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Keely v. Moriarty [1997] IEHC 156 (7th October, 1997)
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Keely v. Moriarty [1997] IEHC 156 (7th October, 1997)
HIGH
COURT
JUDICIAL
REVIEW
No.
23/96
BETWEEN
PETER
KEELY
APPLICANT
AND
JUDGE
MICHAEL MORIARTY AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT
of Mr. Justice Quirke delivered the 7th day of October 1997.
1. By
Order of Keane J. dated the 25th day of January, 1996 the Applicant was granted
leave to apply for two forms of relief against the Respondents by way of
Judicial Review that is to say:-
"(a) an
Order of Prohibition restraining the Second-named Respondent from taking any
further steps in the prosecution entitled
DPP
-v- Peter Keely & Another
(Bill No. 663/94) until further Order, or in the alternative
(b) an
Order by way of Certiorari in respect of the Order of the First-named
Respondent made on the 23rd day of November, 1995 ..."
2. At
the commencement of the proceedings herein Counsel on behalf of the Applicant
announced that the Applicant was no longer seeking the relief described in
paragraph (b) above (an Order by way of Certiorari) since the issues which gave
rise to that application have now been resolved between the parties and was
confining his application and seeking solely an Order of Prohibition
permanently restraining the Second-named Respondent from taking any further
step in the prosecution of the charge against the Applicant in the proceedings
entitled
DPP
-v- Peter Keely & Anor.
(Bill No. 663/94).
THE
FACTS
1. The
Applicant was employed in the capacity of Financial Accountant for a company
known as Aer Lingus Holidays Limited (hereinafter referred to as "ALH") for
periods of time which included the twenty-one month period between the 2nd
March, 1987 and the 30th November, 1988. During the same period the ordinary
share capital of ALH was wholly owned by Aer Lingus Plc. which is a State
sponsored company which controls the national airline for the Republic of
Ireland. During the same period ALH employed a Mr. Peter Noone as its
Financial Manager and retained Mr. Desmond P. Flynn as a solicitor to carry out
certain work on its behalf.
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.
(c) investigation
of the files of a number of financial institutions associated with ALH.
(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 investigation 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.
(o) the
investigation of various allegations made by the Applicant through his
solicitors and contained in a letter to the Senior Legal Assistant in the
office of the Second-named Respondent dated the 3rd day of January, 1991.
4. On
the 3rd day of January, 1994 the Second-named Respondent issued written
directions requiring the prosecution of the Applicant for conspiracy to defraud
contrary to Common Law and on the 5th day of January, 1994 the Applicant was
arrested at his home in Dun Laoghaire by Sergeant Eugene Corcoran and taken to
the Bridewell Garda Station where he was charged on indictment
(Bill
No. 663/1994) as follows:
"Conspiracy
to defraud.
Peter
Keely on divers dates unknown between the 2nd day of March, 1987 and the 30th
day of November, 1988 within the State did conspire with Peter Noone and
Desmond P. Flynn to defraud Aer Lingus Holidays Limited of 59 Dawson Street,
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 Noone and Desmond P. Flynn a group of residential
apartments in the los hibiscos apartment complex situated at Puerto Del Carmen,
Lanzarote, Canary Islands, Spain."
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. Between
April 1994 and November 1994 depositions were taken on behalf of the
prosecution (in April 1994) and the Applicant (in June, September and October
1994) whereafter a preliminary examination was conducted in accordance with 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 he
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 the Applicant's solicitors commenced investigations into
further documents with which they had been supplied by the Second-named
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 of procurement of ALH and Aer Lingus Plc. This 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 the
Applicant to identify the documents which he required upon an undertaking
supplied by the Second-named Respondent to categorise all the documents in the
possession of the Gardai for the benefit of the Applicant 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 the Applicant's
solicitors were 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 Second-named Respondent applied to the First-named
Respondent for an Order adjourning the trial of the action on the grounds that
an essential witness for the Second-named 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. The First-named Respondent acceded to that Application and agreed
to the adjournment of the trial which was, on the 1st June, 1995 rescheduled to
be heard on the 31st October, 1995 and that new trial date was confirmed by the
First-named Respondent during a further hearing on the
10th
day of July, 1995 when it was indicated by Counsel on behalf of the
Second-named 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
Second-named 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 the Applicant
to the First-named Respondent 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 the First-named Respondent gave judgment on the 23rd day of
November, 1995 refusing to the make the Order sought by the Applicant.
10. On
the 19th October, 1995 the First-named Respondent had directed that the trial
should not proceed on the 31st October, 1995 noting that the parties had
acknowledged that neither would be in a position to embark upon the trial on
that date having regard to the continuing hearing of the Applicant's Motion for
Discovery and on the 1st day of November, 1995 the First-named Respondent fixed
the trial for hearing on the 15th day of April, 1996.
11. On
the 25th day of January, 1996 the Applicant sought and obtained an Order giving
him liberty to seek relief by way of Judicial Review in the terms described in
the Order of Keane J. dated the 25th day of January 1996 seeking to quash the
First-named Respondent's Order refusing Discovery and a further Order of
Prohibition restraining the Applicant's trial.
12. On
the 8th March, 1996, on the Application of the Second-named Respondent the
trial which had been listed aforesaid for the 15th April, 1996 was further
adjourned by the First-named Respondent having regard to the existence of the
proceedings herein and on the 8th October, 1996 the matter was further
adjourned on the acknowledgement of the parties that the trial could not
proceed until the determination of the proceedings herein.
13. 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 Lanzarote 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 Lanzarote, 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
3. Stg.
£2,340,000 which he 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 Mr. Desmond Flynn 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 Desmond P. Flynn 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 at 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
4. 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
5. 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 in respect of the Los
Hibiscos Apartment Complex were made in the manner described on 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 Noone and
Mr. Desmond P. Flynn 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 in to their
personal accounts from monies which prima facie were borrowed by ALH from
Algemene Bank Nederlands (Ireland) Limited Dublin.
15. By
letter dated the 3rd day of January, 1991 the Applicant's solicitors wrote to
the Senior Legal Assistant of the Second-named Respondent alleging inter alia
as follows:
(a) ALH
had an accumulation of undeclared losses as a result of the understatement of
the losses of its former component parts.
(b) ALH
took a decision to acquire properties in the Canary Islands on an "off balance
sheet" basis on foot of borrowings supported by
Aer
Lingus Plc.
(c)
the borrowings authorised by ALH were some £3 million in excess of the
value of the properties which were acquired.
(d) the
property acquisition was not bone fides and comprised a mechanism whereby
working capital was provided through "... off balance sheet" borrowings and
considerable amounts of such borrowed funds were directly applied for the
purposes of ALH.
(e) there
was an attempt by ALH to recoup or to defer existing considerable losses by the
use of borrowings which were not disclosed in the company's balance sheet or
alternatively were disclosed and described as borrowings for different purposes.
16. The
letter implies that all of the transactions in which the Applicant participated
and all of the transfers of money and property were transactions and transfers
which were intended to give effect to a deliberate policy on the part of ALH
and its senior officers together with Aer Lingus Plc. and its senior officers
directed towards the said stated recoupment or deferral of existing losses.
THE
APPLICANT'S CLAIM
6. The
Applicant claims an Order of Prohibition permanently restraining the
Second-named Respondent from taking any steps in the prosecution of the charge
which is being preferred against him in the proceedings entitled
DPP
-v- Peter Keely & Another
(Bill
No. 663/94) on the following grounds:
1. That
there has been an inordinate and unwarranted delay on the part of the
Second-named Respondent in the prosecution of the charge which has been
preferred against the Applicant and that the Second-named 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 second-named 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
7. 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 the delay, the defendant's assertion of his right and the
prejudice to the defendant by the delay. He went on to state 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:
(i) 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'."
8. In
the light of the observations of Finlay C.J. in
D.P.P.
-v- Byrne
[1994] 2 I.R. 236 (at p. 245) to the intent that these 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 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 actions 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) the
community's right to have offences prosecuted."
9. 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.
10. 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.
11. In
addition, I have concluded that I must assess the Applicant's right to trial
with reasonable expedition "
...
in light of the particular circumstances ...
"
of this case.
12. 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.
13. 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. 236 at p. 247, warning that the Court
"...
should with considerable caution interfere with the discretion of a judge of
the trial Court involved on 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
14. 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 second named Respondent to provide for and
protect that right it is necessary for me to determine, on the evidence, whether
15. A. there
has been a significant delay in the trial of the charge against the Applicant
and if so whether
16. 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
17. C.
the
Applicant's defence has been explicitly prejudiced by delay on the part of the
second named 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).
18. A.
Has
there been a significant delay in the trial of the charge against the Applicant?
19. 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 arrested and charged on
the 5th 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 day of June, 1995. It is now more than two years since the date when the
Applicant's trial was first due to be heard during which time the Applicant has
been greatly disadvantaged in his personal and professional life and has become
restricted severely in his capacity to earn his livelihood. 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:
20. B.
Whether
the delay involved 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. 236 at p. 247 - per Finlay C.J.)
21. Reviewing
the facts of this case, I am satisfied as follows:
MAY
1990 TO JANUARY 1994
1.
Between
May of 1990 and January 1994 the second named 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.
22. 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
second named 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 legal advisors retained by the second named 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.
23. 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 second named
Respondent of the type which is alleged herein until the institution of the
proceedings herein and indeed, the Applicant did not himself apply for
Discovery of documentation which he believed to be vital to his defence until
March of 1995 and then adjourned that application by agreement on a number of
occasions. It was finally heard and determined by the first named Respondent
in November of 1995.
JANUARY
1994 TO JANUARY 1996
2. The
principal 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 second named 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 9th December, 1994 when the Applicant's trial was fixed (for the 19th June,
1995).
(b) Although
Counsel on behalf of the second named 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 Applicant's Motion for Discovery which was not heard
and determined in full until the 23rd November, 1995.
(c) Accordingly,
I can find no evidence whatsoever to suggest that the second named 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 second
named Respondent or any of his servants or agents caused or contributed to any
delay in the trial of this case during that period.
24. On
the 25th January, 1996 the Applicant sought and obtained an Order giving him
liberty to seek the relief which has been sought herein and this resulted in
further adjournment of the trial which cannot proceed until the determination
of the proceedings herein.
JANUARY
1996 TO DATE
3. It
is contended on behalf of the Applicant that there has been unreasonable delay
on the part of the second named Respondent in failing to expedite the
proceedings herein between the 25th January, 1996 when the Applicant was given
liberty to seek the reliefs sought herein and the 8th day of November 1996 when
the second named Respondent delivered a Statement of Opposition.
25. I
think that it is important to note that on the 25th January, 1996 the
application made on behalf of the Applicant to Keane J. appeared to place
particular emphasis upon the need for leave to seek relief by way of Certiorari
in respect of the order of the first named Respondent made on the 23rd day of
November, 1995 (refusing an Order for Discovery of various documents). Indeed,
the Order of Keane J. appears on its face to give the Applicant liberty to
apply for an Order of Prohibition restraining the trial until further Order
.... "or in the alternative..." an Order by Certiorari in respect of the Order
refusing Discovery. Accordingly the form of the Order suggests that the
Applicant's principal concern in January of 1996 was that he should obtain the
Order for Discovery which he had earlier sought and the grounds which appear to
have been relied upon by the Applicant and which are set out in the Order of
Keane J. lay greater emphasis upon alleged prejudice to the Applicant in his
defence by reason of the failure to discover documents, than by reason of the
grounds relied upon herein.
26. I
am satisfied that between the 25th January, 1996 and the 8th November, 1996 a
substantial amount of time was spent by the investigating officers and legal
advisors of the second named Respondent in seeking to resolve what then
appeared to be the substantive complaint which was then being advanced on
behalf of the Applicant, that is to say the alleged prejudice to the Applicant
arising out of the frustration of his requirement to inspect documents in the
possession or power of procurement of the second named Respondent and Aer
Lingus PLC. I am satisfied further that the time spent by the second named
Respondent and others in seeking to resolve this matter was spent in an attempt
to expedite the trial of the charge preferred against the Applicant and that it
was eminently reasonable that the second named Respondent should take this
course of action with the object of expediting of the trial.
27. I
am further satisfied that the resolution of the application for Discovery of
documents sought by the Applicant was a long and tedious matter which was not
achieved until a full hearing and determination by O'Sullivan J. on an issue of
privilege on the 27th June and the 1st and 2nd July, 1997.
28. I
am further satisfied 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 on the same grounds which have been advanced herein and that
after a full hearing on the 17th day of June 1996 the relief was refused by the
Circuit Criminal Court (Kelly J.) on the 21st June, 1996.
29. Accordingly,
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 which has been sought herein was
enabled to consider all steps taken by the second named Respondent in the
Prosecution of the charge against the Applicant up to and including the 21st
June 1996 and held that there had been no unreasonable delay on the part of the
second named Respondent.
30. 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 second named
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 second named
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.
31. It
follows from the foregoing that I do not find this 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
32. 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 second named 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.
33. Since
I have found that there has been no unreasonable delay on the part of the
second named
34. Respondent
(or anyone acting on his behalf) in the prosecution of the charge against the
35. Applicant,
it follows that the Applicant's defence has not been prejudiced by any
unreasonable
act
or omission on the part of the second named Respondent (or anyone acting
on
his behalf) constituting delay in the prosecution of the charge preferred
against the
36. 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.
37. 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. No other prejudice of any nature of
kind has been alleged to have arisen which will affect the Applicant's capacity
to defend himself against the charge levelled against him. Although other
grounds were alleged at paragraph (e) in the Statement which grounded the
Application for Judicial Review (see paragraphs (2), (3) and (4) thereof) they
were expressly abandoned on behalf of the Applicant at the hearing of these
proceedings and no additional grounds were substituted therefor.
38. Notwithstanding
the foregoing it falls to me to consider 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 day of 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.
39. 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 second named Respondent notified the
first named Respondent on the 22nd May, 1995 as 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.
40. 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 significance that on the
22nd May, 1995 the Applicant was himself not ready or in a position to proceed
with his own defence since he was in the process of a lengthy Discovery
application, which in fact, further delayed the trial for a very substantial
further period.
41. 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 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 not himself in a position to present his case in
May 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 in 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 followed by the initiation
of the proceedings herein.
42. Amongst
the "factors" recognised and identified by the Supreme Court in
B.
-v- D.P.P.
[1997] 2 I.L.R.M. 118 (and
Barker
-v- Wingo
)
are the "length of time of pre-trial anxiety and concern of the accused" and
whilst I accept that the Applicant has suffered considerable anxiety and
concern arising out of the charge which has been preferred against him and, as
I have already acknowledged, he has been disadvantaged in his personal and
professional life and become restricted in his capacity to earn his livelihood,
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 in relation to his defence
(c) the
Applicant has not been incarcerated whilst awaiting trial
(d) his
case does not enter the "special category" considered in the
B
-v- D.P.P.
case
(e) the
delay was not in any way unreasonable in all of the circumstances of the case
and, acccordingly,
(f) the
disadvantage to the Applicant and his pre-trial anxiety and concern were
unavoidable in all of the circumstances of this case.
43. No
further or additional "factors" have been advanced on behalf of 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.
44. It
has been contended on behalf of the Applicant that since 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 Quilligan 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.
45. 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 second named Respondent has discharged that obligation
conscientiously.
46. 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.
47. 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.
48. 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.
49. In
addition, the second named Respondent has openly offered (through his Counsel
at the trial of the proceedings herein) to admit the entire of the Statement of
Evidence of Maurice Harskin pursuant to Section 21 of the Criminal Justice Act,
1984 together with the exhibits referred to therein. Further, or in the
alternative, the second named 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.
50. It
was explained on behalf of the Applicant that the presence of Mr. Harskin was
vitally necessary in the interest of the Applicant in order to enable the
Applicant to adduce evidence on the part of the Mr. Harskin by way of
cross-examination.
It is contended on behalf of the Applicant that it may be possible to elicit
answers from 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 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.
51. 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 Mr. Harskin could be implicated in some way
with the directors or officers of ALH or Aer Lingus Plc.
52. 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.
53. 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 second
named 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.
54. It
is not without significance that, by letter dated the 3rd January, 1991, the
legal advisers on behalf of the Applicant wrote to the Senior Legal Assistant
of the second named Respondent setting out in some detail the matters which
would be raised on behalf of the Applicant in defence of the charge which was
then being considered against him. Whilst I appreciate that the letter was
sent at an early stage in the investigation of the events which gave rise to
the proceedings against the Applicant, it is nonetheless of significance that
whilst the second named Respondent was expressly required to investigate a
number of matters he was never requested to interview Mr. Harskin nor was it
indicated that Mr. Harskin was in any way relevant to the charges then being
considered against the Applicant.
55. 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.
56. In
summary then, I am satisfied that the Applicant's defence has not been
prejudiced either by unreasonable delay on the part of the second named
Respondent or by any other delay or by reason of the fact that Mr. Harskin will
not now be available to testify.
57. In
the circumstances, the relief sought by the Applicant is refused.
© 1997 Irish High Court