Bail II
Cases
McCann v Governor of Castlerea Prison
[2011] IEHC 294
JUDGMENT of Mr. Justice Hogan delivered on 12th July, 2011
1. In this application under Article 40.4.2 of the Constitution, the applicant moves the Court for an order of release from his current detention following the revocation of bail by the District Court on 1st July, 2011. The application was made to me shortly after 11am on the morning of 11th July, 2011. I then directed an inquiry into the legality of the detention and that inquiry commenced at 4.30pm later that afternoon. Mr. McCann stands charged with two offences which are said to have been committed on 4th June 2011, one under s. 6 of the Criminal Justice (Public Order) Act 1994 (as amended) in relation to abusive language and the other under s. 9(1) of the Firearms and Offensive Weapons Act 1990 (as amended) in relation to the possession of a blade.
2. On the following day, 5th June, 2011, Mr. McCann was brought to Cavan District Court where he was granted bail, subject to the conditions that he stay away from a particular family called the McDonaghs; that he sign on at Cavan Garda Station every Monday and Thursday and that he observe a curfew from 11pm until 8am each night. The applicant has since been remanded on continuing bail to 22nd September, 2011.
3. On the evening of 27th June, 2011, the Gardaí noticed that the windows of the applicant’s mother’s house had been broken. Following inquiry, it then emerged that she had been attending the applicant’s wedding in Tullamore earlier that day. Further inquiries then disclosed that the applicant had not signed on at Cavan Garda Station on the 20th, 23rd and 27th June, 2011.
4. Evidence on this point was given by the relevant member of An Garda Síochána, Garda Joanne Gethins. It is only proper to record that Garda Gethins travelled at very short notice from Cavan to Dublin to assist the Court by giving evidence. I found her to be a most impressive witness who gave evidence in a commendably balanced and fair minded fashion.
5. While Garda Gethins acknowledged that the applicant subsequently explained that he neglected to sign on because of his wedding preparations, she also observed that the Gardaí had received no advance warning of this. Nor had the applicant ever sought to have his bail conditions varied.
6. A further development was that a member of the rival family, Edward McDonagh, had complained of an incident on 20th June when it is alleged that the applicant had sought to ram his car with another motor vehicle. A statement was subsequently taken from another individual, Michael Duke, who was said to have confirmed that he was travelling with Mr. McCann when the car ramming incident occurred. At that point, the Gardaí sought to have Mr. McCann’s bail revoked. Following an application on sworn information to revoke bail, an arrest warrant was issued by the District Court. Mr. McCann was duly arrested and brought before the District Court on 1st July, 2011.
7. There is a broad measure of agreement as to what subsequently transpired at the revocation hearing. Garda Gethins gave evidence in relation to the failure to sign on and in respect of the car ramming incident. It was put to her in cross-examination that the applicant would deny any contact with the McDonaghs or any involvement in the car ramming incident. It was further suggested that the evidence was hearsay, given that the McDonaghs were not present in court.
8. At that point, District Judge McBride asked Garda Gethins if she were satisfied that the applicant was involved in ongoing serious criminal activity. Garda Gethins stated that she was so satisfied. District Judge McBride than stated that there was an exception to the hearsay rule in circumstances where the Gardaí give evidence of this nature. It may be inferred from this that the judge proceeded to accept and act on this hearsay evidence, because it is not disputed that this was among the reasons given by the judge for refusing bail. It is also accepted that the judge further remarked at some point in the proceedings that the applicant was one of the worst criminals to pay appear before him in his twelve years on the bench.
9. The District Judge then decided to revoke bail for the following reasons:-
(i) the applicant had failed to sign on at Cavan Garda Station on 20th, 23rd and 27th June.
(ii) he had been charged with the most serious of offences to the well being of fellow human beings.
(iii) he was a dangerous criminal involved in a criminal feud between two criminal gangs in Cavan town.
10. When the judge indicated that he was refusing bail, the applicant then shouted and insulted him in very unpleasant and disagreeable language. A full account of what transpired is contained in The Star newspaper for 6th July, 2011, a copy of which was supplied to me during the course of the hearing. The judge directed the arrest of the applicant and, following a brief adjournment, asked him whether he wished to apologise. The applicant regrettably continued his tirade of abuse. The judge then sentenced him to one week’s imprisonment for contempt.
The jurisdiction of this Court in Article 40 proceedings
11. Counsel for the Governor, Mr. McDermott, urged strongly that I should regard this particular Article 40 application as abusive. He noted that it was possible for the applicant to wait until 11th July before applying to this Court without notice to the respondent and then seeking an unconditional release from this Court. He also pointed out that it would have been open to the applicant to commence judicial review proceedings and that in the event that either the Director did not oppose the application or the Court was minded to quash the decision of the District Court revoking bail, the Court could nonetheless have imposed conditions so as to ensure that the applicant was not unconditionally released in the sense that he would still have to abide by the pre-existing bail conditions.
12. While there may be circumstances in which the Article 40 procedure can be abused (see, e.g., the comments of Henchy J. in Re McDonagh, High Court, 24th November, 1969, Kenny, Informality in Modern Irish Habeas Corpus (1974) 9 Irish Jurist 67 and more generally Costello, The Law of Habeas Corpus in Ireland (Dublin, 2006) at 102), I cannot agree that this is one such case. It is true that applications of this kind can be disruptive, not least given that persons such as prison officers and Gardaí can be seriously discommoded, as indeed happened in the present case. Their personal and professional lives can be inconvenienced by reason of the urgent necessity to respond at very notice to an Article 40 inquiry of which they have had no prior notice. It is also true that the relief available under Article 40 – unconditional release – is dramatic and immediate. While the applicant may have had other avenues of redress open to him – specifically, an application for judicial review to quash the decision of the District Court – this cannot be regarded as debarring the applicant from availing of the very remedy which the Constitution expressly affords him.
13. If the Article 40.4.2 procedure comes with these disadvantages (if they can be properly so called) then such are simply the price of living a free and democratic society governed by the rule of law. The drafters of the Constitution were clearly alive to the necessity to safeguard carefully the protection of personal liberty. Specifically, the judges of this Court were enjoined by Article 40.4.2 “forthwith” to inquire into any complaint that a person was unlawfully detained. While this obligation may – and, as we have just seen, does – discommode public servants such as court registrars, state solicitors, gardaí and prison officers by requiring expedited hearings in circumstances of great urgency, this simply reflects the high value placed by the Constitution on personal liberty.
14. Short of something approaching acquiescence or laches, therefore, I cannot see that delay on the part of a person otherwise illegally detained can debar that person from seeking relief by way of an Article 40.4.2 application. Here the delay was, in any event relatively short, and it must be acknowledged that up to 8th July the applicant was in lawful detention by virtue of his imprisonment for contempt of court.
15. In any event, were the present applicant to succeed by way of an Article 40 application, the practical effect of the decision would be to annul the decision of the District Court, even though in strict theory such relief is simply concerned with the detention. Put another way, while the applicant would be entitled in that event to be released from his present detention, the status quo ante would nonetheless revive, namely, so that his liberty would be conditioned by the pre-existing bail conditions.
The admission of hearsay evidence by the District Court
16. We may now turn to consider the essence of the applicant’s complaint in the present case. The gist of the objection is that, by overruling the objection of the applicant’s legal advisers, the District Judge received and acted upon hearsay evidence in deciding to revoke bail, namely, the allegations in relation to the car ramming incident and, more generally, the views which were expressed as to whether the applicant was engaged in serious crime.
17. The question of the reception hearsay evidence at bail hearings was considered by me in Clarke v. Governor of Cloverhill Prison [2011] IEHC 199. In that case I upheld the decision of the District Court to act on and receive hearsay evidence where informer privilege was at stake. In Clarke, I nonetheless stressed that the reception of hearsay evidence in bail applications was very much the exception rather than the rule and that the hearsay evidence at issue in that case was admissible by virtue of what Hardiman J. described in Director of Public Prosecutions v. McLoughlin [2009] IESC 65, [2010] 1 ILRM 1 as “a specific, recognised, ground for its admission [which] has been properly established by ordinary evidence.”
18. In the present case, informer privilege was not at stake and it cannot be said that there is any recognised legal basis for the reception of hearsay evidence in the circumstances I have just described. I infer from the evidence of Garda Gethins that the authorities took the view that the (very) bad relations between the feuding families should not be exacerbated unnecessarily by the production of the members of the McDonagh family to give evidence at the bail hearing. There was the further practical difficulty that Mr. Duke was in custody at the relevant date and thus could not conveniently be produced to give evidence in person before the District Court.
19. While these are perfectly understandable practical concerns, there was nonetheless no basis in law for the reception of such evidence. As Hardiman J. observed in McLoughlin:-
“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.”
20. Nor can it be said that the evidence on which the learned District Judge acted was hearsay only in some purely technical sense, so that the reception of such evidence amounted to a form of harmless error. Rather, the effect of the decision in the circumstances was entirely to frustrate the right of the applicant to seek to elicit by cross-examination the truth or otherwise of these allegations. If I may venture to repeat what I said in Clarke:-
“The legal system’s general lack of enthusiasm for hearsay evidence does not arise by reason of an embedded historical prejudice for which there is no modern rationale or because of the habitual and unthinking application of familiar technical rules. It is rather because as Hardiman J. pointed out in McLoughlin, the reception of such evidence tends to frustrate the right of effective cross-examination. This latter right is absolutely central to the truth-eliciting process, without which right no accused could effectively challenge his or her accusers: see, e.g., the comments of Ó Dálaigh C.J. in Re Haughey [1971] I.R. 217 at 264 and those of Hardiman J. in Maguire v. Ardagh [2002] 1 IR 385.”
21. In these circumstances, the admission of the hearsay evidence must be regarded as a fundamental error on the part of the learned District Judge, such that that vitiates the legality of the current detention. This is accordingly a case where, to adapt the graphic language of Henchy J. in The State (Royle) v. Kelly [1974] I.R. 259, 269, the detention of the applicant “is wanting in the fundamental legal attributes which under the Constitution should attach to the detention.”
22. In reaching this conclusion, I do not overlook the fact that the District Judge would have been entitled – albeit not obliged – to revoke the bail in circumstances where on three separate occasions the applicant had taken it upon himself not to sign on at Cavan Garda Station, even if this omission was in the days leading up to his wedding. While this factor was mentioned by the judge, it would nevertheless be unrealistic not to accept that the alleged car ramming incident and the opinion evidence in relation to ongoing criminality weighed far more heavily in the decision to revoke bail. But since these latter conclusions were fatally undermined by the admission of the hearsay evidence, the detention of the applicant cannot therefore be allowed to stand.
Conclusions
23. For the reasons just stated, therefore, I will accordingly direct pursuant to Article 40.4.2 that the applicant be released from the custody ordered by the District Court when it revoked bail. For completeness, I should observe that while the applicant’s release from that custody is immediate and unconditional, the effect of this order is that the previous bail conditions imposed by the District Court on 5th June, 2011, now revive and apply to the applicant.
The People v. Corbally
[2001] 2 I.L.R.M. 102, the Supreme Court
Judgment of Mr. Justice Geoghegan delivered the 15th day of December 2000
1. This is an appeal from a decision of the Court of Criminal Appeal refusing bail to the appellant, the above-named Patrick Corbally, pending the hearing of an application for leave to appeal against convictions in the Circuit Court. The appeal is brought with leave of the Court of Criminal Appeal, that court having issued a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, that its decision refusing bail involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on that decision. The certified point of law is:-
“What are the appropriate principles upon which the
Court of Criminal Appeal should grant bail to a convicted person who has sought leave to appeal or being granted leave to appeal.”
2. Particularly, in the light of amended legislation to which I will be referring there is no very clear decision of the Court of Criminal Appeal as to the correct principles to be applied though the closest to such a decision is The People (DPP) v. Sweetman [1997] 3 IR 448. There have been some other cases put forward by counsel but these are for the most part ex tempore judgments, not intended to lay down general statements of principle. Understandably they are not entirely consistent with each other as in some, bail appears to have been granted or refused on the basis of whether there was an arguable appeal and in others as to whether there was a strong appeal. As I will be pointing out, some of the difficulties flow from the wording of the relevant legislation combined with the system under which appeals to the Court of Criminal Appeal have been dealt with over many years.
3. Until the passing of the Criminal Procedure Act, 1993 bail could not be granted by the Court of Criminal Appeal unless either the trial judge certified that the case was a fit case for appeal or that court had first granted leave to appeal. This settled jurisprudence arose from the wording of s. 32 of the Courts of Justice Act, 1924. That section was later amended by s. 3(6) of the Criminal Procedure Act, 1993, but in its unamended form it read as follows:-
“Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an order admitting the appellant to bail pending the determination of his appeal.”
S. 3(6) of the 1993 Act reads as follows:-
“Section 32 of the Courts of Justice Act, 1924, is hereby amended by the addition after ‘pending the determination of his appeal’ of ‘or application for leave to appeal”.
4. The form that the amendment takes gives rise to a slight problem of interpretation. It has been assumed (and I think correctly) that what was intended by the Oireachtas was quite simply to give the Court of Criminal Appeal power to grant bail pending an application for leave to appeal even though leave had not yet been granted. But if that is so, then where such bail is being granted pending determination of an application for leave, the order for bail can hardly be described as a “consequential order” . On the contrary it is a pre-hearing order. But since there is no other meaning that makes sense I think that the interpretation which has been placed on the section by O’Flaherty J. in the Sweetman case and by the Court of Criminal Appeal generally, must be correct and that the problem is simply one of faulty draftsmanship.
5. But I think it reasonable to interpret s. 3(6) of the Criminal Procedure Act, 1993 in the context of how the procedural jurisprudence of appeals to the Court of Criminal Appeal has developed over the years. I say this because a mere reading of the relevant sections would not of itself give rise to any understanding as to how the appeal procedure is worked out in practice. In the vast majority of cases the trial judges refuse certificates enabling the convicted defendant to appeal to the Court of Criminal Appeal. Accordingly, an application for leave to appeal is brought to that court. But usually the court, having given a full hearing to the application for leave to appeal, either refuses such leave or grants it but treats the hearing of the application for leave as the hearing of the appeal itself and goes on to make an order allowing the appeal. This telescoped procedure was probably not anticipated by the draftsman of section 32 of the 1924 Act as that section seems to envisage that leave to appeal might be granted well before the hearing of the appeal itself “where the court is of opinion that a question of law is involved” or in the other prima facie situations referred to in the section. Over the years the two staged procedure has in fact been invoked in a minority of cases and notably, and almost exclusively, where there is an application for bail. Before the 1993 amendment the Court could not grant bail without first granting leave and, therefore, it had to consider the question of leave separately from the appeal itself. As the procedure tended only to be used in cases where there was an obvious clear-cut discrete ground of appeal, an order for bail usually followed such leave. But in my view there is nothing in section 32 which would support the proposition that provided there are no other conventional impediments to bail, bail must automatically be granted once leave is given.
6. The court’s inability to grant bail pending the hearing of an application for leave caused injustice from time to time. This was particularly so in relation to appeals against sentence where the sentence was relatively short and there was either no transcript yet available or the application could not be given a speedy listing. In such a case it might be impossible for the court to adjudicate on whether it should give leave to appeal without effectively hearing the appeal while on the other hand a delayed hearing might render the appeal useless. Section 3(6) of the Criminal Procedure Act, 1993 was probably enacted to cure such injustices. But whatever was intended by the subsection, I do not think that it could possibly have been intended by the Oireachtas to introduce a whole new jurisprudence relating to the granting of bail on appeals. I mention this because O’Flaherty J.’s reference to “the old jurisprudence” in his judgment in the Sweetman case might have unintentionally given rise to that impression. The court in Sweetman applied the correct principles in my view. The relevant passage is contained in the judgment of 0 ‘Flaherty J. at p. 450 of the report. It reads as follows:
“The Court is of the view that the strength of the case as it
appears on the materials placed before it on this application is the proper matter to be brought into the reckoning in the first instance, and since the Court has reached a clear conclusion on this it does not need to consider the possibility of whether the accused will abscond so as not to be present for his appeal.”
7. It is clear therefore that the court considered the strength of the appeal and not merely whether there might be an arguable point. The last sentence in the judgment is also significant. It appears at p. 452:-
“That means the State case, on the materials presented to us at this stage, and it needs to be emphasised that we act on the materials at present before us, we do not have a full transcript and the matter has not been fully argued, that we consider the State case as such a strong one that in the exercise of our discretion we would not be justified in admitting the applicant to bail at this stage.”
The Sweetman case is a good illustration of the problems confronting a Court of Criminal Appeal on an application for bail. There is an onus on the applicant to satisfy the court that there is some definite and discrete ground of appeal with a strong chance of success. But if the ground of appeal involves a detailed analysis of the evidence before the trial court, it cannot of its nature enable the court to arrive at any preliminary view as to the strength of the appeal. That is precisely the situation in this appeal as I hope to demonstrate.
8. In further support of the view I have taken on the legal principles, I would refer to an ex tempore judgment of the Court of Criminal Appeal ( Barron J.) delivered on the 17th December, 1999 in D.P.P. v. Connaughton. It was one of the cases relied on at the appeal and notwithstanding its ex tempore status I think it is quite useful as setting out the correct principles. Barron J. commences his judgment as follows:
“In this case the applicant for bail has been convicted of dangerous driving causing serious injury and he has been sentenced to two years imprisonment. He comes before this Court seeking bail pending his appeal. The first consideration for any court in such circumstances is to realise that the applicant has been convicted by a jury and therefore there must be strong reasons why bail should be granted.”
9. On the particular facts of that case the learned judge goes on to indicate factors which gave rise to such “strong reasons”.
10. In the written submissions of the appellant there is a reference to the English law and in particular to the decision of the Criminal Division of the English Court of Appeal in R. v. Watton (1978) 68 Cr. App. R. 293, 297 CA. The case is referred to in both Archbold and Blackstone. I think it useful to refer to it. The headnote reads as follows:
“The only ground for the granting of bail on an appeal to the Court of Appeal from the Crown Court, after refusal by a single judge under section 31 of the Criminal Appeal Act, 1968 to grant bail in giving leave to appeal to an appellant, is the existence of special circumstances, i.e. where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will be served by the time the appeal is heard.”
11. The court consisted of Geoffrey Lane, L.J., Ackner J. and Watkins J. and the judgment was delivered by Geoffrey Lane, L.J. (as he then was). The case may be of limited value because of a different English jurisprudence to some extent but the Court approved the following statement of the law relating to bail pending appeal.
“Bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard.”
12. I do not think it desirable that the Court of Criminal Appeal should have to go so far as to make a definite determination as to whether “the appeal is likely to be successful” but I think that there should be enough materials before the court to enable it to hold that there was at least a strong chance of success before it grants bail. I would also agree that the possibility of a sentence of imprisonment expiring before the hearing of an application for leave to appeal or the hearing of an appeal may be a ground for the granting of bail. As far as the certified question is concerned, I think that this court should simply state that bail should be granted where notwithstanding that the applicant comes before the court as a convicted person, the interests of justice requires it, either because of the apparent strength of the applicant’s 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 is a convicted person and the Court of Criminal Appeal should therefore exercise its discretion to grant bail sparingly.
13. I now intend to apply those principles to the consideration of the particular bail application in this case. The applicant had originally been charged arising out of events alleged to have occurred on the 11th of May, 1997. The indictment in the Circuit Court contained five counts. These were:
1. Possession of a firearm with intent to endanger life.
2. Possession of ammunition with intent to endanger life.
3. Having a firearm with intent to wound Seamus Behan.
4. Having ammunition with intent to wound Seamus Behan.
5. Unlawfully and maliciously wounding Seamus Behan.
14. The said Seamus Behan was a witness for the prosecution in the book of evidence in relation to all five counts. When the case came on for trial Seamus Behan did not turn up in court. The trial was adjourned and a bench warrant was issued. On the adjourned date Seamus Behan again failed to appear. The State, however, indicated that the guards had made every effort to have him in court but had failed to locate him and that there was hearsay evidence that he had gone to England. Counsel for the D.P.P. indicated to the judge in charge of the list, Judge Haugh that the State was prepared to go ahead in relation to counts 1 and 2 only because so far as the State was concerned Seamus Behan was not an absolutely essential witness in relation to those two counts. Counsel for the appellant, however, strongly opposed the trial proceeding in the absence of Seamus Behan. This was because Seamus Behan had purported to renounce the alleged statement which he made and was now exonerating the applicant. Furthermore he was now alleging that the real culprit was one Terence Hughes, another prosecution witness. Behan was alleging that the original statement made by him emerged as a consequence of a wrongful conspiracy between the guards and the said Terence Hughes.. As the argument was likely to last quite some time Judge Haugh assigned the case to Judge O’Connor and directed that the disputed issues be determined by him.
15. This court has been informed that the preliminary matter as to whether the trial should proceed or not lasted one and a half days before Judge O’Connor during which he heard both evidence and submissions. The learned Circuit Court judge ultimately directed that the trial should proceed on the two counts and the appellant was duly convicted of them.
16. The grounds of appeal before the Court of Criminal Appeal are quite numerous and include various matters arising from the trial itself. I do not know whether all of these are being proceeded with or not but as far as this appeal to the Supreme Court is concerned, it now relates only to the failure to grant bail, having regard to an alleged substantial ground of appeal namely, the trial being directed to go on notwithstanding the absence of Seamus Behan. Where an appeal is brought to the Court of Criminal Appeal against a refusal to adjourn or abort a trial the Court of Criminal Appeal does not just look at the materials before the trial judge at the stage when the application not to proceed with the trial was made. Obviously, the court must look at those materials but it must also read the entire transcript. It might well be that having read the whole transcript the court could take the view that the judge, on the limited materials before him, ought to have adjourned or stopped the trial, but that in the event no injustice whatsoever had been caused by the trial proceeding. In such circumstances the Court of Criminal Appeal would not order a new trial. On the hearing of the bail application before the Court of Criminal Appeal and on further appeal before this court the portion of transcript containing the application before Judge O’Connor not to proceed with the trial and which, as I say, apparently lasted a day and a half was not before the court, but even if it had been, the court would not be able to decide that there was a strong chance of success on the appeal. No matter what that part of the transcript disclosed, the entire transcript of the case would have to be considered before the strength of the appeal could properly be assessed. As I have already indicated, it is my view that bail ought not to be granted to a convicted prisoner in that situation. Bail can only be granted where without having to consider the entire transcript some definite or discrete ground of appeal can be identified and isolated and is of such a nature that there is a strong chance of success on the appeal. Recent examples of this kind of appeal are D.P.P. v. Ryan (Court of Criminal Appeal unreported judgment 12th of July 1999); D.P.P. v. Higginbotham (Court of Criminal Appeal unreported judgment 17th of November 2000) both of which involved disregarding by the trial judge of the provisions of section 25(2) of the Criminal Justice Act, 1984 in relation to the taking of majority verdicts and D.P.P. v. Acheanpong (Court of Criminal Appeal unreported judgment 28th of July 2000) which related to a failure to instruct the jury as to the significance of a complaint in a sexual case.
17. No such discrete ground of appeal exists in this case. Indeed, counsel for the D.P.P. indicated to the court that there were various aspects of circumstantial and corroborating evidence which incriminated the appellant quite apart from any direct evidence given by Mr. Hughes. On the other hand the appellant is alleging inconsistencies between Mr. Hughes’s statement of evidence and his actual evidence at the trial. The appellant also seeks to rely on an affidavit from Mr. Behan in which he deposes that, at a stage when he was in a hospital ward under armed guard, he having undergone major surgery for gunshot wounds, two detectives brought Mr. Hughes to his bedside and advised him to listen to Mr. Hughes: it would be for his own good. He further deposed that in the conversation which ensued Mr. Hughes threatened him and that as a result, when Mr. Hughes left, he (Mr. Behan), in co-operation with the gardai fabricated a statement. Detective Sergeant Gabriel O´Gara, in an affidavit, said that Mr. Hughes visited Mr. Behan in the hospital at the latter’s request and that the visit was facilitated by the gardai but that neither he nor any member of the garda was involved in compiling or fabricating a statement of proposed evidence with or for Mr. Behan. This court cannot and should not express any view at this stage as to the status of these affidavits or whether they can be considered on the appeal. But the attempt to rely on it reinforces the view that the substantive appeal will range far and wide across the entire evidence and the many applications and submissions made to the trial judge. This is quite definitely not a case where there is a discrete ground of appeal, the strength of which can be assessed in advance of a full hearing.
18. Without endorsing everything that is stated in the judgment of the Court of Criminal Appeal, I would uphold its decision and dismiss the appeal to this court for the reasons which I have given.
DPP v Shine
[2017] IECA 336
JUDGMENT (ex tempore) of the Court delivered on the 21st day of December 2017 by Mr. Justice Mahon
1. This is the appellant’s application for bail pending the hearing and conclusion of his appeal to this Court against his conviction at Dublin Circuit Criminal Court on the 2nd November 2017 and his appeal against sentences of two consecutive prison terms of ten months, a total of twenty months imprisonment, imposed on the 1st December 2017.
2. The appellant was tried in respect of eight offences of indecent assault relating to six complainants. One count was withdrawn from the jury in relation to one complainant. The jury found the appellant not guilty in respect of four of the remaining counts, while the remaining three counts were the subject of majority guilty verdicts.
3. The appellant is eighty five years of age. He is a retired consultant surgeon and in 1975 and 1976 when the offences where said to have taken place, worked in that capacity in Our Lady of Lourdes hospital in Drogheda. The indecent assaults were said to have occurred in the course of medical examinations by the appellant of the complainants at the hospital. The appellant is in poor health, and has a number of significant medical conditions including advanced coronary heart disease, a prostate problem with urinary symptoms, cognitive impairment, abnormal cholesterol and hypertension. The appellant was on bail for a considerable period of time prior to his trial and subsequent to his trial while he awaited sentence, and was always compliant with the conditions of his bail.
4. The notice of appeal to this Court relies on seventeen separate grounds. Two of them, it is contended on behalf of the appellant, present a “strong possibility” of the conviction appeal being successful. These are:-
(i) The learned trial judge erred in law and in principle in permitting the prosecution to re-examine the complainant, DK and two other complainants, in order to adduce evidence that he had settled civil proceedings taken against the hospital at which the appellant worked and also allowed the prosecution to adduce the particular amount of the settlement.
5. The Court has been advised that the following will be relied upon in the substantive appeal in relation to this particular ground:-
• That the settlement of civil proceedings by a third party (the hospital) which was without admission of liability cannot be relevant probative evidence in a criminal trial.
• That, in particular to lead evidence of the amount of the settlement was extremely prejudicial in circumstances where it could not be said to be relevant.
• That the complainants were required to attend court and give evidence as they were all subject to witness orders. Thus, whether or not civil proceedings had settled in 2012 was simply not relevant, as either way they were required by law to attend and give evidence as prosecution witnesses (having made statements prior to settlement).
• That having allowed the prosecution to introduce this evidence for a very particular purpose, apparently to rebut the suggestion that they were financially motivated to give evidence, the learned trial judge failed to direct the jury in this regard.
• As a result, without justification, in an extremely old case, with six (uncorroborated) complainants, the jury heard that in relation to three of these complaints, the hospital was prepared to pay a sum of €70,000 to the complainants and this evidence is irrelevant and prejudicial.
6. The second ground of appeal strongly relied upon is:-
(ii) The learned trial judge erred in law and in principle in allowing the question of system evidence to be considered by the jury in circumstances where he refused to direct them on its potential effect and where the prosecution had requisitioned him to so advise the jury.
7. The Court has been advised that the following will be relied upon in the substantive appeal in relation to this ground:-
• That the failure by the prosecution and the learned trial judge to engage with the question of the possibility of suggestibility, contamination of evidence, copy cat evidence, or collaboration (and as suggested by the Court of Criminal Appeal per O’Donnell J. in CC (No. 2) at the outset of trial, led to a fundamental unfairness which the learned trial judge failed to remedy in his charge to the jury on system evidence.
• That the emphasis by the learned trial judge in his charge on system evidence on collusion (as opposed to suggestibility or contamination) was unfair.
• That the failure of the learned trial judge to explain to the jury how to assess the potential system evidence in terms of the weight that they could attach was unfair.
• That the failure of the learned trial judge to explain to the jury what the impact on the system would be if they were not satisfied beyond a reasonable doubt in respect of a number of complainants.
• That in circumstances where the accused in this case was acquitted in respect of the allegations made by four of the six complainants, there is a real risk that the jury were influenced by evidence which they heard, on counts where the appellant was acquitted, when considering the remaining counts.
8. In relation to the first ground, the references to €70,000 settlement of civil actions taken against Our Lady of Lourdes hospital in 2012 by some of the complainants related to civil proceedings claiming damages. The appellant had no involvement in either agreeing the amount of the settlement or the decision to settle. Further, the settlement of these cases was without admission of liability. An application was made to the trial court for permission to introduce this evidence to establish that the complainants were not financially motivated to give evidence at the trial. This Court has been advised that the learned trial judge charged the jury to the effect that they should draw no adverse inference in relation to the evidence of the settlement of the civil claims.
9. In relation to the second ground indicated above, this relates to an application at the outset of the trial to sever the Indictment and confirmation from the prosecution that they wished to try all six complainants together in order to rely on system evidence as between them. In the course of his charge to the jury the learned trial judge refused to direct the jury, despite a requisition by prosecuting counsel, as to how they should approach the issue of system evidence.
10. This Court has jurisdiction to grant bail pending the determination of an appeal pursuant to s. 32 of the Courts of Justice Act 1934 (as amended) and Ord. 86 of the Rules of the Superior Courts.
11. In DPP v. Sweetman [1997] 3 I.R. 448 the Court of Criminal Appeal held, in relation to applications to that Court for bail post conviction, that the situation of a convicted person was different to that of a person awaiting trial as he no longer enjoyed the presumption of innocence and that the criteria relevant to pre trial bail applications was different to that which operate post conviction. This decision was approved by the Supreme Court in DPP v. Corbally [2001] 1 I.R. 180 wherein it held that bail should be granted where, notwithstanding that the appellant came before the Court as a convicted person, the interest of justice require it, either because of the apparent strength of the appellant’s grounds of appeal or the impending expiry of the sentence, or some other special circumstance. The Supreme Court held that it must always be borne in mind that the appellant for bail in this situation was a convicted person and that the appellate court should exercise its discretion sparingly. Bail, it decided, should only be granted where, in the absence of considering the entire transcript of the trial, some definite or discrete ground of appeal can be identified and isolated, and which was of such nature that there was a strong chance of success on appeal. There should be enough material before the Court to enable it hold that there was at least a strong chance of success before granting bail.
12. The obvious disadvantage facing this Court in reaching its decision on this bail application, as it almost always is with such applications, is the lack of a transcript in what was a lengthy trial. It is apparent that the conviction appeal grounds on which this application is focussed are complex and are the consequence of lengthy and detailed submissions and rulings in the course of the trial and are also concerned with the learned trial judge’s charge to the jury. The criticism levelled at the learned trial judge’s decision to permit evidence of separate settlements of civil claims by a number of the complainants is that such evidence was highly prejudicial to the appellant’s defence, and that such prejudice greatly exceeded any probative value attaching to such evidence, notwithstanding that the settlement of €70,000 each were agreed to and paid by Our Lady of Lourdes Hospital without any involvement or agreement on the appellant’s part, and were agreed and paid without admission of liability.
13. For her part, the respondent argues that admission of that evidence was necessary and appropriate because the appellant’s counsel had cross examined the complainants in relation to the circumstances in which they came to make similar type complaints of indecent assault against the appellant to the same solicitor who in turn referred each to the same psychiatrist. In the course of that cross examination reference was made to what might be described as a partly media backed campaign to identify individuals who made, or were prepared to make, allegations of indecent assault against the appellant. Mr. Hartnett S.C. (for the appellant) contends that this was done to establish copy cat evidence or corroboration or suggestibility or contamination of evidence as between the complainants. It was, he maintained, undertaken in the interest of establishing the precise circumstances in which the complainants came to make allegations against the appellant both to the gardaí and a solicitor engaged in civil litigation.
14. Counsel for the respondent, Mr. Condon S.C., maintains that this line of cross examination required and justified the learned trial judge’s decision to permit evidence disclosing the civil action settlements in order to disavow any suggestion that the criminal allegations made against the appellant were made to support their quest for financial reward. Mr. Condon submitted that the learned trial judge’s direction to the jury not to draw inferences from the facts of the settlement was sufficient to dispel any suggestion that they were not be taken as proven or assisting in the proof of criminal culpability on the appellant’s part. Mr. Harnett’s response to that submission is simply, how could anyone expect a jury not to be influenced by such evidence to the appellant’s detriment. A lay person’s appreciation and understanding of the legal consequences and effect of a civil claim being settled without admission of liability may well be different to that of somebody with legal training.
15. The Court accepts that the appellant has established that at least a strong chance of success of this ground of appeal. Whether or not it is ultimately successful must await a full hearing of the appeal. It is impossible for this Court at this juncture to express any more certain view. The precise nature of this ground and the facts relevant to it are quite novel in many respects.
16. In relation to the second conviction related ground, that concerning system evidence, the Court is neither in a position to identify its strength in the absence of the transcripts, nor is it necessary for it to do so in the light of the decision in relation to the first ground.
17. While equally unnecessary to make any determination as to the strength of the sentence appeal for the purposes of this application, the Court is nevertheless of the view that it is undoubtedly strongly arguable that a total custodial term of twenty months for two offences of the nature of those committed by the appellant was unduly harsh in respect of offences which carry a two year maximum sentence, and where the appellant is elderly and in poor health. It is in particular strongly arguable that the learned trial judge placed the offences too high on the gravity scale and may have been influenced by the fact that similar type offending today carries a much higher maximum sentence. Whether these criticisms of the sentence are ultimately borne out must await a full appeal hearing, if and when that takes place.
18. What is clear is that the conviction appeal will be lengthy – Mr. Harnett suggests possibly more than one day – and is unlikely to be accommodated with a hearing date until well into next year. Should that appeal be unsuccessful, a hearing date for a sentence appeal would not take place until later again in 2018, and there is every possibility, if not probability, that by then the appellant’s sentence, with normal remission for good behaviour, will have been served. Such a scenario could not be deemed fair or proportionate for an eighty five year old man in poor health and unlikely to reoffend, and in circumstances where the offences in question occurred over forty years ago.
19. Accordingly, the Court will grant the appellant bail subject to conditions, to include his own bond of €1,000, that he reside at 25, Wellington House, 85, Wellington Road, Dublin 4, that he does not travel outside the jurisdiction and does not seek to obtain a passport (his passport currently remaining with the gardaí), and that he sign on weekly in Donnybrook garda station between 9 a.m. and 3 p.m. on Wednesday of each week. In the event of illness preventing his signing on he is to ensure that the gardaí at Donnybrook garda station are provided with a satisfactory medical certificate to this effect. The appellant is also under an obligation to expedite his appeal hearings in this Court.
People (DPP) v McCabe
[2012] IESC 1
Reasons of the Court given on the 18th January, 2012 by Denham C.J.
1. This appeal against a refusal of bail by the High Court was brought by Trevor McCabe, the applicant/appellant, referred to as “the appellant”, and came before the Court on the 19th January, 2010, when the appeal was dismissed. It was stated that reasons would be delivered at a later date. These are the reasons for the dismissal of the appeal.
2. On the 13th July, 2009, the case came into the list at the High Court sitting as the Central Criminal Court (Carney J.) for mention, on an application to fix a date for a new trial, because there was a disagreement recorded in the trial on the 1st July, 2009. The High Court ordered that the matter be adjourned to the list to fix dates on the 27th July, 2009, and the Court refused an application for bail.
3. The appellant sought an order in this Court:-
(i) setting aside the whole of the order made on the 13th July, 2009, refusing the appellant’s application to be admitted to bail, and
(ii) admitting the appellant to bail.
4. The grounds filed for the said appeal were:-
(i) that the learned trial judge erred in law and/or in fact in refusing to admit the appellant to bail and in holding that he was bound by the decision of Butler J;
(ii) that the learned trial judge erred in law and/or in fact in failing to hold that terms of the previous bail application had expired where the appellant was put in charge of the jury at his trial;
(iii) that the learned trial judge erred in law and/or fact in failing to take into account that the appellant would not receive an early trial;
(iv) that the learned trial judge erred in law and/or in fact in failing to hold that the failure of the jury to reach a unanimous or majority verdict and their discharge amounted to a change in circumstances;
(v) that the learned trial judge erred in law and/or in fact in failing to take into account that the trial of the appellant would not take place until 2010;
(vi) that the learned trial judge erred in law and/or in fact in failing to hold that there was ample evidence that the appellant would not abscond from the jurisdiction;
(vii) that the learned trial judge erred in law and/or in fact in failing to hold that the appellant had sufficient ties with the jurisdiction as a reason for remaining in the jurisdiction;
(viii) that the learned trial judge erred in law and/or in fact in failing to accept that the Garda concerns in relation to the granting of bail could be met by making the bail terms subject to strict conditions;
(ix) that the learned trial judge erred in law and/or in fact in failing to accept that the appellant would be able to meet the charges against him;
(x) that the learned trial judge erred in law and/or in fact in failing to hold that the State had failed to prove the case beyond reasonable doubt;
(xi) that the learned trial judge erred in law and/or in fact by attaching too much weight to the evidence of the State;
(xii) that the learned trial judge failed to hold that the Garda evidence was based on hearsay.
Background Facts
5. The appellant was arrested on the 27th May, 2008, at Lower Gardiner Street, Dublin, was initially detained at Store Street Garda Station, Dublin and was then conveyed to Monaghan Garda Station.
6. The appellant was formally arrested under s. 4(3) of the Criminal Law Act, 1997, with the offence of murder, and was charged with the said offence at Monaghan Garda Station on the 30th May, 2008.
7. The appellant was conveyed to Monaghan District Court on the 31st May, 2008, where Garda Sergeant J. Heslin gave evidence of the arrest, charge and caution of the appellant.
8. An unsuccessful application to admit the appellant to bail was made to the High Court (Butler J.), sitting at Cloverhill in the City of Dublin, by counsel on behalf of the appellant on the 12th January, 2009.
9. The appellant was indicted and arraigned before the Central Criminal Court in Dublin on the 15th of June, 2009, on the charge of murder of Darren McGrath, contrary to common law.
10. The appellant was tried before judge and jury at the Central Criminal Court between the 15th June, 2009, and the 1st July, 2009.
11. The jury in the said trial were in deliberation for three days and failed to reach a unanimous verdict or a majority verdict, and the trial judge discharged the jury on the 1st July, 2009.
12. A further unsuccessful application to admit the appellant to bail was made to Carney J. sitting at the Four Courts, Dublin, on the 13th July, 2009, which was the subject matter of this appeal.
13. In the High Court, sitting as the Central Criminal Court, before Carney J., evidence was given by Inspector Curley that Butler J. had refused bail on the 12th January, 2009, after grounds were raised that the appellant posed a significant flight risk and would not stand trial.
14. Carney J. stated:-
“There was a finding of fact made by Justice Butler that he [the appellant] was a flight risk. I have no jurisdiction to set it aside. I cannot override his decision.”
15. Counsel for the State also told the Court that the State would not be ready for the next available trial date, as there were difficulties for An Garda Síochána in this complex case.
Submissions
16. Submissions were made to the Court on behalf of both the parties.
Responsibility
17. The Court was informed that a date for trial had been fixed with priority for the 15th March, 2010. The Court was informed that a trial date of the 11th January, 2010, had been available for trial, but counsel was prosecuting another case at that time.
18. While the Court can see the desirability of maintaining a continuation of the same counsel on a complex case, the Court is concerned that proper regard was not given by the Director of Public Prosecutions and counsel to the fact that a person was lodged in prison, not convicted of an offence, and who may not be convicted. The Court accepts that the convenience and accommodation of counsel is a legitimate concern, but that factor should receive relatively minor weight in a case such as this where the appellant had been in prison since May 2008. The Court considered that due regard was not taken of the fact that the appellant was in custody. The Court raised concerns that the date for trial of the 11th January, 2010, was not taken. Counsel and the Director of Public Prosecutions have a responsibility to assist the Court listings and to ensure that the court system is not unduly delayed, and, in particular, that all reasonable steps are taken to obtain a trial as soon as reasonably possible. The Director of Public Prosecutions and counsel have a responsibility in facilitating due process within a reasonable time. The Director of Public Prosecutions having carriage, so to speak, of prosecutions before courts of trial, has both the opportunity and special responsibility to actively assist courts in this regard.
Counsel’s Submissions
19. Counsel for the appellant submitted that the appellant should be allowed bail and that the High Court had erred. Counsel agreed that the appellant had been found one week after the event, not at home, but in Dublin, and that he had in his possession the passport of another. This was the only basis for him being considered a flight risk, as his family address was in Co. Tyrone.
Counsel submitted that two people were seen leaving the scene of the alleged murder, and neither was the appellant; further, that forensic evidence of a deceased man was found on clothing of another man, and not on the appellant, and that the other man is a witness for the prosecution.
Also, that the appellant wore combat fatigues, yet the witness described a black jacket and jeans.
In addition, in the first trial, the jury disagreed.
Decision
20. The Court considered carefully the application made on behalf of the appellant. The Court dismissed the appeal and refused to admit the appellant to bail. In reaching this decision, the Court took a number of factors into consideration. The Court considered it an important factor that the trial of the appellant was fixed for the 15th March, 2010, which was within two months of the hearing of the application. Evidence grounding the determination that the appellant was a flight risk had been given in the High Court and, in the circumstances, it was within a trial judge’s jurisdiction to rely on such evidence, to reach such a conclusion.
21. It is clear from counsel’s note that there was a full hearing of the application for bail before Carney J. on the 13th July, 2009. Evidence relating to the crime of which the appellant was charged was given, evidence was given by Inspector Curley, who was cross-examined as to his evidence in relation to the offence charged, and as to whether the appellant was a flight risk.
22. At an earlier date, on the same facts as to the issue of flight risk, Butler J. had refused an application for bail. Carney J. said that a finding of fact had been made by Butler J. that the appellant was a flight risk. Carney J. held that he had no jurisdiction to set it aside and that he could not over-ride that decision. In this finding Carney J. fell into error, he did have jurisdiction. There was jurisdiction in the High Court to hear a further application for bail, as time had elapsed since the last application, as there had been a trial before the Central Criminal Court in which the jury had failed to reach a verdict and been discharged, as the retrial was delayed, and as the prosecution had rejected a proffered date. These are circumstances where a court, on request, has jurisdiction to hear and determine a fresh bail application. The High Court did have jurisdiction to hear and determine this new application for bail. In all the circumstances, however, including that the evidence and facts as to the issue of flight risk were the same, the Court does not consider there are grounds for interfering with the decision of Carney J. to refuse bail.
23. It is open to a person to bring subsequent bail applications if circumstances have changed, but in relation to the core issue in this case, there had been no material change in the issues raised, such as the flight risk and the evidence available.
24. The Court expressed grave concern to counsel, at the hearing of the appeal, at the length of time which the appellant was in custody as an unconvicted person, pending trial. The Court once again emphasises in this case its concern as to the length of time which accused persons may be required to spend in custody while awaiting trial.
25. While being concerned as to the lack of urgency on the part of the Director of Public Prosecutions and his counsel to facilitate the earliest date available for trial, especially as the appellant was in custody, the Court considered that in all the circumstances the appeal should be dismissed, on the understanding that the trial was fixed for the 15th March, 2010.
Kennelly v Cronin and Others
[2003] 1 I.L.R.M. 505
Kennelly v. Cronin [2002] IESC 77 (18 December 2002)
THE SUPREME COURT
Record No. 241/01
McGuinness J.
Geoghegan J.
Fennelly J.
Judgment of Mrs Justice McGuinness delivered on the 18th day of December 2002
1. This is Consultative Case Stated sent forward to the Supreme Court by His Honour Judge Desmond Hogan a judge of the Circuit Court sitting in Limerick. The case arose out of the hearing of a District Court appeal in which the bail of the three Respondents was estreated by the judge of the District Court. In the body of the Case Stated it is said that that the case is stated pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act 1961. This is incorrect. The relevant section referring to the stating of a case by a judge of the Circuit Court to this Court is section 16 of the Courts of Justice Act 1947, which is in fact correctly recited in the title to these proceedings.
2. The facts giving rise to the Case Stated and the issues in question are set out by the learned judge of the Circuit Court as follows:-
“This is a Case Stated by me Judge Desmond Hogan a judge of the Circuit Court sitting at Henry Street in the City of Limerick, pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act 1961, (and in pursuance of an application made to me in that behalf by Michael D. Murray, State Solicitor for Limerick City (for the determination of the Supreme Court).
1. At the sitting of the Circuit Court held at Henry Street, Limerick, on the 14th day of February 2001 I embarked upon the hearing of an appeal from an order of the District Court made by District Judge Michael Reilly at Limerick District Court on the 16th November 1999 of Estreatment of bail and Forfeiture of money lodged in Court against the Respondents as follows:
(a) Mark Cronin in the sum of £5,000
(b) Catherine Cronin and Marie Cronin in the sum of £10,000 each and the forfeiture of the said sum of £10,000 lodged in Court by Catherine Cronin.
I beg to refer to the order of the District Court dated the 16th November 1999 when produced.
2. At the hearing of the said appeal the following facts were proved or admitted:
(I) The Respondent Mark Cronin was arrested and charged with the murder of Georgina O’Doherty at Limerick District Court on the 27th May 1998 on foot of Charge Sheet No. 334/98 of Henry Street and I beg to refer to a copy of the said Charge Sheet when produced. The Respondent Mark Cronin was remanded in custody on the 27th May 1998 to Limerick District Court on the 3rd June 1998.
(II) The Accused/Respondent Mark Cronin was granted bail in the High Court on the 22nd June 1998. The said order of the High Court was varied by order made on the 26th June 1998 and I beg to refer to copies of the said orders of the High Court when produced.
(III) On the 26th August 1998 the Respondents entered into a Recognizance before District Judge Thomas E. O’Donnell at Limerick District Court and I beg to refer to the said Recognizance when produced. A sum of £10,000 was lodged by the Respondent Catherine Cronin when entering into the Recognizance as aforesaid.
(IV) The Respondent Mark Cronin was in breach of his bail terms and an order was made by the High Court revoking the bail of the Respondent Mark Cronin and I beg to refer to a copy of the High Court Order made by His Honour (sic) Mr Justice O’Donovan on the 18th March 1999, the Warrant for the Arrest of the Accused issued on foot of the said Order and the subsequent Order of the High Court made by His Honour (sic) Mr Justice Cyril Kelly on the 22nd March 1999 when produced.
(V) On the 29th March 1999 District Judge John O’Neill sitting at the Courthouse, Merchant’s Quay, Limerick certified non-performance of the conditions of bail of the said Mark Cronin and he endorsed a certificate in breach of recognizance on the original recognizance entered into by the Respondents herein. I beg to refer to the said Recognizance duly certified as aforesaid when produced.
(VI) The applicant made an application to Limerick District Court on the 12th April 1999 to Estreat the Recognizance entered into by the Respondents and to Forfeit the money lodged in Court by the Respondent Catherine Cronin.
(VII) The District Judge duly made an order Estreating the Recognizance and Forfeiting the monies lodged in court which said Order is now under appeal.
(VIII) On the 21st October 1998 the Respondent Mark Cronin was remanded on continuing bail to Limerick District Court on the 18th November 1998 and the District Judge ordered that the remand was peremptory as against the Prosecution, stating that if the Book of Evidence was not served the Charge Sheet would be struck out.
(IX) On the morning of the 18th November 1998 the Respondent Mark Cronin duly appeared in answer to his bail, the Book of Evidence was not available and the Charge Sheet before the Court, Charge Sheet 334/1998 of Henry Street was struck out.
(X) Later on the same date, the 18th November 1998, the Accused/Respondent Mark Cronin was re-arrested and re-charged with the murder of Georgina O’Donnell on foot of a new Charge Sheet. It transpired that the Book of Evidence was in fact available but due to a misunderstanding had not been in Court when the case had been called earlier. Upon application on behalf of the solicitor for the accused the District judge vacated his earlier Order striking out the Charge Sheet No. 334/98 of Henry Street and re-entered the Charge Sheet. Having re-entered the Charge Sheet the District Judge remanded the Accused/Respondent Mark Cronin to Limerick District Court on the 2nd December 1998. The purpose was to avoid having to re-apply to the High Court for bail on foot of a new Charge Sheet which would also involve the relevant parties entering into a fresh Recognizance.
(XI) The accused was remanded on continuing bail on a number of occasions between the 2nd December 1998 and the 10th March 1999 until his bail was revoked whereupon he was remanded in custody until he was returned for trial.
(XII) Neither of the Respondents Catherine Cronin and Marie Cronin were present in the District Court on the 18th November1998 and were not party to the application made on behalf of the Accused/Respondent Mark Cronin to have Charge Sheet No. 334/98 of Henry Street re-entered. They were not on notice, did not consent in any way to the application, and they played no hand, act or part in the arrangements made to re-enter the Charge Sheet and they were complete strangers to that part of the proceedings.
3. It was contended by and on behalf of the Respondents that the Recognizance entered into on the 26th August 1998 expired and was a spent force when the Charge Sheet 334/98 of Henry Street, Limerick was struck out on the morning of the 18th November 1998 and that it could not be revived by the subsequent re-entering of the Charge Sheet later on the same date. In particular, it was contended that the Respondents Marie Cronin and Catherine Cronin were not present in the District Court on the 18th November 1998, were unaware of the proceedings that took place on that date, had not consented in any way to what had happened. It was further contended that as the Recognizance had expired when the Charge Sheet was struck out and was not revived by the subsequent re-entry of Charge Sheet 334/98 of Henry Street and that it would be wrong in law to make any Order of Estreatment of bail or forfeiture of monies lodged based on the said Recognizance. It was contended in particular that once the Charge Sheet was struck out the Respondents Marie Cronin and Catherine Cronin were released from their obligations as Sureties under the Recognizance dated the 26th August 1999 (should read 1998) and these obligations could not be re-imposed upon them by the subsequent application of the Accused/Respondent Mark Cronin to have the Charge Sheet re-entered on the 18th November 1998 with the consent of the prosecution but without any notice to the sureties and without giving them any opportunity to be heard.
4. It was contended for the applicant as follows:
(a) that the Recognizance entered into on the 26th August 1998 was entered on foot of and as a consequence of the orders granting the Accused/Respondent Mark Cronin bail made by the High Court dated the 22nd June 1998 and 26th June 1998 hereinbefore referred to and that the said Recognizance dated the 26th August 1998 was clearly related to and referable to Charge Sheet 334/98 of Henry Street.
(b) That so long as Charge Sheet 334/98 Henry Street was properly before the Courts the Respondents were bound by the terms of the Recognizance.
(c) That the District Justice …sic) acted within jurisdiction when on the 18th November 1998 he vacated his earlier order striking out the Charge Sheet and re-entered same.
(d) That in so doing he effectively revived the Recognizance entered into by the Respondents and their respective obligations thereunder.
(XIII) I reserve my decision on the issue pending the determination of this Case Stated. The opinion of the Supreme Court is respectfully sought on the following questions:-
(a) did the Recognizance entered into by the Respondents dated the 26th August 1998 expire and become a spent force for all intents and purposes on the 18th November 1998 when Charge Sheet 334/98 of Henry Street was struck out by the District Court judge at Limerick District Court
or
b. Was the said Recognizance revived and become binding in every respect as against the AccusedRespondent Mark Cronin upon the granting of the application made on his behalf to have the said Charge Sheet re-entered?
c. Was the said Recognizance revived and become binding in every respect as against the Respondents Marie Cronin and Catherine Cronin when the said Charge Sheet was re-entered notwithstanding the fact that they had no notice of the application to re-enter the Charge Sheet and were not present in the District Court at the relevant time and did not play any part in this part of the proceedings?”
3. The Cast Stated is dated the 22nd November 2001. Exhibited with the Case Stated are the various documents referred to in the body of the Case Stated. Unfortunately the documents exhibited did not include the order or orders made by the judge of the District Court on 18th November 1998 which are in fact the kernel of the case. Counsel for the 2nd and 3rd Respondents provided this Court with a certified copy of the order made on 18th November 1998 which is signed by Thomas E. O’Donnell, Judge of the District Court and the Court accepted that this was the order in question. The order sets out the name and address of the accused and the complaint set out against him in the Charge Sheet No. 334/98 of Henry Street (which is exhibited with the Case Stated). The order continues as follows:-
“IT WAS ADJDUGED AS FOLLOWS:
That the charges be struck out. On subsequent application by Mr Ted McCarthy, Solicitor for accused it was directed that said charges be re-entered by consent and it was further ordered that the accused be remanded on continuing bail to 2nd December 1998.”
Submissions
4. Full written and oral submissions were presented on behalf of the applicant and on behalf of the second and third named Respondents. In addition oral submissions were made on behalf of the first named Respondent.
5. Counsel for the applicants, Mr McDermott, submitted that when the judge of the District Court made his second order on the application of the first named Respondent re-entering the original charge he was in effect vacating his first order striking out that charge. When the strike-out order was vacated a situation was created whereby that order was rendered a nullity; counsel compared the position to that created by a decree of nullity which creates the position that a marriage never took place. If there had been any gap between the making of the strike-out order and the making of the re-entry order, the fact that the strike-out order was vacated closed that gap. In argument Mr McDermott accepted that this proposition was valid only if both orders were made during the course of one day. He submitted that the position of all three Respondents at the close of the Court’s business on the 18th November 1988 was precisely the same as it was at the beginning of that day; they were not in any way prejudiced.
6. Mr. McDermott pointed out that it was common in the District Court for cases to be struck-out and subsequently re-entered during the course of a day. He relied on the concept of an order being “in the breast of the Court” and referred to a passage in O’Connor’s Justice of the Peace where it was stated:
“The session of the Court is considered, in point of law, as one day, and the date thereof is the first day of holding….and therefor the Justices may alter their judgment at any time during the sessions…and this is even so where the first order has been recorded, for during the sessions such first order remains ‘in the breast and power of the Court’.”
7. Counsel also referred to wh