DPP v M.G.
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 10 September 2020 |
| Neutral Citation | [2020] IECA 248 |
| Date | 10 September 2020 |
| Docket Number | Record No: 2020/131 |
| Year | 2020 |
| Court | Court of Appeal (Ireland) |
IN THE MATTER OF AN APPEAL AGAINST A REFUSAL OF BAIL
[2020] IECA 248
Birmingham P.
Edwards J.
McCarthy J.
Record No: 2020/131
THE COURT OF APPEAL
Bail – False imprisonment – Theft – Appellant seeking bail – Whether the proceedings before the High Court were unsatisfactory
Facts: The appellant was charged with a number of offences arising from a single incident that was said to have occurred on the 25th of May 2020; including a charge of false imprisonment contrary to s. 15 of the Non-fatal Offences against the Person Act 1997; a charge of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001; two charges of assault causing harm contrary to s. 3 of the 1997 Act; two charges of threatening to kill, contrary to s. 5 of the 1997 Act; a charge of burglary contrary to s. 12 of the 2001 Act; and a charge of contravening a regulation to prevent, limit or minimize the spread of COVID 19, contrary to s. 31A(6)(a) and (12) of the Health Act 1976 as amended. The appellant sought bail, but it was objected to by the respondent, the Director of Public Prosecutions, who relied both on the provisions of s. 2 of the Bail Act 1997 and on both O’Callaghan grounds. The appellant was refused bail in the District Court on the 27th of May 2020 and appealed to the High Court. The State again relied both on the provisions of s. 2 of the 1997 Act and on both O’Callaghan grounds. Following a hearing on the 23rd of June 2020, the High Court was not disposed to uphold the s. 2 objection but upheld the objection on one of the O’Callaghan grounds, finding that there was a probability that the appellant would interfere with the principal witness against him, namely the complainant. In the circumstances the High Court refused to grant him bail. The appellant appealed to the Court of Appeal against the judgment and order of the High Court. Both sides referred us to the Supreme Court’s decision in The People (Director of Public Prosecutions) v Mulvey [2014] 1 IR 119, while the respondent also referred to The People (Attorney General) v O’Callaghan [1966] IR 501, The People (Director of Public Prosecutions) v Tristan McLoughlin [2010] IR 590 and Vickers v The DPP [2010] 1 IR 548.
Held by the Court that there were unsatisfactory aspects to the hearing before the High Court. The Court had some reservations as to whether the rights of the complainant were adequately respected. The Court noted that The People (Attorney General) v O’Callaghan makes clear that a relevant consideration for the court in any case in which bail is being objected to is the strength of the prosecution’s case against the applicant. The court noted that, following the complainant’s indication that she was resiling from her earlier statement to An Garda Siochána, nothing was offered to the court concerning the potential implications of that for the strength of the prosecution’s case, and concerning the weight to be attached to it by the judge in considering the issue of bail.
The Court held that because the proceedings before the High Court were unsatisfactory, the just and most appropriate course for the Court to take was to allow the appeal and set aside the judgment of the High Court; however, the matter would be remitted to the High Court for a re-hearing.
Appeal allowed.
The appellant is charged with a number of offences arising from a single incident that is said to have occurred on the 25 th of May 2020; including a charge of false imprisonment contrary to s.15 of the Non-fatal Offences against the Person Act 1997; a charge of theft contrary to section 4 of the Criminal Justice (Then and Fraud Offences) Act 2001; two charges of assault causing harm contrary to s.3 of the Non-fatal Offences against the Person Act 1997; two charges of threatening to kill, contrary to s.5 of the Non-fatal Offences against the Person Act 1997; a charge of burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and a charge of contravening a regulation to prevent, limit or minimize the spread of COVID 19. contrary to s.31A(6)(a) and (12) of the Health Act 1976 as amended by s. 10 of the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020.
The appellant sought bail, but it was objected to by the respondent who relied both on the provisions of s. 2 of the Bail Act 1997 and on both O'Callaghan grounds. The appellant was refused bail in the District Court on the 27 th of May 2020 and appealed to the High Court. The State again relied both on the provisions of s. 2 of the Bail Act 1997 and on both O'Callaghan grounds. Following a hearing on the 23 rd of June 2020 the High Court was not disposed to uphold the s.2 objection but upheld the objection on one of the O'Callaghan grounds, finding that there was a probability that the appellant would interfere with the principal witness against him. namely the complainant. In the circumstances the High Court refused to grant him bail. The appellant now appeals against the judgment and order of the High Court.
The High Court heard evidence from Sergeant Eddie Howley who related details of a complaint received by An Garda Siochána from a Ms. P.F., a Czech national, who is a former partner of the appellant and who has a child by him. The complainant had stated that she was living with the family of her ex-partner and she, and her child who slept in the same room, had gone to bed on the evening of the 24 th of May 2020. She had locked her bedroom door with the key having entered the room. In the early hours of the following morning, at about 3.00am, she was awoken by a knocking at her door. She got up and opened the door a small bit and upon doing so saw her ex-boyfriend, the appellant, there. He was said to have entered the house surreptitiously through a window in his brother's bedroom.
The evidence was that the complainant told Gardai that she immediately felt in fear of him, both for herself and for her daughter who was with her in the bedroom and asleep. The appellant is alleged to have pushed by her and to have locked the door, refusing to open it. Thereafter there was said to have been an angry exchange between the complainant and the appellant, initially involving threatening gestures towards the complainant by the appellant. and then the striking of the complainant across the face by the appellant with his open hand. The complainant had asserted in her statement that she began to scream but was immediately ordered to desist and stay quiet by the appellant who stated that he had a knife. The complainant claims to have believed that she faced a serious threat of being injured with a knife in circumstances where the appellant had on a previous occasion produced a knife and had placed it at her throat during a video call to the complainant's family who reside in the Czech Republic.
The complainant claims that she was then struck across the face with an open hand for a second time, but that on this occasion she didn't scream as she was afraid that the appellant would stab her, and she feared for her own safety and that of her daughter. The complainant had maintained that the appellant then took her phone and went through her contacts. He then video-called one of those contacts, who had been a childhood friend of the complainant, and forced the complainant to say nasty things of a sexual nature to him. The complainant had asserted that to induce her to do this the appellant again threatened to hurt her with a knife and that he also said that he would beat her. She told Gardai she believed he would do this and so she did what he demanded. Following the call, the appellant hit her two really painful slaps to her face causing injuries to her forehead and lips.
The complainant claimed that the appellant then used her phone to ring her social worker and that he had left a voicemail. She told Gardai that the message left stated that they had broken the rules, that he was at the house and that she had made him go there. The context for this emerged later in the evidence when the complainant herself gave certain testimony before the High Court. It emerged that, during the month of January prior to the incident giving rise the charges, another incident had occurred which wasn't reported to gardai, but which had come to the attention of Tusla. Tusla appears to have had concerns for the welfare of the couple's child and arising from that a social worker had become involved with the couple. The evidence was unclear as to the precise nature of the concern, although it was implicit that it may have been in some way related to alleged domestic violence in circumstances where the evidence was that certain undertakings had been given which were ostensibly breached, and that both mother and child were moved to a refuge following the later alleged incident giving rise to the present charges. Seemingly, up until this alleged incident, whatever the concern was the social worker involved had been content to allow the child to continue to reside with her mother in the appellant's family's home, subject to the couple entering into a social work “contract” based on undertakings that the appellant would no longer live there and that he would stay away from the family home and the complainant. The reference in the voicemail to a breaking of “the rules” was understood to be a reference to a breach of those undertakings.
The evidence was that the complainant had told Gardai that she felt that she could not leave the room at any stage. She had said that she felt trapped and afraid and that something worse than a slap would happen. The complainant had asserted that the appellant...
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