Court of Appeal: Bail granted for murder charged despite the alleged intimidation of key witnesses

About this case:

• Judgment:
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Ms Ann Nancy Smyth was murdered in her home in Kilkenny on 11th September 1987, and shortly afterwards Mr John Joseph Malone was arrested and questioned in relation to the murder. On this occasion, Mr Malone was released without charge, however the Gardaí re-opened their investigation in 2012, and on 15th October 2015 Mr Malone was arrested and charged with the murder. The consequent murder trial in the Central Criminal Court is scheduled for March 2017.

Fifty-two-year-old Mr Malone lived and worked for most of his life in Kilkenny, and has twenty-eight previous convictions, most of which were dealt with in the District Court. Importantly for the present case, one of Mr Malone’s previous convictions is a charge of intimidation of a witness contrary to section 41 of the Criminal Justice Act 1999, in relation to an assault in 2008.

Bail applications in the High Court

In the High Court in November 2015, Justice Moriarty refused Mr Malone’s application for bail following the hearing of evidence over three days. On the basis of the principles set out in The People (Attorney General) v O’Callaghan IR 501, bail was refused having regard to the nature of the case against Mr Malone, the seriousness of the offence with which he was charged, and the risk that he would interfere with prosecution witnesses.

Having given the aforementioned reasons, the High Court judge added that there remained a possibility even in a very serious case such as this that sufficient independent surety coupled with other conditions might be capable of addressing the bail objections, coupled with other conditions, but that no such proposal was put in those or any comparable terms by the appellant.

In March 2016, Mr Malone again applied to the High Court for bail – this time with the accused’s brother being proposed as a surety. Again, Justice Moriarty was assigned to the case and refused bail for the second time, having regard to two incidents in relation to witnesses in the past; the conviction in 2008 for intimidating a witness and the interaction with a Mr Jude Curran who continues to be a key witness in Ms Smyth’s murder case.

In addition to these and other grounds, the trial judge took into consideration the small size of Kilkenny, and difficulties with the residents.

Court of Appeal

Fifteen grounds of appeal were submitted on behalf of Mr Malone, including the submissions that: Justice Moriatty failed to strike the appropriate balance between Mr Malone’s constitutional right to liberty and the public interest in ensuring the integrity of the trial process, notwithstanding the objection to the granting of bail; Justice Moriarty failed to expressly find that, as a matter of probability, Mr Malone or anyone of his behalf had intimidated or interfered with witnesses, or that such would occur before the trial; and that Justice Moriarty had erred in preferring the testimony of the witness, Mr Curran, to that of Mr Malone.

Evidence of Mr Curran

Mr Curran, a pensioner, gave evidence of Mr Malone’s threatening behaviour in the course of the first application for bail in November 2015. As one of the persons to whom Mr Malone allegedly confessed killing Miss Smyth, Mr Curran described how Mr Malone came to his house one night in 2010 and stuck a knife into the table while indicating that Mr Curran had the power to have Mr Malone arrested and sent to prison for the killing of Miss Smyth.

In addition, Mr Curran alleged that Mr Malone’s brother had approached him outside his house threatened him by indicating that he knew Mr Curran had made a witness statement, and expressing that ‘the gardaí would not always be around to protect him’.

Accordingly, the DPP was objecting to Mr Malone’s continuing application for bail on the basis of this evidence.

Bail conditions

Notwithstanding this objection, Justice Mahon granted Mr Malone bail on strict conditions. In summing up, Justice Mahon stated that it was necessary for the Court to have particular regard to Mr Malone’s constitutional presumption of innocence; the lack of evidence of any actual or attempted intimidation of Mr Curran or any other prosecution witness by Mr Malone since 2010; and the fact that the trial is not scheduled to begin until March 2017.

Mr Malone could therefore be released on bail after satisfying a surety of €7,500 in cash.

Upon release, Justice Mahon ordered that Mr Malone must live at his mother’s home in Newpark, Kilkenny; surrender his passport; will be forbidden from entering the part of Kilkenny city north of the River Nore, other than to sign on daily at the Garda station; and must refrain from contacting Mr Curran and other prosecution witnesses.