High Court: Three brothers refused bail for witness intimidation risk

About this case:

• Citation:
  [2020] IEHC 206
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Rose Gearty

Background

Dennis Hannifin, Thomas Hannifin, and Willie Hannifin stand accused of committing violent disorder, and the latter two also face assault charges, all arising out of the same incident. All three sought bail. Since the alleged offences occurred, the homes of the complainant and members of his family have been subjected to shooting and petrol bomb attacks, carried out by unknown assailants.

The Director of Public Prosecutions objected to bail on the grounds that, if released, they would interfere with witnesses, and that there was a risk that they would commit further serious offences. The men argued that no evidence linked them, personally and directly, with these attacks and that they were entitled to bail. Each of them offered to abide by any conditions that the Court considered necessary to impose in order to ensure that they would not interfere with witnesses or commit any serious offences if released.

The three men deny the commission of any criminal offence. The evidence was that none of them have any previous convictions and that none of them had ever been the subject of a bench warrant. It was not contested that there was an ongoing feud between the family of the three men and the family of the complainant.

The prosecuting garda testified that five separate attacks have occurred on the home of the complainant and members of his immediate family. Shots were fired outside his house on two separate dates in February 2020. On both occasions the bullets fired broke windows. On 12 February shots were fired at the home of the complainant’s brother, who lives nearby. “A very young child was in the house at the time.”

Later in February, petrol bombs were left at both homes on separate dates. The complainant gave evidence confirming the series of attacks and asserting that he was in fear of the three men. He pointed out that he had been living at that house for over three years and had never suffered any violence or threat of violence there until these incidents. He was cross-examined about his evidence that he was in fear. He accepted that he had made a video challenging any of the three men to a fist fight. He replied that a fist fight with one of them was a very different thing to being shot.

High Court

Ms Justice Mary Rose Gearty noted the general presumption that every applicant has a right to bail as part of their constitutional right to personal liberty and to a fair trial. She cited the judgment of Mr Justice Brian Walsh in People (Attorney-General) v O’Callaghan [1966] IR 501, “the presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial”. In order to give effect to these rights, bail must be granted in every case unless it is necessary, on a sound legal and evidential basis, to refuse bail.

An application may be successfully opposed in particular circumstances, such as where there is proof that an applicant is likely to interfere with a witness in the case against him, as provided for in O’Callaghan. The Bail Act 1997 added the ground of a real risk that an applicant will commit a serious offence if released.

The burden of proof in every bail application is on the prosecution, as per the Supreme Court judgment in People (AG) v Gilliland [1985] I.R. 643. Every bail application starts from the position that the applicant is entitled to bail. In O’Callaghan, Mr Justice Walsh held that the standard of proof required in a case such as this is proof that the applicant will probably interfere with a witness. A court must consider the seriousness of the offence charged, the nature of the evidence supporting the charge, and the record of the accused.

In Vickers v Director of Public Prosecutions [2010] 1 I.R. 548, the Supreme Court confirmed that the standard of proof required under section 2 of the Bail Act 1997, being that the refusal of bail is “reasonably considered necessary”, is not the same as the probability standard required under O’Callaghan. The section 2 objection, that there is a real risk that a serious offence may be committed, must be considered by assessing the likelihood of the commission of an offence, which can only be assessed by reference to the evidence.

Ms Justice Gearty referred to the case of DPP v McLoughlin [2010] 1 I.R. 590, where Ms Justice Susan Denham said that “a finding that as a matter of probability, a person had or would, or someone on his direction had or would, intimidate or interfere with witnesses, should be made expressly by the court. 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.”

Ms Justice Gearty said that as it was accepted that the complainant threw the first punch, the suggestion appeared to be “that the second-named applicant might have been acting in self-defence. Given the evidence that he was then joined by his family who had driven to the scene, two of them armed with an axe and a hurl, any self-defence aspect of the case seems weak.”

In considering whether there were any conditions that might reassure the court that they could be safely remanded on bail, the judge found that there “is no curfew, contact or residence requirement which could prevent a similar attack, particularly where, as this Court has found, the Applicants are capable of directing others to carry out such attacks”.

Bail was denied for all three men.