DPP v Malone

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IECA 246
• Docket Number: Appeal No.: 2016/164
• Court: Court of Appeal (Ireland)
• Date: 29 July 2016

[2016] IECA 246

THE COURT OF APPEAL

(CIVIL)

Mahon J.

Appeal No.: 2016/164

Sheehan J.

Mahon J.

Edwards J.

The People at the suit of the Director of Public Prosecutions

Respondent

- and -

John Joseph Malone

Appellant

Crime & sentencing – Murder – Alleged offence – Refusal to grant bail ahead of trial

Facts: The appellant was alleged to murdered a woman in 1987. He was due to stand trial in 2017, and had been refused bail. He now sought to appeal that refusal.

Held by Mr Justice Mahon, the other Justices concurring, that the appeal would be allowed. The Court was satisfied that the appellant’s presumption of innocence, as well as the lack of any evidence suggesting intimidation of witnesses, mean it was appropriate to grant bail subject to certain conditions. People (Attorney General) v. O’Callaghan [1966] 1R 501 considered.

Judgment delivered by Mr. Justice Mahon on the 29th day of July 2016

1 This is an appeal against the judgment and order of Moriarty J. of 16th May 2016 and, more particularly, the refusal to grant the appellant bail on a charge that he murdered Ann Nancy Smyth at her home in Kilkenny city on 11th September 1987. The appellant's murder trial in the Central Criminal Court is scheduled for March 2017.

Background facts

2 Ms. Smyth was murdered in her home in Kilkenny on 11th September 1987. The appellant was, shortly afterwards, arrested and questioned in relation to the murder, but was released without charge. The gardaí re-opened their investigation in 2012, and on 15th October 2015, the appellant was arrested and charged with the murder.

3 The appellant is fifty two years old and has lived and worked for most of his life in Kilkenny. He spent a short period of time working in the U.K.. The appellant has twenty eight previous convictions, most of which were dealt with in the District Court. In 1992 he was convicted of the offence of failing to appear in court without reasonable excuse contrary to s. 13 of the Criminal Justice Act 1984. He failed to appear in relation to another matter in 2015 and this resulted in the issue of a bench warrant. It was executed by arrangement and the appellant was not charged in relation to his failure to appear. The appellant was also convicted of an assault on his brother contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997 in 2008. The appellant was also charged with the intimidation of a witness (contrary to s. 41 of the Criminal Justice Act 1999) in relation to that assault, and was granted the “Probation Act” in relation thereto. Ultimately, he received a suspended sentence in relation to the assault charge.

4 The appellant first sought bail from the High Court in relation to the murder charge on 9th November 2015. The application was heard and determined by Moriarty J.. Bail was refused following the hearing of evidence over three days, including evidence from the appellant. In his determination of that bail application, Moriarity J. declined to uphold the respondent's objections made pursuant to s. 2 of the Bail Act of 1997. He refused bail on the basis of the principles set out in The People (Attorney General) v. O'Callaghan [1966] I.R. 501, having regard to the nature of the case against the appellant, the seriousness of the offence with which he was charged, and the risk that the appellant would interfere with prosecution witnesses. Having given his reasons for refusing bail on 27th November 2015, Moriarity J. indicated (to quote from counsel's agreed note of those proceedings):-

‘…there remains a possibility even in a very serious case such as this that sufficient independent surety coupled with other conditions might be capable of addressing the objections, coupled with other conditions, but that no such proposal was put in those or any comparable terms by the appellant.’

5 The learned High Court judge also, in this context, referred to cases of persons accused of murder who had secured bail in circumstances where families had to combine what was for them substantial sums of money, and were accepted as independent sureties. He indicated that he was refusing bail ‘..reluctantly in the absence of a tangible proposal such as this’.

6 In March 2016 the appellant again applied to the High Court for bail. By consent, the matter was assigned to Moriarty J. because of his familiarity with the facts, and the evidence heard by him over three days in the previous November. No new evidence was heard in the course of this second bail application, with the exception of the appellant's brother, Mr. Michael Malone, who was being proposed as a surety. He informed the court that there was a cash sum of €2,000 available of which €1,200 was his own money, €300 was being contributed by the appellant's mother, a pensioner, with the remaining €500 being contributed by the appellant himself. These sums were significant sums for all concerned.

7 As had occurred in relation to the first application for bail in November 2015, the respondent objected to bail being granted.

8 At the conclusion of the second bail application, Moriarity J. ruled as follows:-

‘ Although relying on off the hoof comments is perhaps less preferably than prepared judgments, in the circumstances of this case I do not see the value of dragging all of the parties back to court on a further appropriate date.

On a previous occasion of refusing bail in this case I had held open to a possibility that in the event that a significant financial surety was available, the prospect of bail could be opened to the applicant. I have a natural distaste for an accused person whom is presumed innocent being kept in custody pending trial. I note that Mr. Michael Malone has put together the sum of €1,200 which was augmented by the applicant's mother and the applicant to a total of €2,000. I note that Mr. Michael Moran presented as an admirable and caring person.

I have been strongly urged by the applicant's counsel that on the balance of probabilities, on the basis of O'Callaghan and DPP v. Broderick and other matters, in strongly worded submissions to grant bail.

The objection based on risk of flight recedes into a minor category in this case. The reason given for refusing the applicant originally was in relation to the matter of interference with witnesses. The application stands or falls under the principles of the O'Callaghan case.

I take into account the defence submissions in relation to Judge Teehan having imposed a sanction under the Probation Act in relation to the previous conviction of the accused for witness intimidation but this together with the fact that there was a further incident of the accused indicating a disposition to interfere with witnesses together with the fact that Kilkenny is a small medieval city in size and could not be compared to Dublin or even Cork or Galway, and it is currently proposed that the accused would live within close proximity to the witnesses in the case.

This is not a case comparable to the Butterly decision to which I previously referred which arose in circumstance where that case gave rise to a lengthy trial in which there was ultimately a culpable deficient on the part of the prosecution after a significant delay and further that bail in that case was initially granted for Christmas and extended further, that temporary arrangement having gone well. The sums proposed as sureties in that case were very significant and were sourced from a wide range of family members.

Notwithstanding the significant efforts of the applicant's brother and mother who have done their level best and in spite of my distaste of an accused being kept in custody for perhaps another year, I would suggest that that application...