DPP v David Mulvey

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 25 February 2014
• Neutral Citation: [2014] IESC 18
• Court: Supreme Court
• Docket Number: [S.C. No. 451 of 2013]
• Date: 25 February 2014

[2014] IESC 18

THE SUPREME COURT

Denham C. J.

MacMenamin J.

Dunne J.

[Appeal No. 451/2013]

DPP v Mulvey

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

DAVID MULVEY

APPLICANT/APPELLANT

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

BAIL ACT 1997 S2

ROAD TRAFFIC ACT 1961 S112

MCDONAGH v GOVERNOR OF CLOVERHILL PRISON 2005 1 IR 394 2005 1 ILRM 340 2005/42/8650 2005 IESC 4

DPP v MCLOUGHLIN 2010 1 IR 590 2010 1 ILRM 1 2009/18/4254 2009 IESC 65

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NORTHERN BANK FINANCE CORP LTD v CHARLTON & SHEEHY 1979 IR 149

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

DPP v MCGINLEY 1998 2 IR 408 1998 2 ILRM 233 1998/16/5791

Bail - Refusal to grant bail - 'The O"Callaghan grounds' - Withdrawal of statements - Inference of witness intimidation - Possibility of interference with witnesses - Absence of evidence

This was an appeal by the applicant, David Mulvey, from an order of the High Court of the 14 ^th of October 2013, which refused him bail. The applicant was arrested on the 25 ^th of August 2013 on six charges related to allegations of violent behaviour, trespass, demanding payment of money with menaces, violent disorder, criminal damage and wrongful intimidation of a named individual. With the exception of the first charge, the matters complained of all occurred at a house in Finglas. It was alleged that on Sunday the 25 ^th of August 2013, the applicant and three other persons entered the house of the injured parties demanding €8,000—an alleged drug debt owed by a previous resident of the house.

The applicant came before the District Court in August 2013 where an application for bail was refused. This was appealed to the High Court and later withdrawn as a further application for bail was made to the District Court. This was because the four complainants of the charges withdrew their original statements. Bail was considered and rejected by the District Court on the 27 ^th of September 2013 on the basis of the grounds set out in The People (Attorney General) v O"Callaghan (the O"Callaghan grounds) and under section 2 of the Bail Act 1997. This was appealed to the High Court, where bail was also refused. The decision of the High Court was the subject of the appeal. This decision was based on the O"Callaghan grounds and on the basis that the complainants were intimidated into withdrawing their statements. One of the O"Callaghan grounds allowed for the refusal of bail where there was a possibility of interference with prospective witnesses or jurors.

The applicant contended that Sergeant O"Donovan, who gave evidence on behalf of the DPP, gave no evidence of witness intimidation. The applicant, who was not cross-examined in the course of his evidence, stated that he did not know anything about such intimidation. The trial judge found that given the withdrawal of the statements, it was 'wholly and completely plain as a pike that the witnesses had been intimidated'. The applicant submitted that this finding was not evidence based. The applicant also asserted that the fact that the trial judge concluded that there was witness intimidation on the basis that statements were withdrawn was not a permissible inference.

Held by Dunne J., there was an absence of evidence in this case to indicate as a matter of probability that the applicant would interfere with witnesses. Moreover, there was also a lack of evidence to support the conclusion that, as a matter of probability, the applicant was involved in any intimidation of the alleged injured parties. Given this lack of evidence, the decision of the learned trial judge was not allowed to stand.

The appeal was therefore allowed and remitted to the High Court.

1 Judgment of Ms. Justice Dunne delivered on the 25th day of February, 2014

2 Judgment delivered by Dunne J [Nem diss]

Background

3 This is an appeal by the applicant from an order of the High Court made on the 14 ^th October, 2013 refusing to admit him to bail.

4 The applicant was arrested on foot of six charges on the 25 ^th 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, 25 ^th August, 2013, the applicant and three other persons entered the house of the injured 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, 25 ^th 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.

5 The applicant was brought before the District Court on the 26 ^th 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 2 ^nd September, 2013. That application was adjourned for one week and on the 9 ^th 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 6 ^th September, 2013 withdrawing their statements of complaints made on the 25 ^th 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.

6 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 27 ^th 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.

7 The applicant appealed to the High Court and the matter came on for hearing on the 14 ^th 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.

8 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.

9 The DPP objected to bail on the grounds provided for in s. 2 of the 1997 Act and on the O'Callaghan grounds.

10 The Court has been provided with counsel's agreed note of the evidence and the decision of the High Court made on the 14 ^th 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

11 Sergeant O'Donovan described the background to the charges, the withdrawal of the statements by the alleged injured parties and the history of the previous bail applications in relation to these charges. Two of the applicant's co-accused obtained bail in the District Court. Sergeant O'Donovan confirmed that he was objecting to bail on the grounds of s. 2 of the 1997 Act and on O'Callaghan grounds. He outlined the fact that the applicant had seven previous convictions, two of which were committed on bail, the last in 2007. That was a Circuit Court matter and related to two counts of possession of firearms, one count of attempted robbery and one count of an offence contrary to s. 112 of the Road Traffic Acts. The applicant had received a seven year sentence in relation to those matters with the last two years suspended. The applicant also had convictions from 2006 for possession of drugs, and not having a driving licence or insurance. It was also indicated that the applicant had been the subject of three bench warrants. On being asked what his fear was in relation to the applicant being admitted to bail, the response of Sergeant O'Donovan was to say that the charges were very serious. He indicated that one of the complainants was in treatment for cancer and that the applicant was aware of that fact. There was a family connection between the applicant and the mother of the family, the subject of the alleged incident. Finally, Sergeant O'Donovan indicated that the suggestion in the affidavit of the applicant's solicitor, John Quinn of John M. Quinn & Co., Solicitors, to the effect that the applicant was willing to abide by any conditions of bail including signing on daily at a local Garda Station, abiding by a curfew, staying away from Finglas East and surrendering his passport and undertaking not to apply for a new one, would not allay his concerns.

12 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...