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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> DPP -v- Vickers [2009] IESC 58 (27 July 2009) URL: http://www.bailii.org/ie/cases/IESC/2009/S58.html Cite as: [2009] IESC 58, [2010] 1 IR 548 |
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Judgment Title: DPP -v- Vickers Composition of Court: Fennelly J., Kearns J., Macken J. Judgment by: Kearns J. Status of Judgment: Approved
Outcome: Dismiss Notes on Memo: (Reasons stated for decision given on 17/07/09 to dismiss appeal) | ||||||||||||||
THE SUPREME COURT Fennelly J. Kearns J. Macken J. [S.C. No. 238 of 2009] IN THE MATTER OF AN APPEAL FROM A REFUSAL OF AN APPLICATION FOR BAIL BETWEEN BRIAN VICKERS APPLICANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT This judgment sets out the Court’s reasons for dismissing an appeal brought by the applicant from the decision of the High Court (Butler J.) which refused to grant him bail. The appeal was heard and determined by this Court on the 17th July, 2009. The applicant stands charged with the murder of his wife Joan Vickers on the 20th April, 2009. The offence is alleged to have occurred in the matrimonial home in Dublin where the applicant and his deceased wife lived with two of their children aged twelve years and eleven years. The applicant has worked as a docker for the last fifteen years. He has ten previous convictions recorded against him between 1983 and 2007, most of which are in relation to road traffic offences. Evidence was given in the High Court that the applicant presented himself in the aftermath of the incident at a garda station where he is alleged to have made certain admissions in respect of the alleged offence. There was also some limited evidence of prior domestic disputes between the applicant and the deceased. The application for bail was strongly opposed by the respondent on a variety of grounds, including the seriousness of the allegation, the length of any sentence which might be imposed if the applicant were to be convicted, the strength of the evidence against him, the apprehension that the applicant might flee the State and the further possibility that the applicant would commit further serious offences if given bail. Garda John Paul Moriarty gave evidence in the course of which he stated that the applicant’s two youngest children were now living with their aunt and the two older children were not residing at home. His principal objection to bail related to a matter of which he had become aware arising from an alleged threat made by the applicant. Counsel for the applicant objected to this particular witness giving hearsay evidence about the threat and this objection was upheld by the learned High Court judge. Ms. Claire Graham was then called to give evidence in circumstances where the court was informed in advance that it was proposed to lead hearsay evidence on a certain matter. It was indicated that the proposed evidence concerned fears which were held for the safety of the applicant’s two youngest children. The court decided to hear her evidence. Ms. Graham told the court she was on best friend terms with the deceased for thirteen years and lived around the corner from her. She related that some months before she met her death, Joan Vickers had come to her house and told her that, in the course of an argument at home, the applicant had threatened to kill her, the children and himself if she did not engage in a sexual act with him. The witness told the court that she was concerned that if released on bail the applicant would go after the smaller children and possibly kill himself. This witness was not cross-examined, nor was it suggested to her that she bore any particular ill will towards the applicant or was fabricating what she said in the witness box. Counsel for the applicant adopted the position, as of course he was perfectly entitled to do, that Ms. Graham’s allegations were denied by the applicant and that “inadmissible” hearsay evidence could not be realistically tested in cross-examination by the applicant. Ms. Lisa Anderson gave evidence that she was employed as a social worker in the Dublin North Central area since 1999. She was aware that the younger children were now residing with their aunt and it was her view that they should remain there pending an assessment of their needs and wishes. The applicant himself gave evidence in which he stated he had never made any threat against his children at any time. He stated that he had a good relationship with his children, that he loved them and would never harm them. He further undertook to abide by any conditions of bail which the court might impose upon him. He was not cross-examined on his evidence. In ruling on the matter the learned High Court judge stated that he would not be happy to grant bail without, as he put it, “positive evidence that the children were safe”. He stated that where there were fears for the safety of the children he could not grant bail. He further stated that as regards the other objections, being the serious nature of the allegation and the fear of flight, that these concerns could be dealt with by conditions and he would not refuse for those reasons. He thus concluded that he would refuse bail on the basis that further serious offences might be committed. The appeal to this Court relies on grounds which include the following:-
(2) The learned trial judge erred in according greater weight to the evidence of Ms. Claire Graham than he did to the direct sworn testimony of the applicant. (3) The learned trial judge erred in law in failing to have adequate regard to the appellant’s right to be presumed innocent and in particular in assessing the likelihood of the appellant committing serious offences whilst on bail. DISCUSSION Section 2 of the Bail Act 1997 provides:-
(2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where necessary, receive evidence or submissions concerning-
(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. In response Ms. Sinead McMullan, junior counsel for the respondent, argued that the requirements of s.2 of the Bail Act 1997 were fulfilled in this case. Evidence of an apprehension that the applicant might, if granted bail, commit further offences was a valid ground for refusing bail. The test set down by the Act was not one of probability or any more elevated standard of proof that a further offence would be committed. Instead s. 2 of the Act conferred a discretion on the court to refuse bail if satisfied that such refusal “is reasonably considered necessary” to prevent the commission of a serious offence by the applicant. Further, the decisions in McKeon v. D.P.P. (Unreported, Supreme Court, 12th October, 1995) and The People (D.P.P.) v. McGinley [1998] 2 I.R. 408, clearly demonstrated that while hearsay evidence could not be admitted as a matter of course, such 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 the present case the reason viva voce evidence was not before the court was because the witness was deceased in circumstances where the applicant had been charged with her murder. She submitted that the High Court judge was entirely correct, having regard to the gravity of the danger apprehended by Ms. Graham, to decline to grant bail in those circumstances. The nature of her evidence was, she submitted, far superior to the type of hearsay evidence which might involve a mere recollection of a comment made in passing about an incident that had happened some time ago. She submitted that the court was entitled to attach significant weight to such evidence in circumstances where harm had subsequently befallen Joan Vickers. She pointed out that the court had also heard evidence from Garda Moriarty that there had been a number of previous incidents of domestic violence involving the applicant and the deceased. DECISION I would at the outset caution against attaching excessive significance to the precise terminology adopted by a judge when ruling on a bail application. Judges charged with the responsibility of dealing with anything up to seventy or eighty cases on a Monday in Cloverhill Courthouse must, of necessity, deliver their judgments in ex tempore fashion and very often the reasons for the particular decision will be set out in succinct and simple terms. It is quite clear that the learned High Court judge in this instance refused bail because he was persuaded that the applicant, if granted bail, might commit serious criminal offences involving the lives of his two youngest children. That hearsay evidence is admissible in the context of a bail application has been established in a number of Irish cases. In McKeon v. D.P.P. (Unreported, Supreme Court, 12th October, 1995) an application for the revocation of bail was brought based upon additional information which had come to the knowledge of the gardai that the applicant had received a false passport and had received the assistance of a paramilitary organisation and thus intended not to stand for trial on the date specified in the Circuit Court. As confidential sources were relied upon by the garda when giving evidence, an objection was taken on the basis that such belief evidence was hearsay only. In deciding that the evidence was admissible Hamilton C.J. stated:-
ONUS OF PROOF The contention advanced on behalf of the applicant that the respondent must establish as a matter of probability or to a higher standard of proof the truth of the ground relied upon by way of objection to bail must now be considered. It is undoubtedly the case that a standard of ‘probability’ was referred to in the judgment delivered by Walsh J. in The People (AG) v. O’Callaghan [1966] I.R. 501. In that case an applicant who had been returned for trial on charges of larceny, breaking and entering, malicious damage, receiving, resisting arrest and assault, alleged to have been committed when he was on bail in respect of other charges, was granted bail by this Court on the basis that there was no sufficient evidence that the accused was likely to interfere with the course of justice by interfering with prosecution witnesses. The garda officer in charge of the case, in reply to a question put to him as to his reasons for opposing bail, had said:-
In McKeon, Hamilton C.J. referred to the case of a bail application made by James Columba Dolan in respect of which judgment was delivered by Finlay P. on the 5th November, 1973. He expressed approval for the views of Finlay P in the following passage of his judgment in McKeon:-
However, both of these decisions pre-dated the coming into effect of s.2 of the Bail Act, 1997 on the 15th of May, 2000. 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:-
Thus while the judge dealing with an application will have to consider issues of ‘likelihood’ of further offending 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. If of the view that a real risk of the commission of a further serious offence has been demonstrated the decision of the court must be proportionate to the nature and gravity of the apprehended further offence. There is the world of difference between a risk of an applicant committing, say, a further burglary (albeit that this is a serious offence) and a stated threat of recent origin made by an applicant that, for example, he intended to poison a city’s water supply or to carry out death threats against certain individuals. In the first example a greater degree of likelihood might require to be demonstrated before bail is refused. In the second example, the concept of proportionality might suggest that, once some degree of likelihood has been established, bail should be refused because of the extreme gravity of the apprehended offence, provided of course the fear is not merely fanciful or vague. The critical consideration in the latter circumstance is that the court be satisfied from all the evidence adduced that the risk is a real one. This is not to disturb in any way the requirement on the judge dealing with the matter to bear in mind the presumption of innocence, the prima facie entitlement to bail and the obligation to weigh carefully the hearsay evidence with the other evidence in the case, including the sworn evidence of the applicant. The present case meets all the requirements for the admission of hearsay evidence, most notably because the person who could give viva voce evidence, as per McGinley, is herself dead. In circumstances where the applicant failed to demonstrate any improper motive for bringing forward testimony of the sort given by Claire Graham, or to point to any animus or ill-will felt by the witness towards him, the learned High Court judge was entitled to give credence and weight to the hearsay evidence in this case. In my view he was entitled to have regard to the evidence of prior family arguments, the fact that admissions were allegedly made by the applicant and the gravity of the offence as being matters collateral to the hearsay evidence offered by Ms. Graham which he could and should consider to arrive at his conclusion. | ||||||||||||||
