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White v. D.P.P. [2003] IEHC 21 (20 May 2003)

THE HIGH COURT

Record No. 2002/2563 SS

(In the matter of an application for Bail)

Between:

Leslie White

Applicant

And
The Director of Public Prosecutions

Respondent

Judgment of Mr Justice Michael Peart delivered the 20th May 2003

On the 19th December 2002, the applicant was refused Bail by Mr Justice Butler having heard objections to bail being granted pursuant to Section 2 of the Bail Act, 1997.

The applicant stands charged with two offences as set out in detail in his affidavit filed on 2nd May 2003 for the purposes of this application under section 3 of the said Act. Those charges relate to the possession of a firearm and ammunition in such circumstances that he did not have same in his possession for a lawful purpose. It is alleged by the Prosecution that on the date in question these items were in the possession of the applicant for the purposes of killing one Declan Griffin, having been contracted by others so to do. It appears that in addition to being in possession of the said items, the applicant was in possession at the time of a sum of cash amounting to €17,000, which Garda Moran

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stated he believed was the payment for carrying out the murder of Declan Griffin. He was also in possession of a photograph and personal details of Declan Griffin.

I have been handed an agreed note of the evidence given to Mr Justice Butler on the said hearing of the application for bail. It is clear that on that occasion the evidence was that if granted bail, there would be a continuing risk to the life of the said Declan Griffin. In refusing bail, Mr Justice Butler stated that he had to balance the applicant's right to bail against the specific risk to the life of Declan Griffin, in view of the evidence heard as to the circumstances of the case. In cross-examination, it appears that Garda Moran indicated that he had no reason to fear that if granted bail the applicant would not turn up for his trial.

According to the affidavit of the applicant sworn for the purpose of this application, the said Declan Griffin has subsequently died on 6th April 2003 as a result of injuries received in a shooting which occurred in a public house, and that a man has been charged with his murder.

The present application is a renewal of the application for bail pursuant to the provisions of section 3, subsection 1 of the Bail Act, 1997. Section 3 provides as follows:

"3. - (1) Where an application by a person for bail -

(a) has been refused by a court under section 2, and

(b) the trial of the person for the offence concerned has not commenced within 4 months from the date of such refusal,

then, the person may renew his or her application for bail to that court on the ground of delay by the prosecutor in proceeding with his or her trial, and the court shall, if satisfied that the interests of justice so require, release the person on bail.

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(2) In determining whether to grant or refuse an application under subsection (1), a court may receive evidence or submissions concerning the delay in proceeding with the trial of the person concerned.

(3) Nothing in this section shall affect the operation of section 24 of the Act of 1967."

From the evidence given before me on this application, it is clear that the said 4 month period has elapsed from the date of refusal of bail by Mr Justice Butler. However, the Book of Evidence has been served, but outside the necessary time, although an extension of time was granted. The applicant has apparently changed his solicitor in the meantime and the matter is in for mention before the court on 4th June 2003. Certain disclosure has been sought by the applicant and I am told that this will be responded to shortly. While there has been delay, it cannot be reasonably said that the prosecution is guilty of any culpable delay, but section 3 does not refer to culpable delay, merely delay. On that reading of the section, therefore, it is the fact that no trial has taken place within 4 months which is relevant, rather than any reason for the delay. That seems to be confirmed by subsection (2) of section 3 which states that in determining whether to grant bail, the court may receive evidence or submissions concerning the delay. It is not therefore mandatory that it does so.

Counsel for the Respondent has raised a preliminary point that the matter of bail is res judicata since the decision of Mr Justice Butler in December 2002, and submits that it is only where there is what could be described as culpable delay on the part of the prosecution that the applicant can renew his application, and only then that the court can proceed to consider whether it is satisfied that the interests of justice require that the applicant be granted bail.

A person's right to bail, and consequently his liberty pending trial on offences in respect of which he enjoys the presumption of innocence, is an important right, and in my view,

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the Act must be interpreted strictly in accordance with the ordinary meaning of the words used in the Act, and that in any case of ambiguity or doubt, the benefit of such ambiguity or doubt ought to be given to an applicant for bail. I am therefore satisfied that it is open to this court to construe the section as meaning that once the fact of the matter is shown to be that a period of 4 months has elapsed from the making of a refusal under section 2, this court on the hearing of a renewed application can go on to consider whether the interests of justice require that the applicant be granted bail, and that the court may or may not require to hear evidence or submissions in relation to the delay which may have occurred.

In the present case, it is clear from the agreed note of the evidence before Mr Justice Butler in December 2002, that the real objection to bail was related to the threat which it was perceived the applicant would still pose to the life of the said Declan Griffin. No other evidence relating to any other fears was given. Indeed, Garda Moran appears to have been satisfied that, if granted bail, the applicant would turn up for his trial. Now that Declan Griffin's life has been taken by another person, it follows that the ground of objection no longer exists.

Counsel has referred me to Criminal Procedure (2002 Thomson Round Hall) by Dermot Walsh, where the learned author at page 534 states as follows in relation to an application, such as this one, under section 3:

"The wording of this provision is unusual in that the application must be brought on the basis of delay, while the court is required to release the person on bail if satisfied that the interests of justice so require. There is at least an implication that the court would be obliged to release the defendant on bail if satisfied that that was in the interests of justice, even though it was not satisfied that there had been delay on the part of the prosecutor. It is also worth noting that the provision is mandatory. The court must grant bail where it is satisfied that the interests of justice so require."

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This accords with my own view expressed above that the delay does not need to be what I have described as culpable delay on the part of the prosecutor.

I was also referred to an article in The Bar Review, Vol 3, Issue 7, dated May 1998 at pages 320-321 by Micheal P. O'Higgins, Barrister, but that article does not address the question of whether delay must be culpable, but deals with circumstances which might justify the court in reaching a conclusion that the interests of justice require the granting a renewed application for bail under section 3, and the author instances a case in which a previously relied upon ground of opposition to bail may have been removed or rendered less significant.

In all the circumstances of this case I am satisfied that the Act should be interpreted in the way I have described, for the purpose of doing justice in the unusual circumstances of this case, and bearing in mind the presumption of innocence which the applicant enjoys. Accordingly, I am satisfied that the passing of a period of 4 months from the date of refusal of bail is sufficient, without more, to trigger the following part of section 3, subsection (1), namely a consideration of the interests of justice. Having considered the interests of justice in the context of the facts of this case, I am satisfied that I should consider the remainder of this application for bail.