Supreme Court sets aside High Court bail refusal due to conflicting decisions on same facts and procedural errors.

THE SUPREME COURT

215/09

Denham J

Hardiman J.

Geoghegan J.

IN THE MATTER OF AN APPLICATION FOR BAIL

Between:

THE DIRECTOR OF PUBLIC PROSEUCTIONS

Prosecutor

and

TRISTAN McLOUGHLIN

Applicant/Appellant

JUDGMENT of Mr. Justice Hardiman delivered the 31st day of July, 2009.

1. This is the appellant’s appeal against the order of the High Court (Butler J.) made the 25th day of May, 2009 refusing to admit him

to bail, a decision which the High Court judge himself described as “very draconian”.

2. Tristan McLoughlin is charged that he assaulted a man in a public house in Naas on the 26th October, 2008, causing him harm,

contrary to s.3 of the Non-Fatal Offences against the Person Act, 1997.

3. Tristan McLoughlin’s brother, Clive McLoughlin, was charged with the same offence. His trial has already concluded. On the basis of

the uncontradicted information given to the Court on the hearing of this appeal, it appears that Clive McLoughlin was acquitted of the

s.3 offence but convicted of common assault. This occurred on the 3rd April, 2009. On conviction he was sentenced to six months

imprisonment. He was however released immediately because he had already served a period longer than this in custody while

awaiting trial. That situation, though sometimes unavoidable, does not reflect well on the criminal justice system.

4. It appears that the applicant, hearing that the gardaí were seeking him in connection with the alleged assault, attended by prior

appointment with the gardaí in Naas on the 5th May, 2009. The following day he appeared before Naas District Court and was

charged with the s.3 offence. He has been in custody since that time. He is currently detained in Cloverhill Prison.

The bail application in the High Court.

5. In the High Court, the prosecution indicated an objection to bail on the grounds that:

(a) There was a likelihood that the applicant would not stand trial.

(b) There was an apprehension that witnesses would be interfered with “In the manner in which there was interference

with witnesses prior to the trial of the applicant’s brother for the same offence.”

6. In support of ground (a) a Detective Inspector David Hanrahan, gave evidence that “the applicant has no ties to the jurisdiction”.

However, in cross-examination he agreed that the applicant was from Naas, that his mother lived in Naas, his sister and brother both

lived in Naas and that he had an eleven year old son who lives in Naas. In light of the Inspector’s agreement to these propositions it

is difficult to understand his statement that the applicant “had” no ties to the jurisdiction in general and to Naas in particular. Indeed,

it is fair to say that the bulk of the prosecution’s objection related to the prospect that witnesses would be interfered with. The first

ground was not seriously pressed. The second ground of objection raised a number of legal issues. Firstly, all of the evidence which

was adduced related to alleged interference with, or threats to interfere with, witnesses, related to the trial of the applicant’s

brother. It was conceded that there had been no such episodes subsequent to that trial. A question arose about the extent to which

these matters, assuming them to be established, could be laid at the door of the applicant. There was no evidence to connect the

applicant personally to any alleged or threatened intimidation.

7. The second legal issue arose from the fact that the evidence for the alleged threats and interference with witnesses was entirely

hearsay. When the bail application first came before the High Court, on the 18th May, 2009, Detective Inspector Hanrahan said that

the witnesses to the alleged intimidation were not in court “as they could not be contacted”. However, on the adjourned date of the

application, the 25th May, he said that the witnesses were not in court and “that was because they were afraid to come to court”.

8. This, of course, is a vital distinction, indeed a completely different thing. Notwithstanding that the defence objected to any

hearsay evidence being admitted the learned trial judge said that he would hear it “de bene esse”. Subsequently, in his judgment at

the end of the application, he confirmed the admission of the hearsay evidence.

The evidence.

9. The evidence that was given in the High Court was that of Detective Inspector Hanrahan, Detective Garda Brady, Detective

Sergeant O’Reilly, Garda O’Neill, and Garda Kelly. This evidence extended to the propositions, all of which were grounded on hearsay,

that the injured party withdrew his original complaint as he was in fear of his life; that threats had been made to the injured party

and that people had called to his house on two occasions; that a person identified as “the main prosecution witness” reported to her

parents that she had been approached and told that she should not go to the trial; that another prosecution witness had refused to

make a statement and that yet another had his tyres slashed. A person who is not herself a witness, but is the mother of two

witnesses told a guard that “She did not want any more trouble and that she is not prepared to go to court”. A person described as

“the main eye witness” was alleged to have received “distressing phone calls on her mobile phone from a caller who knew the make of

her car and seemed to know her house”. She withdrew her evidence. She declined to come to court for the bail hearing. Another

witness said that people called to his house in his absence. A relation of his told Garda O’Neill that he had in turn been told that the

witness “would know who they were and he wouldn’t get hurt”. This witness believed that he had received threats because he was a

witness “in the trial of Clive McLoughlin”.

The arguments in the High Court.

10. In the High Court, it was argued that the hearsay evidence was admissible on two quite separate bases:

“Firstly it was not the case that hearsay evidence was never admissible during a bail hearing. The case of McGinley was

decided on the basis that no reason was given as to why hearsay evidence should be admitted: DPP v. McKeon provided

authority that once a reason was given as to why witnesses were absent, hearsay evidence is admissible and may be

admissible in bail applications. It was for the individual judge to decide what weight to place on the hearsay evidence in

the light of the surrounding circumstances.

Secondly, even if the court ruled that hearsay evidence should not be admitted there was evidence before the court of

complaints made to the gardaí. This evidence was not hearsay evidence and was admissible. The evidence was evidence

of complaints made to the gardaí all of whom were in court and had contemporaneous notes. The evidence being given as

such complaint was not evidence as to the truth of their contents in that such threats had in fact been made there was

evidence of the making of complaints to the gardaí of which the gardaí were basing their concerns for the safety of

witnesses.”

11. On behalf of the applicant it was argued that hearsay evidence should not be admitted and that the whole point of the rule

against hearsay is that the other party should be able to challenge evidence as to its truth, i.e. as to whether threats were actually

made and as to who made those threats. It was the applicant’s case that no threats had been made by him. Once hearsay evidence

is admitted any cross-examination becomes futile as the actual author of the allegation is not there to answer any questions about it:

it is a fundamental value in court proceedings that one is able to question one’s accuser.

12. Furthermore, it was submitted that the evidence should not be admitted on the grounds of relevancy. The hearsay evidence

before the court if anything suggests that the matters alleged happened in the run up to another trial of another accused at a time

when the applicant had not even been charged with any offence; in such a situation it is doubly dangerous to admit such evidence.

13. In the course of further discussion with the learned trial judge counsel for the appellant emphasised that there was no evidence

at all of any threat made by the appellant, or anyone acting for him. Counsel emphasised that the admission of hearsay would

effectively stymie her client in answering the State’s objections.

The High Court judgment.

14. The whole of the High Court judgment may be set out, as it is quite brief:

“I accept the defence are 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 (4) have given evidence of receiving complaints of most awful intimidation. This is hearsay

evidence; I have to assess those complaints. I accept that those gardaí may have genuine fears for those witnesses.

The point is made that the applicant’s case is separate to his brother’s case as he was not charged at the time. The two

cases are connected by their facts and witnesses. Taking the second point first, even if I could not take the hearsay into

consideration the applicant should be refused bail.

Hearsay is admissible in certain cases. I have specific evidence as to why the evidence is not brought; on that basis I

accept that it is admissible.

I accept that this is a very draconian decision.”

The hearsay issue.

15. The issue of hearsay in bail applications has been authoritatively addressed in the judgment of Keane J. in DPP v. McGinley [1998]

2 IR 408. Keane J. (as then was) was giving the unanimous judgment of the Supreme Court. I wish to express my entire agreement

with the following passage, commencing at p.413:

“The rule against hearsay, like any other evidentiary rule, is capable of producing injustice in individual cases, particularly

if applied in rigid and unyielding manner. For that reason, numerous exceptions have been grafted on to the general

exclusionary rule, both by judicial decision and by legislation. But it remains an essential feature of our legal system the

importance of which was emphasised by Ó Dálaigh C.J. in Re Haughey [1971] IR 217 at 264 and by Henchy J. speaking for

this court in Kiely v. Minister for Social Welfare [1977] IR 267, where he said at p.281:

‘Where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but

which is allowed to be based on written and, therefore, effectively unquestionable evidence on the other side has

neither the semblance nor the substance of a fair hearing. It is contrary to natural justice’.”

16. No distinction can possibly be made between a case where one side only is permitted to give its evidence in writing, and a case

where one side only is permitted to give its evidence based on hearsay, because either device effectively stymies cross-examination.

One cannot hope to shake a witness who can repeat that he is only saying what he was told, or even hope to qualify the effect of

his evidence. I agree with both of the judgments referred to in the passage just quoted.

17. Having quoted that passage, Keane J. went on to point out the difference between a bail application, where liberty was at stake,

and a civil interlocutory application. The latter “does no more than preserve the status quo, pending the final determination of the

proceedings”. He points out that civil interlocutory relief is “normally not granted unless the plaintiff is in a position to give an

undertaking to pay damages in the event of his being unsuccessful in the plenary proceedings” whereas “ if bail is refused, the

accused person is deprived of his liberty in circumstances where he must be presumed to be innocent. Moreover, if subsequently

acquitted at his trial the fact that he has spent a period in custody, however lengthy, awaiting trial, affords him no remedy.”

18. Keane J. continued:

“There is undoubtedly another distinction between bail applications and interlocutory injunctions in civil proceedings. The

constitutional right of the applicant for bail must, in every case where there is an objection to the granting of bail, be

balanced against the public interest in ensuring that the integrity of the trial process is protected. 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 circumstance which arose in the particular case.”

19. At p.105 Keane J. emphasised the need for “a specific reason for not producing the author of the statement [such as] the fact

that the information had been communicated in confidence to the gardaí”.

20. Keane J. also quoted a passage from The People v. O’Callaghan [1966] IR 501, which I shall be reproducing later in this judgment

and said:

“That passage is not authority for the proposition that there are no circumstances in which a court is entitled to admit

hearsay evidence on an application for bail. At the same time, however, I think it is quite clear that the learned judge was

envisaging that an applicant for bail should, in general terms at least, be entitled to have the evidence on which the court

is being asked to rely given viva voce on oath and tested by cross-examination.”

21. Accordingly, the position about the use of hearsay evidence in bail applications is tolerably clear; there is a prima facie right in an

applicant for bail to have the evidence deployed against his application given orally, by its author and not simply by a person who

heard it said. The reason for this has already been alluded to, but cannot be too often repeated. To allow hearsay evidence, or

written evidence, or certificate evidence, in an important matter (and a grant of refusal to bail is certainly such) is to deny to an

applicant the essential and vital tool of cross-examination of the persons giving evidence against him, without which, in the great

majority of cases, he cannot hope to be successful in his application. It wholly stymies the applicant and confers a huge and normally

insuperable advantage on his opponent.

22. The significance of the immemorial right to cross-examine the opposite party is discussed at some length in my judgment in

Maguire v. Ardagh 1 IR 385.

23. Having thus drawn attention to that material, I need not repeat it here.

24. Nevertheless, the exigencies of the practice of criminal law, particularly in interlocutory applications, make it absolutely necessary

that hearsay be admissible in some such interlocutory applications, but on a very restricted basis.

25. There is no doubt that, as Keane J. said, the general rule must be that all such applications and objections must be conducted on

normally admissible evidence which permits of cross-examination in the ordinary way. There is no question of there being a general

exception allowing hearsay in bail applications as such. Insofar as any analogy is drawn with interlocutory proceedings in civil cases, I

would reject it for the reasons offered by Keane J. and quoted above.

26. The result of this is that hearsay evidence may be admissible in a bail application, but quite exceptionally, and when a specific,

recognised, ground for its admission has been properly established by ordinary evidence.

27. There can be no question of hearsay being admitted in all bail applications as such. I wish to say that the rule against hearsay is

of full force and effect in bail applications and that the exceptions which permit its use are just that: rare exceptions. It will be for

the courts to monitor the extent of the attempted use of hearsay, and to keep it within proper bounds.

28. Where it is proposed to adduce hearsay evidence, and where that proposal is objected to, there must be a full and proper hearing

of the objection and of the evidence relied on in support of the admission of hearsay, and a proper ruling on this question. I cannot

regard the ruling given in this case, and recorded on the third page of the agreed note of counsel, as remotely adequate. The learned

trial judge is recorded as simply saying “that he would hear it de bene esse”.

29. These words are, in my opinion, quite uninformative as a legal reason for admitting evidence. I do not criticise them because they

are in Latin: there are many instances where Latin phrases have a peculiar precision, or an explanatory historical association, which

quite justifies their use. But those three words have no real meaning and are used to connote something like “for what it’s worth” or

“for the time being, without committing myself as to whether it’s legal or not”. I would respectfully suggest that avoidance of the

phrase will considerably increase the transparency and clarity of legal reasoning. It must in fairness be said that in his judgment at

the end of the application the learned trial judge showed an awareness of the possibilities for accepting hearsay evidence and noted

that a specific reason as to why the evidence was not available was advanced in the present case.

30. I would also say that the evidence relied upon to ground the admission of hearsay must establish something more than that it is

convenient to the prosecution, or to the witnesses, to have the evidence given in that form. It must also establish that all reasonable

steps have been taken to procure evidence in the usual form. In the present case it was blandly said that certain witnesses were

unwilling to come to court but no attempt to compel their attendance seems to have been made, which I would normally regard as a

necessary proof.

31. It must be borne in mind that, in a case like the present, it will not be possible to conduct the ultimate prosecution of the

accused without the witnesses so that, if they are indeed unavailable as alleged, a case against the appellant must collapse. But if

they are available, there is much less force in the objection to bail.

The Learned Trial Judge’s finding.

32. However, my views on the question of hearsay evidence in the circumstances of his admission are necessarily obiter because of

the view I take on another aspect of the case. Here, it is necessary to refer again to The People (Attorney General) v. O’Callaghan

[1966] IR 501. I want first to say with emphasis that this case continues to be the leading authority on bail law in Ireland, with

luminous judgments of undoubted authority by Ó Dálaigh C.J. and Walsh J. (Budd J. concurring). The fact that, many years later, the

Constitution was itself altered to permit of one departure from the regime mandated by O’Callaghan’s case does not in any way

detract from the authority of that case on other matters.

33. The question of what the State must establish in order successfully to oppose a bail application is discussed by Walsh J. at p.517

of the report, in a passage quoted with approval by Keane J. in DPP v. McGinley, supra:

“ naturally a court must pay attention to the objections of the Attorney General, or other prosecuting authority, or the

police authorities, when considering an application for bail. The fact that any of these authorities objects is not of itself a

ground for refusing bail and indeed to do so for that reason would only be, as Mr. Justice Hanna pointed out in The State

v. Purcell [1926] IR 207, to violate the constitutional guarantees of personal liberty. 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 opposing authority or witness to have a belief nor can the court simply act upon the

belief of someone else. It must itself be satisfied that the objection is sufficient to enable the court to arrive at the

necessary conclusion of probability.”

34. That passage seems to me to be absolutely central in our system of judicial control of liberty or custody of a person who has

been charged with, but not convicted of, a criminal offence. It is authority for two central propositions, firstly that the prosecution

must establish their objection to bail as a matter of probability and secondly, that the evidence supporting the objection must have

the degree of cogency which satisfies the court itself that the objection has been made out as a probability. If the court could

deprive a person of liberty simply by noting that the government, or the Director of Public Prosecutions, or one or more gardaí

sincerely believe that the objection is made out, then the court would be abdicating its duty in favour of those persons or bodies.

Conclusion.

35. It appears to me, from the note of the proceedings in the High Court which has been agreed between the parties and approved

by the learned trial judge, that the latter misdirected himself as to the principles to be applied. His judgment is set out in full above. I

do not criticise his admission of hearsay evidence though I think that, in future, judgments on this question must be more elaborate

and should be given before the evidence is actually adduced. But his conclusions about that evidence, having admitted it, are limited

to a very brief summary of the effect of the evidence, followed by:

“This is hearsay evidence: I have to assess those complaints. I accept that those gardaí may have genuine fears for

those witnesses”.

36. As the learned trial judge himself said, this is a very draconian decision. Certainly, a decision would be indeed draconian if it

permitted a refusal of bail, not because the court was satisfied that one of the accepted grounds for refusing bail had been made out,

but because some gardaí “may” have genuine fear for those witnesses. I do not wish to place undue emphasis on the use of the term

“may”, though it is not without significance: the real difficulty in this case is that the High Court refused bail without itself expressing

any view as to the effect, in fact or in law, of the evidence which had heard but simply on the basis that fears expressed by the

gardaí witnesses might be genuine.

37. In apparently accepting this as the test for the grant or refusal of bail, the learned trial judge asked himself the wrong question.

For this reason, I would allow the appeal and set aside the judgment of the High Court.

Other considerations.

38. The learned trial judge dealt only very briefly with the contention that it was wrong to refuse the applicant bail on the basis of

what had happened in connection with the trial of another person. His brief findings on this question, again, are fully set out above.

But I am not convinced that this treatment is inadequate: it is after all both true and relevant that “the two cases are connected by

their facts and witnesses”. In the course of the argument before this court, Ms. McMullen for the Director of Public Prosecutions

specifically confined her argument to the overlap of facts and witnesses in the two cases: she specifically did not rely on the fact

that the accused in the first trial was a brother of this applicant.

39. It was undisputed that no intimidation or attempt to intimidate any witness had taken place since the conclusion of the trial of

the other person involved.

40. It is a striking feature that that trial ended with the conviction of that person, in respect of whom the learned trial judge held

that the evidence and witnesses overlapped, of common assault only, carrying a sentence so short that it had already been served

by that defendant while awaiting trial.

41. The court was informed on the hearing of this appeal that the present appellant has now been charged, arising out of the same

facts precisely as were proved in the last case, with the additional offence of violent disorder contrary to s.15 of the Criminal Justice

(Public Order) Act, 1999. This offence requires the involvement of at least three persons. The other two mentioned in the charge

against the present appellant are said to be his brother, who has already been convicted but only of common assault and a third

party who, as far as the court knows, has not been convicted of anything at all. Neither of these people were charged with violent

disorder. This makes one think that, to adapt a phrase used in my judgment in DPP v. Cagney, [2008] 2 IR 111 the charge is “not an

alternative in any real sense, but a fall back”.

42. However, the immediate relevance of this new charge for present purposes is of a different nature. It appears that, the new

charge have been preferred, the applicant/appellant brought a separate application for bail on that charge. This came before the High

Court (Hanna J.) on the 6th July, 2009. It will be recalled that the applicant had been refused bail on the s.3 charge by Butler J. on

the 25th May, 2009. The charge of violent disorder was based, as seen to be common case, on the same incident and therefore the

same facts as the s.3 charge. The grounds of objection to bail were also the same. However, Hanna J. admitted the applicant to bail

on this charge and no appeal has been taken against this decision.

43. In summary, therefore, the present applicant/appellant has been charged with two separate offences preferred at different times,

but arising out of the same altercation. He brought two separate bail applications one in relation to his custody on the s.3 charge

which was finalised on the 25th May, 2009, and one as soon as the new and more serious charge was preferred, which was finalised

on the 6th July, 2009. Although the grounds of objection to bail were the same, the High Court, differently composed, granted him bail

on the second charge, having refused it on the first. This, to say the least, is a puzzling situation. It is not possible to draw any

firmer conclusion because only the order made by Hanna J. was available; no agreed or approved note of the evidence or judgment

was to hand.

Disputed bail applications.

44. It is clear from the summary and quotations above that this opposed application for bail was dealt with in a somewhat summary

way, as the very brief ruling on the admissibility of hearsay and on the application as a whole attest. The court is not critical of this

because it is aware of the very considerable number of bail applications which come before the High Court. Moreover, changes in the

law in recent years, including the amendment to the Constitution referred to above, have considerably increased the scope to oppose

applications for bail. This in turn has considerably added to the length and complexity of these applications and to the likelihood of

significant legal arguments as well as factual disputes in such applications. By way of example, the hearing of this appeal occupied

something over an hour, and this without the need to hear any of the oral evidence and cross-examination which was before the High

Court. This timing suggests that the long High Court Bail lists one sees in the Legal Diary are seriously overloaded.

45. It occurs to me that it is virtually impossible to do justice to the increased numbers and increased complexity of bail applications

in the very long lists which are currently the norm. Before the legislative changes of recent years it was just about possible to deal

properly with applications for bail in the High Court, and even then the judges dealing with them were often required to sit very long

hours. It must be realised that those who sponsor amendments to the law on bail must also accept responsibility for providing the

resources necessary to process bail applications properly and within a reasonable time. The Irish judiciary is a very small body

(proportionately to population it is by far the smallest in Europe). When the law is changed so as to increase its complexity and the

likelihood of serious disputes, it must be realised that this exercise has consequences in terms of the resources required to administer

it.

46. In the circumstances of this case I would set aside the decision of the learned trial judge. I would remit the case to the High

Court to be dealt with, as soon as possible, in accordance with law.