DPP v McLoughlin

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Hardiman
• Judgment Date: 31 July 2009
• Neutral Citation: [2009] IESC 65
• Court: Supreme Court
• Date: 31 July 2009

[2009] IESC 65

THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

[Appeal No: 215/2009]

215/09

DPP v McLoughlin

[2009] IESC 65

IN THE MATTER OF AN APPLICATION FOR BAIL

Between/

The Director of Public Prosecutions

Prosecutor

and

Tristan McLoughlin

Appellant

Applicant/Appellant

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

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

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

MAGUIRE & ORS v ARDAGH & ORS 2002 1 IR 385

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S15

DPP v CAGNEY & MCGRATH 2008 2 IR 111 2008 1 ILRM 293 2007/8/1515 2007 IESC 46

CRIMINAL LAW

Bail

Evidence - Hearsay - Relevance - Objection to bail - Test to be applied when assessing objection in grant or refusal of bail - Hearsay - Relevance and weight attaching to hearsay evidence - Whether allegations of third party intimidation relevant - Whether sufficient evidence to satisfy court of probability of risk of interference or intimidation - Whether court's finding should be stated expressly - People (DPP) v McGinley [1998] 2 IR 408 approved - Bail Act 1997 (No 16) - Appeal allowed; bail remitted (215/2009 - SC - 31/7/2009) [2009] IESC 65

People (DPP) v McLoughlin

1 Judgment delivered on the 31st day of July, 2009 by Denham J.

2 Judgment delivered by Denham J Hardiman J

3 1. This is an appeal by Tristan McLoughlin, "the appellant", from an order of the High Court (Butler J.) made on the 25 ^th day of May, 2009, refusing to admit him to bail.

4 2. The appellant is charged that he assaulted a person causing harm on the 26 ^th day of October, 2008, contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997. It is alleged that the injured party was in a pub in Naas when he was attacked by the appellant, as a result of which the victim received 100 stitches over a period of four hours. The injured party and the appellant knew each other. The appellant was charged on the 5 ^th May, 2009, after he had presented himself at Naas Garda Station.

High Court

5 3. The appellant applied to the High Court for bail on the 18 ^th day of May, 2009 . The Director objected to the granting of bail. One of the grounds of objection, stated by Detective Inspector Hanrahan, was that prior to the trial of another, the appellant's brother, for the same offence, arising out of the same incident, there was intimidation of witnesses and the injured party withdrew his statement. Detective Inspector Hanrahan stated that the witnesses who had allegedly been intimidated were not in court as they could not be contacted. There was objection to the hearsay evidence. The case was adjourned to the 25 ^th May, 2009 to give the prosecution an opportunity to bring witnesses to court.

6 4. On the 25 ^th May, 2009 counsel for the Director told the Court that none of the witnesses who had allegedly been intimidated were in court. The objection to hearsay evidence continued but the learned trial judge heard the evidence de bene esse. Five members of An Garda Síochána gave evidence.

7 (i) Detective Inspector Hanrahan stated:-

8 ""The injured party withdrew his original complaint as he was in fear of his life. The applicant and the applicant's brother are known to the injured party. There have been threats made to the injured party Jonathan Mulholland, people called to his house on two occasions but he did not speak to them.

9 The main prosecution witness reported to her parents [sic] had been approached and told that she shouldn't go to the trial, which report was recorded in Detective Inspector Hanrahan's notebook and was dated the 20 ^th of February 2002.

10 Another prosecution witness refused to make a statement. In respect of another witness to the assault, I have confidential information to the effect that one witness will be got at.

11 Another witness had his tyres slashed prior to the previous case."

12 On cross examination, inter alia, Inspector Hanrahan agreed that there was no witness in court to say that he or she was intimidated and that that was because they were afraid to come to court. This aspect of the cross examination is important and relevant as it ties the issue of the intimidation of witnesses to the application for bail. Also on re-examination Detective Inspector Hanrahan stated that the injured party, a female witness and her father, stated that they were not going to come to court.

13 (ii) Garda Christina Brady gave evidence that she would fear interference with witnesses if the appellant was released on bail. She then gave her reasons. For example, Garda Brady stated that she called to the mother of the family whose sons are witnesses, who said that she did not want any more trouble and that she was not prepared to go to court. It was accepted that the woman was not a witness, but her sons were.

14 (iii) The note of Detective Sergeant O'Reilly's evidence is as follows.

"D/Sergeant O'Reilly gave evidence that on the 8 ^th December 2008, prior to the trial of Clive McLoughlin for the same offence, Sandra Byrne, the main eye witness received distressing phone calls on her mobile phone informing her that she had better withdraw her statement made against Clive McLoughlin, the caller knew her car make, her house, Ms. Byrne withdrew her evidence the following day. A colleague contacted her prior to today's court date and she refused to come to court."

15 Once again, while this evidence initially related to the trial of the appellant's brother Clive McLoughlin, ultimately it relates to a refusal to come to the bail hearing.

16 (iv) Garda Ann Marie O'Neill also gave evidence. Her evidence related to alleged threats made prior to the trial of Clive McLoughlin, the appellant's brother.

17 (v) Garda Roisin Kelly also gave evidence of alleged intimidation prior to the trial of the appellant's brother.

18 It is notable that the evidence of the members of An Garda Síochána was wide ranging and did not refer repetitively to any single incident.

19 5. Counsel's note of the judgment, which was adopted by the learned trial judge, is as follows:-

"I accept the defence are in a difficult position.

In a hypothetical case if a concerted effort were made to intimidate witnesses, the administration of justice would be brought into disrepute and it has to move to avoid such a situation.

In this case a number of Gardaí have given evidence of receiving complaints of most awful intimidation. This is hearsay evidence; I have to assess those complaints. I accept that those Gardaí may have genuine fears for those witnesses.

The point is made that the applicant's case is separate to his brother's case as he was not charged at the time. The two cases are connected by their facts and witnesses. Taking the second point first, even if I could not take the hearsay into consideration the applicant should be refused bail.

Hearsay is admissible in certain cases. I have specific evidence as to why the evidence is not brought; on that basis I accept that it is admissible.

I accept that this is a very draconian decision."

Appeal

20 6. Six grounds of appeal were filed, being:-

21 a) The learned trial judge erred in law and in fact in permitting the Director to adduce hearsay evidence.

22 b) The learned High Court judge erred in law and in fact in permitting the Director to adduce irrelevant evidence.

23 c) The learned High Court judge erred in law and in fact in finding that allegations of intimidation connected with a trial of a person other than the applicant was relevant evidence.

24 d) The learned High Court judge erred in law and in fact in finding an allegation of another's intimidation could be visited on the appellant, absent evidence which would support a finding that the appellant assisted or acted in concert with said individual.

25 e) The learned High Court judge erred in law and in fact in putting such weight on hearsay evidence so as to refuse the appellant bail.

26 f) The learned High Court judge erred in law and in fact in accepting the opinions of Gardaí as evidence of probable witness intimidation.

Submissions

27 7. Oral and written submissions were made on behalf of the appellant. It was submitted that the evidence put forward by the Director failed to establish that it was necessary that the appellant be refused bail in order to ensure justice would not be evaded, for two reasons. First, that no relevant evidence was adduced that it was probable that witnesses would be intimidated by the appellant if he were to be admitted to bail. Secondly, that no admissible evidence was adduced which would support a conclusion that the appellant would intimidate witnesses if released on bail. Finally, it was submitted that even if the learned trial judge was correct in accepting irrelevant evidence and evidence which was hearsay, it was not of such a compelling nature as to establish on the balance of probabilities that the appellant should be refused bail.

28 8. On behalf of the Director it was submitted that the learned High Court judge was entitled to refuse bail on the basis of the evidence adduced and that he had considered the totality of the evidence in so doing and did not err in law in refusing bail.

Hearsay

29 9. Hearsay evidence may not be received as a matter of course. In certain circumstances however, as an exception, hearsay evidence may be received during a bail application. The court should be satisfied that there is a good reason why viva voce evidence may not be adduced. The law was explained in The People (D.P.P.) v. McGinley [1998] 2 I.R. 408 by Keane J. at p.414:-

"The constitutional right of the applicant for bail to liberty must, in every case where there is an objection to the granting of bail, be balanced against the public interest in ensuring that the...