Court of Criminal Appeal grants bail to convicted respondent pending Supreme Court appeal on sentence review.

THE COURT OF CRIMINAL APPEAL

[C.C.A. No: 101CJA/06]

Denham J.

deValera J.

McGovern J.

In the matter of an application for bail

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OD PUBLIC PROSECUTIONS

PROSECUTOR/APPLICANT

AND

DOMINIC DWYER

RESPONDENT

Judgment of the Court delivered by Denham J. on the 21st day of March, 2007

1. Dominic Dwyer, the respondent, has applied to this Court for an order granting him bail pending the outcome of his appeal to the

Supreme Court, on such terms as the Court directs.

2. On the 2nd day of February, 2007 this Court gave judgment on an application by the Director of Public Prosecutions, pursuant to s.

2 of the Criminal Justice Act, 1993, for an order reviewing the sentences imposed on Dominic Dwyer, the respondent, by His Honour

Judge Con Murphy, a judge of the Circuit Court, at Ennis Criminal Court, on the 3rd day of May, 2006.

3. This Court determined that the sentences were unduly lenient and ordered that they be quashed. The Court then imposed a

sentence of two years imprisonment on each count, to run concurrently, and to date from 3rd May, 2006. The Court was aware that

the respondent had not been in custody, but in the circumstances of the case, in the interests of justice, ordered that the sentences

run from 3rd May, 2006.

4. An application was brought pursuant to s. 3 of the Criminal Justice Act, 1993 for a certificate to appeal to the Supreme Court on

the ground that the determination involves a point of law of exceptional public importance and that it is desirable in the public interest

that an appeal should be taken to the Supreme Court.

5. The Court has determined that the case involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal be taken to the Supreme Court. A point of law has been certified.

6. The sentences imposed by the trial court were two years imprisonment, to run concurrently, and to be suspended for two years,

thus it was not a custodial sentence. This Court has imposed a sentence of imprisonment.

7. The sentence imposed by this Court, may, with remission, be served by Autumn, 2007, before an appeal may be heard by the

Supreme Court.

8. On an application for bail to the Court of Criminal Appeal from a trial court the principles to be applied were stated in The People

(D.P.P. v Corbally [2001] 1 I.R., the decision of the Supreme Court was delivered by Geoghegan J. The test to be applied in such

circumstances was stated to be:

"1. That bail should be granted where, notwithstanding that the applicant came before the court as a convicted person,

the interests of justice required it, either because of the apparent strength of the applicant's grounds of appeal or the

impending expiry of the sentence or some other special circumstance. It must always be borne in mind that the applicant

for bail in this situation was a convicted person and the Court of Criminal Appeal should therefore exercise its discretion

sparingly.

2. That the Court of Criminal Appeal should not make a definite determination as to whether the appeal was likely to be

successful, but that there should have been enough material before the court to enable it to hold that there was at least

a strong chance of success, before it granted bail.

3. That bail could only be granted where without having to consider the entire transcript, some definite or discrete ground

of appeal could be identified and isolated and was of such a nature that there was a strong chance of success on

appeal."

In essence, the test requires that the Court, from limited papers before it, determine that there is a discrete ground of appeal and

that it is of such a nature that there is a strong chance of success on appeal.

9. However, the circumstances are different where this Court has considered the matter, delivered judgment, and then has certified

that the case should go on appeal to the Supreme Court on the basis that it involves a point of law of exceptional public importance

and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

The differences in this situation include:

(a) The case has been fully opened before this Court. It is unlike a situation where an appeal is pending before the Court

and a limited amount of material is before the Court. This Court had access to all the papers provided by the parties.

(b) The issues have been determined by the Court. Thus such court would not be inclined to hold a view that an appeal

would have a strong chance of success, it having determined the case as it considered correct in law.

10. Consequently, the appropriate principles to be applied when considering an application for bail in the circumstances where there is

a s. 3 appeal to the Supreme Court from the Court of Criminal Appeal, are different from the situation where there is an appeal

pending from a trial court to the Court of Criminal Appeal.

11. It appears to the Court that the appropriate test to be applied, on an application for bail where a s. 3 appeal to the Supreme

Court from the Court of Criminal Appeal is pending, is as follows:

1. Bail should be granted where, notwithstanding that the applicant comes before the court as a convicted person, the

interests of justice so require.

2. As the applicant is a convicted person the Court should exercise its discretion sparingly.

3. The general principles of law as to the granting or withholding of bail apply and should be addressed, by oral evidence if

necessary.

4. The particular circumstances of each case should be considered:

(a) A factor may be that the trial court did not impose a custodial sentence, but that this Court has.

(b) A factor may be that the sentence would be served by the time that the appeal is heard by the Supreme Court.

This may be a factor - but on its own it may not be a ground upon which to grant bail.

(c) The particular circumstances of an applicant should be considered including: (i) family issues, (ii) work issues (iii)

educational issues (iv) health issues (v) his previous conduct while on bail, if any.

(d) The attitude of the Director of Public Prosecutions, and/or the Gardai, to the application for bail.

12. In this case the respondent was given a non-custodial sentence by the trial court and a custodial sentence by this Court. The

issue on the appeal relates to this sentence. It appears that this sentence may be served by the end of the year, or at any rate

before the appeal to the Supreme Court may be heard. The personal circumstances of the respondent were set out in the judgment

of this Court dated 2nd February, 2007:

"The respondent has four children at home. His wife does not drive. The respondent is the family provider as his wife is a

full time mother. They live in a Council house. Counsel for the respondent stressed that imprisonment fo the respondent

would be a penalty for him, his wife and his four young children, ages between 2 and 10 years. The respondent brought

€5,000 to court as a gesture of his remorse, as compensation for Steve Pond and the other victim."

As to the issue of the respondent absconding, he deposed, and it was not denied by the State, that:

"I say that during the period of May, 3rd 2006 and the 2nd February, 2007 I honoured my bond at all times and I say that

I have not been in trouble during that time. I say that I have at all times lived with my wife and children in the family

home. I say that the Court of Criminal Appeal directed that I produce myself at Ennis Garda Station on the 16th February,

2007 for the purpose of being taken into custody and I say that I did comply with that request. I say that there is no risk

of me absconding whilst waiting for my appeal to be dealt with. I say that I attended at Ennis Circuit Court every time my

case was listed and not reached."

In this application the Court sought the view of the Director of Public Prosecutions, who raised no objections to bail.

13. In all the circumstances of the case the Court would grant bail to the respondent pending the appeal to the Supreme Court.

Counsel may address the Court as to the terms of the bail.