The Supreme Court allowed Tristan McLoughlin’s appeal against a High Court order refusing him bail and remitted the matter to the High Court. It held that hearsay evidence may be considered in a bail application in appropriate circumstances, but the judge must expressly decide whether interference with witnesses by or on behalf of the accused is probable.
McLoughlin was charged with assault causing harm over an alleged attack on a man in a Naas pub on 26 October 2008. The judgment said the injured party received 100 stitches over four hours. McLoughlin was charged on 5 May 2009 after presenting himself at Naas Garda Station. The High Court refused bail on 25 May 2009.
The prosecution’s objection included allegations that witnesses had been intimidated before the trial of McLoughlin’s brother, Clive, for the same offence arising from the same incident. Garda witnesses recounted reports including threats to the injured party, distressing phone calls to an eyewitness, and damage to a witness’s tyres. No witness who was said to have been intimidated gave direct evidence at the bail hearing. The High Court admitted the Garda evidence as hearsay, accepting that there were sufficient reasons for the witnesses’ absence, and refused bail.
On appeal, McLoughlin argued that the evidence was hearsay or irrelevant and did not establish that he was likely to intimidate witnesses. The Director of Public Prosecutions argued that the High Court was entitled to consider the evidence as a whole.
The Supreme Court said hearsay is not admissible as a matter of course, but may be received where there is a good reason for not calling witnesses to give direct evidence. It considered it reasonable in this case for the High Court judge to infer that the witnesses’ absence was connected to fear of intimidation. It also upheld the relevance of evidence relating to the brother’s trial, noting the trials’ connected facts and witnesses and the brothers’ relationship.
However, the High Court had not expressly found that McLoughlin, or someone acting on his direction, had or would interfere with witnesses as a matter of probability. Gardaí’s fears alone were not the required finding: the court itself had to assess and state the probability of the risk.
The Supreme Court allowed the appeal and sent the matter back to the High Court. It did not decide whether McLoughlin should be granted bail. The trial judge on remittal was to determine the relevance and weight of the hearsay evidence and expressly state the decision on the alleged risk of intimidation or interference.