THE COURT OF APPEAL
CIVIL Neural Citation Number: [2017] IECA 241
Appeal Number: 2017/250
Birmingham J.
Mahon J.
Hedigan JIN THE MATTER OF AN APPEAL OF A REFUSAL OF BAIL [High Court Record No. 2017/518 SS]
BETWEENTHE DIRECTOR OF PUBLIC PROSECUTIONS
AND
MARTIN MAUGHAN
JUDGMENT of Mr. Justice Hedigan delivered ex tempore on 31st day of July 2017
1. The appellant appears before the Dublin Metropolitan District Court in respect of two offences, namely, assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997, and production of an article during the course of a dispute contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. The DPP’s directions are still awaited and the matter is next listed on the 3rd August, 2017, at Cloverhill District Court.
2. The charges arise out of an incident that is alleged to have occurred on the 7th May, 2017, at Nando’s Restaurant in Santry, Dublin. An application for bail was made in the District Court and this refusal was subsequently appealed to the High Court by way of motion on notice grounded on the affidavit of the appellant. The application was made, first, before Heneghan J. on the 16th May, 2017, and was adjourned to the 23rd May, 2017. It proceeded before her on the 23rd May, 2017. The particulars of that hearing are set out in an agreed note of counsel. The learned High Court judge refused bail to the appellant; the Court based its refusal under s. 2(a) to (e) of the Bail Act 1997.
3. The Court is required to determine the following matters:
(i) Whether the learned High Court judge erred in fact and/or in law by not having sufficient regard to the presumption of innocence in favour of the appellant.
(ii) Whether the learned High Court judge erred in fact and/or in law in refusing bail where it is argued on the evidence that it had not been established that the refusal of bail was reasonably necessary to prevent the commission of a serious offence.
(iii) Whether the learned High Court judge erred in law where it is argued she failed to properly consider and/or give adequate weight to whether stringent bail conditions proposed on behalf of the appellant could meet the objections to bail as outlined on behalf of the respondent.
The Circumstances of the offence alleged
4. Garda Keith Alford gave evidence that on the 7th May, 2017, at approximately 19.05 pm, it was alleged that Michael Francis Reilly was having a meal in Nando’s Restaurant, Omni Centre in Santry, Dublin 9. The restaurant was full and there were a number of Communion parties there. While Mr. Reilly was having his meal, it is alleged that two males, namely, Mr. Maughan and another male entered the restaurant. It is alleged that Mr. Maughan was armed with a claw hammer. It is alleged that he approached Mr. Reilly and struck him a number of times to his body with the claw hammer. Mr. Reilly attempted to flee from Mr. Maughan and the other male by jumping over the rear counter of the restaurant and into the kitchen area. He was chased by Mr. Maughan out of the restaurant where he was again struck by Mr. Maughan with the claw hammer and sprayed with pepper spray. Mr. Reilly was chased back in through the front of the restaurant by Mr. Maughan where he was again struck with the claw hammer. It was alleged that Mr. Reilly was also punched a number of times by the other male.
5. The Garda stated that CCTV footage of the incident had been obtained and that Mr. Maughan had been identified on this footage. He said that the CCTV was of very good quality and captured all of the above incident. The Garda also stated that Mr. Reilly had made a statement of complaint during the course of which he named Mr. Maughan as one of the culprits. He stated that witness statements had also been obtained from customers and staff of Nando’s which described the incident in detail. The Garda also said that the restaurant had to be closed a result of the incident. Mr. Maughan was arrested minutes later on the Ballymun Road, Dublin 11, driving vehicle Reg. No. 12 LH 2104. The two occupants of the car were wearing the same clothes as in the CCTV at Nando’s Restaurant and a claw hammer was also recovered from the van. Mr. Maughan was arrested but did not make any admissions during his detention. Garda Alford stated that the CCTV showed Mr. Maughan wearing the same clothes in which he was arrested.
6. The Garda stated that Mr. Reilly did not require hospital treatment in the aftermath of the alleged attack, but that he had sustained a number of injuries.
7. The Garda gave evidence that the DPP’s directions were not yet available in respect of the prosecution, but that the Gardaí were recommending trial on indictment.
Ground of appeal number one
8. Upon reading counsel’s agreed note, I am satisfied as follows.
In the course of making her determination, the judge referred to the matters under consideration as being alleged charges. She thus had regard to and safeguarded the appellant’s presumption of innocence. The judge properly took into consideration the evidence of Garda Alford in relation to, inter alia, the background to the charge; the availability of independent witnesses; the existence of good quality CCTV and evidence regarding previous convictions, including convictions for offences committed while on bail, to assist her reach a decision as to whether or not it was reasonably necessary for bail to be refused to prevent the commission of a serious offence and did not make any findings, as asserted, that the appellant was guilty as charged.
9. It was in the course of her overall evaluation of the evidence in relation to the s. 2 objection that the judge said that the appellant’s “response and resultant behaviour outlined was disproportionate and was a serious cause for concern”. These comments clearly relate to the learned judge’s concern in relation to the s. 2 risks and do not constitute a finding by the Court that the appellant was guilty as charged.
10. Although the appellant complained during the course of his cross-examination that Garda Alford was not the investigating Garda and that he was entitled to test the assertions of Garda Alford, he made no application to the Court to rule out any of the evidence of Garda Alford. It is the settled practice in High Court bail applications for a presenting officer to give evidence having made detailed enquiries of and having read the written objections of the prosecuting Garda. Garda Alford is the nominated Garda who regularly appears in such hearings on behalf of Ballymun Garda station. This procedure is a satisfactory one and it permits the bail court to deal with its busy list expeditiously; bail hearings should not become a trial of the offence.
11. The first ground of appeal is dismissed.
Ground of appeal number two
12. Following a constitutional referendum, s. 2 of the Bail Act 1997 introduced a preventive basis for refusal of bail and set out the matters that the court shall take into account in that regard. Section 2 reads as follows:-
“2(1) Where an application for bail is made by a person charged with a serious offence, a court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person.
(2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where necessary, receive evidence or submissions concerning—
(a) the nature and degree of seriousness of the offence with which the accused person is charged and the sentence likely to be imposed on conviction,
(b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction,
(c) the nature and strength of the evidence in support of the charge,
(d) any conviction of the accused person for an offence committed while he or she was on bail,
(e) any previous convictions of the accused person including any conviction the subject of an appeal (which has neither been determined nor withdrawn) to a court,
(f) any other offence in respect of which the accused person is charged and is awaiting trial, and, where it has taken account of one or more of the foregoing, it may also take into account the fact that the accused person is addicted to a controlled drug within the meaning of the Misuse of Drugs Act, 1977.”
Subsection (3) states that:-
“(3) In determining whether the refusal of an application for bail is reasonably considered necessary to prevent the commission of a serious offence by a person, it shall not be necessary for a court to be satisfied that the commission of a specific offence by that person is apprehended.”
13. The learned High Court judge based her refusal on s. 2 only. The evidence given in regard to the above criteria was as follows.
14. In relation to s. 2(1), Garda Alford gave evidence that his objection to bail was based on s. 2 of the Bail Act 1997 to prevent the commission of a serious offence. It is noted that s. 2(3) of the Bail Act 1997 mandates that it “shall not be necessary for a court to be satisfied that the commission of a specific offence by that person is apprehended”. Garda Alford gave evidence of an ongoing feud between the parties.
15. In relation to (a), (b) and (c) of the above criteria, Garda Alford gave evidence that the appellant faced two charges, namely, assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997, and production of an article during the course of a dispute contrary to s. 11 of the Firearms and Offensive Weapons Act 1990, both serious charges. Garda Alford gave evidence that while directions are awaited, the Gardaí were recommending trial on indictment.
16. Garda Alford said that the alleged incident took place in a full restaurant with several Holy Communion parties underway and gave evidence that the injured party was struck a number of times with a claw hammer by the appellant, who again struck and pepper sprayed the injured party having chased him outside the restaurant and struck him once more when the injured party was chased back into the restaurant.
17. As to the strength of the evidence, the judge heard there was very good quality CCTV evidence; a statement had been made by the injured party, Mr. Reilly; there were witness statements from staff and customers of Nando’s Restaurant and that the appellant was apprehended shortly afterwards, driving in the vicinity wearing the same clothes as on the CCTV footage and that a claw hammer was recovered from the van.
18. In relation to criteria (d), Garda Alford gave evidence that the appellant had five convictions for offences committed while on bail, including two for possession of a flick knife, one for possession of pepper spray, one for abusive behaviour in a public place and one for intoxication in a public place.
19. In relation to criteria (e), the Garda gave evidence that the appellant had 17 previous convictions including two previous convictions for offences contrary to s. 9(4) of the Firearms and Offensive Weapons Act 1990; an offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997; an offence of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994; an offence of possession of pepper spray contrary to s. 2 of the Firearms Act 1925 and a conviction for possession of knives.
20. It is to be noted that the Court had the benefit of hearing the evidence of the appellant and had an opportunity to consider his demeanour.
The Standard of proof
21. The standard of proof in relation to a s. 2 objection of the reasonable necessity to prevent the commission of a serious offence is a lower standard than that of probability. The required standard of proof in s. 2 refusals was considered by the Supreme Court in Vickers v. DPP [2010] 1 IR 548 at 557 to 558 where Kearns J. concluded as follows:
“I am satisfied that s. 2 of the Bail Act 1997 effected a significant alteration to the onus of proof requirement in relation to matters addressed by the section, because it specifically provides that:-
‘… a court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person.’
I do not believe this formulation is indicative of a standard of requiring proof to the standard of probability and still less do I see it as requiring a more elevated standard, which could only be proof beyond reasonable doubt. . .. If a test of probability under s. 2 had been intended by the legislature it would have been extremely simple to have so provided in the Act. Section 2(3) in fact provides that the State need not even show that the refusal is considered reasonably necessary to prevent the commission of a specific criminal offence. . .
I think it is clear that the legislation was designed to confer a wide discretion on the court. In this regard a test of proportionality may also assist the court when evaluating belief evidence, particularly where the risk, as in this case, is of the commission of an extremely serious further offence. The decision to grant or refuse bail must take account of the degree of likelihood of the commission of further serious offences. It must assess the credibility of the deponent and must take account of the nature of the actual risk demonstrated to exist by the evidence.”
22. I am satisfied that the learned judge exercised her discretion having had the benefit of hearing and assessing the appellant, having taken into account the totality of the evidence and having applied a test of proportionality in reaching her decision to refuse bail. She expressly set out how she reached her decision by referencing how the evidence heard met the statutory criteria by referencing the alleged serious nature of the charge and the circumstances where this alleged assault took place in a crowded restaurant; the evidence heard of an ongoing feud; evidence of alleged offensive phone calls made by the injured party in advance and the resultant behaviour by the appellant was a serious cause for concern; the evidence of Garda Alford and his concern and how this was borne out when she looked at s. 2 of the Bail Act 1997 and the background to the case. She further referenced the recommendation that the matter should proceed on indictment and that in relation to other s. 2 subsections, she referenced the independent witnesses; good quality CCTV; the previous convictions; convictions on bail, including matters under appeal for possession of carpet knives and pepper spray.
23. The learned judge then expressly refused bail on the basis of s. 2(2), paras. (a) to (e) of the Bail Act 1997. I am satisfied that the judge exercised her wide discretion properly and in accordance with law.
24. Therefore, ground number two fails.
Ground of appeal number three
25. Did the learned judge properly consider and/or give adequate weight to whether stringent bail conditions proposed on behalf of the appellant could meet the objections to bail as outlined by the respondent?
26. The Court heard evidence from Garda Alford during cross-examination that no conditions would satisfy his concerns in relation to bail and that the address outside Dublin where the appellant proposed to live was unacceptable to him. Evidence was heard of a feud and the allegation was that the injured party had suffered injury, having been allegedly beaten on several occasions with a claw hammer.
27. The learned judge stated that she was refusing bail under s. 2 of the Bail Act 1997 at paragraphs (a) to (e). We are satisfied that she must reasonably have taken into account whether or not the fixing of conditions would meet the s. 2 concerns in circumstances where she heard evidence regarding conditions directly in advance of making her decision. Such were the stated serious concerns of the learned judge, it can reasonably be implied that she took into account and considered that the fixing of conditions did not allay her concerns regarding s. 2 risks of future serious offending. We are satisfied that among these concerns was the record of the appellant of having five previous convictions for offences committed while on bail: two of these were for possession of a flick knife; one for possession of pepper spray; one for abusive behaviour in a public place and one for intoxication in a public place.
28. In the light of all these, I am satisfied that the learned judge exercised her wide discretion and properly refused bail in accordance with law.
29. Therefore, ground number three fails also.
30. The appeal is dismissed.
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