Supreme Court allows appeal against bail refusal due to failure to consider statutory bail factors.

[2005] IESC 4

THE SUPREME COURT

Record No. 13/05

McGuinness J.

Hardiman J.

Fennelly J.

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2. OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

MARTIN McDONAGH

APPELLANT/APPLICANT

and

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

AND

THE SUPREME COURT

Record No. 12/05

McGuinness J.

Hardiman J.

Fennelly J.

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2. OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

PATRICK McDONAGH

APPELLANT/APPLICANT

and

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

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

1. This is an appeal from the judgment and order of the High Court (7th January 2005 McMenamin J.) in the matter of two applications

pursuant to Article 40.4.2. of the Constitution whereby it was ordered and adjudged that the applicants were being detained in

accordance with law.

2. Each applicant stands charged with the offence of assault causing harm contrary to section 3 of the Non-Fatal Offences Against

the Person Act 1997. Both applicants appeared before the District Court on 6th January 2005. The prosecution opposed bail in both

cases; the applicants were remanded in custody by the District Court. This court was informed that both cases were dealt with

together by the judge of the District Court (Judge Coughlan). The applications pursuant to Article 40 were dealt with together by the

High Court and the appeals of both applicants were heard together by this court on the 17th January 2005. Having heard submissions

of counsel for the applicants and for the respondent this court allowed the appeal and ordered the release of both applicants. The

court reserved the stating of reasons for its decision. The court noted that the applicants were to appear on remand in the District

Court on the 27th January 2005 in connection with the charges already mentioned. It was accepted by counsel on both sides that

this remand appearance was unaffected by the release of the applicants from custody by this court.

The Proceedings in the District Court

3. No issue arises as to the facts concerning the proceedings in the District Court as set out in the affidavit grounding the Article 40

application which was sworn by Shalom Binchy, solicitor for the applicants.

4. Having set out the facts of the charge and having deposed that the offences were prosecuted by Garda Shane Davern of Coolock

Garda Station, Ms Binchy in her affidavit continues as follows:

“4. I further say that Garda Davern made an application to District judge Coughlan that the applicants be remanded in

custody. He grounded his application on the following grounds; firstly on the seriousness of the charge and secondly on

the fear that witnesses would be intimidated. Garda Davern stated that the charge before the court related to a shooting

incident which occurred on New Year’s Day in St. Dominick’s halting site in Coolock. He testified that the alleged injured

party had suffered injuries including a punctured lung and had ‘possibly lost an eye’. He stated that there had been an

ongoing feud between two travelling families and he feared that if the applicant was released that witnesses may be

intimated. He did not specify any persons whom he feared would be intimated and he did not call any witnesses in this

regard. I objected to this evidence on the basis that it was hearsay and asked the presiding judge to disregard it.

5. I say that I made an application for bail on the grounds that the only objection properly before the court was the

seriousness of the charge. I further submitted on behalf of my client that the Gardai were satisfied with his identity and

address, that his wife had brought his passport to court which he was willing to surrender and that he was willing to sign

on at his local Garda Station on a daily basis and make a cash lodgment. Judge Coughlan refused bail stating that ‘this is

an ongoing feud’ and that the test in relation to bail is ‘whether the man is going to go out and murder someone?’ Judge

Coughlan further asked ‘is this man going to go out and assault someone again with a gun?’ I submitted to the court that

firstly the testimony by Garda Davern in relation to the alleged ongoing feud formed part of the substance of the charge

and was therefore an allegation and my client was entitled to the presumption of innocence. I further submitted that this

evidence was hearsay. I submitted that the test in bail applications was not whether the accused was ‘going to go out

and murder someone’. I further pointed out that the objections raised by the prosecution were not brought under section

2 of the Bail Act of 1997. I further submitted that the applicant is entitled to the presumption of innocence.

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

Court.”

5. Since the cases of both applicants were dealt with together the affidavit of Ms Binchy outlining the proceedings concerning the

second applicant’s application for bail is in similar terms.

The Proceedings in the High Court

6. Later that day, 6th January 2005, applications pursuant to Article 40.4.2. on behalf of both applicants were made in the High

Court. The High Court (McMenamin J.) made orders directing the Governor of Cloverhill Prison to produce the applicants before the

High Court at 11 a.m. the following day and to certify in writing the grounds of their detention. This order was carried into effect, the

Assistant Governor of Cloverhill Prison certifying to the court in the case of both applicants that they were held pursuant to a warrant

of the District Court held at Law Courts, in the County of Dublin dated 6th January 2005. He exhibited the relevant warrants. No issue

arises as to the accuracy of the certificates presented by the Assistant Governor.

7. The Article 40 applications were then heard by the High Court on 7th January 2005. This court has been provided with an agreed

note of the proceedings which has been approved and signed by the learned judge. Submissions were made to the court by Ms

Dempsey B.L. on behalf of the respondent and by Mr Giblin S.C. on behalf of the applicants. The submissions of counsel were in the

main similar to those made to this court on the appeal. Reference will be made to these later in the judgment.

8. McMenamin J. held that the evidence given by the prosecuting Garda concerning the possible intimidation of witnesses was

admissible. In his view that evidence was part of the previous evidence as to the background to the case, that the alleged incident

was part of an ongoing feud between members of the travelling community. He further stated that the issue which arose was whether

the learned District judge had acted on hearsay evidence or whether there was evidence on which the court could apply its own

opinion in relation to whether bail could be granted.

9. The learned High Court judge then referred to the judgment of this court in The People (Attorney General) v O’Callaghan [1966] I.R.

501 and to section 2 of the Bail Act 1997. Under section 2(1) of the 1997 Act where an application was made for bail by a person

charged with a serious offence the court might refuse an application if it was satisfied that a refusal was reasonably considered

necessary to prevent the commission of a further offence. The judge referred to the matters on which the court might receive

evidence under section 2(2) of the 1997 Act.

10. The learned trial judge (at page 8 of the agreed note) stated that the issue that fell to be determined, on the basis of the

affidavit evidence, was whether the learned District judge acted in excess of jurisdiction. His view was that the evidence submitted

by the learned District judge was admissible and it was evidence upon which he could act. It was his further view that the learned

District judge could apply his own mind on the basis of the information available to as to identify material before him such as would fall

under section 2. The learned trial judge described some of the statements of the District judge has being “unusual in phraseology” but

in his view this did not indicate that he was applying the wrong test but in his view the correct test phrased in an unusual manner.

11. The learned High Court judge held that the decision of the District judge was justified on the basis of O’Callaghan’s case and on

the basis of the sections of the Bail Act 1997. He refused both applications.

12. From that decision both applicants have appealed to this court.

Notice of Appeal

13. In their notice of appeal the applicants have set out a number of grounds of appeal as follows:

(I) The learned judge of the High Court erred in law in not granting a release under Article 40.4.2. of the Constitution,

1937, to the appellant.

(II) The learned judge of the High Court erred in law or in fact in deeming the detention of the applicant by the

respondent to be lawful.

(III) The learned judge of the High Court erred in law in determining that the test applied by the learned District Court

judge on the application by the appellant for bail was correct.

(IV) The learned judge of the High Court erred in law or in fact in determining that the evidence of the prosecuting Garda

on the bail application in relation to the fear of intimidation of witnesses was admissible and not hearsay.

(V) The learned judge of the High Court erred in law in determining in the particular circumstances of the instant case

that the learned District judge could refuse bail under the Bail Act 1997.

(VI) Such further and other grounds may be advanced at the hearing of the appeal herein.”

Submissions of Counsel

14. Senior counsel for the applicants, Mr Giblin, emphasised the fact that in this case the prosecution did not raise any objection to

bail pursuant to section 2 of the Bail Act 1997, and indeed had not even mentioned that section to the learned District Judge. The

prosecution had relied on grounds compatible with the judgment of this court in O’Callaghan’s case.

15. The District Court judge’s reason for refusing bail, if it had any legal basis whatsoever, appeared to be based on the terms of

section 2(1) of the 1997 Act. It has been so interpreted by the learned High Court judge. Judge Coughlan embarked on the course he

did solely of his own motion, without any notice to the applicants and without permitting them to put forward any defence.

16. Mr Giblin argued that owing to the serious consequences of the refusal of bail, namely the deprivation of liberty, accused persons

should be put on notice if an objection to bail under section 2 of the 1997 Act was to be made. They should be given time, if

necessary by an adjournment, to prepare a defence. He submitted that this was quite generally accepted in the District Court and

that a number of District judges had put this notice procedure on a formal basis.

17. Mr Giblin also drew attention to the terms of section 2(2) of the 1997 Act, under which it was mandatory for the court to take

certain relevant matters into account before refusing bail on the grounds set out in section 2(1). None of these relevant matters had

even been mentioned by Judge Coughlan, let alone taken into account by him. The test under section 2 could only be applied where

there was a finding by the court based on evidence.

18. The applicants in this case had handed themselves in to the Gardai. As was set out in the affidavit evidence, there was no

problem concerning their identity and they had handed in their passports to the court. The prosecution accepted that this was not a

“fear of flight” case.

19. Counsel for the applicants submitted that there was a complete absence of the characteristics of natural justice in the hearing

before Judge Coughlan; the hearing was inherently unfair and the test adopted by the judge was a test not known to the law. In

addition the phraseology used by him (“is this man going to go out and assault someone again with a gun?”) was totally contrary to

the presumption of innocence. Any independent person watching the hearing before the District Court in this case would be

fundamentally concerned as its unfair and unjust nature. Mr Giblin argued that such a hearing was a nullity and that accordingly the

applicants were not held in accordance with law and should be released by this court.

20. Referring to the prosecution’s claim that the applicants might intimidate witnesses, Mr Giblin submitted that what was said by

Garda Shane Davern in this regard was not evidence but was merely a continuation of the narrative background to the case. While he

accepted that hearsay evidence could be admissible in this context at a bail hearing, he drew attention to the judgment of this court

(Keane J.) in The People (D.P.P.) v McGinley [1998] 2 I.R. 408, at 413 where Keane J. having referred to O’Callaghan’s case, stated:-

“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

there 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. Counsel for the respondent, Mr Bowman, referred to Professor Dermot Walsh’s “Criminal Procedure” in which the author states

(para. 10-12 page 501) that:

“The procedure followed on a bail application to the District Court may vary depending on the particular context in which

the application is made.”

22. Procedure in bail applications was frequently quite informal; counsel for the respondents disagreed with Mr Giblin that a large

number of District court judges required that notice be given where an objection was to be raised under section 2 of the 1997 Act.

23. Mr Bowman accepted that the District Court judge’s phraseology was unusual and perhaps somewhat unfortunate – the learned

High Court judge had noted that it was unusual – but that did not mean that the District Court judge was acting outside his

jurisdiction. The judge was entitled to take into account the Garda’s description of the injuries suffered by the victim of the alleged

assault, and his description of the alleged assault as being part of an ongoing feud. It was possible that the judge had erred, but if so

he had erred within jurisdiction. It was open to the judge of his own motion to take into account the test set out in section 2(1) of

the 1997 Act.

24. As far as the evidence of the Garda concerning the possible intimidation of witnesses was concerned, Mr Bowman argued that

Garda Davern’s evidence had been open to challenge through cross-examination but he had not been cross-examined. His evidence

therefore should be accepted.

25. Mr Bowman went on to refer to the judgment of this court in The State (Royle) v Kelly [1974] I.R. 259. In that case, in which the

prosecutor had not been legally represented at his trial, this court held that even if the trial had been unsatisfactory the matters of

which the prosecutor complained were not irregularities or procedural deficiencies of a character which invalidated any essential step

in the proceedings. Accordingly, whether or not they constituted suitable material on which to rely for the purposes of an appeal

against his conviction, the grounds of the prosecutor’s complaint were not sufficient to procure his release in habeas corpus

proceedings under the Constitution. Counsel for the respondent submitted that in the present case the irregularities of which the

applicants complained were not such as to invalidate an essential step in the proceedings and were thus not sufficient to procure

their release.

The Law and Conclusions

26. The court accepts the submission of counsel for the respondent that the correct test in the present case is that applied by this

court in The State (Royle) v Kelly [1974] I.R. 259. The criteria to be applied were set out by Walsh J. in his judgment (at page 267)

as follows:-

“In so far as this refers to procedural matters arising in the course of a trial, the question has already been dealt with in

three judgments of this court. In The State (McKeever) v The Governor of Mountjoy Prison (Supreme Court 19th

December 1966), the judgment of Ó Dálaigh C.J. contains the following passage:

‘It could not be said that the prosecutor was detained in accordance with law if the irregularities or the procedural

deficiencies complained of were shown to be such as would invalidate any essential step in the proceedings leading

ultimately to its detention.’

That was the view of all the members of the Court. in The State (Charles Wilson) v The Governor of Portlaoise Prison

(Supreme Court 11th July 1968) I stated as follows:

‘On a habeas corpus application by a person detained by order of a court, whether under sentence following

conviction or otherwise, matters dealing with the weight of the evidence or irregularities of procedure which do not

go to the jurisdictional basis of the trial or other court proceedings are not relevant unless the irregularities or the

procedural deficiencies complained of are shown to be such as would invalidate any essential step in the

proceedings leading ultimately to his detention.’”

27. Henchy J. in his judgment in the same case (at page 269) also set out the test:

“The mandatory provision in article 40 section 4 sub-s. 2 of the Constitution that the High Court must release a person

complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of

the rule of habeas corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in this

context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the

test is to ensure that the detainee must be released if – but only if – the detention is wanting in the fundamental legal

attributes which under the Constitution should attach to the detention.

The expression is a contentious one and is designed to cover these basic legal principles and procedures which are so

essential for the preservation of personal liberty under our Constitution that departure from them renders the detention

unjustifiable in the eyes of the law. To enumerate them in advance would not be feasible and, in any case, an attempt to

do so would only tend to diminish the constitutional guarantee. The effect of that guarantee is that unless the High Court

(or, on appeal, the Supreme Court) is satisfied that the detention in question is in accordance with the law, the detained

person is entitled to an unqualified release from that detention. It is the circumstances of the particular case that will

usually determine whether or not a detention is in accordance with the law.”

28. In The State (Royle) v Kelly, the prosecutor’s claim was rejected. It is, however, necessary to consider the facts in that case in

comparison with the facts of the present case. In Royle the matters of which the prosecutor complained were difficulties over the

appointment of a Legal Aid solicitor and the consequent failure to obtain a particular expert witness at his trial.

29. The facts in the present case are very different. At the outset the prosecuting Garda brought forward an objection to bail on

grounds established as proper under O’Callaghan’s case; he drew attention to the seriousness of the charge and alleged that there

was a danger of intimidation of witnesses. The applicant’s solicitor challenged the evidence of the Garda on the grounds that it was

hearsay. The District Court judge does not appear to have given any consideration either to the objections to bail actually raised by

the prosecution or to the question of hearsay; certainly he made no finding in either regard.

30. Instead, he refused bail on what appears to be a ground of apprehension that either or both of the applicants were going to, as

he phrased it, “go out and murder someone”, “go out and assault someone again with a gun” or “go out and shoot someone”. This

ground, if ground it was, he raised solely of his own motion. Both applicants had been charged with assault causing harm; neither had

been charged with a firearms offence, let alone with manslaughter or murder. Both applicants were clearly entitled to the presumption

of innocence in regard to the offences with which they were in fact charged; it was highly improper for the judge to suggest that one

or other of them was going to “go out and assault someone again” (the court’s emphasis). There was no relevant evidence before

the learned District judge which would permit him to refuse bail on the grounds articulated by him. The fact that the prosecution

referred to an alleged ongoing feud did not in any way justify the judge’s remarks; still less were these remarks justified by the fact

that the applicants were members of the travelling community.

31. The learned High Court judge in his judgment described the phraseology used by the judge of the District Court as “unusual”. In

the view of this court the matter is considerably more serious. The remarks made by the judge were both improper and entirely wrong

in principle. Such remarks should not have been made in the context of a bail hearing or indeed in any context.

32. The court now turns to the substance of the District Court judge’s purported ground for refusing bail. The learned High Court

judge held the view “that the learned District judge could apply his own mind on the basis of the information available so as to identify

material before him such as would fall under section 2” (of the Bail Act 1997).

33. Section 2 of the Bail Act 1997 provides as follows:

“2(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 is 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) ….”

34. Section 2 subsection (2) is mandatory in its terms. There is no indication in the account of the proceedings before Judge

Coughlan as given in Ms Binchy’s affidavit that any of the matters set out in subsection 2 were taken into account by the court.

Neither evidence nor submissions concerning those matters were received by the court.

35. Senior counsel for the applicants argued before this court as, indeed, he had argued before the High Court, that objections under

section 2 of the 1997 Act should be formally initiated and that in practice the prosecution would give notice that such an application

was to be made. There is no provision either in the 1997 statute or in the District Court Rules that such an application should be

made on notice in advance of the actual bail hearing. Nevertheless, it would seem to be essential as a matter of natural and

constitutional justice that an accused person should be made aware that an objection to bail of so serious a nature is to be brought

forward by the prosecution. In the same way it is also a matter of natural and constitutional justice that the accused person should

be given a proper opportunity either by means of evidence or through submissions to challenge such an objection. None of this

occurred in the present case. The proceedings were in essence unfair.

36. It appears to this court that the procedural and other deficiencies of the hearing before the learned District judge in this case

were indeed such as would invalidate essential steps in the proceedings leading ultimately to the applicants’ detention, or, to use the

words of Henchy J. in Royle, the detention of the applicants was wanting in the fundamental legal attributes which under the

Constitution should attach to it.

37. The court therefore on the date of the hearing of this matter allowed the appeal and ordered the immediate release of the

applicants.