THE SUPREME COURT

No. 115/2000

Keane C.J.
Denham J.
Murphy J.
Hardiman J.
Geoghegan J.

115/00

IN THE MATTER OF AN APPEAL UNDER
SECTION 29 OF THE COURTS OF JUSTICE
ACT, 1924

AND IN THE MATTER OF AN APPLICATION FOR
BAIL PENDING APPLICATION FOR LEAVE TO APPEAL

THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS

V.

PATRICK CORBALLY

Judgment of Mr. Justice Geoghegan delivered the 15th day of December 2000

This is an appeal from a decision of the Court of Criminal Appeal refusing bail to the appellant, the above-named Patrick Corbally, pending the hearing of an application for leave to appeal against convictions in the Circuit Court. The appeal is brought with leave of the Court of Criminal Appeal, that court having issued a [*2] certificate pursuant to s. 29 of the Courts of Justice Act, 1924, that its decision refusing bail involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on that decision. The certified point of law is:-

		“What are the appropriate principles upon which the
Court of Criminal Appeal should grant bail to a convicted person who has sought leave to appeal or being granted leave to appeal.”

Particularly, in the light of amended legislation to which I will be referring there is no very clear decision of the Court of Criminal Appeal as to the correct principles to be applied though the closest to such a decision is The People (DPP) v. Sweetman [1997] 3 IR 448. There have been some other cases put forward by counsel but these are for the most part ex tempore judgments, not intended to lay down general statements of principle. Understandably they are not entirely consistent with each other as in some, bail appears to have been granted or refused on the basis of whether there was an arguable appeal and in others as to whether there was a strong appeal. As I will be pointing out, some of the difficulties flow from the wording of the relevant legislation combined with the system under which appeals to the Court of Criminal Appeal have been dealt with over many years.

	Until the passing of the Criminal Procedure Act, 1993 bail could not be granted by the Court of Criminal Appeal unless either the trial judge certified that the case was a fit case for appeal or that court had first granted leave to appeal. This settled [*3] jurisprudence arose from the wording of s. 32 of the Courts of Justice Act, 1924. That section was later amended by s. 3(6) of the Criminal Procedure Act, 1993, but in its unamended form it read as follows:-

 “Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an order admitting the appellant to bail pending the determination of his appeal.”

	S. 3(6) of the 1993 Act reads as follows:-

“Section 32 of the Courts of Justice Act, 1924, is hereby amended by the addition after ‘pending the determination of his appeal’ of ‘or application for leave to appeal”.

		The form that the amendment takes gives rise to a slight problem of interpretation. It has been assumed (and I think correctly) that what was intended by the Oireachtas was quite simply to give the Court of Criminal Appeal power to grant bail pending an application for leave to appeal even though leave had not yet been granted. But if that is so, then where such bail is being granted pending determination of an application for leave, the order for bail can hardly be described as a “consequential order”. On the contrary it is a pre-hearing order. But since there is no other meaning that makes sense I think that the interpretation which has been placed on the section by O’Flaherty J. in the Sweetman case and by the Court of [*4] Criminal Appeal generally, must be correct and that the problem is simply one of faulty draftsmanship.
	
		But I think it reasonable to interpret s. 3(6) of the Criminal Procedure Act, 1993 in the context of how the procedural jurisprudence of appeals to the Court of Criminal Appeal has developed over the years. I say this because a mere reading of the relevant sections would not of itself give rise to any understanding as to how the appeal procedure is worked out in practice. In the vast majority of cases the trial judges refuse certificates enabling the convicted defendant to appeal to the Court of Criminal Appeal. Accordingly, an application for leave to appeal is brought to that court. But usually the court, having given a full hearing to the application for leave to appeal, either refuses such leave or grants it but treats the hearing of the application for leave as the hearing of the appeal itself and goes on to make an order allowing the appeal. This telescoped procedure was probably not anticipated by the draftsman of section 32 of the 1924 Act as that section seems to envisage that leave to appeal might be granted well before the hearing of the appeal itself “where the court is of opinion that a question of law is involved” or in the other prima facie situations referred to in the section. Over the years the two staged procedure has in fact been invoked in a minority of cases and notably, and almost exclusively, where there is an application for bail. Before the 1993 amendment the Court could not grant bail without first granting leave and, therefore, it had to consider the question of leave separately from the appeal itself. As the procedure tended only to be used in cases where there was an obvious clear-cut discrete ground of appeal, an order for bail usually followed such [*5] leave. But in my view there is nothing in section 32 which would support the proposition that provided there are no other conventional impediments to bail, bail must automatically be granted once leave is given. 
	The court’s inability to grant bail pending the hearing of an application for leave caused injustice from time to time. This was particularly so in relation to appeals against sentence where the sentence was relatively short and there was either no transcript yet available or the application could not be given a speedy listing. In such a case it might be impossible for the court to adjudicate on whether it should give leave to appeal without effectively hearing the appeal while on the other hand a delayed hearing might render the appeal useless. Section 3(6) of the Criminal Procedure Act, 1993 was probably enacted to cure such injustices. But whatever was intended by the subsection, I do not think that it could possibly have been intended by the Oireachtas to introduce a whole new jurisprudence relating to the granting of bail on appeals. I mention this because O’Flaherty J.’s reference to “the old jurisprudence” in his judgment in the Sweetman case might have unintentionally given rise to that impression. The court in Sweetman applied the correct principles in my view. The relevant passage is contained in the judgment of 0 ‘Flaherty J. at p. 450 of the report. It reads as follows:
		“The Court is of the view that the strength of the case as it
	appears on the materials placed before it on this application is the proper matter to be brought into the reckoning in the first instance, and since the Court has reached a clear conclusion on this it does not need to [*6] consider the possibility of whether the accused will abscond so as not to be present for his appeal.”

	It is clear therefore that the court considered the strength of the appeal and not merely whether there might be an arguable point. The last sentence in the judgment is also significant. It appears at p. 452:-

“That means the State case, on the materials presented to us at this stage, and it needs to be emphasised that we act on the materials at present before us, we do not have a full transcript and the matter has not been fully argued, that we consider the State case as such a strong one that in the exercise of our discretion we would not be justified in admitting the applicant to bail at this stage.”

The Sweetman case is a good illustration of the problems confronting a Court of Criminal Appeal on an application for bail. There is an onus on the applicant to satisfy the court that there is some definite and discrete ground of appeal with a strong chance of success. But if the ground of appeal involves a detailed analysis of the evidence before the trial court, it cannot of its nature enable the court to arrive at any preliminary view as to the strength of the appeal. That is precisely the situation in this appeal as I hope to demonstrate.

	In further support of the view I have taken on the legal principles, I would refer to an ex tempore judgment of the Court of Criminal Appeal ( Barron J.) delivered on the 17th December, 1999 in D.P.P. v. Connaughton. It was one of the cases relied on at the appeal and notwithstanding its ex tempore status I think it is quite useful as setting out the correct principles. Barron J. commences his judgment as follows: [*7]
 “In this case the applicant for bail has been convicted of dangerous driving causing serious injury and he has been sentenced to two years imprisonment. He comes before this Court seeking bail pending his appeal. The first consideration for any court in such circumstances is to realise that the applicant has been convicted by a jury and therefore there must be strong reasons why bail should be granted.”

On the particular facts of that case the learned judge goes on to indicate factors which gave rise to such “strong reasons”.

In the written submissions of the appellant there is a reference to the English law and in particular to the decision of the Criminal Division of the English Court of Appeal in R. v. Watton (1978) 68 Cr. App. R. 293, 297 CA. The case is referred to in both Archbold and Blackstone. I think it useful to refer to it. The headnote reads as follows:

“The only ground for the granting of bail on an appeal to the Court of Appeal from the Crown Court, after refusal by a single judge under section 31 of the Criminal Appeal Act, 1968 to grant bail in giving leave to appeal to an appellant, is the existence of special circumstances, i.e. where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will be served by the time the appeal is heard.”

The court consisted of Geoffrey Lane, L.J., Ackner J. and Watkins J. and the judgment was delivered by Geoffrey Lane, L.J. (as he then was). The case may be of limited value because of a different English jurisprudence to some extent but the Court approved the following statement of the law relating to bail pending appeal. [*8]

“Bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard.”

I do not think it desirable that the Court of Criminal Appeal should have to go so far as to make a definite determination as to whether “the appeal is likely to be successful” but I think that there should be enough materials before the court to enable it to hold that there was at least a strong chance of success before it grants bail. I would also agree that the possibility of a sentence of imprisonment expiring before the hearing of an application for leave to appeal or the hearing of an appeal may be a ground for the granting of bail. As far as the certified question is concerned, I think that this court should simply state that bail should be granted where notwithstanding that the applicant comes before the court as a convicted person, the interests of justice requires it, either because of the apparent strength of the applicant’s appeal or the impending expiry of the sentence or some other special circumstance. It must always be borne in mind that the applicant for bail in this situation is a convicted person and the Court of Criminal Appeal should therefore exercise its discretion to grant bail sparingly.

	I now intend to apply those principles to the consideration of the particular bail application in this case. The applicant had originally been charged arising out of events alleged to have occurred on the 11th of May, 1997. The indictment in the Circuit Court contained five counts. These were: [*9]

1.	Possession of a firearm with intent to endanger life.
2.	Possession of ammunition with intent to endanger life.
3.	Having a firearm with intent to wound Seamus Behan.
4.	Having ammunition with intent to wound Seamus Behan.
5.	Unlawfully and maliciously wounding Seamus Behan.

The said Seamus Behan was a witness for the prosecution in the book of evidence in relation to all five counts. When the case came on for trial Seamus Behan did not turn up in court. The trial was adjourned and a bench warrant was issued. On the adjourned date Seamus Behan again failed to appear. The State, however, indicated that the guards had made every effort to have him in court but had failed to locate him and that there was hearsay evidence that he had gone to England. Counsel for the D.P.P. indicated to the judge in charge of the list, Judge Haugh that the State was prepared to go ahead in relation to counts 1 and 2 only because so far as the State was concerned Seamus Behan was not an absolutely essential witness in relation to those two counts. Counsel for the appellant, however, strongly opposed the trial proceeding in the absence of Seamus Behan. This was because Seamus Behan had purported to renounce the alleged statement which he made and was now exonerating the applicant. Furthermore he was now alleging that the real culprit was one Terence Hughes, another prosecution witness. Behan was alleging that the original statement made by him emerged as a consequence of a wrongful conspiracy between the guards and the said Terence Hughes.. As the argument was likely to last quite some time [*10] Judge Haugh assigned the case to Judge O’Connor and directed that the disputed issues be determined by him.

	This court has been informed that the preliminary matter as to whether the trial should proceed or not lasted one and a half days before Judge O’Connor during which he heard both evidence and submissions. The learned Circuit Court judge ultimately directed that the trial should proceed on the two counts and the appellant was duly convicted of them.

		The grounds of appeal before the Court of Criminal Appeal are quite numerous and include various matters arising from the trial itself. I do not know whether all of these are being proceeded with or not but as far as this appeal to the Supreme Court is concerned, it now relates only to the failure to grant bail, having regard to an alleged substantial ground of appeal namely, the trial being directed to go on notwithstanding the absence of Seamus Behan. Where an appeal is brought to the Court of Criminal Appeal against a refusal to adjourn or abort a trial the Court of Criminal Appeal does not just look at the materials before the trial judge at the stage when the application not to proceed with the trial was made. Obviously, the court must look at those materials but it must also read the entire transcript. It might well be that having read the whole transcript the court could take the view that the judge, on the limited materials before him, ought to have adjourned or stopped the trial, but that in the event no injustice whatsoever had been caused by the trial proceeding. In such circumstances the Court of Criminal Appeal would not order a new trial. On the hearing of the bail [*11] application before the Court of Criminal Appeal and on further appeal before this court the portion of transcript containing the application before Judge O’Connor not to proceed with the trial and which, as I say, apparently lasted a day and a half was not before the court, but even if it had been, the court would not be able to decide that there was a strong chance of success on the appeal. No matter what that part of the transcript disclosed, the entire transcript of the case would have to be considered before the strength of the appeal could properly be assessed. As I have already indicated, it is my view that bail ought not to be granted to a convicted prisoner in that situation. Bail can only be granted where without having to consider the entire transcript some definite or discrete ground of appeal can be identified and isolated and is of such a nature that there is a strong chance of success on the appeal. Recent examples of this kind of appeal are D.P.P. v. Ryan (Court of Criminal Appeal unreported judgment 12th of July 1999); D.P.P. v. Higginbotham (Court of Criminal Appeal unreported judgment 17th of November 2000) both of which involved disregarding by the trial judge of the provisions of section 25(2) of the Criminal Justice Act, 1984 in relation to the taking of majority verdicts and D.P.P. v. Acheanpong (Court of Criminal Appeal unreported judgment 28th of July 2000) which related to a failure to instruct the jury as to the significance of a complaint in a sexual case.	
		
		No such discrete ground of appeal exists in this case. Indeed, counsel for the D.P.P. indicated to the court that there were various aspects of circumstantial and corroborating evidence which incriminated the appellant quite apart from any direct  [*12] evidence given by Mr. Hughes. On the other hand the appellant is alleging inconsistencies between Mr. Hughes’s statement of evidence and his actual evidence at the trial. The appellant also seeks to rely on an affidavit from Mr. Behan in which he deposes that, at a stage when he was in a hospital ward under armed guard, he having undergone major surgery for gunshot wounds, two detectives brought Mr. Hughes to his bedside and advised him to listen to Mr. Hughes: it would be for his own good. He further deposed that in the conversation which ensued Mr. Hughes threatened him and that as a result, when Mr. Hughes left, he (Mr. Behan), in co-operation with the gardai fabricated a statement. Detective Sergeant Gabriel O`Gara, in an affidavit, said that Mr. Hughes visited Mr. Behan in the hospital at the latter’s request and that the visit was facilitated by the gardai but that neither he nor any member of the garda was involved in compiling or fabricating a statement of proposed evidence with or for Mr. Behan. This court cannot and should not express any view at this stage as to the status of these affidavits or whether they can be considered on the appeal. But the attempt to rely on it reinforces the view that the substantive appeal will range far and wide across the entire evidence and the many applications and submissions made to the trial judge. This is quite definitely not a case where there is a discrete ground of appeal, the strength of which can be assessed in advance of a full hearing.

	Without endorsing everything that is stated in the judgment of the Court of Criminal Appeal, I would uphold its decision and dismiss the appeal to this court for the reasons which I have given.