DPP v McGinley

JurisdictionIreland
JudgeKeane, J.
Judgment Date20 May 1998
Neutral Citation1998 WJSC-SC 5791
CourtSupreme Court
Docket Number[S.C. No. 22 of 1998]
Date20 May 1998

1998 WJSC-SC 5791

THE SUPREME COURT

Hamilton, C.J.

Denham, J.

Barrington, J.

Keane, J.

Murphy, J.

DPP v. McGINLEY
IN THE MATTER OF THE PEOPLE AT THE SUIT OF THE DIRECTOROF PUBLIC PROSECUTIONS AND DETECTIVE SERGEANT GERARDKELLY
PLAINTIFFS/RESPONDENTS

AND

SIMON McGINLEY
DEFENDANT/APPELLANT

Citations:

MCKEON V DPP UNREP SUPREME 12.10.1995

AG, PEOPLE V O'CALLAGHAN 1966 IR 501

HAUGHEY, IN RE 1971 IR 217

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

AG V DOLAN UNREP FINLAY 5.11.1973

MARKS V BEYFUS 1890 25 QBD 494

DIRECTOR OF CONSUMER AFFAIRS V SUGAR DISTRIBUTORS LTD 1991 IR 225

Synopsis

Evidence

Evidence; bail applications; hearsay evidence tendered that applicant would interfere with witnesses; admissibility of hearsay evidence in context of bail applications; whether bail applicant entitled to require evidence against him to be given on oath; whether particular reasons would justify hearsay evidence being admitted Held: Bail applicant entitled to have evidence against him given on oath; particular reasons may justify the admission of hearsay evidence; hearsay evidence inadmissible in circumstances of case (Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Murphy J.20/05/1998)- [1998] 2 IR 408 - [1998] 2 ILRM 233

People (D.P.P.) v. McGinley

1

JUDGMENT delivered the 20th day of May 1998,by Keane, J.

2

The appellant is charged with having had unlawful carnal knowledge of a girl under the age of 15 years at a named place in the Dublin area on the 27th August 1997. On 16th December last an application for bail was made on his behalf to the High Court (O'Higgins, J.). The court has been furnished with an agreed record of what transpired at the hearing, from which it appears that Detective Sergeant Kelly gave evidence as to the nature of the offence with which the appellant was charged. The offence was alleged to have taken placein a van driven by the appellant into a lay-by. In the course of his evidence, Detective Sergeant Kelly said:

"During the incident the accused's wife arrived at the scene. She banged on the door of the van. The complainant made a run for it but the accused pursued her. He threatened her that, if she reported the crime, she would be "cut open"."

3

Detective Sergeant Kelly also said:

"The complainant's family had been approached by members of the accused's family and told not to report the incident to the Gardai; they were threatened that, if they did report it, their legs would be broken and serious injury would befall them."

4

Counsel on behalf of the appellant objected to this evidence on the ground that it was hearsay and referred the trial judge to the decision of this court in John McKeon v. Director of PublicProsecutions; (unreported; judgments delivered 12th October 1995). Having heard arguments, the learned trial judge said that his understanding was that, in applications of this nature,such evidence may be admissible but the judge must attribute to it only ???su??? weight as it deserves.

5

Detective Sergeant Kelly also gave evidence that:

"The accused's family had offered inducements to the complainant's family that, if they withdrew their complaint, they would be provided with a caravan."

6

The witness also said that another member of the accused's family ???wa??? being charged in connection with the alleged threats and inducements. ???Th??? appellant also gave evidence. He denied that he had threatened ???th??? complainant or members of her family.

7

There was also evidence from other members of the gardai as to ???wher??? the appellant lived. This was to the effect that, while his parents lived ???i??? Dundalk, the appellant himself travelled around the country. The appellant ???in??? evidence said that he was prepared, if granted bail, to stay in Dundalk and to sign on at the Garda Station there.

8

The learned trial judge refused the application in these terms:-

"Despite the hearsay nature of the evidence, he had no hesitation, whatever in holding that there was a grave likelihood thattheapplicant would interfere with witnesses. He came to this conclusion mindful of the necessity to be cautious in relation to hearsay evidence. Nonetheless he believed that, realistically, there was a substantial chance that, if released on bail, the accused would interfere withwitnesses."

9

From that decision, the appellant has now appealed to this court.

10

On behalf of the appellant, Mr. Patrick Gageby, S.C. submitted that a bail application was an entirely discrete procedure the result of which determined whether an accused person, presumed to be innocent, was deprived of his constitutional right of liberty under Article 40. pending the trial. He said that the decision of this court in ThePeople (Attorney General) v. O'Callaghan [1966] IR 501 had made it clear that, in the light of these constitutional considerations, an accused person had a prima facie right to bail, unless the court was satisfied that the case fell within one of the acknowledged exceptions justifying his detention in custody. The onus, accordingly, was on the prosecution in every case to show that the case came within one of those exceptions.

11

Mr. Gageby said that it also followed that the trial of an issue of such importance must be conducted in accordance with natural justice and must respect the constitutional guarantee of fair procedures. He urged that ahearingwhich permitted one side to adduce hearsay evidence lacked one of ???th??? essential features of a hearing conducted in accordance with natural ???justice??? citing the decisions of this court in In re: Haughey [1971] IR 217 and ???Kiely v??? The Minister for Social Welfare [1977] IR 267. He submitted that ???th??? exclusionary approach of the law to hearsay evidence was grounded on ???two??? basic defects in such evidence, (a) that it was not given on oath and (b) that ???i??? was not capable of being tested on cross-examination.

12

Mr. Gageby submitted that the decision in McKeon's case which ???had??? been relied on in the High Court was clearly distinguishable. In that case, the hearsay evidence sought to be adduced was in the form of ???confidentia??? information furnished to the Gardai which was prima facie privileged. In the present case, no such privilege could be claimed and the court had been given no reason as to why direct evidence of the alleged threats or inducements should not have been given.

13

On behalf of the Respondent, Mr. Diarmuid McGuinness, S.C. submitted that the fundamental question which arose in every case where there was an objection to the granting of bail was whether it had been established as a matter of probability that the applicant was unlikely to stand trial or likely to evade justice, by either absconding or interfering with evidence or with witnesses. In determining that question, the court was obliged to have regard, not merely to the right of liberty of the applicant, but also to the public interest in ensuringthat the integrity of the trial itself was protected. He said that the authorities demonstrated that, in a wide range of cases, courts...

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