The Director of Public Prosecutions (prosecutor) v Mark Desmond (accused/ applicant).

Criminal Law - Bail - Principles to be applied when granting or refusing bail - Whether there was an intention to evade justice on part of applicant - Whether witnesses would be interfered with - Likelihood to commit further offences - Delay.

The High Court (Mr Justice Kelly); judgment delivered 26 April 2001.

Where the applicant has a right to bail it is a right and not a privilege. Such a right is not absolute and must be balanced against the public interest in ensuring the integrity of the trial process is protected. Where evidence is accepted that as a matter of probability an applicant, if granted bail, would not stand trial or would interfere with witnesses or would commit serious offences while on bail, the right to liberty may have to yield to the public interest in the administration of justice. The High Court so held in dismissing the application and refusing bail.

Garnet Orange BL for the accused/ applicant; Micheal O'Higgins BL for the prosecutor.

Mr Justice Kelly outlined the facts surrounding the application. The applicant was charged on two counts of murder relating to the deaths of Patrick Murray and Darren Casey who disappeared in December 1999. Their bodies were recovered from the Grand Canal on 9 and 10 January 2000. Both had been shot and appeared to have been in the water for a number of days. As a result of being charged with both murders, the applicant was now seeking release from custody on bail which was strongly opposed by the Director of Public Prosecutions.

Mr Justice Kelly said that at the outset it must be borne in mind that the applicant is presumed innocent in respect of these charges. In his view, this presumption is a real one and not a mere formula of words and he would bear it very much in mind. In addition to this, the applicant also has a right to bail which is a right and not a privilege. However, as with many rights, it is not absolute and must be balanced against the public interest in ensuring the integrity of the trial process is preserved. It was further considered that where evidence is adduced that as a matter of probability, the applicant if granted bail, would not stand trial or would interfere with witnesses, the public interest in the administration of justice may outweigh the right to liberty.

The likelihood that the applicant would also commit serious offences while on bail was also a factor to be considered and was included in the DPP's grounds of opposition to bail along with other possibilities recognised by the court.

Mr Justice Kelly considered each of the grounds of opposition in turn. The first of these referred to the failure to stand trial as a result of the applicant being granted bail. Reference was made to previous occasions where the applicant had, in the past, failed to honour bail terms resulting in warrants being issued for his arrest. In fact four such warrants had been issued for crimes that included robbery, assault and charges under section 112 of the Road Traffic Act. On the occasion the accused had been arrested for these offences gardai were forced to give chase over nine miles of the Dublin area at rush hour and at high speed.

The applicant did admit in that instance his actions were consistent with an attempt by him to evade arrest. When the matters came for trial the applicant failed to turn up in court because he had been shot the previous evening. Mr Justice Kelly was satisfied on the evidence before him that this injury was in fact self-inflicted and was indicative of the measures the applicant was willing to take to evade justice.

He also pointed to three other instances where warrants had been issued in the District Court in more recent times. In his view, none of the explanations put forward in respect of the failure to observe bail terms in relation to those offences were convincing, nor did they excuse the non-appearance. The applicant had a considerable history of non-observance of bail terms and it was the court's opinion that the past was, in his case, a good indicator of the future.

Mr Justice Kelly stated that over and above this however,

there were other aspects of the applicant's behaviour that satisfied him there was a reasonable probability of non-appearance if bail was granted. Reference was made to the fact the applicant left the country shortly after the bodies of the deceased persons were recovered and went to London via Belfast using a false name and taking back roads through the night. It was considered that the explanation offered by the applicant that he was returning a pigeon to Northern Ireland was somewhat suspicious and unbelievable.

In addition to this Mr Justice Kelly felt that such evidence on this and many other matters was quite unsatisfactory and that where the applicant's evidence conflicted with any other evidence he would prefer the alternative. In relation to the trip to London, evidence was adduced that the applicant had used a false name while there, he had procured a false driving licence and had also given the false identity to the police following his arrest in London. When questioned about his unusual route to and from London, the applicant said he was in fear of "spy agents" who he says were following him.

Mr Justice Kelly refused to accept this explanation along with the applicant's story that he was offered protection by the police officers who arrested him in the UK. The applicant further evinced an intention to evade justice when he fled having been stopped at a checkpoint in July 1999. On this basis Mr Justice Kelly was satisfied the evidence showed a reasonable probability the applicant if granted bail would not honour it.

Mr Justice Kelly then went on to consider the likelihood of interference with witnesses as suggested by the Director of Public Prosecutions. Three instances were relied upon, two of which were discounted in their entirety. In one case, the witness to give evidence failed to appear and in another, an attempt to adduce hearsay evidence in support of the contention was made. In relation to the witness who it was alleged was terrified to appear and give evidence, it has been established she was never asked to come to court and the view taken concerning her reluctance to attend was based on information compiled many months ago. The third instance referred to by the Director of Public Prosecutions concerned a direct threat to Detective Sergeant O'Gara after the accused had been arrested for the murders.

This was considered by the court to be a serious threat which the applicant was in a position to carry out and was taken seriously by the detective sergeant himself. This was sufficient to satisfy the probability that witnesses would be interfered with if bail was granted.

The third ground relied upon by the Director of Public Prosecutions in opposing bail for the applicant was based on the likelihood of committing offences. Evidence was adduced of a road traffic offence being committed while on bail on a previous occasion.

Mr Justice Kelly was of the opinion that this was not sufficient to discharge the onus of proof in this case on this aspect of the matter but that there was a reasonable probability that the applicant if granted bail would not turn up for trial and would interfere with the relevant witnesses. Mr Justice Kelly considered that the offences charged were the most serious, carrying mandatory life sentences. Without delving deeply into the evidence to be given at trial, it was sufficient in his opinion to say that there was a substantial body of evidence against the accused and given the applicant's propensity to evade justice in the

past, the incentive to do so here was much greater. In relation to the issue of delay in serving the book of evidence, Mr Justice Kelly stated that he was conscious of the fact that by refusing bail the applicant would be in jail longer than he should prior to trial but that priority would be given to the case. Even taking such delay into account however, it would not, in his view, justify the applicant being granted bail.

Accordingly, Mr Justice Kelly refused bail and the application was dismissed.

Solicitors: James Orange & Co (Dublin) for the applicant/ accused; the Chief State Solicitor for the Director of Public Prosecutions.

Suzanne Burke

Barrister