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Flynn v. D.P.P. [1997] IEHC 155 (7th October, 1997)

THE HIGH COURT

JUDICIAL REVIEW

No. 229/96

BETWEEN

DESMOND FLYNN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Quirke delivered the 7th day of October, 1997

1. By Order of Kelly J. dated the 15th day of July 1996 the Applicant was granted leave to apply for relief against the Respondent by way of Judicial Review in the form of an Order of Prohibition in respect of the prosecution entitled The People (at the Suit of the Director of Public Prosecution) -v- Desmond P. Flynn and Peter Keely

(Bill No. 663/94) which charged that the Applicant on divers dates unknown between the

2nd March, 1987 and the 30th November, 1988 did within the State conspire with Peter Keely and Peter Noone to defraud Aer Lingus Holidays Limited of 59 Dawson Street,

2. Dublin 2 by misappropriating monies the property of the said Company for use without the said Company's consent to purchase for his own use and benefit and that of the said Peter Keely and Peter Noone a group of residential apartments in the Los Hibiscos Apartment Complex situate at Puerto Del Carmen, Lanzarotte, Canary Islands, Spain.

THE FACTS

1. The Applicant is, by profession, a solicitor who until June of 1994 practised under the style and title of Desmond Flynn & Co. from premises in Tallaght and who now practices as a solicitor from his home in Sandymount in

3. Dublin 4. During the twenty-one month period between the 2nd March, 1987 and the 30th November, 1988 the Applicant was from time to time retained by or on behalf of Aer Lingus Holidays Limited (hereinafter referred to "ALH") to carry out certain work on its behalf. During that period the ordinary share capital of ALH was wholly owned by Aer Lingus plc. which is a State sponsored body which controls the national airline for the Republic of Ireland. During the same period ALH employed a Mr. Peter Noone as a its Financial Manager and a Mr. Peter Keely in the capacity of financial accountant.

2. On or about the 15th day of May, 1990 the (then) Minister for Tourism and Transport made a complaint to the Garda Commissioner by referring to him a report made by a firm of accountants (Messrs. Craig Gardiner & Company) in to the accounting affairs of ALH and in consequence thereof an investigation was immediately commissioned by the Garda Fraud Squad into the accounting affairs of ALH comprising a full time, full scale commitment by six experienced Garda officers under the leadership of Detective Superintendent O'Donoghue.

3. Between May 1990 and January of 1994 exhaustive investigations and enquiries were undertaken and completed by the investigating garda officers into the accounting affairs of ALH. These investigations and enquiries were of a complex and detailed nature and involved inter alia the following:

(a) interviews with a very large number of witnesses many of whom made written statements of intended testimony.

(b) collation and examination of a vast volume of documentation.

(d) regular and necessary consultation and meetings between investigating officers and their legal advisers.

(e) applications to the authorities of other jurisdictions in order to enable investigations and enquiries to be carried out within those other jurisdictions.

(f) inspection of a large volume of documentation relating to the investigation both within the Republic of Ireland and within other jurisdictions.

(g) travel to various locations within the Republic of Ireland and to a large number of other locations overseas including several parts of the United Kingdom, the Isle of Man, the Canary Islands, Spain, the Channel Islands and Northern Ireland.

(h) the taking of statements by way of Rogatory Commission in the Canary Islands and in Spain after permission in that behalf had been obtained from the Spanish judicial authorities.

(i) regular consultation with chartered accountants retained by the Garda authorities.

(j) applications to the High Court pursuant to Section 7(A) of the Bankers Books Evidence Acts 1879 to 1989 to examine various bank accounts both within this jurisdiction and in Northern Ireland.

(k) the examination of various documents at the document section of the Technical Bureau of the Garda Siochana.

(l) the translation of various Spanish documentation and any enquiries arising from such translation.

(m) retention of and consultation with Counsel and legal advisers relative to the implications arising from the enquiries and investigations.

(n) collation and indexing of documents with a view to their presentation by way of evidence acceptable in judicial proceedings within this jurisdiction.

4. On the 30th day of December 1993 a warrant was issued by the Dublin Metropolitan District Court for the arrest of the Applicant on a charge of conspiring with two other persons to misappropriate monies the property of ALH and on the 15th day of January 1994 the Applicant attended by arrangement at the Bridewell Garda Station where he was formally charged on indictment (Bill No. 663/1994) with conspiracy to defraud in the terms set out in the Order of Kelly J. dated the 15th July, 1996 to which I have earlier referred.

5. Between January 1994 and April 1994 a large number of additional interviews were conducted and further statements taken by the investigating Gardai and an Application was made to the authorities of the Isle of Man to enable enquiries to be carried out in that jurisdiction between the 13th and

18th February, 1994. Thereafter substantial additional consultation and further investigation occurred and on the 13th day of April, 1994 a Book of Evidence was served upon the Applicant together with thirteen volumes of documentary exhibits which were listed at the rear thereof comprising a very substantial volume of documentation which has been displayed in photographic evidence adduced in the proceedings herein.

6. In April 1994 depositions were taken on behalf of the prosecution and in June, September and October 1994 despositions were taken on behalf of Peter Keely (with whom the Applicant was jointly charged) and thereafter a preliminary examination of the Applicant was conducted by a Judge of the District Court pursuant to the provisions of the Criminal Procedure Act, 1967. The Applicant was returned for trial on the 23rd November, 1994 to the Dublin Circuit Criminal Court where the Applicant was arraigned on the 9th day of December, 1994 when his trial was fixed for the 19th day of June, 1995.

7. In early December of 1994 solicitors on behalf of Peter Keely commenced investigations into further documents with which they had been supplied by the Respondent and, following correspondence, issued a Motion for Discovery of a very large volume of documents which were alleged to be within the possession or power or procurement of ALH and Aer Lingus Plc. That Motion was listed for hearing on the 23rd March, 1995 but was adjourned by agreement to the 4th April, 1995 upon which date the application was further adjourned during the course of its hearing by agreement between the parties in order to enable Mr. Keely to identify the documents which he required, upon an undertaking supplied by the Respondent to categorise all the documents in the possession of the Gardai for the benefit of Mr. Keely and his solicitors.

8. Throughout April and May a full review of all documentation in the possession of the Gardai was made and regular inspections of documentation by Mr. Keely's solicitors was facilitated whilst concurrently the Gardai were carrying out additional investigations in the Channel Islands and on the

22nd May, 1995 Counsel on behalf of the Respondent applied to the Circuit Criminal Court (Moriarty J.) for an Order adjourning the trial of the action on the grounds that an essential witness for the Respondent, namely, Mr. Maurice Harskin would be unable, by reason of advanced years and ill-health, to attend at the trial of the case which was listed for the 19th June, 1995. Consequently the trial was adjourned and was on the 1st day of June, 1995 rescheduled to be heard on the 31st October, 1995 and that new trial date was confirmed by the Respondent during a further hearing on the 10th day of July, 1995 when it was indicated by Counsel on behalf of the Respondent that it was highly improbable that Mr. Harskin would be available to testify at any time at the trial of the action and that the Respondent was seeking other means of adducing the same evidence.

9. On the 4th day of October, 1995 an Application was made on behalf of

4. Mr. Keely to Moriarty J. for an Order for Discovery of documents against Aer Lingus Plc. and that application was heard over a period of three days, being the 4th October, 1995, the 14th November, 1995 and the 15th November, 1995. Subsequently Judgment was given on 23rd day of November, 1995 refusing the Order sought on behalf of Mr. Keely.

10. On the 19th October, 1995 Moriarty J. directed that since neither the Prosecution nor Peter Keely (jointly charged with the Applicant) were in a position to embark upon the trial on the scheduled date (31st October, 1995) and, since it was and is acknowledged by all interested parties that it was desirable and necessary for practical purposes that the charges preferred against the Applicant and against Peter Keely should be tried jointly at the same time, the trial was adjourned on the 19th October, 1995 and on the 1st November, 1995 was rescheduled for hearing on the 15th April, 1996.

11. On the 25th day of January, 1996 Peter Keely sought and obtained an Order giving him liberty to seek relief by way of Judicial Review in the form of Orders:

(a) of Prohibition restraining the Respondent from taking any further steps in the prosecution of the charge jointly preferred against him and against the Applicant or in the alternative

(b) of Certiorari quashing the Order of the 23rd day of November 1995 refusing discovery.

12. An Application was made on behalf of the Applicant returnable for the

23rd March, 1995 and seeking Discovery of documents within the possession or power or procurement of the Respondent and ALH in relation to the issues in the trial and in the course of the hearing of that Application on the 4th day of April 1995 agreement was reached between the Applicant and the Respondent that the documents within the possession of the Gardai should be categorised under particular headings and made available to the Applicant and to Peter Keely and this undertaking was complied with by the Respondent during the succeeding weeks and months whereupon the Applicant did not pursue further Discovery of documents against the Respondent or against any other party.

13. Having regard to the existence of the proceedings herein and the concurrent Application for Judicial Review on the part of Peter Keely the trial which had been listed for the 15th April, 1996 was further adjourned on the acknowledgement of the parties the trial could not proceed until the determination of both Judicial Review proceedings.

14. The Applicant is charged that he did conspire with other persons by misappropriating monies the property of ALH for use without the consent of ALH to purchase for his own use and benefit (and that of two other persons) a group of residential apartments in the Los Hibiscos Apartment Complex in Lanzarotte in the Canary Islands. Mr. Maurice Harskin, as beneficial owner thereof, was the person from whom the Los Hibiscos Apartment Complex was purchased. He is also the beneficial owner of two other apartment complexes in Lanzarotte, Canary Islands known as La Penita and Las Vegas respectively and a statement of his evidence comprising eight pages is contained within the Book of Evidence which was served upon the Applicant and which discloses that, were he available, Mr. Harskin would probably have been in a position to testify, inter alia , as follows:

(a) during 1988 he negotiated the sale of the apartment complexes "La Penita" and "Las Vegas" to ALH Limited for an agreed price of

5. Stg. £2,340,000 which was paid by way of a series of payments.

(b) in June 1988 he offered to sell the apartment complex "Los Hibiscos" to Mr. Peter Noone and Mr. Faughnan on behalf of ALH but this offer was declined.

(c) He was introduced by Mr. Peter Noone to the Applicant who was described by Mr. Noone as a person willing to purchase the apartments and on the 1st July, 1988 a company called Delmont Investments Limited which was beneficially owned by the Applicant and by Peter Keely and by Peter Noone entered into a written agreement to purchase the "Los Hibiscos" Apartment Complex from a company known as Penamar SA the company which owned the "Los Hibiscos" Apartment Complex but was in turn owned by Mr. Maurice Harskin.

(d) although a bank draft in the amount of Stg. £1,422,632 drawn in favour of "Mr. M. Harskin" on the account of Algemene Bank Nederlands (Ireland) Limited was endorsed with the signature "Maurice Harskin". It was not in fact signed by Mr. Maurice Harskin who did not authorise any person to sign it on his behalf.

(e) Mr. Harskin gave no person or company permission or authority to use his name for the purpose of registration as a business name in the Isle of Man and the Application made by Delmont Investments Limited for the registration of the business name "Harskin Properties" which was registered in the General Registry of Companies in the Isle of Man was not authorised by Mr. Harskin who has never used or traded under the name "Harskin Properties".

(f) Although a Bank Giro credit slip purporting to transfer the sum of

6. Stg. £50,000 from Barclays Bank, Piccadilly, London to Barclays Bank, Ramsey, Isle of Man for the account of Delmont Investments Limited t/a Harskin Properties purported to be signed in terms

"M. Harskin" and dated 24th October, 1989, it was not in fact signed by Mr. Maurice Harskin who gave no authority to any person to sign such a document on his behalf and who never entered into any transaction or made any transfer of monies to Barclays Bank in the Isle of Man.

(g) Payments purportedly made on behalf of ALH at the direction of

7. Mr. Peter Noone for the purchase of the La Penita apartments and the Las Vegas apartments were made in the manner described in the second, third and fourth pages of the statement of Maurice Harskin and payments made in respect of the Los Hibiscos Apartment Complex was made in the manner described in the fifth and sixth pages of the statement of Mr. Harskin.

14. The beneficial ownership of Delmont Investments Limited (which is a company registered in the Isle of Man) was vested in the Applicant, Mr. Peter Keely and Mr. Peter Noone, who acquired that company on the 18th day of July, 1988 upon which date bank accounts were opened in Barclays Bank, Ramsey, Isle of Man in the name of Delmont Investments Limited and in the name of the three beneficial owners each of whom lodged the sum of £20,000 into their personal accounts from monies which prima facie were borrowed by ALH from Algemene Bank Nederlands (Ireland) Limited Dublin.

15. The agreement made on the 1st July 1988 whereby Delmont Investments Limited agreed to purchase the property at Los Hibiscos from Penamar SA was executed on behalf of Penamar SA by Maurice Harskin and on behalf of Delmont Investments Limited by the Applicant.

16. A payment of £18,099 drawn on the Applicant's account at Barclays Bank Plc. 52 Parliament Street, Ramsay was made by cheque dated the 23rd November, 1988 payable to Maurice Harskin representing a shortfall on the agreed price of the Los Hibiscos Apartments arising out of exchange rate differences.

17. On the 6th February, 1989 Mr. Harskin handed to the Applicant a cheque in the amount of 2,000,000 pesetas and the Applicant signed a receipt in respect of that amount which represented monies due to the Applicant from the earnings of the Los Hibiscos Apartments after costs.

THE APPLICANT'S CLAIM

8. The Applicant claims an Order of Prohibition prohibiting the Respondent from proceeding with the prosecution of the charge which is preferred against him in the proceedings entitled The People (At the Suit of the Director of Public Prosecutions) -v- Desmond P. Flynn and Peter Keely (Bill No. 663/94) on the following grounds:

1. That there has been an inexcusable and unwarranted delay on the part of the Respondent in the prosecution of the charge which has been preferred against the Applicant and that the Respondent has failed to bring the proceedings against the Applicant to trial with reasonable expedition having regard to the constitutional and other rights of the Applicant to have the proceedings dealt with expeditiously by means of a fair and speedy trial.

2. That as a consequence of the absence of expedition and the delay referred to in the preceding paragraph hereof an essential witness on behalf of the Applicant, one Mr. Maurice Harskin, will not now be available to testify at the trial and his unavailability (whether resultant from delay or lack of reasonable expedition on the part of the Respondent or otherwise) will work an injustice upon the Applicant in that it will prejudice his capacity to adduce vital evidence in his defence.

THE LAW

9. Certain legal principles must be applied by the Courts during the consideration of applications for relief of the type which has been sought herein.

In B. -v- D.P.P. [1997] 2 I.L.R.M. 118, the Supreme Court (Denham J.) clearly and unambiguously set out the appropriate legal principles under the heading "LAW" and in the following terms:-

"Statute Law puts no limitation in time on the prosecution of the alleged offences. Any such statute of limitations is a matter for the Oireachtas. The Constitution places relevant parameters on a criminal trial in cases of unreasonable delay.

REASONABLE EXPEDITION

The Constitution does not state expressly that there is a right to a speedy trial. Article 38.1 provides that no person shall be tried on any criminal charge save in due course of law. In addition, Article 40.3 imposes duties on the State and thus on the Courts as the judicial arm of government, which include the protection of such rights as fair procedures.

The right to reasonable expedition was cited by Gannon J. in The State (Healy) -v- Donoghue [1976] I.R. 325 at 336 and in The State (O'Connell) -v- Fawsitt [1986] I.R. 362, Finlay C.J. stated that:

'a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition'

The right to reasonable expedition must be assessed in each case in the light of the particular circumstances of that case. If the accused's defence has been explicitly prejudiced by the State's delay, for example by the non-availability of a material witness, then he is entitled, on the delay being unreasonable and prejudicial to an order prohibiting the trial.

Irish case law has already referred to Barker -v- Wingo (1972) 407 U.S. 514 which analysed the right in the Constitution of the United States of America to a speedy trial. Powell J. delivering the opinion of the Court identified four of the factors the Court should assess in considering if an Applicant has been deprived of his right. These factors were length of delay, reason for delay, the defendant's assertion of his right and the prejudice to the defendant by the delay. He went on to say how prejudice should be assessed:

'Prejudice of course should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests:

(1) to prevent oppressive pre-trial incarceration;

(ii) to minimise anxiety and concern of the accused; and

(iii) to limit the possibility that the defense will be impaired'."

10. In the light of the observations of Finlay C.J. in D.P.P. -v- Byrne [1994] 2 I.R. (at p. 245) to the intent that those interests represented:

"... an accurate if extremely brief identification of some of the constitutional rights which in our jurisdiction are protected by the provisions of Article

38 s.1 of the Constitution which includes protection for what has been described by Gannon J. in The State (Healy) -v- Donoghue [1976] I.R. 325 as the right to reasonable expedition".

The Court in B -v- DPP went on to state:

"The Court must look at the circumstances in each case, the issues and the constitutional interests of the parties, to determine the matter. There is no definitive time limit. There is no exhaustive or exclusive list of factors. There are interests which must be protected in the constitutional scheme of things.

FACTORS

The factors to be analysed and the issues which have to be determined include the following:

(i) the delay in the case;

(ii) the reason or reasons for delay;

(iii) the accused's action in relation to the events in issue;

(iv) the accused's assertion of his constitutional rights;

(v) actual prejudice to the accused;

(vi) pre-trial incarceration of the accused;

(vii) lengths of time of pre-trial anxiety and concern of the accused;

(viii) limitations or impairment of defence;

(ix) circumstances which may render the case into a special category;

(x) community's right to have offences prosecuted."

11. Having confirmed the right of the community to have criminal offences prosecuted and emphasised the need to balance that right with the (greater) right of an accused person to receive a fair trial, the Court went on to deal with the special factors which affected the case then under consideration.

12. Applying the foregoing principles to the instant case, it follows that I must determine whether, on the evidence, the defence of the Applicant " ... has been explicitly prejudiced by the State's delay ... by the non-availability of a material witness ... " in which case he would be entitled " ... on the delay being unreasonable and prejudicial ... " to the relief which he seeks.

13. In addition, I have concluded that I must assess the Applicant's right to trial with reasonable expedition " ... in the light of the particular circumstances ... " of this case.

14. It is also very clear that I must investigate the reason for the delay in considerable detail and that I should have regard to the interests of the Applicant and of the community including the ten factors identified by the Supreme Court in B. -v- D.P.P. as outlined above.

15. Finally, although this is not an appellate Court, I take the view that I should have regard for the observations of Finlay C.J. in The Director of Public Prosecutions -v- Byrne [1994] 2 I.R. at p. 247 warning that the Court

"... should with considerable caution interfere with the discretion of a judge of the trial Court involved and (her) decision as to what is or is not unreasonable delay, having regard to the particular insight which such a judge would have of the consequences of the trial which is proposed and of the state of affairs in regard to the services attached to the Court concerned ... ".

REASONABLE EXPEDITION

16. Having regard to the positive constitutional right of the Applicant to have the trial of this criminal offence heard "with reasonable expedition" and having further regard to the obligation of the Respondent to provide for and protect that right it is necessary for me to determine, on the evidence, whether

17. A. there has been a significant delay in the trial of the charge against the Applicant and if so whether

18. B. that delay has been unreasonable having regard to the particular circumstances of this case or indeed has been of the kind which ".....has crossed the border-line into the area of unconscionable delay which calls for an explanation from the State ..." (see Cahalane v Judge Murphy [1994]

2 I.R. 262). And whether

19. C. the Applicant's defence has been explicitly prejudiced by delay on the part of the Respondent or otherwise (this will require me to determine, on the evidence, whether the unavailability of Mr Maurice Harskin will prejudice the Applicant's capacity to adduce vital evidence in his defence and thereby work an injustice upon him).

20. A. Has there been a significant delay in the trial of the charge against the Applicant?

21. As I have indicated earlier the complaint was first made to the Garda Commissioner on 15th May, 1990 relative to events which were said to have occurred between March of 1987 and November of 1988. The Applicant was charged on the 15th day of January, 1994, was returned for trial on the

23rd November, 1994 and was arraigned on the 9th December, 1994 when his trial was fixed for the 19th June, 1995. It is now more than two years since the date when the Applicant's trial was first due to be heard and during that time the disadvantage which the Applicant had already sustained in his personal and professional life arising out of the charge preferred against him in January 1994 has deepened and the anxiety and concern to which he has been subjected has increased. Manifestly, there has been a significant delay in the trial of the charge which has been preferred against the Applicant and accordingly it follows that I should go on to consider the second question outlined above, that is to say:

22. B. Whether the delay has been unreasonable in the light of the particular circumstances of this case, or of such a character as to have ".....crossed the border-line into the area of unconscionable delay which calls for an explanation from the State....." ?

"When dealing with ... whether .... delay was reasonable or unreasonable, of very considerable importance in such circumstances must be the reason for the delay ....." ( DPP v Byrne [1994] 2 I.R. at p247 - per Finlay C.J.)

23. Reviewing the facts of this case, I am satisfied as follows:

1. MAY 1990 TO JANUARY 1994

24. Between May of 1990 and January 1994 the Respondent, through the officers and agencies of the State, took all steps which were reasonably open to him to ensure that the trial of the charge which had been preferred against the Applicant would be heard with reasonable expedition.

25. The evidence adduced on Affidavit by Detective Sergeant John McCann discloses the exhaustive investigation and enquiries which were necessary between May 1990 and January 1994, in order to gather and assemble the very large volume of documentary and other evidence which was necessary in order to enable the Respondent to competently discharge his statutory and other obligations and to protect and vindicate the right of the Community to have criminal offences prosecuted early and properly. Counsel on behalf of the Applicant pointed to the fact that for a substantial period throughout 1992 and 1993 the investigation was taken up with consultation between the investigating officers and the legal advisors retained by the Respondent but when all of the evidence adduced by Detective McCann is taken together with the evidence adduced on behalf of the Applicant it is clear that the whole of the period between May of 1990 and January of 1994 was taken up with necessary work undertaken by the investigating officers directed towards the thorough investigation associated with the charge which has been preferred and that these investigations could not have been reasonably undertaken and completed within a lesser period.

26. It is also possibly of some significance that at all stages between May of 1990 and January of 1994 the Applicant was represented by experienced and highly competent legal advisors and that whilst Counsel on behalf of the Applicant clearly indicated in May and June of 1995 that the Applicant was anxious that his trial should proceed there was no complaint made by or on behalf of the Applicant of unreasonable or other delay on the part of the Respondent of the type which is alleged herein until the institution of the proceedings herein. In addition the Applicant himself applied by way of Motion on the 23rd day of March 1995 for an Order for Discovery of documentation which he believed to be vital to his defence and subsequently (on the 4th April 1995) reached agreement with the Respondent relative to the identification and categorisation of a large volume of documents which were made available for his inspection in the weeks following April of 1995. It would appear from the foregoing that the Applicant was himself not in a position to proceed with the defence of the charges preferred against him until sometime after 4th April, 1995 and so it would seem to follow that there was no unreasonable delay on the part of the Respondent before the summer of 1995 and if that is correct then it can hardly be suggested that there was unreasonable delay between May of 1990 and January 1994.

2. JANUARY 1994 TO JANUARY 1996

27. The principle events which are relevant to the proceedings herein which occurred between January 1994 and January 1996 have been set out herein (at paragraphs 5, 6, 7, 8, 9, 10 and 11 under the heading " THE FACTS "). I am bound to say that upon reviewing those events I cannot discover evidence of delay on the part of the Respondent which could be regarded as unreasonable.

(a) There can be no cause for complaint in respect of the events between January of 1994 and December of 1994 when the Applicant's trial was fixed (for the 19th June, 1995).

(b) Although Counsel on behalf of the Respondent applied on the

22nd May, 1995 to adjourn the trial by reason of the unavailability of Mr Harskin, it is quite clear that the trial would have been unable to proceed in any event by reason of the existence of the Motion for Discovery which has been brought by the Applicant's co-accused,

28. Mr. Peter Keely, which said motion was not heard and fully determined until the 23rd November, 1995. I am cognisant of the fact that the Applicant did not cause or contribute to the adjournment which was granted on the 22nd May, 1995 but I am quite satisfied that the Application made by the Respondent on that occasion was perfectly reasonable having regard to the fact that the Respondent had just been advised that Mr. Harskin was unable to testify and the Respondent notified the Court as soon as was reasonably possible after he had himself received notification of the indisposition of Mr. Harskin.

29. I am further satisfied that immediately after the 22nd May, 1995 it would not have been practicable or reasonable for the Respondent to seek or agree to seek separate trials of the Applicant and of Mr. Peter Keely or indeed that such separate trials could at that time have reasonably have been expected to have lent expedition to the

30. Applicant's trial. At that time the preparation of separate documentary and other evidence for presentation at two separate trials might well have served only to delay both trials in all of the circumstances which then existed.

(c) Accordingly, I can find no evidence whatsoever to suggest that the Respondent, by himself or by the officers and agencies of the State, failed in his obligation to bring the charge preferred against the Applicant to trial with reasonable expedition between January of 1994 and January of 1996, and indeed I am satisfied on the evidence that no act or omission on the part of the Respondent or any of his servants or agents caused or contributed to any delay in the trial of this case during that period.

31. On the 25th January, 1996 Mr. Peter Keely sought and obtained an Order giving him liberty to seek relief by way of Judicial Review in the form of an Order for Prohibition of the type sought herein and in consequence the trial of the charge preferred against the Applicant was further adjourned and cannot proceed until the determination of Mr. Keely's Application and the Application herein.

3. JANUARY 1996 TO DATE

32. It is contended on behalf of the Applicant that there has been unreasonable delay on the part of the Respondent in failing to expedite the Judicial Review proceedings brought by Peter Keely between the 25th January, 1996 when

33. Mr. Keely was given liberty to seek the appropriate reliefs and the 8th day of November 1996 when the Respondent delivered a Statement of Opposition.

34. In a separate judgment delivered herewith in the proceedings entitled "The High Court Judicial Review between Peter Keely Applicant and Judge Michael Moriarty and the Director of Public Prosecutions Respondent" I have dealt with and made findings relative to the actions of the Respondent between January 1996 and the 8th November, 1996 in so far as it is related to the prosecution of the concurrent charge preferred against Peter Keely (who is jointly accused with the Applicant) (Bill No. 663/94).

35. I found that between the 25th January, 1996 and the 8th November, 1996 the Respondent spent a substantial amount of time investigating what then appeared to be the substantive complaint being advanced on behalf of Peter Keely, that is to say the fact that he was denied access to documents which he claimed were of vital importance to his defence. I found that it was reasonable for the Respondent to take this course of action with the object of expediting the trial of Mr. Keely.

36. I found further that during the period between the 25th January, 1996 and the 8th November, 1996 a concurrent application was made to the Circuit Criminal Court for relief virtually identical to the relief which has been sought herein and on the same grounds which have been advanced herein and that after a full hearing on the 17th June, 1996 the relief was refused by the Circuit Criminal Court (Kelly J.) on the 21st June, 1996.

37. Since I have found that the Respondent did not act unreasonably throughout the period concerned in the prosecution of the charge against Peter Keely the only conceivable criticism which could be levelled against the Respondent relative to the trial of the Applicant is that the Respondent did not seek a separate trial of the Applicant between January 1996 and November 1996.

38. I am satisfied on the evidence that between the 25th January, 1996 and the

8th November 1996 the Respondent could not have been reasonably expected to seek (or agree to) a separate trial of the charge preferred against the Applicant in all of the circumstances of this case and I am fortified in that view by the fact that within the same period the Applicant herein made a concurrent application to the Circuit Criminal Court for relief virtually identical to the relief which is being sought herein and on the same grounds which have been advanced herein and that after the hearing to which I have already referred on the 17th June, 1996 the Applicant was similarly refused the relief which he sought by the Circuit Criminal Court (Kelly J.) on the 21st June, 1996.

39. Accordingly and during the period concerned a Judge of the trial Court in the course of considering an application made upon the same grounds which have been advanced herein seeking relief similar to the relief sought herein was enabled to consider all steps taken by the Respondent in the prosecution of the charge against the Applicant up to and including the 21st June 1996 and concluded that there had been no unreasonable delay on the part of the Respondent during that time.

40. I respectfully agree with that conclusion, having regard in particular to the fact that during the period in question the Respondent was occupied both in contesting the application relative to Discovery and indeed with the application to the Circuit Criminal Court which, if successful, would have prohibited a trial, whether separate or joint.

41. I do not believe that there was unreasonable delay on the part of the Respondent in delivering a Statement of Opposition to the claim of Peter Keely (or the claim herein) between the 21st June, 1996 and the 8th November, 1996 particularly having regard to the fact that the proceedings herein appear to have been served upon the Respondent a matter of days after the refusal of relief in the Circuit Criminal Court and having further regard to the fact that the application for the relief sought herein was made at the very conclusion of the Trinity term 1996 (15th July, 1996) and the Statement of Opposition was delivered on behalf of the Respondent at a very early stage in Michaelmas Term 1996

(8th November, 1996).

42. In the light of the foregoing I am satisfied that whilst there has been a significant delay in the trial of the charge preferred against the Applicant, this delay has not been unreasonable having regard to the circumstances which gave rise to it. Analysis of the reason for the delay - that is to say the circumstances which gave rise to it - discloses that at no time between the date when a complaint was first made to the Garda Commissioner on the 15th May, 1990 and the date of hearing of the proceedings herein has the Respondent, by himself or by any investigating officer or agency of state, failed in his obligation to bring the charge preferred against the Applicant to trial with reasonable expedition and to provide for and protect the right of the Applicant to an expeditious trial. I am satisfied that the Respondent and the State authorities acted with reasonable expedition having regard to all of the circumstances which affected the investigation of the complaint and the prosecution of the proceedings against the Applicant up to and including the date of the hearing of the proceedings herein.

43. It follows from the foregoing that I do not find this case to be a case which

".... has crossed the border-line into the area of unconscionable delay which calls for an explanation from the State " although as I have indicated I fully accept the comprehensive and convincing explanation which has been offered.

PREJUDICE

44. The question raised at C. above now falls to be determined, that is to say whether or not the Applicant's defence has been explicitly prejudiced either:

(i) by unreasonable delay on the part of the Respondent or

(ii) solely by reason of the duration of the delay itself or

(iii) by reason of the fact that Mr Maurice Harskin will not be now available to testify at the trial of the charge preferred against the Applicant or

(iv) otherwise arising out of the circumstances which have given rise to these proceedings.

(i) Since I have found that there has been no unreasonable delay on the part of the Respondent (or anyone acting on his behalf) in the prosecution of the charge against the Applicant, it follows that the Applicant's defence has not been prejudiced by any unreasonable act or omission on the part of the Respondent (or anyone acting on his behalf) constituting delay in the prosecution of the charge against the Applicant. Accordingly, if the Applicant has suffered prejudice in his capacity to adduce vital evidence in his defence that prejudice must have had some other cause.

45. It is important that I should state quite clearly, at this point, that the case advanced on behalf of the Applicant alleging that he had been prejudiced in his capacity to adduce vital evidence in his defence has been confined to the allegation that the prejudice arises by reason of the fact that Mr Maurice Harskin will not now be available to testify at the trial and that his absence will work an injustice upon the Applicant. At the hearing of the proceedings herein no other prejudice of any nature or kind has been alleged to have arisen which will affect the Applicant's capacity to defend himself against the charge levelled against him.

46. Notwithstanding the foregoing it falls to me to consider

(ii) whether the Applicant suffered prejudice by reason solely of the duration of time which has occurred between the complaint which was made on the 15th May, 1990 and the date hereof, that is to say by reason of the length of the delay which has occurred in the prosecution of the charge.

47. Bearing in mind that the prejudice which has been alleged is the fact that Mr Maurice Harskin will not be available to testify at the trial, it is important to consider precisely when Mr Harskin became unavailable. It is clear from the evidence that Counsel on behalf of the Respondent notified the Court on the 22nd May, 1995 that he had just been informed of the fact that Mr Harskin would be unable, by reason of advanced years and ill-health, to attend at the trial of the case which was listed for the 19th June, 1995.

48. I appreciate that a period of five years elapsed between the date of the making of the complaint and the date when Mr Harskin became unavailable, but as I have already indicated I do not believe that this was an inordinately lengthy period having regard to the complexity of the issues involved in the case and the amount of investigation which was required. It is of some significance that the Applicant was himself not ready or in a position to proceed with his own defence until sometime after the 4th April, 1995 and probably until after the

22nd May, 1995 (and a large volume of documentation was in the process of categorisation with a view to examination by the Applicant's advisers).

49. The Applicant's contention must, of necessity, be based upon the proposition that the trial of the charge preferred against him should have been heard in full on or before the 22nd May, 1995 (when

50. Mr Harskin became unavailable) and that because it was not so heard he has been prejudiced by reason of delay. It is difficult to accept that contention in the light of the fact (as I have already pointed out) that the Applicant was probably not himself in a position to present his case in May of 1995 but on the evidence I am satisfied that, having regard to the nature and complexity of the investigation to be undertaken by the State, to the "Community's Right" recognised in B. -v- D.P.P. (above) and to the necessity recognised by Gannon J. in O'Flynn -v- Clifford [1988] I.R. 740 that the public interest and good sense require that every crime be properly investigated, the events which occurred and the prosecution of the charge preferred against the Applicant between May of 1990 and May of 1995 do not disclose acts or omissions which could reasonably be described as "delay". On the evidence the significant "delay" in the prosecution of the charge against the Applicant occurred after May of 1995 and largely arose as a result of a strongly contested Motion for Discovery on the part of Peter Keely followed by the initiation of the proceedings herein.

51. Amongst the "factors" recognised and identified by the Supreme Court in B -v- D.P.P. [1997] 2 I.L.R.M. 118 (and in Barker -v- Wingo ) are the "length of time of pre-trial anxiety and concern of the accused". I accept that the Applicant has been disadvantaged in his personal and professional life and has become restricted in his capacity to earn his livelihood. In particular I accept that he has found it impossible to continue in practice in Tallaght, Co. Dublin and has had to seek to earn a reduced living in practice in his home in Sandymount but this occurred in June 1994 and could not have been caused by any delay on the part of the Respondent or otherwise.

52. I further accept that the Applicant has suffered considerable anxiety and concern arising out of the charge which has been preferred against him and that his anxiety and concern has been exacerbated to a significant degree by the fact that the trial has been adjourned on three occasions and is further delayed by the proceedings herein but I am satisfied that:

(a) there were valid reasons for the delay.

(b) these reasons included (presumably necessary) steps which were taken on behalf of the Applicant and his co-accused in relation to the defence of the charges preferred against them.

(d) his case does not enter the "special category" considered in the "B" case.

(e) the delay was not in any way unreasonable in all of the circumstances of the case and accordingly

(f) the disadvantage to the Applicant and his pre-trial anxiety and concern were unavoidable in all of the circumstances of this case.

53. No further or additional "factors" have been advanced on behalf the Applicant which should be taken into account in determining whether the delay was by virtue of its duration alone sufficient to cause explicit prejudice and accordingly I have concluded that the duration of the delay has not by itself alone been sufficient to cause prejudice to the Applicant sufficient to deprive him of a fair and reasonably expeditious trial.

(iii) It has been contended on behalf of the Applicant that since

54. Mr. Maurice Harskin will not now be available to testify on behalf of the Prosecution at the trial of the charge preferred against the Applicant that the Applicant's defence has been explicitly prejudiced and that his absence will work an injustice upon the Applicant in that it will prejudice his capacity to adduce vital evidence in his defence and deprive him of his constitutional right to a fair trial. In support of that contention, the Applicant relies, inter alia , upon the decisions of the Supreme Court in The People (The Director of Public Prosecutions) -v- Christopher Qulligan and Patrick O'Reilly (No. 3.) [1993]

2 I.R. 305 and The People (The Director of Public Prosecutions) -v- Gerard Tuite (1982) 2 Frewen 175.

55. With regard to the latter authority, I accept that it is the obligation of the prosecution under Irish Law to procure the attendance of all relevant witnesses insofar as that is reasonably possible. On the evidence, I am satisfied that in the instant case, the Respondent has discharged that obligation conscientiously.

56. With regard to the former authority, I similarly accept without question that where it is determined by a Court of law that prejudice will undoubtedly potentially exist as a result of the non-availability of a particular witness (in the "Quilligan" case, a potential alibi witness became unavailable by reason of decease) then it will almost certainly be appropriate for the Court to prohibit the trial in order to prevent a possible injustice to the accused.

57. What has to be determined in the instant case is whether the fact that Mr. Maurice Harskin will not now be available to testify on behalf of the prosecution will cause explicit prejudice to the capacity of the Applicant to adduce vital evidence in his defence, thereby working an injustice upon him.

58. I have already indicated herein (see para.13(a) to (d) under the heading "The Facts") the testimony which I believe Mr. Harskin would have been in a position to adduce, were he available to testify at the trial.

59. In addition, the Respondent has openly offered (through his Counsel at the trial of the proceedings herein) to admit that the entire of the Statement of Evidence of Maurice Harskin pursuant to Section 21 of the Criminal Justice Act, 1984 together with the exhibits therein referred to. Further, or in the alternative, the Respondent through his Counsel in the proceedings herein openly offered to make specific admissions pursuant to Section 22 of the 1984 Act, many of which were favourable to the Applicant.

60. It was explained on behalf of the Applicant that the presence of

61. Mr. Harskin was vitally necessary in the interest of the Applicant in order to enable the Applicant to adduce evidence on the part of

62. Mr. Harskin by way of cross-examination. It is contended on behalf of the Applicant that it may be possible to elicit answers from

63. Mr. Harskin in the course of cross-examination which will raise doubts in the minds of jurors in such a manner as to potentially implicate

64. Mr. Harskin himself in possible irregular dealings involving the officers and directors of ALH and Aer Lingus Plc. Reliance was placed upon reference within the statement of Mr. Harskin to three bank drafts dated 13th October, 1988 and it was suggested that in the course of cross-examination this reference and others could be used to discredit other officers and directors of ALH and Aer Lingus Plc and possibly Mr. Harskin himself raising potential doubts in the minds of prospective jurors.

65. I should say that, having reviewed the very large volume of documentation which came before me at the trial of this action, I cannot find within it a shred of support for the suggestion that

66. Mr. Harskin could be implicated in some way with the directors or officers of ALH or Aer Lingus Plc.

67. The absence of Mr.Harskin will deprive the prosecution of potential testimony suggesting that the signature of Mr.Harskin was forged by some person on a bank draft and, furthermore, that Mr. Harskin did not authorise the use of the business name "Harskin Properties" by Delmont Investments Limited (which appears to have been partly owned by the Applicant) but the absence of that testimony could hardly be said to work an injustice on the Applicant and rather the contrary would appear to be the case.

68. I am satisfied on the evidence that a substantial amount of what is contained within the statement of Maurice Harskin can be adduced on behalf of the Respondent by other means without causing any disadvantage to the Applicant and I cannot discover within that statement any evidence (other than evidence which is clearly unfavourable to the interests of the Applicant) which is not capable of being adduced by other means on behalf of the Applicant himself.

69. Much stress has been placed on behalf of the Applicant upon an allegation that ALH (and possibly Aer Lingus Plc) were engaged in "off balance sheet" borrowing and trading and that evidence can be adduced during the cross-examination of Mr. Harskin which would confirm that such was the case. It seems to me that if, as is alleged, ALH or any of its officers or officials or Aer Lingus Plc. or any of its officers or officials were engaged upon the activity known as "off balance sheet" borrowing and trading then the evidence of this practice can be adduced by means far more effective than the cross-examination of Mr. Harskin having regard to the large volume of documentation which is now being discovered and the very considerable number of senior officers from ALH and Aer Lingus Plc. who will be called to testify at the trial.

70. What has been eloquently argued on behalf of the Applicant amounts really to the assertion that if Mr. Harskin were to testify on behalf of the prosecution then during the course of cross-examination he might either consciously or inadvertently let slip some observation or make some admission which would give rise to doubt within the minds of potential jurors. The existence of such a possibility does not, in my opinion, place Mr. Harskin in such a category that his testimony at the trial is essential in the interests of providing the Applicant with a fair trial and I do not believe that the fact that he will not now be available to testify at the trial of the charge which has been preferred against the Applicant will work an injustice upon the Applicant or that it will prejudice his capacity to adduce vital evidence in his defence.

71. In summary then, I am satisfied that the Applicant's defence has not been prejudiced either by unreasonable delay on the part of the Respondent or by any other delay or by reason of the fact that

72. Mr. Harskin will not now be available to testify.

73. In the circumstances, the relief sought by the Applicant is refused.