McDonagh v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 28 January 2005
• Neutral Citation: [2005] IESC 4
• Date: 28 January 2005
• Docket Number: [S.C. Nos. 12 and 13 of 2005]
• Court: Supreme Court

[2005] IESC 4

THE SUPREME COURT

McGuinness J.

Hardiman J.

Fennelly J.

Record No. 13/05

MCDONAGH v GOVERNOR OF CLOVERHILL PRISON

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2. OF THE

CONSTITUTION OF IRELAND 1937

BETWEEN

MARTIN McDONAGH

APPELLANT/APPLICANT

and

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

CONSTITUTION ART 40.4.2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CONSTITUTION ART 40

BAIL ACT 1997 S2

AG v O'CALLAGHAN 1966 IR 501

BAIL ACT 1997 S2(1)

BAIL ACT 1997 S2(2)

DPP v MCGINLEY 1998 2 IR 408 1998 2 ILRM 233

WALSH CRIMINAL PROCEDURE 3ED 501

ROYLE, STATE v KELLY 1974 IR 259

CRIMINAL LAW

Bail

Refusal - Failure to address objections to bail raised - Failure to address objection to hearsay evidence - Whether appropriate test adopted by District Judge - Whether ground for refusal appropriate - Whether ground for refusal based on evidence - Whether District Judge acted ultra vires - Whether objections to bail required to be made on notice to accused - Bail Act 1997 (No 16), s 2(1) and (2) - Constitution of Ireland 1937, Article 40.4.2 (13/2005 & 12/2005 - McGuinness [Hardiman Fennelly] - 238/1/2005) [2005] IESC 4

MCDONAGH v GOVERNOR OF CLOVERHILL PRISON

The applicants appealed against an order of the High Court, refusing their Article 40 applications and deciding that the applicants were being detained in accordance with law. The applicants were refused bail in the District Court on the ground that there was an ongoing feud between the applicants and the injured party and also there was a risk that the applicants 'would go out and assault someone again with a gun.'

Held by the Supreme Court (McGuinness, Hardiman, Fennelly JJ): in allowing the appeal: That there was no relevant evidence before the District judge, which would have permitted him to refuse bail on the grounds articulated by him. The remarks made by the judge were improper and wrong in principle. The proceedings were unfair and in breach of the principles of natural and constitutional justice in that the applicants were not informed that an objection to bail of such a serious nature was to be made by the prosecution. Furthermore the applicants were not afforded an opportunity to challenge such an objection.

The State (Royal) v Kelly [1974] I.R. 259 followed.

Reporter: L.O'S

1 Judgment of the Court delivered by Mrs Justice McGuinness the 28th day of January 2005

2 This is an appeal from the judgment and order of the High Court (7th January 2005 McMenamim J.) in the matter of two applications pursuant to Article 40.4.2. of the Constitution whereby it was ordered and adjudged that the applicants were being detained in accordance with law.

3 Each applicant stands charged with the offence of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. Both applicants appeared before the District Court on 6th January 2005. The prosecution opposed bail in both cases; the applicants were remanded in custody by the District Court. This court was informed that both cases were dealt with together by the judge of the District Court (Judge Coughlan). The applications pursuant to Article 40 were dealt with together by the High Court and the appeals of both applicants were heard together by this court on the 17th January 2005. Having heard submissions of counsel for the applicants and for the respondent this court allowed the appeal and ordered the release of both applicants. The court reserved the stating of reasons for its decision. The court noted that the applicants were to appear on remand in the District Court on the 27th January 2005 in connection with the charges already mentioned. It was accepted by counsel on both sides that this remand appearance was unaffected by the release of the applicants from custody by this court.

The Proceedings in the District Court

4 No issue arises as to the facts concerning the proceedings in the District Court as set out in the affidavit grounding the Article 40 application which was sworn by Shalom Binchy, solicitor for the applicants.

5 Having set out the facts of the charge and having deposed that the offences were prosecuted by Garda Shane Davern of Coolock Garda Station, Ms Binchy in her affidavit continues as follows:

"4. I further say that Garda Davern made an application to District judge Coughlan that the applicants be remanded in custody. He grounded his application on the following grounds; firstly on the seriousness of the charge and secondly on the fear that witnesses would be intimidated. Garda Davern stated that the charge before the court related to a shooting incident which occurred on New Year's Day in St. Dominick's halting site in Coolock. He testified that the alleged injured party had suffered injuries including a punctured lung and had "possibly lost an eye". He stated that there had been an ongoing feud between two travelling families and he feared that if the applicant was released that witnesses may be intimated. He did not specify any persons whom he feared would be intimated and he did not call any witnesses in this regard. I objected to this evidence on the basis that it was hearsay and asked the presiding judge to disregard it.

5 I say that I made an application for bail on the grounds that the only objection properly before the court was the seriousness of the charge. I further submitted on behalf of my client that the Gardai were satisfied with his identity and address, that his wife had brought his passport to court which he was willing to surrender and that he was willing to sign on at his local Garda Station on a daily basis and make a cash lodgment. Judge Coughlan refused bail stating that "this is an ongoing feud" and that the test in relation to bail is "whether the man is going to go out and murder someone?" Judge Coughlan further asked "is this man going to go out and assault someone again with a gun?" I submitted to the court that firstly the testimony by Garda Davern in relation to the alleged ongoing feud formed part of the substance of the charge and was therefore an allegation and my client was entitled to the presumption of innocence. I further submitted that this evidence was hearsay. I submitted that the test in bail applications was not whether the accused was "going to go out and murder someone". I further pointed out that the objections raised by the prosecution were not brought under section 2 of the Bail Act of 1997. I further submitted that the applicant is entitled to the presumption of innocence.

6 Judge Coughlan remanded the applicant in custody to the 13th day of January 2005 to appear in Cloverhill District Court."

6 Since the cases of both applicants were dealt with together the affidavit of Ms Binchy outlining the proceedings concerning the second applicant's application for bail is in similar terms.

The Proceedings in the High Court

7 Later that day, 6th January 2005, applications pursuant to Article 40.4.2. on behalf of both applicants were made in the High Court. The High Court (McMenamin J.) made orders directing the Governor of Cloverhill Prison to produce the applicants before the High Court at 11 a.m. the following day and to certify in writing the grounds of their detention. This order was carried into effect, the Assistant Governor of Cloverhill Prison certifying to the court in the case of both applicants that they were held pursuant to a warrant of the District Court held at Law Courts, in the County of Dublin dated 6th January 2005. He exhibited the relevant warrants. No issue arises as to the accuracy of the certificates presented by the Assistant Governor.

8 The Article 40 applications were then heard by the High Court on 7th January 2005. This court has been provided with an agreed note of the proceedings which has been approved and signed by the learned judge. Submissions were made to the court by Ms Dempsey B.L. on behalf of the respondent and by Mr Giblin S.C. on behalf of the applicants. The submissions of counsel were in the main similar to those made to this court on the appeal. Reference will be made to these later in the judgment.

9 McMenamin J. held that the evidence given by the prosecuting Garda concerning the possible intimidation of witnesses was admissible. In his view that evidence was part of the previous evidence as to the background to the case, that the alleged incident was part of an ongoing feud between members of the travelling community. He further stated that the issue which arose was whether the learned District judge had acted on hearsay evidence or whether there was evidence on which the court could apply its own opinion in relation to whether bail could be granted.

10 The learned High Court judge then referred to the judgment of this court in The People (Attorney General) v O'Callaghan [1966] I.R. 501 and to section 2 of the Bail Act 1997. Under section 2(1) of the 1997 Act where an application was made for bail by a person charged with a serious offence the court might refuse an application if it was satisfied that a refusal was reasonably considered necessary to prevent the commission of a further offence. The judge referred to the matters on which the court might receive evidence under section 2(2) of the 1997 Act.

11 The learned trial judge (at page 8 of the agreed note) stated that the issue that fell to be determined, on the basis of the affidavit evidence, was whether the learned District judge acted in excess of jurisdiction. His view was that the evidence submitted by the learned District judge was admissible and it was evidence upon which he could act. It was his further view that the learned District judge could apply his own mind on the basis of the information available to as...