Supreme Court allows appeal on bail refusal, requiring express judicial finding of witness intimidation probability.

THE SUPREME COURT

[Appeal No: 215/2009]

Denham J.

Hardiman J.

Geoghegan J.

Between/

The Director of Public Prosecutions

and

Tristan McLoughlin

Appellant

Judgment delivered on the 31st day of July, 2009 by Denham J.

1. This is an appeal by Tristan McLoughlin, "the appellant", from an order of the High Court (Butler J.) made on the 25th day of May,

2009, refusing to admit him to bail.

2. The appellant is charged that he assaulted a person causing harm on the 26th day of October, 2008, contrary to s.3 of the Non-

Fatal Offences Against the Person Act, 1997. It is alleged that the injured party was in a pub in Naas when he was attacked by the

appellant, as a result of which the victim received 100 stitches over a period of four hours. The injured party and the appellant knew

each other. The appellant was charged on the 5th May, 2009, after he had presented himself at Naas Garda Station.

High Court

3. The appellant applied to the High Court for bail on the 18th day of May, 2009. The Director objected to the granting of bail. One of

the grounds of objection, stated by Detective Inspector Hanrahan, was that prior to the trial of another, the appellant's brother, for

the same offence, arising out of the same incident, there was intimidation of witnesses and the injured party withdrew his statement.

Detective Inspector Hanrahan stated that the witnesses who had allegedly been intimidated were not in court as they could not be

contacted. There was objection to the hearsay evidence. The case was adjourned to the 25th May, 2009 to give the prosecution an

opportunity to bring witnesses to court.

4. On the 25th May, 2009 counsel for the Director told the Court that none of the witnesses who had allegedly been intimidated were

in court. The objection to hearsay evidence continued but the learned trial judge heard the evidence de bene esse. Five members of

An Garda Síochána gave evidence.

(i) Detective Inspector Hanrahan stated:-

"The injured party withdrew his original complaint as he was in fear of his life. The applicant and the applicant's brother

are known to the injured party. There have been threats made to the injured party Jonathan Mulholland, people called to

his house on two occasions but he did not speak to them.

The main prosecution witness reported to her parents [sic] had been approached and told that she shouldn't go to the

trial, which report was recorded in Detective Inspector Hanrahan's notebook and was dated the 20th of February 2002.

Another prosecution witness refused to make a statement.

In respect of another witness to the assault, I have confidential information to the effect that one witness will be got at.

Another witness had his tyres slashed prior to the previous case."

On cross examination, inter alia, Inspector Hanrahan agreed that there was no witness in court to say that he or she was intimidated

and that that was because they were afraid to come to court. This aspect of the cross examination is important and relevant as it

ties the issue of the intimidation of witnesses to the application for bail. Also on re-examination Detective Inspector Hanrahan stated

that the injured party, a female witness and her father, stated that they were not going to come to court.

(ii) Garda Christina Brady gave evidence that she would fear interference with witnesses if the appellant was released on bail. She

then gave her reasons. For example, Garda Brady stated that she called to the mother of the family whose sons are witnesses, who

said that she did not want any more trouble and that she was not prepared to go to court. It was accepted that the woman was not

a witness, but her sons were.

(iii) The note of Detective Sergeant O'Reilly's evidence is as follows.

"D/Sergeant O'Reilly gave evidence that on the 8th December 2008, prior to the trial of Clive McLoughlin for the same

offence, Sandra Byrne, the main eye witness received distressing phone calls on her mobile phone informing her that she

had better withdraw her statement made against Clive McLoughlin, the caller knew her car make, her house, Ms. Byrne

withdrew her evidence the following day. A colleague contacted her prior to today's court date and she refused to come

to court."

Once again, while this evidence initially related to the trial of the appellant's brother Clive McLoughlin, ultimately it relates to a refusal

to come to the bail hearing.

(iv) Garda Ann Marie O'Neill also gave evidence. Her evidence related to alleged threats made prior to the trial of Clive McLoughlin, the

appellant's brother.

(v) Garda Roisin Kelly also gave evidence of alleged intimidation prior to the trial of the appellant's brother.

It is notable that the evidence of the members of An Garda Síochána was wide ranging and did not refer repetitively to any single

incident.

Judgment

5. Counsel's note of the judgment, which was adopted by the learned trial judge, is as follows:-

"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 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."

Appeal

6. Six grounds of appeal were filed, being:-

a) The learned trial judge erred in law and in fact in permitting the Director to adduce hearsay evidence.

b) The learned High Court judge erred in law and in fact in permitting the Director to adduce irrelevant evidence.

c) The learned High Court judge erred in law and in fact in finding that allegations of intimidation connected with a trial of

a person other than the applicant was relevant evidence.

d) The learned High Court judge erred in law and in fact in finding an allegation of another's intimidation could be visited

on the appellant, absent evidence which would support a finding that the appellant assisted or acted in concert with said

individual.

e) The learned High Court judge erred in law and in fact in putting such weight on hearsay evidence so as to refuse the

appellant bail.

f) The learned High Court judge erred in law and in fact in accepting the opinions of Gardaí as evidence of probable

witness intimidation.

Submissions

7. Oral and written submissions were made on behalf of the appellant. It was submitted that the evidence put forward by the Director

failed to establish that it was necessary that the appellant be refused bail in order to ensure justice would not be evaded, for two

reasons. First, that no relevant evidence was adduced that it was probable that witnesses would be intimidated by the appellant if he

were to be admitted to bail. Secondly, that no admissible evidence was adduced which would support a conclusion that the appellant

would intimidate witnesses if released on bail.

Finally, it was submitted that even if the learned trial judge was correct in accepting irrelevant evidence and evidence which was

hearsay, it was not of such a compelling nature as to establish on the balance of probabilities that the appellant should be refused

bail.

8. On behalf of the Director it was submitted that the learned High Court judge was entitled to refuse bail on the basis of the

evidence adduced and that he had considered the totality of the evidence in so doing and did not err in law in refusing bail.

Hearsay

9. Hearsay evidence may not be received as a matter of course. In certain circumstances however, as an exception, hearsay

evidence may be received during a bail application. The court should be satisfied that there is a good reason why viva voce evidence

may not be adduced. The law was explained in The People (D.P.P.) v. McGinley [1998] 2 I.R. 408 by Keane J. at p.414:-

"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 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 witnesses to give viva voce evidence. In such a case, it would be for the court to

consider what weight should be given to the evidence, having regard to the fact that the author of the statement had

not been produced and to any other relevant circumstances which arose in the particular case."

10. In this case no direct viva voce evidence was given by witnesses of intimidation. It was stated that this was because some of

the witnesses had refused to come to court as a result of intimidation. The Gardaí gave evidence that they had contacted witnesses

during the previous week and had asked them to attend the bail application but they had indicated that they were afraid to do so.

The learned trial judge admitted the hearsay evidence, as he accepted the reasons given for the absence of witnesses by the

members of An Garda Síochána. I am satisfied that it was reasonable for the learned trial judge to draw the inference which he did in

this case.

Relevance

11. The appellant has submitted that the learned trial judge erred in permitting the Director to adduce irrelevant evidence. It was

submitted that where the Director was objecting to bail on the grounds that the appellant was likely to interfere with or intimidate

witnesses the prosecution must establish on the balance of probabilities that the appellant would interfere with witnesses. It was

submitted that the core issue is whether the appellant himself would be likely to interfere or intimidate witnesses.

12. In relation to the relevance of the evidence relating to the trial of the appellant's brother, I would affirm the learned trial judge's

approach that the two trials are connected by their facts and witnesses. While counsel for the Director submitted that the facts and

witnesses created the connection, I would include also the fact that the appellant and Clive McLoughlin were brothers.

13. Counsel referred the Court to The People (Attorney General) v. O'Callaghan [1966] I.R. 501. In that case this Court held that

there was not sufficient evidence before the Court that the accused was likely to interfere with the course of justice by interfering

with prosecution witnesses. The facts of that case were different and the evidence before the court distinguishable.

However, counsel referred the Court to the list of matters which may be, and should be, where appropriate, taken into account by

the Court in considering whether or not it is likely that the prisoner may attempt to evade justice. These include, at no.6, the

possibility of interference with prospective witnesses and jurors.

14. In this case the learned High Court judge did not make an express finding that, as a matter of probability, the appellant had or

would interfere with or intimidate witnesses. It may be that it could be inferred, from the note of the judgment, that the learned trial

judge made such a finding. However, a finding that as a matter of probability, a person had or would, or someone on his direction had

or would, intimidate or interfere with witnesses, should be made expressly by the court. The test is not whether the members of An

Garda Síochána have fears or an apprehension for witnesses. The court itself should be satisfied of the probability of the risk of

interference or intimidation and make that finding expressly.

15. The Court was also informed that a differently constituted High Court has admitted the appellant to bail, on the 6th day of July,

2009. It was submitted that this order was made on the same facts as were before Butler J.. There was no note of that decision

before this Court.

16. Applications for bail are important matters to be determined by a court. There are serious issues to be considered and determined.

At issue is the liberty of an accused, which is required to be weighed in accordance with law and with the integrity of the justice

system. In such cases a trial judge requires a reasonable amount of court time. It is a matter of concern if a trial judge is attempting

to deal with a very long list of cases, to be determined in a limited time, in circumstances where the issues may not be opened

sufficiently, or where a judge has insufficient time to state his full reasons.

Conclusion

17. I would allow the appeal and I would remit the matter to the High Court. I am satisfied that in circumstances such as described in

this case that hearsay evidence may be considered by the trial judge. The relevance and weight of such evidence is a matter to be

determined by the trial judge. A judge should be careful on the weight he or she places on such evidence. However, on reaching his

or her decision, as to the issue of intimidation or interference by or on behalf of an accused, that decision should be stated expressly.