded his application on the following grounds; firstly on the seriousness of the charge and secondly on the fear that witnesses would be intimidated. Garda Davern stated that the charge before the court related to a shooting incident which occurred on New Year's Day in St. Dominick's halting site in Coolock. He testified that the alleged injured party had suffered injuries including a punctured lung and had 'possibly lost an eye'. He stated that there had been an ongoing feud between two travelling families and he feared that if the applicant was released that witnesses may be intimated. He did not specify any persons whom he feared would be intimated and he did not call any witnesses in this regard. I objected to this evidence on the basis that it was hearsay and asked the presiding judge to disregard it.5 I say that I made an application for bail on the grounds that the only objection properly before the court was the seriousness of the charge. I further submitted on behalf of my client that the Gardai were satisfied with his identity and address, that his wife had brought his passport to court which he was willing to surrender and that he was willing to sign on at his local Garda Station on a daily basis and make a cash lodgment. Judge Coughlan refused bail stating that 'this is an ongoing feud' and that the test in relation to bail is 'whether the man is going to go out and murder someone?' Judge Coughlan further asked 'is this man going to go out and assault someone again with a gun?' I submitted to the court that firstly the testimony by Garda Davern in relation to the alleged ongoing feud formed part of the substance of the charge and was therefore an allegation and my client was entitled to the presumption of innocence. I further submitted that this evidence was hearsay. I submitted that the test in bail applications was not whether the accused was 'going to go out and murder someone'. I further pointed out that the objections raised by the prosecution were not brought under section 2 of the Bail Act of 1997. I further submitted that the applicant is entitled to the presumption of innocence.6 Judge Coughlan remanded the applicant in custody to the 13th day of January 2005 to appear in Cloverhill District Court."

Since the cases of both applicants were dealt with together the affidavit of Ms Binchy outlining the proceedings concerning the second applicant's application for bail is in similar terms.

The Proceedings in the High Court

Later that day, 6th January 2005, applications pursuant to Article 40.4.2. on behalf of both applicants were made in the High Court. The High Court (McMenamin J.) made orders directing the Governor of Cloverhill Prison to produce the applicants before the High Court at 11 a.m. the following day and to certify in writing the grounds of their detention. This order was carried...

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