Supreme Court dismisses bail appeal where High Court properly weighed hearsay threats against murder charge.

THE SUPREME COURT

Fennelly J.

Kearns J.

Macken J.

[S.C. No. 238 of 2009]

IN THE MATTER OF AN APPEAL FROM A REFUSAL OF AN APPLICATION FOR BAIL

BETWEEN

BRIAN VICKERS

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 27th day of July, 2009

This judgment sets out the Court’s reasons for dismissing an appeal brought by the applicant from the decision of the High

Court (Butler J.) which refused to grant him bail. The appeal was heard and determined by this Court on the 17th July,

2009.

The applicant stands charged with the murder of his wife Joan Vickers on the 20th April, 2009. The offence is alleged to

have occurred in the matrimonial home in Dublin where the applicant and his deceased wife lived with two of their children

aged twelve years and eleven years. The applicant has worked as a docker for the last fifteen years. He has ten previous

convictions recorded against him between 1983 and 2007, most of which are in relation to road traffic offences. Evidence

was given in the High Court that the applicant presented himself in the aftermath of the incident at a garda station where he

is alleged to have made certain admissions in respect of the alleged offence. There was also some limited evidence of prior

domestic disputes between the applicant and the deceased.

The application for bail was strongly opposed by the respondent on a variety of grounds, including the seriousness of the

allegation, the length of any sentence which might be imposed if the applicant were to be convicted, the strength of the

evidence against him, the apprehension that the applicant might flee the State and the further possibility that the applicant

would commit further serious offences if given bail.

Garda John Paul Moriarty gave evidence in the course of which he stated that the applicant’s two youngest children were

now living with their aunt and the two older children were not residing at home. His principal objection to bail related to a

matter of which he had become aware arising from an alleged threat made by the applicant. Counsel for the applicant

objected to this particular witness giving hearsay evidence about the threat and this objection was upheld by the learned

High Court judge.

Ms. Claire Graham was then called to give evidence in circumstances where the court was informed in advance that it was

proposed to lead hearsay evidence on a certain matter. It was indicated that the proposed evidence concerned fears which

were held for the safety of the applicant’s two youngest children. The court decided to hear her evidence. Ms. Graham told

the court she was on best friend terms with the deceased for thirteen years and lived around the corner from her. She

related that some months before she met her death, Joan Vickers had come to her house and told her that, in the course of

an argument at home, the applicant had threatened to kill her, the children and himself if she did not engage in a sexual act

with him. The witness told the court that she was concerned that if released on bail the applicant would go after the smaller

children and possibly kill himself.

This witness was not cross-examined, nor was it suggested to her that she bore any particular ill will towards the applicant or

was fabricating what she said in the witness box. Counsel for the applicant adopted the position, as of course he was

perfectly entitled to do, that Ms. Graham’s allegations were denied by the applicant and that “inadmissible” hearsay

evidence could not be realistically tested in cross-examination by the applicant.

Ms. Lisa Anderson gave evidence that she was employed as a social worker in the Dublin North Central area since 1999.

She was aware that the younger children were now residing with their aunt and it was her view that they should remain

there pending an assessment of their needs and wishes.

The applicant himself gave evidence in which he stated he had never made any threat against his children at any time. He

stated that he had a good relationship with his children, that he loved them and would never harm them. He further

undertook to abide by any conditions of bail which the court might impose upon him. He was not cross-examined on his

evidence.

In ruling on the matter the learned High Court judge stated that he would not be happy to grant bail without, as he put it,

“positive evidence that the children were safe”. He stated that where there were fears for the safety of the children he

could not grant bail. He further stated that as regards the other objections, being the serious nature of the allegation and the

fear of flight, that these concerns could be dealt with by conditions and he would not refuse for those reasons. He thus

concluded that he would refuse bail on the basis that further serious offences might be committed.

The appeal to this Court relies on grounds which include the following:-

(1) The learned High Court judge erred in admitting the hearsay evidence of Ms. Claire Graham for consideration

in the bail application.

(2) The learned trial judge erred in according greater weight to the evidence of Ms. Claire Graham than he did to

the direct sworn testimony of the applicant.

(3) The learned trial judge erred in law in failing to have adequate regard to the appellant’s right to be presumed

innocent and in particular in assessing the likelihood of the appellant committing serious offences whilst on bail.

DISCUSSION

Section 2 of the Bail Act 1997 provides:-

“(1) Where an application for bail is made by a person charged with a serious offence, a court may refuse the

application if the court is satisfied that such refusal is reasonably considered necessary to prevent the

commission of a serious offence by that person.

(2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where

necessary, receive evidence or submissions concerning-

(a) the nature and degree of seriousness of the offence with which the accused person is charged

and the sentence likely to be imposed on conviction,

(b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be

imposed on conviction,

(c) the nature and strength of the evidence in support of the charge,

(d) any conviction of the accused person for an offence committed while he or she was on bail,

(e) any previous convictions of the accused person including any conviction the subject of an

appeal (which has neither been determined nor withdrawn) to a court,

(f) any other offence in respect of which the accused person is charged and is awaiting trial,

and, where it has taken account of one or more of the foregoing, it may also take into account the

fact that the accused person is addicted to a controlled drug within the meaning of the Misuse of

Drugs Act, 1977.

(3) In determining whether the refusal of an application for bail is reasonably considered necessary to prevent

the commission of a serious offence by a person, it shall not be necessary for a court to be satisfied that the

commission of a specific offence by that person is apprehended.”

Mr. Patrick Gageby, senior counsel for the applicant, while not taking issue with the fact that hearsay evidence may be

received by the court in certain limited circumstances, submitted that there had been no admissible evidence in this case to

be placed in the balance with the sworn testimony of the applicant from which any inference could have been drawn by the

learned High Court judge that the requirements of s.2 of the Bail Act 1997 were complied with. He submitted that in the

instant case no consideration was given to whether the admission of the hearsay evidence impacted upon the fairness of the

proceedings. Instead the issue of admissibility was side-stepped in the court’s finding that there were fears for the safety of

the children and thus it could not grant bail. Alternatively, in a situation where the court in reality did admit hearsay evidence

the court was then obliged to determine what weight attached to that evidence in circumstances where sworn evidence had

been given by the applicant which contradicted the hearsay evidence. It was not open to the court to merely adopt the

concerns of a witness. The evidence in relation to any particular ground of objection to bail had to be established at least as

a matter of probability and, given that the court had to be “satisfied” under s.2 of the Act of 1997 that a refusal is

“reasonably considered necessary” to prevent the commission of further serious offences, the onus on the respondent was

arguably higher.

In response Ms. Sinead McMullan, junior counsel for the respondent, argued that the requirements of s.2 of the Bail Act

1997 were fulfilled in this case. Evidence of an apprehension that the applicant might, if granted bail, commit further

offences was a valid ground for refusing bail. The test set down by the Act was not one of probability or any more elevated

standard of proof that a further offence would be committed. Instead s. 2 of the Act conferred a discretion on the court to

refuse bail if satisfied that such refusal “is reasonably considered necessary” to prevent the commission of a serious

offence by the applicant.

Further, the decisions in McKeon v. D.P.P. (Unreported, Supreme Court, 12th October, 1995) and The People (D.P.P.) v.

McGinley [1998] 2 I.R. 408, clearly demonstrated that while hearsay evidence could not be admitted as a matter of course,

such evidence may become admissible where the court hearing the application is satisfied that there are sufficient grounds

for not requiring the witness to give viva voce evidence. In the present case the reason viva voce evidence was not before

the court was because the witness was deceased in circumstances where the applicant had been charged with her murder.

She submitted that the High Court judge was entirely correct, having regard to the gravity of the danger apprehended by Ms.

Graham, to decline to grant bail in those circumstances. The nature of her evidence was, she submitted, far superior to the

type of hearsay evidence which might involve a mere recollection of a comment made in passing about an incident that had

happened some time ago. She submitted that the court was entitled to attach significant weight to such evidence in

circumstances where harm had subsequently befallen Joan Vickers. She pointed out that the court had also heard evidence

from Garda Moriarty that there had been a number of previous incidents of domestic violence involving the applicant and

the deceased.

DECISION

I would at the outset caution against attaching excessive significance to the precise terminology adopted by a judge when

ruling on a bail application. Judges charged with the responsibility of dealing with anything up to seventy or eighty cases on a

Monday in Cloverhill Courthouse must, of necessity, deliver their judgments in ex tempore fashion and very often the

reasons for the particular decision will be set out in succinct and simple terms. It is quite clear that the learned High Court

judge in this instance refused bail because he was persuaded that the applicant, if granted bail, might commit serious criminal

offences involving the lives of his two youngest children.

That hearsay evidence is admissible in the context of a bail application has been established in a number of Irish cases. In

McKeon v. D.P.P. (Unreported, Supreme Court, 12th October, 1995) an application for the revocation of bail was brought

based upon additional information which had come to the knowledge of the gardai that the applicant had received a false

passport and had received the assistance of a paramilitary organisation and thus intended not to stand for trial on the date

specified in the Circuit Court. As confidential sources were relied upon by the garda when giving evidence, an objection was

taken on the basis that such belief evidence was hearsay only. In deciding that the evidence was admissible Hamilton C.J.

stated:-

“I am of opinion in cases of this nature that hearsay evidence is admissible. What is a different factor is the

weight to be attached to such evidence. It has to be weighed and placed in the balance against what might be

described as direct evidence. But it is open to a judge to come to a conclusion that he is entitled to rely on

such hearsay evidence.”

In the course of his judgment in the same case O’Flaherty J. stated:-

“Evidence suggesting that an applicant is unlikely to stand trial is by its nature, in nearly every case, tentative

and is evidence which has an element of the hypothetical about it. A judge must therefore approach it with

great care. Counsel for the Director of Public Prosecutions accepts that that is so but he further submits, and

correctly in my view, that the learned President so approached this evidence. He did not simply abrogate his

function and merely state that he accepted the evidence of Garda Cullen. In this case he brought his own

assessment to bear on the totality of the evidence which included also the sworn evidence of the applicant.

This was considered against the broad background of the alleged applicant’s involvement in this case which is

on any appraisal a very serious case.”

In The People (Director of Public Prosecutions) v. McGinley [1998] 2 I.R. 408, the applicant was arrested and charged

with the offence of having unlawful carnal knowledge of a girl aged less than fifteen years. He applied to the High Court for

bail, but a garda gave evidence of threats made to the complainant’s family by members of the applicant’s family and also of

inducements made to the complainant’s family in the event that they withdrew the complaint. Counsel for the applicant

objected to the evidence being led on the ground that it was hearsay. As no reason was given in that case as to why those

concerned should not give viva voce evidence, this Court allowed the appeal and remitted the application to the High Court

for a new hearing. However, the principle that hearsay evidence was admissible in certain circumstances was justified by

Keane J. in the following passage of his judgment:-

“Where there is evidence which indicates as a matter of probability that the applicant, if granted bail, will not

stand his trial or will interfere with witnesses, the right to liberty must yield to the public interest in the

administration of justice. It is in that context that hearsay evidence may become admissible, where the court

hearing the application is satisfied that there are sufficient grounds for not requiring the witness to give viva

voce evidence. In such a case, it would be for the court to consider what weight should be given to the

evidence, having regard to the fact that the author of the statement had not been produced and to any other

relevant circumstances which arose in the particular case.”

In the instant case, therefore, it was open to the learned High Court judge to receive such evidence, particularly in

circumstances where the person who could have given direct evidence was herself deceased. The judge was careful to rule

that he would receive such evidence only from the person with the most direct contact with the deceased in relation to the

matters deposed to and would not extend the admissibility of hearsay evidence beyond what was strictly necessary.

ONUS OF PROOF

The contention advanced on behalf of the applicant that the respondent must establish as a matter of probability or to a

higher standard of proof the truth of the ground relied upon by way of objection to bail must now be considered.

It is undoubtedly the case that a standard of ‘probability’ was referred to in the judgment delivered by Walsh J. in The

People (AG) v. O’Callaghan [1966] I.R. 501.

In that case an applicant 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, was

granted bail by this Court on the basis that there was no sufficient evidence that the accused was likely to interfere with the

course of justice by interfering with prosecution witnesses. The garda officer in charge of the case, in reply to a question put

to him as to his reasons for opposing bail, had said:-

“… I feel he will interfere with witnesses if he is allowed bail.”

It will be remembered that The People (AG) v. O’Callaghan [1966] I.R. 501 was the case in which Murnaghan J. in the

course of his judgment in the High Court enumerated a list of factors to be taken into account by the court when considering

a bail application. In the High Court, Murnaghan J. had listed as one of the factors “The likelihood of the commission of

further offences while on bail”. While Walsh J. in the course of delivering his judgment in this Court strongly disagreed

with this view (at pp.516 – 517), the growth of criminal activity and the abuse of bail in this jurisdiction led in time, and

following a referendum for that purpose, to the introduction of the Bail Act, 1997, which incorporates the provision that the

court in its discretion may refuse bail if it is considered reasonably necessary to do so for the prevention of further serious

criminal offences. However, for present purposes, the critical portion of the judgment of Walsh J. relates to what he

characterised as the appropriate onus of proof to establish a ground of objection. He stated as follows at pp.516 – 517 of his

judgment:-

“Where, however, there are objections they must be related to the grounds upon which bail may validly be

refused. Furthermore they cannot be simply made in vacuo but when made must be supported by sufficient

evidence to enable the Court to arrive at a conclusion of probability and the objections made must be open to

questioning on the part of the accused or his counsel. It is not sufficient for the objecting authority or witness

to have a belief nor can the Court act simply upon the belief of someone else. It must itself be satisfied that the

objection made is sufficient to enable the Court to arrive at the necessary conclusion of probability.”

Again, in a further passage at p.518 of his judgment Walsh J. stated:-

“…the amount of bail required must be just and reasonable in all the circumstances having regard to the

condition and ability of the accused, bearing in mind all the time the overriding test of the probability of the

accused failing to appear for trial.”

The reference to “probability” appears again in the cases already cited, namely McKeon v. D.P.P. (Unreported, Supreme

Court, 12th October, 1995) and D.P.P. v. McGinley [1998] 2 I.R. 408.

In McKeon, Hamilton C.J. referred to the case of a bail application made by James Columba Dolan in respect of which

judgment was delivered by Finlay P. on the 5th November, 1973. He expressed approval for the views of Finlay P in the

following passage of his judgment in McKeon:-

“In the latter part of his judgment, he summarises the position on the admissibility of evidence with regard to

O’Callaghan’s case and The People (AG) v. John Joseph Kervick (Unreported, Supreme Court, 29th July,

1971) in which he stated:-

“I conclude from a consideration of both these decisions that whereas a bald or mere belief is not

something upon which the court can act, that the court can in special circumstances and provided it

has itself reached a conclusion of probability act upon a belief stated by a police officer to be

founded on information which he accepts and believes even though the details of that information

are not available to the court.”

Hamilton C.J. then stated:-

“From this it is quite clear that if the court itself comes to the conclusion that there is a probability that if

granted bail, or, on the facts of this case, if bail is not revoked, then the accused will not turn up for his trial

then this provides a proper basis for revocation of bail.”

In The People (Director of Public Prosecutions) v. McGinley [1998] 2 I.R. 408, this Court also held that where there was

evidence which indicated as a matter of probability that the applicant, if granted bail, would not stand trial or would interfere

with witnesses, the right to liberty must yield to the public interest in the administration of justice.

However, both of these decisions pre-dated the coming into effect of s.2 of the Bail Act, 1997 on the 15th of May, 2000.

I am satisfied that s.2 of the Bail Act 1997 effected a significant alteration to the onus of proof requirement in relation to

matters addressed by the section, because it specifically provides that:-

“… a court may refuse the application if the court is satisfied that such refusal is reasonably considered

necessary to prevent the commission of a serious offence by that person.”

I do not believe this formulation is indicative of a standard of requiring proof to the standard of probability and still less do I

see it as requiring a more elevated standard, which could only be proof beyond reasonable doubt. This would be an

impossible burden where matters of belief as to future behaviour are concerned. Indeed the perceptive judgment of

O’Flaherty J. in McKeon indicates that, even before the Bail Act 1997 became effective, belief evidence as to future or

prospective behaviour was seen as being extremely difficult to evaluate solely by reference to standards of probability. In

that case O’Flaherty J. stated:-

“Evidence suggesting that an applicant is unlikely to stand trial is by its nature, in nearly every case, tentative

and is evidence which has an element of the hypothetical about it.”

If a test of probability under s. 2 had been intended by the legislature it would have been extremely simple to have so

provided in the Act. Section 2 (3) in fact provides that the State need not even show that the refusal is considered

reasonably necessary to prevent the commission of a specific criminal offence.

Thus while the judge dealing with an application will have to consider issues of ‘likelihood’ of further offending I think it is

clear that the legislation was designed to confer a wide discretion on the court. In this regard a test of proportionality may

also assist the court when evaluating belief evidence, particularly where the risk, as in this case, is of the commission of an

extremely serious further offence. The decision to grant or refuse bail must take account of the degree of likelihood of the

commission of further serious offences. It must assess the credibility of the deponent and must take account of the nature of

the actual risk demonstrated to exist by the evidence. If of the view that a real risk of the commission of a further serious

offence has been demonstrated the decision of the court must be proportionate to the nature and gravity of the apprehended

further offence. There is the world of difference between a risk of an applicant committing, say, a further burglary (albeit

that this is a serious offence) and a stated threat of recent origin made by an applicant that, for example, he intended to

poison a city’s water supply or to carry out death threats against certain individuals. In the first example a greater degree of

likelihood might require to be demonstrated before bail is refused. In the second example, the concept of proportionality

might suggest that, once some degree of likelihood has been established, bail should be refused because of the extreme

gravity of the apprehended offence, provided of course the fear is not merely fanciful or vague. The critical consideration in

the latter circumstance is that the court be satisfied from all the evidence adduced that the risk is a real one. This is not to

disturb in any way the requirement on the judge dealing with the matter to bear in mind the presumption of innocence, the

prima facie entitlement to bail and the obligation to weigh carefully the hearsay evidence with the other evidence in the case,

including the sworn evidence of the applicant.

The present case meets all the requirements for the admission of hearsay evidence, most notably because the person who

could give viva voce evidence, as per McGinley, is herself dead. In circumstances where the applicant failed to demonstrate

any improper motive for bringing forward testimony of the sort given by Claire Graham, or to point to any animus or ill-will

felt by the witness towards him, the learned High Court judge was entitled to give credence and weight to the hearsay

evidence in this case. In my view he was entitled to have regard to the evidence of prior family arguments, the fact that

admissions were allegedly made by the applicant and the gravity of the offence as being matters collateral to the hearsay

evidence offered by Ms. Graham which he could and should consider to arrive at his conclusion.