Supreme Court allows bail appeal where High Court refused bail due to intimidation without evidence linking applicant to it.

THE SUPREME COURT

[Appeal No. 451/2013]

THE HIGH COURT

IN THE MATTER OF AN APPLICATION FOR BAIL

[Record No. 2013/1732 SS]

Denham C. J.

MacMenamin J.

Dunne J.

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

DAVID MULVEY

APPLICANT/APPELLANT

Judgment of Ms. Justice Dunne delivered on 25th day of February, 2014

Background

This is an appeal by the applicant from an order of the High Court made on the 14th October, 2013 refusing to admit him to bail.

The applicant was arrested on foot of six charges on the 25th August, 2013. The charges relate to allegations of violent behaviour,

demanding the payment of money with menaces, entering a building as a trespasser, violent disorder, wrongfully intimidating a named

individual and damaging her son’s property and finally, criminal damage. The matters complained of are alleged to have occurred at a

house on Ballygall Parade, Finglas with the exception of the incident involved in the first charge. It is alleged that at approximately

4.30 in the afternoon of Sunday, 25th August, 2013, the applicant and three other persons entered the house of the injured parties

and demanded €8,000 on foot of an alleged drug debt owed by an individual who used to reside at the house. The individual’s mother

and brother were in the house at the time. It is alleged that threats were made to a number of people and a car was damaged.

The applicant was brought before the District Court on the 26th August, 2013 and an application for bail was made but refused. An

appeal from that refusal was made to the High Court which was returnable for the 2nd September, 2013. That application was

adjourned for one week and on the 9th September, 2013, the application was withdrawn as it was intended to make a further

application for bail to the District Court in circumstances where the four complainants in respect of the charges furnished a joint

affidavit of the 6th September, 2013 withdrawing their statements of complaints made on the 25th August, 2013. Indeed, prior to the

furnishing of that affidavit, the four complainants had attended Finglas Garda Station and on videotape, made statements withdrawing

their original statements of complaint.

No issue was taken in the District Court on the question of the jurisdiction of the District Court to entertain a further application for

bail. The question of bail was ultimately considered before the District Court on the 27th September, 2013. Bail was objected to on

the grounds enumerated in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 (“the O’Callaghan grounds”) and pursuant to

the provisions of s. 2 of the Bail Act 1997. Bail was refused save in respect of one of the charges. It appears that the District Court

Judge refused bail on the grounds set out in s. 2 of the 1997 Act.

The applicant appealed to the High Court and the matter came on for hearing on the 14th October, 2013. On that occasion, evidence

was given on behalf of the DPP by Sergeant O’Donovan and the applicant also gave evidence. Following the hearing, bail was refused.

That decision is the subject of this appeal.

It would be helpful at this point to set out the basis of the objections to the applicant’s application for bail, the evidence given and

the reasons provided for the refusal of bail.

The DPP objected to bail on the grounds provided for in s. 2 of the 1997 Act and on the O’Callaghan grounds.

The Court has been provided with counsel’s agreed note of the evidence and the decision of the High Court made on the 14th

October, 2013 which has been approved by the trial judge. It is common case that the objection to bail on the grounds set out in s. 2

of the 1997 Act did not form part of the decision to refuse bail. Thus, the decision to refuse bail was based on O’Callaghan grounds

and, in particular, on the basis that the complainants/witnesses had been intimidated, resulting in the withdrawal of their statements.

The evidence

Sergeant O’Donovan described the background to the charges, the withdrawal of the statements by the alleged injured parties and

the history of the previous bail applications in relation to these charges. Two of the applicant’s co-accused obtained bail in the

District Court. Sergeant O’Donovan confirmed that he was objecting to bail on the grounds of s. 2 of the 1997 Act and on O’Callaghan

grounds. He outlined the fact that the applicant had seven previous convictions, two of which were committed on bail, the last in

2007. That was a Circuit Court matter and related to two counts of possession of firearms, one count of attempted robbery and one

count of an offence contrary to s. 112 of the Road Traffic Acts. The applicant had received a seven year sentence in relation to

those matters with the last two years suspended. The applicant also had convictions from 2006 for possession of drugs, and not

having a driving licence or insurance. It was also indicated that the applicant had been the subject of three bench warrants. On being

asked what his fear was in relation to the applicant being admitted to bail, the response of Sergeant O’Donovan was to say that the

charges were very serious. He indicated that one of the complainants was in treatment for cancer and that the applicant was aware

of that fact. There was a family connection between the applicant and the mother of the family, the subject of the alleged incident.

Finally, Sergeant O’Donovan indicated that the suggestion in the affidavit of the applicant’s solicitor, John Quinn of John M. Quinn &

Co., Solicitors, to the effect that the applicant was willing to abide by any conditions of bail including signing on daily at a local Garda

Station, abiding by a curfew, staying away from Finglas East and surrendering his passport and undertaking not to apply for a new

one, would not allay his concerns.

Sergeant O’Donovan was cross-examined on behalf of the applicant and agreed that the applicant had been at liberty since 2010 and

that this was the first occasion since his release from prison that he had been the subject of an arrest. Although Sergeant O’Donovan

had discussed the seriousness of the charges, it was accepted that the DPP had yet to give directions on the matter as to the court

in which the charges were to be proceeded with. [The Court was informed in the written submissions on behalf of the Director of

Public Prosecution that the applicant has now been sent forward for trial and that the matter will be listed in the Circuit Court for the

first time on 12th March, 2013.]

Sergeant O’Donovan accepted that the case was one based on the evidence of the witnesses, that in the absence of those

statements, the case could not have been brought and that the witnesses had sought to withdraw the statements. Although

Sergeant O’Donovan had never seen the affidavit sworn by the alleged injured parties on the 6th September, 2013, he did not take

any issue with the contents of the affidavit.

Sergeant O’Donovan accepted that four of the applicant’s previous convictions, which were of a serious nature, arose from two

incidents in 2006 and 2007 at a time when the applicant had a drug problem. He did not dispute the suggestion that the applicant

was drug free by the time his case came before the Court in 2007 or that he had attended a clinic in Blanchardstown in regard to his

problem with drugs. He also accepted that the applicant’s other three previous convictions were for summary offences and that the

applicant now had a full driving licence and insurance and that he was engaged in various charity events.

Sergeant O’Donovan was questioned about the applicant’s history in respect of bench warrants and it was put to him that the

applicant had been in custody on the 13th March, 2006 when one of those issued and that he may not have received summonses in

respect of the other two matters. This was not accepted by Sergeant O’Donovan but he did accept that the applicant had not been

charged with any offence in relation to his failure to appear.

He reiterated that his concerns would not be alleviated by the suggestions made on behalf of the applicant as to possible terms and

conditions of bail.

Evidence was then given by the applicant. He confirmed that he had been out of custody since 2010, that he had committed no

further offences and that he was now drug free.

When asked about the subject of intimidation, a matter which had been raised by the learned High Court Judge while Sergeant

O’Donovan was giving evidence, the applicant gave evidence that he did not know anything about intimidation. He did not know

anything about the mother of the household where the alleged incident occurred having cancer and he had never been told this by

her son.

He gave evidence to the effect that he was in custody at the time of the first of the three bench warrants referred to and so far as

the other two were concerned, he was on drugs when they issued. His previous offending related to the time when he had been

abusing drugs but he was no longer doing so. He confirmed the fact that he was willing to abide by the appropriate conditions if

admitted to bail. The applicant was not cross-examined on his evidence.

Decision of the trial judge

Having heard the submissions, the learned trial Judge refused to admit the applicant to bail. He observed that the matter was a

difficult one and reflected on the fact that the applicant enjoyed the presumption of innocence. He noted that the strength of the

evidence in the case was weakened by the actions of the principal witnesses. He said that this was a situation in which there had

been a demand for money with menaces upon the family and that they had made statements to that effect, but then three days later

went to a different solicitor withdrawing the statements they had made. He expressed the view in trenchant terms that the alleged

injured parties had been intimidated. He accepted that the applicant had a presumption of innocence but nevertheless was satisfied

that the witnesses had been intimidated. He noted that the DPP intended to proceed with the case. In the circumstances, he

expressed the view that granting bail to the applicant, having regard to the circumstances that had occurred, could endanger the

process in the case and could endanger the persons concerned. On that basis he refused bail.

The O’Callaghan Grounds

Given that the decision under appeal was based on the O’Callaghan grounds, it would be useful to set out the factors enumerated by

Murnaghan J. (at page 503) of the judgment which were as follows:

1. The seriousness of the charge;

2. The nature of the evidence in support of the charge;

3. The likely sentence to be imposed on conviction;

4. The likelihood of the commission of further offences while on bail;

5. The possibility of disposal of illegally acquired property;

6. The possibility of interference with prospective witnesses or jurors;

7. Failure by the accused to answer bail on previous occasions;

8. The fact that the accused was caught red-handed;

9. Objection to bail by the Attorney General or the policy authorities;

10. The substance and reliability of the bailsmen offered;

11. The possibility of a speedy trial.

The Supreme Court on appeal, rejected the ground enumerated at No. 4, namely the likelihood of the commission of further offences

while on bail. That ground is now the subject of a constitutional amendment which gave rise to the provisions of s. 2 of the Bail Act

1997. Nevertheless, the other grounds set out by Murnaghan J. in the course of his judgment have been applied by the courts in

considering applications for bail ever since. As can be seen, the grounds include the possibility that bail may be refused in

circumstances where there is a possibility of interference with prospective witnesses.

Submissions

It was pointed out on behalf of the applicant that Sergeant O’Donovan had given no evidence of the witnesses having been

intimidated. He did not express the view that they had been intimidated or that he had a fear that they would be intimidated in the

future. Nevertheless, in the course of the evidence of Sergeant O’Donovan concerning the withdrawal of the statements by the

injured parties, the learned trial Judge interjected “Clear intimidation”. The applicant in the course of his evidence, on which he was

not cross-examined, indicated that he did not know anything about any such intimidation. Thus it was contended that the finding of

the learned trial Judge that it was “wholly and completely plain as a pike that the witnesses had been intimidated” was a finding not

supported by any evidence. Reliance was placed on the decision of the Supreme Court in the case of McDonagh v. Governor of

Cloverhill Prison [2005] 1 I.R. 394. In that case it was held by the Supreme Court that there was no relevant evidence before the

District Court Judge which would permit him to refuse bail on the grounds articulated by him. In the same way it was contended on

behalf of the applicant in this case that there was no relevant evidence before the learned trial Judge which would permit him to

refuse bail on the grounds articulated by him.

Reliance was also placed on the decision of the Supreme Court in the case of The People (Director of Public Prosecutions) v.

McLoughlin [2010] 1 I.R. 590. In that case the applicant had been charged with assaulting a person causing harm contrary to s. 3 of

the Non-Fatal Offences Against the Person Act 1997. There was an objection to bail before the High Court. One of the grounds of

objection was that prior to the trial of another accused, the applicant’s brother, for the same offence and arising from the same

incident, there was intimation of witnesses and the injured party withdrew his statement. The prosecution indicated that the

witnesses were not in court to give evidence as to the alleged intimidation as they had not been contacted by the Gardaí. An

objection was raised to the admission of hearsay evidence and the case was adjourned to give the prosecution an opportunity to

bring the witnesses to court. On the adjourned date, the prosecution submitted that none of the witnesses who had allegedly been

intimated were present in court because they were afraid to come. The defence objected to the admission of hearsay evidence but

the trial Judge heard the evidence de bene esse. At the conclusion of the evidence of a number of Gardaí as to the alleged

intimidation, the trial Judge ruled the hearsay evidence admissible and refused bail on the basis that the fears expressed by the Gardaí

may have been genuine. The refusal of bail was appealed to the Supreme Court on the grounds that no relevant and/or admissible

evidence was adduced that it was probable that the applicant would intimidate witnesses if admitted to bail. The appeal was allowed

by the Supreme Court and the matter was remitted to the High Court. It was held that when objecting to the granting of bail, the

prosecution must establish its objection as a matter of probability and the evidence supporting that objection must have a degree of

cogency which satisfied the Court itself that the objection had been made out as a probability, which finding should be stated

expressly by the Court. In the course of his judgment in that case, Hardiman J. (at para. 58) observed as follows:

“58. The question of what the State must establish in order to successfully oppose a bail application is discussed by

Walsh J. at page 517 of the report, in a passage quoted with approval by Keane J. in The People (Director of Public

Prosecutions) v. McGinley [1998] 2 I.R. 408 at p. 413: –

‘. . .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] I.R. 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’.(emphasis added).

59. 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.”

Counsel on behalf of the applicant expressed the view in the light of the authorities referred to above that the learned trial Judge was

not allowed to draw an inference from the evidence as to the intimidation of the witnesses. The argument on behalf of the applicant

was to the effect that the decision of the learned trial Judge was one made in vacuo in the absence of evidence of intimidation. The

fact that the trial Judge concluded on the basis of the withdrawal of statements by the alleged injured parties that there had been

intimidation was the drawing of an inference which was not permissible.

Counsel on behalf of the Director of Public Prosecutions accepted that there was no evidence before the Court of actual intimidation

and submitted that had there been such evidence, it would have been hearsay evidence in circumstances where the alleged injured

parties had not come to court and given evidence that they had in fact been intimidated. The High Court, however, had the details

and evidence as to the furnishing of statements by the injured parties and the affidavit of those alleged injured parties withdrawing

their statements to the Gardaí. There was a proximity of events that allowed the learned trial Judge to consider the question of

intimidation. In the circumstances it was submitted that the learned trial Judge was entitled to draw an inference that in the

circumstances there was intimidation of the alleged injured parties.

The point made on behalf of the applicant by way of response was that is was not known nor was there any evidence to indicate the

reason for the withdrawal of the statements by the alleged injured parties. In those circumstances, it was contended that one could

not draw the inference drawn by the Court.

Conclusions

As there was some debate as to the inferences that may be drawn by a trial Judge on an application of this kind and the role of a

court of appeal in considering the inferences drawn by a trial Judge, it is appropriate to bear in mind two seminal judgments of this

Court on the subject of inferences, Northern Bank Finance Corporation Ltd. v. Charlton [1979] I.R. 149 and Hay v. O’Grady [1992] 1

I.R. 210. In Northern Bank Finance Corporation Ltd. v. Charlton, Henchy J. in the course of his judgment (at page 191) observed:

“In a civil case such as this where a tribunal of fact, be it a judge or a jury, has decided a question of specific fact and

the resolution of the question depended wholly or in substantial measure on the choice of one version of controverted oral

testimony as against another, a court of appeal which is dependent on a written record of the oral evidence given at the

trial will not normally reject that finding merely because an alternative version of the oral testimony seems more

acceptable. The court of appeal will only set aside a finding of fact based on one version of the evidence when, on taking

a conspectus of the evidence as a whole, oral and otherwise, it appears to the court that, notwithstanding the

advantages which the tribunal of fact had in seeing and hearing the witnesses, the version of the evidence which was

acted on could not reasonably be correct.”

McCarthy J. in Hay v. O’Grady made a number of observations as to the role of the Supreme Court on an appeal. He said, inter alia:

“Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to

draw inferences of fact. . . . I do not accept that this is always necessarily so. It may be that the demeanour of a

witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my

judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral

evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences

from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”

The decisions in Hay v. O’Grady and Northern Bank Finance Corporation Ltd. v. Charlton were delivered in civil actions following a full

plenary hearing. Nevertheless, the observations made in those two cases in relation to the approach of the Supreme Court are helpful

in considering the approach to be taken to the inferences drawn by the trial Judge in this case.

It is now necessary to focus on the decision of the learned trial Judge in this case. The State’s objection to bail was based on

O’Callaghan grounds and on the provisions of s. 2 of the 1997 Act. Evidence was given to the Court of the fact that previously, the

applicant had been the subject of three bench warrants; there was evidence as to the making of statements by the alleged injured

parties on the date of the alleged incident, the 25th August, 2013 and of the attendance by the injured parties at Finglas Garda

Station a few days later seeking to withdraw those statements. This was followed by the furnishing of a sworn document sent to the

applicant’s solicitor in which they reiterated their request to withdraw their statements in the case.

I am satisfied that it was open to the learned trial Judge to draw the inference from the facts given in evidence before him as to the

making of complaint by the alleged injured parties and as to the withdrawal of the statements of complaint within days, that the

reason for the withdrawal of the statements was intimidation. Allowing that it was open to the learned trial judge to draw the

inference that the alleged injured parties had been intimidated, it does not necessarily follow that the applicant’s application for bail

should have been refused.

I have already referred to the decision in the case of The People (Director of Public Prosecutions) v. McLoughlin and to the judgment

of Hardiman J. in which he pointed out that there are two central propositions to be considered in relation to bail application, namely:

“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.”

Bearing in mind the agreed note of the hearing and of the decision of the learned trial Judge herein, it is somewhat surprising that the

trial judge found that the witnesses had been intimidated in circumstances where the State had never made that case against the

applicant.

It is worth considering a further passage from the judgment of Keane J. in The People (Director of Public Prosecutions) v. McGinley

[1998] 2 I.R. 408 at p. 414 which concerned the admission of hearsay evidence:

“The constitutional right of the applicant for bail to liberty 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 interfere

with witnesses, and 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 if 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."

There is an absence of evidence in this case to indicate as a matter of probability that the applicant, if granted bail, will interfere with

witnesses. Whilst it was open to the learned trial Judge to draw an inference as to intimidation of the alleged injured parties, the fact

remains that there was no evidence before the court of the kind described by Keane J. in McGinley. The case made by the State in

opposing bail did not set out to establish that the applicant as a matter of probability would interfere with witnesses.

On the facts of this case, it was the learned trial Judge who first adverted to the issue of intimidation and the applicant was then

examined by his counsel on the matter of intimidation. He gave evidence that he did not know anything about intimidation and he was

not cross-examined on his evidence. The State does not appear to have relied on the possibility of interference with prospective

witnesses in objecting to bail.

I would highlight the words of Hardiman J previously cited, in the passage from The People (DPP) v. McLoughin:

“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.”

In this case there is a lack of evidence to support the conclusion as a matter of probability that the applicant was involved in or

connected to any intimidation of the alleged injured parties. The applicant was not in a position to do more than deny the possibility

of intimidation. He certainly was not in a position to call any witness to deal with the subject and he could hardly have cross-

examined Sergeant O’Donovan on the matter, given that Sergeant O’ Donovan hadn’t given any evidence to the effect that the

applicant had or would interfere with or intimidate the witnesses.

Bail is not the automatic right of an individual awaiting trial but it is an important aspect of the individual’s constitutional right to

liberty, a right which can only be restricted on limited grounds supported by cogent evidence. There is a balance between the

individual’s right to freedom and the public’s right that the integrity of the trial process be protected.

Walsh J., speaking in O’Callaghan about the refusal of bail on the ground that a person might commit further offences whilst on bail,

had this to say at p. 510:

“In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any

person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances

he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most

extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public

peace and order or the public safety and the preservation of the State in a time of national emergency or in some

situation akin to that."

That case was concerned with the possibility of the commission of further offences whilst an accused person is on bail, an issue that

was the subject of a subsequent Constitutional amendment which led to the introduction of S. 2 of the Bail Act 1997 but, although

dealing with a different ground to that in issue in these proceedings, the underlying principles of the presumption of innocence and

the concept of personal liberty emphasised in the judgments delivered by O’Dalaigh C. J. and Walsh J. is just as important today.

These are matters which must always be borne in mind in the course of any bail application.

The trial Judge, in considering the facts before him, was entitled to be concerned that the alleged injured parties had been intimidated

but as pointed out, in the absence of evidence to demonstrate that the applicant was involved in or connected to any intimidation,

the decision of the learned trial Judge cannot stand and I will allow the appeal and set aside the judgment of the High Court. I would

remit the matter to the High Court.

Before concluding this judgment, I would like to make one observation. The State, when objecting to an application for bail on

O’Callaghan grounds, may advance evidence seeking to establish all or any of the grounds set out in O’Callaghan. Here, it appears

that the evidence was directed to the nature or seriousness of the charges against the applicant, the strength of the evidence

against the applicant (which was acknowledged to have been affected by the withdrawal of the statements by the alleged injured

parties), the applicant’s failure to answer to bail previously and the overall objection of the State to bail. It does not appear that the

possibility of interference with prospective witnesses was a ground expressly relied on by the State at any stage of the proceedings

before the learned trial Judge. If the State wishes to rely on a particular ground related to an applicant in any given case, the State

should, in the course of the bail application, set out clearly which of the O’Callaghan grounds it seeks to invoke. That is not to say

that an issue could never arise during the course of the hearing in appropriate circumstances. If the O’Callaghan grounds are invoked

in general terms without indicating specific grounds relied on in a given case, the task of the Judge hearing the application is not

made easy, particularly, if one bears in mind the large volume of bail applications that have to be dealt with by a judge in the High

Court in the course of the regular bail list. However, if the State sets out clearly the specific grounds relied on in a particular case,

the minds of all those involved in the bail application will be focused on the evidence required to establish or challenge those grounds

and this will make easier the task of assessing that evidence for the decision maker. On the contrary, it would have the advantage of

clarifying the issues before the court for all the parties concerned. It is not unduly burdensome to ask that such a practice be

adopted when the State intends to object to bail.