Hannifin v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Rose Gearty |
| Judgment Date | 07 May 2020 |
| Neutral Citation | [2020] IEHC 206 |
| Docket Number | [2020 592 SS 2020 594 SS] |
| Date | 07 May 2020 |
| Court | High Court |
IN THE MATTER OF A BAIL APPLICATION
AND
[2020] IEHC 206
Mary Rose Gearty J.
[2020 592 SS
2020 593 SS
2020 594 SS]
THE HIGH COURT
Each Applicant is accused of committing violent disorder and the second and third-named Applicants also face assault charges, all arising out of the same incident. They are brothers and seek bail pending their trial. Since the date of the alleged offences, the complainant and members of his family have been the victims of shooting and petrol bomb attacks on their homes, all carried out by unknown assailants. The Respondent has objected to bail on the grounds that, if released (i) the Applicants will interfere with witnesses and (ii) there is a risk that they will commit further serious offences. The Applicants contend that no evidence links them, personally and directly, with these attacks and that they are entitled to bail. Each one offers to abide by any conditions that the Court considers it necessary to impose in order to ensure that he will not interfere with witnesses or commit any serious offences, if released.
The alleged incident which led to the charges in question occurred on the 2nd of June, 2019 in a filling station in Longford town and was described in evidence as follows: The first-named Applicant drove a group of four other males to the premises in his Skoda jeep. The second-named Applicant went into the filling station shop, where he had a physical altercation with the young complainant. Blows were exchanged. This row continued as both males moved onto the forecourt of the station. There, they were joined by a number of people, including the other two Applicants. The first-named Applicant drove the same group away when the incident ended. This group included two juveniles (neither of whom are before the Court) who are sons of the first two Applicants and who were armed; one with a hurl and the other with an axe. The third-named Applicant is alleged to have punched the complainant after the initial physical altercation began in the shop.
The prosecuting guard gave evidence that CCTV footage obtained gives a clear picture of the participation of the Applicants, who were identified both by reference to this footage and by the complainant, who knows all the Applicants. The complainant suffered wounds to his back, which was slashed with the axe, a black eye and a bump to his head during the incident.
These Applicants do not deny being at the scene or being involved in an argument but deny the commission of any criminal offence. The evidence was that the Applicants had no previous convictions and that none of them had ever been the subject of a bench warrant. It was not contested that there was an ongoing feud between the family of the Applicants and the family of the complainant.
Evidence was given by the prosecuting guard that, since this incident, five separate attacks have occurred on the home of the complainant and members of his immediate family. At his own home, shots were fired outside the house on two separate dates in February of 2020; on both occasions a kitchen window was broken by the bullets fired. On the 12th of February, again shots were fired but this time at the home of the complainant's brother, who lives nearby. A very young child was in the house at the time. Later in February, petrol bombs were left at both homes on separate dates. The first caused a small fire but was quickly extinguished, the second bomb caused more extensive damage to the house of the complainant's brother. As a result, his brother has moved home. Formal complaints were made to an Garda Siochana in each case, there is CCTV footage of each incident and these investigations are ongoing.
The complainant gave evidence confirming the series of attacks and asserting that he was in fear of the Applicants. While he did not purport to identify those responsible for firing the shots or planting the bombs described, he attributed all incidents to the Applicants, collectively, and to people connected with them. He pointed out that he had been living at that house for over 3 years and had never suffered any violence or threat of violence at home in all that time until these incidents. He was cross-examined about his evidence that he was in fear, in circumstances where he accepted that he had made a video challenging any of the Applicants to a fist fight. His reply was to the effect that a fist fight with one of them – or “a box”, as he put it - was a very different thing to being shot.
It was put to the complainant that there was another potential suspect for the attacks but he was adamant that the only family or persons with whom he had any argument was the Applicants’ family. The complainant added that he had seen the Applicants, when driving around the town, making gestures towards him, which he indicated by drawing a line across his throat with his finger in a gesture widely known to indicate a threat, whether specifically of a slashing or a more general threat of death or violence. He was not cross-examined on this aspect of his evidence.
None of the Applicants gave evidence. Therefore, the uncontradicted evidence was that the chief witness in the case against the Applicants has recently been the subject of three separate attacks, and his brother of two attacks, in circumstances where neither he nor his family had suffered any such adverse attention before. It was suggested to the complainant that he had an issue with another named person, but he denied this and there was no other evidence which might have tended to explain the timing and targeted nature of these shooting and bombing events. He also gave specific and, again, uncontradicted evidence of threatening gestures, this time made by the Applicants themselves.
The first and second-named Applicants were in custody from 21st February until the 14th of March, 2020 pending a bail application in relation to separate violent disorder charges connected with a funeral and arising out of another feud. The two petrol bomb incidents occurred during this period. The three Applicants were charged and went into custody in respect of the filling station allegation of violent disorder in April of 2020. The incident at the funeral is said to have occurred in January of 2020, after the incident the subject matter of this application. The first-named Applicant was on bail for a third, unrelated offence of assault causing harm, at the time of both violent disorder incidents, one at the filling station in June 2019 and the other at the funeral in January 2020. He remains on bail in that regard though that offence has since been re-charged as an offence of causing serious harm.
The Respondent opposes bail in each case on two grounds: (i) that it is likely that the Applicants will interfere with this witness and (ii) that there is a real risk that a serious offence will be committed, in the case of each Applicant. The evidential basis for both objections is the same: the evidence of shots and bombs, and the intimidation described by the complainant.
Every applicant has a right to bail. This arises due to their constitutional right to personal liberty and to a fair trial. In the words of Mr. Justice Walsh in the seminal case of People (Attorney-General) v O'Callaghan [1966] IR 501 [at page 513] “ the presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial.” In order to give effect to these rights, it follows that bail must be granted in every case unless it is necessary, for stated reasons and on a sound legal and evidential basis, to refuse bail. An application may be successfully opposed in limited circumstances which include proof that the applicant is likely to interfere with a witness in the case against him. This was one of a series of potential grounds for objection to bail confirmed by Walsh J. in O'Callaghan. In 1997, this list was increased by the provisions of the 1997 Bail Act, under which the second ground herein arises, namely, that there is a real risk that each Applicant will commit a serious offence, if released.
In a case where an objection appears well-founded, a judge must also consider whether there are conditions which could be imposed which would allow the court to admit the applicant to bail notwithstanding the probability of interference with a witness, or the risk of serious offending, as the case may be.
The burden of proof in every bail application is on the prosecution, as set out by the Supreme Court in People (A.G.) v. Gilliland [1985] I.R. 643, at page 646. As set out above, every bail application starts from the position that the applicant is entitled to bail. The only relevant ground in this case is the possible interference with a prosecution witness but the nature of the anticipated interference is such that it also comprises a ground for refusal under section 2 of the 1997 Bail Act, namely, that there is a real risk that a serious offence will be committed if bail is granted. Both grounds are relied upon by the Respondent. It is arguable that many, if not all, objections under this particular limb of the O'Callaghan case will also comprise evidence of the offence of intimidation of a potential witness under section 41 of the Criminal Justice Act of 1999, which carries a maximum sentence of 10 years’ imprisonment.
In O'Callaghan, the Supreme Court held that the standard of proof required in a case such as this is proof that the applicant will probably interfere with a witness. Walsh J. concluded...
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