S65 DPP -v- McLoughlin [2009] IESC 65 (31 July 2009)

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Cite as: [2010] 1 IR 590, [2010] 1 ILRM 1, [2009] IESC 65

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Judgment Title: DPP -v- McLoughlin

Neutral Citation: [2009] IESC 65

Supreme Court Record Number: 215/09

High Court Record Number: 2009 788 SS

Date of Delivery: 31/07/2009

Court: Supreme Court

Composition of Court: Denham J., Hardiman J., Geoghegan J.

Judgment by: Denham J.

Status of Judgment: Approved



Judgments by
Link to Judgment
Result
Concurring
Denham J.
Remit to High Court
Geoghegan J.
Hardiman J.


Outcome: Allow and remit to High Court

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.

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

      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.

      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.

      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.
      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.”


      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.

      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”.

      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.
      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.
      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.”

      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.

      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.

      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.
      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.
      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:       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.

      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.”

      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.”

      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”.

      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.”

      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.

      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.

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

      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.

      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.

      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.

      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.

      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”.

      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.

      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.

      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.
      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.

      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.”

      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.
      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”.

      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.

      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.
      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.

      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.

      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.

      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”.
      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.

      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.
      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.

      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.

      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.

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      URL: http://www.bailii.org/ie/cases/IESC/2009/S65.html