DPP v McLoughlin: Difference between revisions
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"The result of this is that hearsay evidence may be admissible in a bail application, but quite exceptionally, and when a specific, recognised, ground for its admission has been properly established by ordinary evidence"<ref name=":02">{{Cite web|url=https://www.bailii.org/ie/cases/IESC/2009/S65.html|title=DPP -v- McLoughlin [2009] IESC 65 (31 July 2009)|website=www.bailii.org|access-date=2019-10-09}}</ref>. |
"The result of this is that hearsay evidence may be admissible in a bail application, but quite exceptionally, and when a specific, recognised, ground for its admission has been properly established by ordinary evidence"<ref name=":02">{{Cite web|url=https://www.bailii.org/ie/cases/IESC/2009/S65.html|title=DPP -v- McLoughlin [2009] IESC 65 (31 July 2009)|website=www.bailii.org|access-date=2019-10-09}}</ref>. |
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== References == |
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{{Reflist}} |
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===''O'Keeffe v Connellan and Others''=== |
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{{Infobox court case|name= (O'Keeffe v Connellan and others) |court=[[[[Supreme Court of Ireland]]]]|image=|imagesize=|imagelink=|imagealt=|caption=[[Coat of arms of Ireland]]|full name= O'Keeffe v District Judge Connellan|date decided=24 March 2009|citations={{[https://www.bailii.org/ie/cases/IESC/2009/S24.html [2009<nowiki>]</nowiki> 3 IR 643]}}|transcripts=|judges=[[Adrian Hardiman (judge)|Hardiman J]], [[Niall Fennelly (judge)|Fennelly J]],[[Joseph Finnegan|Finnegan J]]|number of judges=3|decision by= Hardiman J|concurring= Fennelly J, Finnegan J||appealed from=[[ Hanna J. High Court (Ireland)|High Court 29 June 2005; 2003 708 JR]]|appealed to=[[Supreme Court of Ireland|Supreme Court]]|keywords={{hlist| [[[[Certiorari]]]] | Return to Trial | [[[http://www.irishstatutebook.ie/eli/1999/act/10/enacted/en/html Criminal Justice Act]]] | [[Procedural Duties]]}} |
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In '''''O'Keeffe v Connellan and Others''''', [2009] 3 IR 643; [2009] IESC 24, The [[Supreme Court of Ireland|Irish Supreme Court]] overruled the decision of the High Court. This was an application for an order of [[Judicial review|Judicial Review]] quashing a return for trial and an order of the Circuit Court requiring the applicant to attend for sentencing<ref>{{Cite web|url=https://www.bailii.org/ie/cases/IEHC/2015/H638.html|title=Li & anor -v- Minister for Justice & Equality [2015] IEHC 638 (21 October 2015)|website=www.bailii.org|access-date=2019-12-18}}</ref>. It was held that there was an error of jurisdiction on the part of the District Court and a breach of fair procedures in the trial<ref>{{Cite book|title=Walsh on Criminal Procedure|last=Walsh|first=Dermot|publisher=Round Hall|year=2016|isbn=978-0-41403-504-1|location=Dublin|pages=1814}}</ref>. This case highlighted the continuing judicial willingness to intervene in the context of Judicial Review applications to quash decisions made where unlawfulness, unreasonableness, irrationality and unfairness can be demonstrated<ref>{{Cite journal|last=More O'Ferrall|first=Sophie|date=2011|title=Thomson Reuters Round Hall Judicial Review Conference|url=https://login.westlaw.ie/maf/wlie/app/document?&srguid=i0ad6ada70000016f1a216698f0ef3979&docguid=I371452F4D8C5496A84211AB09B16816B&hitguid=I371452F4D8C5496A84211AB09B16816B&rank=14&spos=14&epos=14&td=14&crumb-action=append&context=45&resolvein=true|journal=The Bar Review|volume=16(1)|pages=|via=westlaw.ie}}</ref>. |
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== Background == |
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On September 3rd 2001, Thomas O'Keeffe was arrested charged, and brought before the [[District Court (Ireland)|District Court]] In [[County Kildare]] for assault offences In relation to an episode that had occurred the previous day. On September 27th, the district court refused jurisdiction over the three charges against O'Keeffe; Section 11 of the Criminal Justice (Public Order) Act, Section 2 of the Criminal Damage Act, and Section 3 of the Non-Fatal Offence against the Person Act, 1994.<ref name=":2">{{Cite web|url=https://www.bailii.org/ie/cases/IESC/2009/S24.html|title=O'Keeffe -v- District Judge Connellan|last=Ireland|first=Courts Service of|website=www.bailii.org|access-date=2019-12-18}}</ref>. Thomas O'Keeffe was then returned for trial under Section 4(b)(i) of the Criminal Procedure Act under the initial three charges and one more contrary to Section 16 of the Criminal Justice (Public Order) Act. |
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Coinciding with this case was the change in the law brought about by Section 2(2) of the Criminal Justice Act, which was to come into force on the 1<sup>st</sup> October, 2001. This provision abolished the procedure contained in the Criminal Procedure Act which allowed for preliminary examination of indictable offences in the District Court. None of the parties in this case seemed to be aware of or pay any attention to, the change in the law brought about by s.2(2) of the Criminal Justice Act. |
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The provision did not apply to cases if any steps had already been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person<ref name=":3">{{Cite web|url=https://www.bailii.org/ie/cases/IESC/2002/52.html|title=Zambra v. McNulty [2002] IESC 52 (27 June 2002)|website=www.bailii.org|access-date=2019-12-18}}</ref>. O'Keeffe was tried on indictment, before the learned second-named respondent ,Groarke's J , sitting in the Eastern Circuit and County of Kildare On the 30<sup>th</sup> April, 2002 for the offences already described. These were the offences that the District Court had refused jurisdiction on the 27<sup>th</sup> September, 2001. |
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In relation to the O'Keeffe case, on the 27<sup>th</sup> June, 2002, this court dismissed the Director of Public Prosecution's appeal against the High Court decision in [https://app-justis-com.jproxy.nuim.ie/case/zambra-v-mcnulty/overview/c4CZm1atn5Wca ''Zambra v. McNulty'']<ref name=":3" />. |
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At no stage of the Circuit Court proceedings up to and including conviction was any point taken on the Justice Connellans' omission by or on behalf of the present applicant. The point was taken by counsel for the Director of Public Prosecutions. On the 12<sup>th</sup> November, 2002 to the Circuit Judge making "no order" in the case at the request of counsel for the Director of Public Prosecutions. It was stated that the Director intended to apply to the High Court for an order quashing the return for trial. If that had occurred, the Director would presumably then have reinstituted the proceedings, which he did in several other cases such as ''Zambra v Mcnulty''<ref name=":2" />. |
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In November of 2003,The High Court granted the applicant leave to seek ''orders of Judicial Review'' quashing District Judge's order returning the applicant for trial and [[Raymond Groarke|Justice Groarke]]'s order of the 15<sup>th</sup> July, 2003 requiring the applicant to attend before the Court for sentencing.<ref name=":2" /> The learned trial judge, though finding in the applicant's favour on the substantive legal issues and on certain matters of defence raised by the respondents, refused to grant him relief, in the exercise of his discretion<ref name=":2" />. The High Court Judge was heavily influenced by the decision of Justice Ó'Caoimh in ''[https://app-justis-com.jproxy.nuim.ie/case/jacobs-v-district-judge-brophy/overview/c5aZm5CtmWWca Jacobs v. Brophy (High Court, unreported, 21<sup>st</sup> March 2003)]'' where it was stated "this relief is discretionary and this Court must take into account all the circumstances of the case in assessing whether in its discretion the applicant should in the exercise of the Court's discretion be granted the relief" |
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=== Infobox, located at the right of the article in its own box (this is 'sub-heading 1') === |
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Every Irish Supreme Court case should use the [[Template:Infobox court case|infobox court case template]]. This can be the last part to add to your article. When you are in edit mode you can click on the infobox and select edit or you can use "edit source" to add information. If you have any trouble with the infobox post a message on the Moodle discussion forum asking for help. |
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== Holding of the Supreme Court == |
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The Supreme Court held that, dating back to the 27th of September when the District Court Judge, Connellan J, refused jurisdiction and this refusal was accepted as a 'step' in the proceedings of Thomas O'Keeffes' case in accordance with Section 23 on the Criminal Justice Act. The learned trial judge should have should then have conducted a preliminary examination of the charges pursuant to Part II of the Criminal Procedure Act. The requirement of the District Judge to do this was a mandatory one under that statute.<ref name=":2" /> Justice Hardiman held that the return to trail was invalid due to the circumstances surrounding it. This return to trial was justified by the Director of Public Prosecutions, who was a party to this case and also to Zambra, through the fact that it had not yet been quashed and because the applicant had not sought a preliminary examination in the District Court. As stated by the submissions of the [[Director of Public Prosecutions]] to this Court: |
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"This case essentially relates to the discretionary nature of relief by way of judicial review, particularly in cases where the person seeking the relief has already been convicted by a jury."<ref name=":22">{{Cite web|url=https://www.bailii.org/ie/cases/IESC/2009/S24.html|title=O'Keeffe -v- District Judge Connellan|last=Ireland|first=Courts Service of|website=www.bailii.org|access-date=2019-12-18}}</ref> |
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It was stated by the Supreme Court, Hardiman J. that, the learned District Court Judge omitted to proceed in accordance with his statutory obligations and that the Director of Public Prosecutions failed or neglected to direct his attention to Section 23 of the Act of 1999 which was quite significant in the ''O'Keeffe'' case. Both of these parties acted in clear disregard for the statutory obligations of the first named respondent and the applicants statutory entitlements, making the return to trial invalid regardless if the trial had not been quashed or not. |
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The Supreme Court considered the ruling of Justice Griffin in ''[https://app-justis-com.jproxy.nuim.ie/case/glavin-v-governor-of-mountjoy-prison/overview/c4CJnXydoWWca Glavin v. The Governor of Mountjoy Prison] [1991] 2 IR 421'' where it was stated that: |
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"Every accused person has a constitutional right to have any necessary preliminary examination in the District Court conducted by the District Justice who was duly appointed in accordance with the provisions of the Constitution and whose warrant was extant when the examination took place"<ref name=":2" />. |
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In the case of ''The State (Vozza) v. O'Floinn [1957] IR 227'' on an appeal to the Supreme Court, The court reversed the High Court decision and granted relief to Mr. Vozza. Chief Justice Maguire gave the principal judgment that: |
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"While I am prepared to agree that in strictness, except where it goes as of course, the granting of an ''order of certiorari'' is in all cases a matter of discretion, I am of opinion that in cases where there is conviction on the record, made without jurisdiction, the court can only exercise that discretion in one way, viz by quashing the order." |
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For the granting of relief, the court must be satisfied "not only as to matters such as default in the performance of a public duty and jurisdictional error, but also that it would be just and proper in all the circumstances to grant relief"<ref>{{Cite book|title=Hogan and Morgan's Administrative Law|last=Morgan|first=David|publisher=Round Hall|year=2012|isbn=978-1-85800-687-1|location=Dublin|pages=573}}</ref>. In this case, the Supreme Court granted O'Keeffee relief through an order of Judicial Review quashing the order sending Mr. O'Keeffe forward for trial. Therefore, Mr. O'Keefe was successful in his proceedings. |
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== See also == |
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== External links == |
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Revision as of 12:07, 27 April 2020
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{{Infobox court case|name= (DPP v McLoughlin) |court=Supreme Court of Ireland|image=|imagesize=|imagelink=|imagealt=|caption=Coat of arms of Ireland|full name= DPP v McLoughlin|date decided= 31 July 2009|citations={{[2009] IESC 65 }}|transcripts=|judges=Denham J, Hardiman J, Geoghegan J|number of judges=3|decision by=Denham J, Hardiman J|concurring= Geoghegan J.|appealed from= Butler J. High Court 25 May 2009;2009 788 SS |appealed to= Supreme Court| summary.|keywords=
- [[Bail Application]]
- Personal Rights
- [[Hearsay evidence]]
- Witness Intimidation
DPP v McLoughlinIn [2009] IESC 65 was an Irish Supreme Court case, which confirmed that when objecting the granting of bail where alleged witness intimidation is raised, the judge in the application itself should be satisfied of the probability of the risk of interference or intimidation and make that finding expressly.[1]The decision of Denham J, goes on to state in regards to hearsay that:
"The relevance and weight of such evidence is a matter to be determined by the trial judge and that a judge should be careful on the weight he or she places on such evidence".[2]
Background
On the 26th of November 2008, Tristan McLoughlin was charged with assault causing harm contrary to Section .3 of the Non-Fatal Offences Against the Person Act 1997 and was remanded in custody[2] It is alleged that the assault occurred in a pub in Naas where due to the attack, the victim received 100 stiches over a period of four hours. The injured party and the appellant also knew each other.[2] His Brother had also been charged in relation to the same incident and was instead charged with common assault and was awaiting his sentencing.
In the High Court, the prosecution objected to bail.This objection was on the basis that there was an alleged risk of witnesses' being interfered with as reported by Detective Inspector Hanrahan. As they had allegedly been intimidated in such a manner prior to the trial of the Appellant's brother. Where the injured party withdrew their statement die to this intimidation. One prosecution witness, for example, had their tyres slashed prior to the brothers case. There was an objection to the hearsay evidence and the case was adjourned until the 25th May, 2009. When the court re-adjourned, the counsel for the Director told the Court that none of the witnesses who had allegedly been intimidated were in court[2]. The trial judge heard the evidence of the witnesses', de bene esse, even thought the objection to hearsay evidence continued.
On cross examination, Detective Inspector Hanrahan agreed that there was no witness present in court to say that they were intimidated by the defendant or any member of his family and that that was because they were afraid to come to court. Cross examination was a crucial part of this trial as it ties the issue of the intimidation of witnesses to the application for bail.
A number of Gardaí gave evidence of receiving complaints of intimidation, these complaints were accepted by the learned trial judge who went on to also agree that; yes, the applicants case is separate to his brothers, but the two cases are connected by their 'facts and witnesses'[2]. The judge also stated that hearsay evidence would be accepted in this case due to the circumstances and that the defendant should be refused bail.
Infobox, located at the right of the article in its own box (this is 'sub-heading 1')
Every Irish Supreme Court case should use the infobox court case template. This can be the last part to add to your article. When you are in edit mode you can click on the infobox and select edit or you can use "edit source" to add information. If you have any trouble with the infobox post a message on the Moodle discussion forum asking for help.
Holding of the Supreme Court
The Appeal was allowed by the Supreme Court Judges and was remitted to the High Court. With regard to the issue of hearsay in bail applications, Justice Denham and Justice Hardiman accepted the admissibility of the hearsay evidence in the McLoughlin case, and stated that the relevance and weight of such evidence is a matter to be determined by the trial judge, but warned of the level of importance placed on it. Hardiman J, his opinion in accordance with DPP v. McGinley [1998] 2 IR 408 stating that, the hearsay rule can lead to injustice if applied in a "rigid and unyielding manner" and for this reason, numerous exceptions have been grafted on to the general exclusionary rule.
It was decided by the Supreme Court, regarding hearsay that:
“The test is not whether the members of An Garda Síochána have fears or an apprehension for witnesses. The court itself should be satisfied of the probability of the risk of interference or intimidation and make that finding expressly”. In this particular case, it was noted by Hardiman J. that the evidence given by Gardaí regarding the information from the unknown source was hearsay evidence as it "implied the truth of assertions made by an unknown person whose credibility and general integrity as a witness could not be tested by cross-examination”.
Justice Keane stated in the ruling in the McGinley case that:
"Where there is evidence which indicates as a matter of probability that the applicant, if granted bail, will not stand his trial or will interfere with witnesses, the right to liberty must yield to the public interest in the administration of justice. It is in that context that hearsay evidence may become admissible, where the court hearing the application is satisfied that there are sufficient grounds for not requiring the witnesses to give viva voce evidence."[2]. This was referenced in Justice Denham's opinion, In The McLoughlin case, no direct viva voce evidence was given by witnesses of intimidation, meaning that these witnesses could not be cross examined. In the words of Hardiman J.,
"the admission of hearsay evidence effectively stymies cross-examination because; "one cannot hope to shake a witness who can repeat that they are only saying what they were told, these difficulties are compounded by the lack of opportunity on the part of the court to observe the demeanour of the hearsay declarant under cross-examination"[3].
Overall, in the McLoughlin case the admissibility of the hearsay evidence in this case was allowed but it was reiterated that this was an exception to the rule,
"The result of this is that hearsay evidence may be admissible in a bail application, but quite exceptionally, and when a specific, recognised, ground for its admission has been properly established by ordinary evidence"[4].
References
- ^ Jane Mulachy, "The practice of pre-trial detention in Ireland Research Report" (2016) 1 (1) (IPRT) https://www.iprt.ie/site/assets/files/6383/ptd_country_report_ireland_final_updated.pdf p.43
- ^ a b c d e f "DPP -v- McLoughlin [2009] IESC 65 (31 July 2009)". www.bailii.org. Retrieved 2019-10-09.
- ^ McGrath, Declan (2014). Evidence. Dublin: Round Hall. p. 279. ISBN 978-0-41403-505-8.
- ^ "DPP -v- McLoughlin [2009] IESC 65 (31 July 2009)". www.bailii.org. Retrieved 2019-10-09.