DPP v Lynn

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 14 June 2018
• Neutral Citation: [2018] IECA 178
• Date: 14 June 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 178 2018/149

[2018] IECA 178

THE COURT OF APPEAL

Civil

Hedigan J.

Mahon J.

Edwards J.

Hedigan J.

Neutral Citation Number: [2018] IECA 178

2018/149

IN THE MATTER OF AN APPLICATION FOR BAIL

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

MICHAEL LYNN

APPELLANT

Bail – Flight risk – Theft – Appellant seeking bail – Whether the appellant was a flight risk

Facts: The appellant, Mr Lynn, left the State in 2007 at a time when certain proceedings brought by the Law Society against him were pending in the High Court. He moved firstly to Portugal and subsequently in 2011 to Brazil. The appellant was made the subject of arrest warrants issued by Dublin District Court in relation to 33 allegations including 21 allegations of theft plus an additional 12 allegations under the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant was consequently made the subject of an extradition request from the Irish authorities to the Republic of Brazil. On foot of that request the appellant was arrested and committed to custody on the 29th August 2013 in Brazil. The Brazilian court ultimately authorised the appellant’s extradition in respect of the said allegations of theft only. The appellant was ultimately returned to the State on the 1st March 2018. The appellant was formally charged with the 21 allegations of theft and was brought before Dublin District Court where he applied for bail. This application was refused and the appellant was sent forward for trial to Dublin Circuit Criminal Court. He appealed the refusal of bail to the High Court. On the 6th April 2018, the High Court refused bail and the appellant appealed to the Court of Appeal against that refusal. The appellant submitted that the High Court judge erred in law and/or in fact on the basis that the respondent, the DPP, had established on the balance of probabilities that the appellant was a flight risk but without considering whether the imposition of appropriate conditions would obviate any such flight risk. The appellant argued that if bail was not granted the pre-trial custody would be oppressive. It was further argued that the appellant’s ability to defend himself would be greatly prejudiced if he remained in custody.

Held by the Court that whilst it was not possible to find that there was not on the balance of probabilities a flight risk, it appeared that it was a diminished one. The Court moved to consider whether conditions may be imposed which would meet the diminished risk of flight. The conditions offered in the High Court together with the independent surety of €100,000 seemed to the Court to be broadly adequate. The Court held that the surety must be provided in such a way as to be readily available to the authorities should the need arise. Senior Counsel for the appellant in the High Court referred to funds frozen in a bank account and the Court considered that appropriate.

The Court held that it would allow the appeal and admit the appellant to bail subject to stringent conditions.

Appeal allowed.

JUDGMENT of the Court delivered on the 14th day of June 2018 by Mr. Justice Hedigan

1 The appellant is charged with 21 counts of theft which are pending before Dublin Circuit Criminal Court. The charges relate to alleged wrongdoing in connection with the process of obtaining mortgages on certain residential properties in Dublin on various dates in 2006 and 2007. The appellant left the State in 2007 at a time when certain proceedings brought by the Law Society against him were pending in the High Court. He moved firstly to Portugal and subsequently in 2011 to Brazil. Whilst the appellant was in Portugal, there was considerable correspondence between An Garda Síochána and the appellant's various legal representatives in connection with arranging interviews with him. It was intended that An Garda Síochána would interview the appellant in Portugal. The interviews never took place as they were cancelled and deferred from time to time by the appellant himself.

2 The appellant was made the subject of arrest warrants issued by Dublin District Court in relation to 33 allegations including 21 allegations of theft plus an additional 12 allegations under the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant was consequently made the subject of an extradition request from the Irish authorities to the Republic of Brazil. On foot of this request the appellant was arrested and committed to custody on the 29th August 2013 in Brazil. The appellant has been in custody since that date. He has thus spent four years and six months in custody in Brazil and has now been in custody in Ireland for four months.

3 The appellant contested his extradition on various grounds. In this process, the Brazilian court ultimately authorised the appellant's extradition in respect of the said allegations of theft only. The appellant was ultimately returned to the State on the 1st March 2018. On that date the appellant was formally charged with the 21 allegations of theft and was brought before Dublin District Court where he applied for bail. This application was refused and the appellant was sent forward for trial to Dublin Circuit Criminal Court. He appealed the refusal of bail to the High Court. The hearing of that appeal took place before Ní Raifeartaigh J. on the 6th April 2018. The High Court refused bail and the appellant now appeals against that refusal.

4 The appellant submits that the learned High Court judge erred in law and/or in fact on the basis that the respondent had established on the balance of probabilities that the appellant was a flight risk but without considering whether the imposition of appropriate conditions would obviate any such flight risk. The judge held as follows:

‘Now, overall, having taken into account the history and his current situation, and having taken into account the evidence, it seems to me that while it is possible that Mr Lynn has reconciled himself to facing his charges and would not leave the jurisdiction, and while it is very possible that he would simply accept matters and devote himself to his family and preparation for his case, and resign himself to his fate that he would be facing trial in Ireland, the history unfortunately gives me too many causes for concern, and I am of the view that the State has satisfied the burden of proof in relation to… that he is a flight risk.’

5 The appellant submits that the learned High Court judge erred in her approach in that having established on the balance of probabilities that the appellant...