People (Attorney-General) v O'Callaghan

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1968
• Date: 01 January 1968

The People (Attorney General) v. O'Callaghan

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

ROGER O'CALLAGHAN

Supreme Court.

Criminal law - Practice - Bail - Applicant returned for trial - Offences alleged to have been committed when applicant on bail for earlier charges - Likelihood of interference with witnesses - Evidence of Garda officer - Attorney General opposing granting of bail - Admissibility of evidence of previous convictions - Principles applicable.

On an application for bail by a prisoner who had been returned for trial on charges of larceny, breaking and entering, malicious damage, receiving, resisting arrest and assault, alleged to have been committed when he was on bail in respect of other charges, the Garda officer in charge of the case, in reply to a question put to him as to his reasons for opposing bail, said:—". . . . I feel he will interfere with witnesses if he is allowed bail." This was the only ground on which the Attorney General opposed the application, which was refused by Murnaghan J.

On appeal by the applicant to the Supreme Court it was

Held by the Supreme Court ( Ó Dálaigh C.J., Walsh and Budd JJ.), reversing ó dálaighMurnaghan J. and admitting the applicant to bail, 1, that there was not sufficient evidence before the Court that the accused was likely to interfere with the course of justice by interfering with prosecution witnesses;

2, Bail cannot be refused merely because there is the likelihood of the commission of further offences while on bail, as that is a form of preventive justice unknown to our legal system and contrary to the true purpose of bail.

Per Walsh J.:—". . . it is highly undesirable if it can be avoided that the previous record of any prisoner awaiting trial should be referred to or referred to in a way which may prejudice the pending trial. It is none the less a relevant consideration in my opinion and it may be proper to introduce the evidence in some cases because undoubtedly a prisoner with a bad previous record is likely to attract a greater sentence in the event of conviction again and to that extent the existence of a previous record of such a type may act as an inducement to flee justice and avoid the likelihood of a severe sentence. If such evidence is to be admitted on bail applications then I think it would be most undesirable that the tribunal which hears such evidence should be the tribunal of trial. If the question of bail arises during the trial itself the interests of justice, on balance, require that such evidence ought not to be adduced. I am furthermore of opinion that such evidence should only be adduced in respect of such previous convictions as would probably cause the trial judge to add substantially to the penalty he might otherwise have imposed in the event of conviction and that such previous record, properly proved, should be open to the same examination and comment on the part of the accused as it would have been if produced after conviction. None of these factors, however serious in the circumstances of any particular case, should be permitted to obscure the fact that bail ought to be allowed unless it appears probable that the accused will not surrender at his trial."

Bail Motion.

Application on behalf of Roger O'Callaghan that he be admitted to bail pending his trial. The applicant had been returned for trial on charges of larceny, breaking and entering, malicious damage, receiving, resisting arrest and assault, which offences were alleged to have been committed on the 27th/28th September, 1966, on which dates the applicant was on bail on remand in respect of certain other offences alleged to have been committed on the 30th/31st July, 1966.

The Attorney General opposed the granting of bail on the ground that the applicant might interfere with the witnesses for the prosecution and he contended that the Court should take into account the fact that the offences in respect of which bail was being sought were alleged to have been committed while he was already on bail on remand in respect of earlier charges.

Superintendent Costello, the Garda officer in charge of the investigation of the charges brought against the applicant, in the course of evidence and in reply to a question put to him by counsel for the Attorney General as to the grounds on which he opposed bail, said:—". . . . . I feel he will interfere with witnesses if he is allowed bail," and in reply to a somewhat similar question put to him by the applicant in cross-examination, said:—". . . . . I do feel that you will interfere with witnesses."

On the hearing of the application a list of previous convictions was handed to the applicant with a request to him to look at it, to which he made no reply.

The applicant appeared in person.

Murnaghan J:—

These applications for bail, by prisoners in person, are becoming so numerous, that I have come to the conclusion that it would be a good thing if I were to enunciate the principles upon which I have acted in the past, and on which I propose to act in the future, in the hope that a copy, or copies, of what I am going to say will be made available in the prisons, for the information and guidance of prisoners who may be contemplating making a bail application in person.

The majority of the applications which come before me are unsustainable, and I would hope that a result of this judgment would be that in future the time of the Court would not unnecessarily be taken up.

On a bail application, where the order of a District Justice is called into question, it is in the first place essential that it be shown to this Court that the District Justice has erred in the exercise of his discretion. Some years ago now I decided in Attorney General v. Ball(1) that it was not the function of this Court to substitute its opinion for that of the District Justice, whose function it was to decide whether or not the prisoner should be admitted to bail, and, if to be admitted to bail, the amounts of the recognisances. That decision was upheld by the Supreme Court.

Where this Court, or for that matter any other Court, has to consider the question of bail the fundamental matter to which regard must be had is the likelihood of the appearance of the prisoner, if admitted to bail, at the time and place specified by the District Justice in his order, or, putting this in another way, the likelihood of the prisoner attempting to evade justice.

There are a number of matters which may be, and should be whore appropriate, taken into account by the Court in considering whether or not it is likely that the prisoner may attempt to evade justice. These I enumerate as follows:—

1, The nature of the accusation or in other words the seriousness of the charge. It stands to reason that the more serious the charge the greater is the likelihood that the prisoner would not appear to answer it.

2, The nature of the evidence in support of the charge. The more cogent the evidence the greater the likelihood of conviction and consequently the greater the likelihood of the prisoner attempting to evade justice.

3, The likely sentence to be imposed on conviction. The greater the sentence is likely to be, the greater the likelihood of the prisoner trying to avoid it. The prisoner's previous record has a bearing on the probable sentence and consequently must be before this Court.

4, The likelihood of the commission of further offences while on bail. In this connection, a prisoner facing a heavy sentence has little to lose if he commits further offences. A prisoner may consider that he has to go to prison in any event and in an effort to get money to support his family may commit further offences.

5, The possibility of the disposal of illegally acquired property. Stolen property may be stored or cached away.

6, The possibility of interference with prospective witnesses and jurors.

7, The prisoner's failure to answer to bail on a previous occasion.

8, The fact that the prisoner was caught red-handed.

9, The objection of the Attorney General or of the police authorities.

10, The substance and reliability of the bailsmen offered.(This is primarily a matter for the District Justice).

11, The possibility of a speedy trial.

In certain cases the likelihood of personal danger to the prisoner—from the hands of persons injured or incensed by the crime—may in itself be a ground for refusing bail.

It is not in itself a sufficient ground for making a bail application for the applicant to say that he cannot get the bail fixed by the District Justice, if such bail is otherwise proper.

Where an application in relation to bail arises out of a District Court appeal this Court must proceed on the basis that the conviction and sentence in the District Court were proper. To turn now to the facts of this case, O'Callaghan is charged with a number of offences involving property to a total value of £595 of which £397 worth has been recovered. He is also charged with assaulting a Guard and with resisting arrest. The Superintendent tells me that he is an aggressive type and that if admitted to bail he will, in his opinion, try to interfere with witnesses. I cannot say whether his trial will take place on the 8th November or later. He was caught red-handed in respect of the offence at Foley's and according to the evidence of the Superintendent he was then on bail on another charge. The evidence before me and which was before the District Justice is clear, namely, that O'Callaghan took advantage of the fact of being admitted to bail to commit a further offence. The District Justice was apparently satisfied, as I am, that if now admitted to bail the same thing may happen again. This prisoner's background is not good and if convicted, as he must be, at least in respect of the offence in relation to Foley's, he should have to look forward to quite a substantial sentence. For all these reasons I think the District Justice was right.

This application is...