DPP v McLOUGHLIN

• Jurisdiction: Ireland
• Judgment Date: 31 July 2009
• Date: 31 July 2009
• Docket Number: [S.C. No. 215
• Court: Supreme Court

[2009] IESC 65,

Supreme Court

[S.C. No. 215 of 2009]

The People (Director of Public Prosecutions) v. McLoughlin

The People (at the suit of The Director of Public Prosecutions)

Respondent

and

Tristan McLoughlin

Applicant

Cases mentioned in this report:-

In re Haughey [1971] I.R. 217.

Kiely v. Minister for Social Welfare [1977] I.R. 267.

McKeon v. Director of Public Prosecutions(Unreported, Supreme Court, 12th October, 1995).

Maguire v. Ardagh [2002] 1 I.R. 385.

The People (Director of Public Prosecutions) v. Cagney[2007] IEHC 46, [2008] 2 I.R. 111; [2008] 2 I.L.R.M. 293.

The People (Director of Public Prosecutions) v. McGinley [1998] 2 I.R. 408; [1998] 2 I.L.R.M. 233.

The People (Attorney General) v. O'Callaghan [1966] I.R. 501; (1966) 102 I.L.T.R 45.

The State v. Purcell [1926] I.R. 207.

Criminal law - Bail - Evidence - Hearsay evidence - Relevance - Objection to bail - Test to be applied when assessing objection in grant or refusal of bail - 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 ruling on bail applications should be stated expressly - Bail Act 1997 (No. 16).

Appeal from the High Court

The facts have been summarised in the headnote and are more fully set out in the judgments of Denham and Hardiman JJ., infra.

By notice of appeal dated the 2nd July, 2009, the applicant appealed to the Supreme Court against the decision of the High Court (Butler J.) dated the 25th May, 2009, refusing to admit him to bail.

The appeal was heard by the Supreme Court (Denham, Hardiman and Geoghegan JJ.) on the 28th July, 2009.

The applicant was charged that he assaulted a person causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. On applying to the High Court for bail, the Director of Public Prosecutions objected to the application. One of the grounds of objection was that prior to the trial of another accused, the applicant's brother, for the same offence and arising from the same incident, there was intimidation of witnesses and the injured party withdrew his statement. The prosecution stated that the witnesses were not in court to give evidence as to the alleged intimidation as they had not been contacted by the gardaí. An objection was raised to the admission of hearsay evidence and the case was adjourned to give the prosecution an opportunity to bring the witnesses to court. On the adjourned date, the prosecution submitted that none of the witnesses who had allegedly been intimidated were present in court because they were afraid to come. The defence objected to the admission of hearsay evidence but the trial judge heard the evidence de bene esse.At the conclusion of the evidence of a number of gardaí as to the alleged intimidation the trial judge ruled the hearsay evidence admissible and refused bail on the basis that the fears expressed by the gardaí may have been genuine.

The applicant appealed the refusal of bail to the Supreme Court on the grounds that no relevant and/or admissible evidence was adduced that it was probable that the applicant would intimidate witnesses if he were admitted to bail. Further, even if the trial judge was correct in accepting irrelevant and/or hearsay evidence, it was not of such a compelling nature as to establish on the balance of probabilities that the applicant should be refused bail.

Held by the Supreme Court (Denham, Hardiman and Geoghegan JJ.), in allowing the appeal, setting aside the High Court order and remitting the matter to the High Court, 1, that, when objecting to the granting of bail, the prosecution must establish its objection as a matter of probability and the evidence supporting that objection must have a degree of cogency which satisfied the court itself that the objection had been made out as a probability, which finding should be stated expressly by the court.

2. That hearsay evidence might be admissible in bail applications in exceptional and rare circumstances when a specific, recognised ground for its admission had been properly established by ordinary evidence.

3. That there must be a full and proper hearing of the objection and the evidence in support of the admission of hearsay evidence and a ruling on the question. The evidence relied on to ground the admission of hearsay evidence must be more than it is convenient to have the evidence taken in that form. It must establish that all reasonable steps have been taken to procure evidence in the usual form. The relevance and weight of such evidence was a matter to be determined by the trial judge but should always be approached with caution.

The People (Director of Public Prosecutions) v. McGinley [1998] 2 I.R 408 approved.

Cur. adv. vult.

Denham J. 31st July, 2009

[1] This is an appeal by the applicant from an order of the High Court (Butler J.) made on the 25th May, 2009, refusing to admit him to bail.

[2] The applicant is charged that he assaulted a person causing harm on the 26th 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 applicant, as a result of which the victim received 100 stitches over a period of four hours. The injured party and the applicant knew each other. The applicant was charged on the 5th May, 2009, after he had presented himself at Naas garda station.

High Court

[3] The applicant applied to the High Court for bail on the 18th May, 2009. The Director of Public Prosecutions 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 applicant'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 25th May, 2009, to give the prosecution an opportunity to bring witnesses to court.

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

(i) Detective Inspector Hanrahan stated:-

"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.

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 20th February, 2002.

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

[5] 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.

[6] (ii) Garda Christina Brady gave evidence that she would fear interference with witnesses if the applicant 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.

[7] (iii) The note of Detective Sergeant O'Reilly's evidence is as follows:-

"Detective Sergeant O'Reilly gave evidence that on the 8th 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."

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

[9] (iv) Garda Ann Marie O'Neill also gave evidence. Her evidence related to alleged threats made prior to the trial of the applicant's brother.

[10] (v) Garda Roisin Kelly also gave evidence of alleged intimidation prior to the trial of the applicant's brother.

[11] 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.

Judgment

[12] Counsel's note of the judgment, which was adopted by the trial judge, is as follows:-

"I accept the defence is 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...