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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Noonan v. D.P.P. [2004] IEHC 137 (9 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/137.html Cite as: [2004] IEHC 137 |
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HC 282/04
[2002 No. 773 J.R.]
BETWEEN
APPLICANT
RESPONDENTS
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 9th day of July, 2004.
By order of this Court (Abbott J.) made the 22nd November, 2002 the applicant was given leave to apply by way of an application for judicial review for the relief of
(i) An order prohibiting the respondent herein, his servants or agents, from taking any further steps in the criminal prosecution entitled "Bill No. 00679/02 The Director of Public Prosecutions -v- Veronica Hoban"
(ii) An order in the nature of an injunction (including an interim and/or interlocutory order pending the determination of these proceedings) restraining the respondent herein, his servants and/or agents from taking any further steps in the said criminal prosecution.
(iii) A declaration that the delay in the institution of criminal proceedings charging the applicant herein with the charges set forth in the bill of indictment, which said offences are alleged to have occurred on dates unknown between the 1st January, 1990 and the 7th May, 1992 and which are presently pending before the Dublin Circuit Criminal Court has irreparably prejudiced the prospect of the applicant obtaining a fair trial in accordance with law.
(iv) A declaration that the delay in the institution of criminal proceedings charging the applicant herein with the charges set forth in the bill of indictment is in breach of the applicant's right to a trial with due expedition and to a fair trial in accordance with law.
(v) A declaration that the failure on the part of the respondent herein to institute criminal proceedings earlier than the 23rd December, 1997 in circumstances where the respondent had been on notice of the alleged offences concerning the applicant herein since the 4th September, 1992 is in breach of the applicant's right to a trial with due expedition and to a fair trial in accordance with law.
(vi) A declaration that the delay between the charging of the applicant herein on the 23rd December, 1997 and the order sending the applicant herein for trial on the 4th July, 2002 was in breach of the applicant's right to a trial with due expedition and to a fair trial in accordance with law.
The order granting leave to entitle the applicant to seek the above relief on the grounds set forth at paras. E 1 to 5 of the statement grounding the application which grounds are as follows:
(i) The respondent herein has violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution of Ireland, 1937.
(ii) The respondent herein has violated the applicant's right to a trial on serious charges with reasonable expedition
(iii) The respondent has prejudiced the applicant in the defence of the proceedings brought by the respondent herein and/or has created a real risk that the applicant herein would be denied a fair trial or be subjected to an unfair trial.
(iv) The respondent herein is guilty of culpable delay in both the initiation of the proceedings against the applicant herein and the maintenance thereof.
(v) The respondent herein failed to have regard to his special obligation of ensuring that the applicant herein would have an expeditious trial and therefore failed to vindicate the applicant's right to trial in due course of law.
An affidavit has been sworn on behalf of the applicant by her solicitor, Jenny McGeever, who describes herself as a principal solicitor in the firm of Fahy McGeever Solicitors. In her affidavit she indicates that at the time the applicant stood listed for arraignment before the Dublin Circuit Criminal Court on the 6th December, 2002. She indicates that she had written on the 8th October, 2002 requesting a copy of the bill of indictment but had yet not received a reply to this request. She indicates further that on the 22nd November, 2002 she requested a copy of the bill of indictment but was informed that no such bill was yet available from the relevant file.
Ms. McGeever indicates that the applicant stands accused of sixteen offences contrary to s. 32 (2) (a) of the Larceny Act, 1916 as amended by s. 9 of the Larceny Act, 1990. She points out that the offences are alleged to have taken place on various dates unknown between the 1st January, 1990 and the 7th May, 1992. She expresses her belief that during this period the applicant was employed as a book keeper in the Cabra Credit Union. She indicates that the applicant is pleading not guilty to the charges and has always protested her innocence in respect of these allegations. She points out that in early 1992 the Irish League of Credit Unions received two or three anonymous calls voicing concerns about activities in the Cabra Credit Union. As a result of receiving this information the Irish League of Credit Unions commenced an investigation which culminated in visits to the Credit Union by officers of the League in June, 1992 and further visits were made on the 2nd and the 6th July, 1992. It appears that an interim report was prepared dated the 8th July, 1992 and after this report was presented to the Credit Union the applicant was suspended. The League concluded that there was a total financial discrepancy in the Credit Union accounts of £184,497.68 and this information was passed onto the board of the Credit Union on the 27th August, 1992.
It appears from the book of evidence that a decision was taken on the 27th August, 1992 to make a complaint to An Garda Siochána about alleged activities which now form the subject matter of the charges facing the applicant. The applicant was dismissed from her position with the Credit Union in or about late August, 1992. A formal complaint was made to members of An Garda Siochána on the 4th September, 1992 by Mr. John Goggins who was a witness in the book of evidence. Thereafter, a garda investigation commenced. On the 21st February, 1995 the applicant was arrested and detained pursuant to s. 4 of the Criminal Justice Act,1984 at Mountjoy Garda Station. It appears that during the course of the detention of the applicant at the Garda Station nothing of probative value emerged from interviews with her and on the 21st February, 1995 the applicant was released from Mountjoy Garda Station without charge.
On the 23rd December, 1997 the applicant was arrested by Sergeant John Finan at North Great Strand Street, Dublin 1. It appears that this arrest was for the purpose of charging the applicant and the applicant was thereafter charged by Sergeant John McGrath as set out in Mountjoy Charge Sheet 849 of 97. The applicant made no reply to the charge. The charge alleged that the applicant on a date unknown between the 1st January, 1990 and the 23rd December, 1990 at the offices of Cabra Credit Union did fraudulently cause two named persons to execute a valuable security by signing a blank Bank of Ireland cheque drawn on the account of the Credit Union by falsely pretending that the same was required for payment of a sum properly due and owing by the Credit Union. It appears that the applicant was then brought in custody to the District Court where evidence of arrest, charge and caution was given and she was then remanded on her own bail of £100 to appear at the same court at 10.30 a.m. on the 20th January, 1998.
On 20th January, 1998 the applicant appeared again before the District Court at which stage the respondent asked for a remand for eight weeks for the service of a book of evidence. She was then remanded to the 16th March, 1998 and she appeared again on that date, at which stage a further fifteen additional charges were preferred against the applicant. She was then remanded on bail to the 11th May, 1998. At this stage the respondent sought further time for the service of a book of evidence to incorporate the first charges. On the 11th May a further remand was sought by the respondent in order to serve a book of evidence. The case was remanded to the 15th June, 1998 and this was peremptorily against the respondent. On the 15th June, 1998 the book of evidence was served on the applicant. At this stage the Director of Public Prosecutions applied to have the charges amended by deleting the name "May Walters" from the charge sheets. On behalf of the applicant objection was raised to the amendment. The matter was further remanded to the 14th July, 1998 for further consideration of this matter. On the 14th July, further statements and exhibits were served on the applicant. On behalf of the Director of Public Prosecutions it was indicated that the question of depositions being called was being considered and the case was then adjourned to the 28th July, 1998. On the 28th July, 1998 an application was made on behalf of the Director of Public Prosecutions to depose two witnesses who were not listed in the book of evidence. The matter was then remanded to the 11th November, 1998.
On the 11th November, 1998 the applicant appeared before the District Court when the Director of Public Prosecutions again applied to amend the charge sheets by the deletion of the words "and May Walters". The Court acceded to the application despite objections made by the applicant herein. Evidence was also taken on deposition of a bank official but an objection was taken by Mr. O'Sullivan, solicitor on behalf of the applicant, to her evidence being given on the basis that no order had in fact been made under the Bankers' Books Evidence Act, 1879 committing her to prove in court the bankers' books in her possession. The matter was then adjourned to the 14th December 1998 for submissions on the law in relation to this matter and the taking of depositions was adjourned to the 27th January, 1999. The matter was thereafter listed on the 14th December, 1998 when the Director of Public Prosecutions applied for an adjournment for submissions on the issue of the Bankers' Books Evidence Act and the matter was adjourned to the 11th January, 1999. On that date the matter was further adjourned to the 13th January, 1999 when District Judge Mary Collins ruled that the evidence of the witness in question, Niamh Beechinor, could be received insofar as it related only to Cabra Credit Union accounts with the Trustees Savings Bank and the case was then adjourned to the 27th January, 1999. It appears that on that date the matter was further adjourned to the 22nd April, 1999 to enable the further depositions to be taken.
On the 22nd April, the matter was further adjourned due to the non attendance of the prosecuting garda. It was adjourned to the 13th July, 1999 but on that occasion the taking of the depositions could not continue as Judge Collins, who had previously commenced the taking of depositions, was unavailable. The matter was then adjourned to the 2nd November, 1999.
On the 2nd November, 1999 the issue of the scope of the evidence was raised in argument before the District Court and as a result the District Court Judge adjourned the matter to the 16th December, 1999. On this occasion the scope of the evidence was again addressed to the District Court and the matter was adjourned to the 21st December, 1999 for a ruling. On the 21st December, 1999 Judge Collins ruled that the deposition of Niamh Beechinor should be restricted to transactions on the Credit Union account with the Trustees Savings Bank in Cabra.
It also appears that on the same date Judge Collins ruled that the proposed evidence of Sean O'Carroll should be given on an unrestricted basis. The matter was then adjourned to the 17th May, 2000 for continuation of the depositions. On that date the taking of depositions could not continue due to the unavailability of Judge Collins. The matter was then remanded to the 26th May, 2000 for mention when the matter was put back to the 4th October, 2000 for the taking of the further depositions. Again Judge Collins was not available on this date and the matter was adjourned to the 11th October, 2000 for mention. On this date the matter was adjourned to the 17th October, 2000 for mention when the deposition hearings were given a date of the 23rd February, 2001. On that date evidence was taken on deposition of the two witnesses: Niamh Beechinor and Sean Carroll. It appears that on that date the applicant applied to have a deposition taken from May Walters. The case was then adjourned to the 19th July, 2001 for the taking of this deposition. On this occasion it was indicated on behalf of the Director of Public Prosecutions that the witness, May Walters, had in fact died in January, 2000. It is indicated that this is the first time that such an indication was given to the Court or the applicant or her representatives of the death in question. The matter was then adjourned to the 28th September, 2001 so that submissions could be made on the book of evidence. On that occasion the District Court heard submissions on behalf of the applicant but due to the absence of the solicitor handling the matter submissions were not made on behalf of the Director of Public Prosecutions. The case was adjourned for mention only and thereafter appeared before the Court on the 3rd December, 2001 when the matter was adjourned to the 10th December, 2001. On this date the matter was further adjourned to the 20th December, 2001. It appears that listings on the 3rd, the 10th and the 20th December, 2001 were for mention. On the latter date the matter was sent down for further submissions to the 3rd January, 2002. However due to a death in the family of the solicitor for the applicant the applicant's solicitor could not attend and as a result the matter was further adjourned to the 28th June, 2002 for further submissions. On that occasion Mr. O'Sullivan made further submissions relating to the effects of the delay and the prospect of the applicant receiving a fair trial and submissions were made in relation to the inadequacy of the proposed evidence against the applicant. On this occasion Judge Collins reserved judgment on the matter until the 4th July, 2002, at which time she ruled against the applicant and returned the applicant for trial to the Dublin Circuit Criminal Court.
Ms. McGeever refers to the history of the Credit Union and the membership of its board in 1992. Having read the book of evidence she expresses the view that at the time the system in operation in the Credit Union was a chaotic one, characterised by a lack of checks and balances. She suggests that there was a widespread access to loan application forms, journal cash records, members share and loan ledge card, pay in slip, cash collection sheets, promissory notes, pass books and journal cash records amongst other documents. She indicates that there were about 900 members of the Credit Union during the relevant time many of whom would have had dealings with the applicant.
Ms. McGeever also indicates that one of the three authorised signatories at the time is now dead. This is the aforementioned May Walters.
Ms. McGeever expresses her view that the passage of time since the alleged commission of the offences by the applicant is unjustifiable and has had a deleterious effect on the applicant's ability to gather and call evidence in relation to the system in operation in the Credit Union during that time and further, in relation to the allocation and discharge of responsibilities and duties within the Credit Union. She also expresses the belief that the death of May Walters had also deprived the applicant of an opportunity of exploring, through cross-examination, her role as the person effectively in charge of the credit committee and further, the discrepancies between her statement of proposed evidence and that of another witness in the book of evidence.
A statement of grounds of opposition has been filed on behalf of the Director of Public Prosecutions taking issue with the applicant's case. Affidavits have been sworn on behalf of the director by Detective Sergeant John Finan and Mr. Aonghus Dwane. Detective Sergeant Finan is the prosecuting officer in this case. He indicates that the initial statement of complaint made to the gardaí on the 4th September, 1992 relates to broad allegations of irregularities in relation to the discrepancy in the books and records of the Credit Union as a result of the investigation previously carried out by the Irish League of Credit Unions. He stresses that the complaint did not identify any specific criminal act. He indicates that to identify the specifics required a re-examination of the available Credit Union records, specifically in relation to all share withdrawals, loan applications and other payments made by Credit Union members. He indicates that although numerous transactions were identified as being highly suspicious no potential suspect could be identified as there was insufficient documentary evidence available. He indicates that it was eventually decided to concentrate on Credit Union loans to members which was an area where most, if not all, the controlled documents were available. He indicated that this was a lengthy and laborious process. Some of the documents being relied on in this prosecution were not handed over until the 14th June, 1999.
Detective Sergeant Finan indicates that the investigation carried out by him and his colleagues in respect of the Credit Union has taken a considerable amount of time and effort due both to the complexity of the subject matter, the large number of witnesses to be interviewed and the fact that the applicant had run the Credit Union in such a way as to leave its books in a chaotic manner. On this basis he asserts that it was the applicant's own conduct in running the Credit Union in such a manner that contributed to the complexity and length of the investigation. He indicates that the applicant, along with her son, was arrested on the 21st February, 1995 but was subsequently released without charge. Another son of the applicant was interviewed on the 19th October, 1994 and he had made a cautioned statement. He identified the applicant's handwriting on a cheque in his name which he says he never received and also confirmed to him that he had not received other cheques which bore his name.
It is indicated that between February, 1995 when the applicant was initially arrested and December, 1997 a number of things occurred. The lead investigator, Sergeant Eugene Collins was promoted and the investigation was passed onto Detective Sergeant Finan for completion. This occurred in October, 1995 and from then until June, 1996 a further sixteen detailed statements were taken from witnesses. He indicates that most of these related directly to the charges which the applicant faces but also included a former auditor of the Cabra Credit Union and its newly appointed auditor. He indicates that his report on the investigation was forwarded to the Director of Public Prosecution's office for directions on the 24th June, 1996. He indicates that on the 9th September, 1996 he received a request from the Director of Public Prosecutions for additional handwriting evidence. He indicates that with changes in the law relating to the obtaining of evidence by way of the Bankers' Books Evidence Act and the fact that the Bank had to retrieve archive statements and lodgement documents this additional evidence was not obtained until the 20th March, 1997. He indicates that the evidence was forwarded to the Director of Public Prosecutions's office in April,1997 and included a statement from Sergeant John Lynch of the documents and handwriting section of garda headquarters.
On receipt of directions to prefer charges and a subsequent process of working out and agreeing the wording for same, investigating gardaí subsequently received a fax copy of the charge from the State Solicitor on the 5th December, 1997. He indicates that having established that the applicant was then working for Roches Stores he arrested her outside their offices on North Great Strand Street, Dublin on the 23rd December, 1997. She was charged before the District Court on this day.
Detective Sergeant Finan then addresses the progress of the prosecution case through the District Court. He indicates that the applicant acquiesced in almost every adjournment in the District Court. He indicates that the necessity to amend the charges on the 15th June, 1998 related to a typographical error on his part whereby the name of May Walters was included on the charges.
With regard to the prosecution seeking the deposition of Niamh Beechinor, a bank official, he indicates that the evidence related to the debiting of credit union cheques from their account at the Trustee Savings Bank. He indicates that it had not been possible to obtain a statement from this witness prior to the submission of the investigation files. He indicates, in relation to Ms. McGeever's affidavit, that it is not correct to state that the case was adjourned on the 22nd April, 1999 due to his non attendance. He says he was delayed attending because of traffic problems but no deposition was being sought from him and it was not necessary for him to be in attendance. He states that the reason the case was adjourned by the District Court was because the applicant's solicitor failed to attend. He states that he arrived in time to meet the State Solicitor and the applicant in court.
Detective Sergeant Finan states that the applicant and May Walters were very close friends and that she would have been well aware of the death of Ms. Walters. He states that despite this the applicant permitted the case to be adjourned on the 23rd February, 2001 so that a deposition could be taken from May Walters without bringing the fact that she was deceased to the attention of the prosecution or the Court.
Detective Sergeant Finan refers to a statement of evidence of a number of persons in the book of evidence to the effect that the applicant was the person running the Credit Union.
With reference to the assertion made by Ms. McGeever that the system in the Credit Union was chaotic and lacked checks and balances he stresses that the applicant was responsible to ensure that all financial activities were properly recorded in the Credit Union accounts. He indicates that if these were in a chaotic state that this can only be blamed on the applicant. He states that the chaotic state of the records slowed down the garda investigation. He refers to evidence which suggested that a fictitious book was produced to the order.
Detective Sergeant Finan indicates his disagreement with Ms. McGeever's categorisation of the role of May Walters. He indicates his belief that documentation was manipulated by the applicant to cover up the fact that the Credit Union cheques payable to the applicant and some of her family members were lodged to Bank of Ireland accounts in which the applicant had a beneficial interest. He indicates again his belief that the applicant had total control of the Credit Union. He also disagrees with the assertion made on behalf of the applicant that there are inconsistencies between the statement of the deceased May Walters, and the statement of Christine Marshall.
Mr. Aonghus Dwane describes himself as a senior prosecution solicitor in the office of the Chief Prosecution Solicitor. He indicates that the length of time the case took to go through the District Court was in large part due to arguments which were raised by the applicant in respect of depositions and the Bankers' Books Evidence Acts. He also suggests that delays were caused by the non-attendance of the applicant's solicitor. He asserts that the prosecution at all times sought to have the matter progressed quickly through the District Court but was frequently frustrated in its aim by factors outside its control. He suggests that the chronology set out in Ms. McGeever's affidavit gives the misleading impression that it was the prosecution that was dragging its feet in the District Court. He states that this was not the case and that the prosecution had nothing to gain by delaying the case. He indicates that the file was received in the case in the Chief State Solicitor's office on the 5th July, 1996 and that on the 9th July, 1996 it was sent to the office of the Director of Public Prosecutions for directions. Initial directions and queries from the Director of Public Prosecutions were sent to the gardaí on the 6th September, 1996. In particular it was directed that it would be necessary to have further evidence from the banks and from handwriting experts before a conclusion could be reached on the file. He indicates that the additional evidence was not obtained until the 28th March, 1997 as detailed by Detective Sergeant Finan and that in April of that year the additional evidence was forwarded to the Director of Public Prosecutions. On the 24th September, 1997 charges were directed by the Director of Public Prosecutions. On the 4th November, 1997 a draft warrant, information and a specimen charge were forwarded to the Director of Public Prosecutions. On the 2nd December, 1997 the wording of the charge, which had been approved by the Director of Public Prosecutions, was forwarded on to the gardaí. On the 5th December, 1997 the wording of the charge was also faxed to the gardaí. He confirms that the applicant was charged before the District Court on the 23rd December, 1997. On the 20th January, 1998 the applicant's then solicitor, Terence Lyons, came off record and Michael O'Sullivan was assigned. The case was adjourned for service of the book. On the 17th February, 1998 further garda material was forwarded to the Director of Public Prosecutions. On the16th March, 1998 the case came before the District Court. It was adjourned for service of the book and additional charges were preferred. He confirms that on the 11th May, the case was adjourned on a peremptory basis for service of the book.
Mr. Dwane indicates the history of the case in the District Court, which is essentially uncontroversial in nature. He indicates that on the 14th December, 1998 he had a phone conversation with Michael O'Sullivan, the applicant's solicitor. Mr. O'Sullivan was out sick at the time and he, Mr. Dwane, indicated that the Director of Public Prosecutions wished to adjourn the case and Mr. O'Sullivan indicated that he would need an adjournment in any event as he was sick. He says on this basis there was consent to the matter being adjourned to the 11th January, 1999. He says that the unavailability of Mr. O'Sullivan on the 14th December is omitted from Ms. McGeever's affidavit.
He indicates that there were arguments about depositions on the 13th January, 1999. He says that the issue that had arisen between the parties was whether orders under the Bankers' Books Evidence Acts were required. The prosecution contended that there were not, as the evidence on deposition related to the Credit Union's own accounts with the Trustee Savings Bank. On this basis he says that there was no confidentiality issue as the Credit Union was the injured party. He indicates that this view was disputed by the defence. On the13th January, 1999 Judge Collins ruled in favour of the prosecution and held that an order under the Bankers' Books Evidence Acts was not necessary as Ms. Beechinor's evidence on deposition only related to the Credit Union's accounts with the Trustee Savings Bank. He says that the case was adjourned so that a date could be fixed for depositions.
He indicates that on the 27th January, 1999 the date of the 22nd April, was fixed for the taking of the further depositions. He indicates that on the 22nd April, the parties to be deposed were present but there was no appearance by the applicant's solicitor at the time. The applicant herself was present and the case was adjourned by Judge Windle. Mr. Dwane indicates that on the 27th January, the applicant's solicitor was not present in court but that he met him in the yard on the way out of the court and informed him of the adjourned date of the 22nd April, 1999. On the 22nd April, Mr. O'Sullivan indicated that he had been given the adjourned date by his client. Mr. Dwane takes issue with Ms. McGeever's affidavit to the effect that the adjournment in question was due to the non-attendance of the prosecuting garda. Mr. Dwane indicates that this was not the case as had the applicant's solicitor been present in court on time the matter could have proceeded on that day.
Mr. Dwane gives details of what transpired on the 16th December, 1999 when objection was raised to Mr. Carroll giving evidence on deposition and producing bankers' books. Having heard submissions of both sides Judge Collins adjourned the matter to the 21st December, 1999 for a ruling. This she gave on the 21st December. The case was then adjourned to the 17th May, 2000 for the taking of depositions. Mr. Dwane indicates "the case had been bogged down in the District Court for the previous eighteen months because of the defence objections to depositions". He also indicates that at no time up to the death of May Walters was any indication given by the defence that they wished to depose her.
Mr. Dwane indicates by reference to documentation in the office of the Chief Prosecution Solicitor that Mr. O'Sullivan was not in court on the 26th May, 2000. Mr. Dwane indicates that on the 17th October, 2000 a date for depositions was fixed for the 23rd February, 2001 being a full day reserved for the matter in light of the then history of the case.
With reference to the death of May Walters and the request made for the taking of depositions from her after she died Mr. Dwane indicates that the defence was written to on the 3rd May, 2001 asking for their revised position in light of the fact that she was dead. The letter from the Chief State Solicitor at the time indicated an intention to mention the matter in the District Court so that the date set aside could be reallocated and invited Mr. O'Sullivan to indicate his revised position in light of Ms. Walter's death. It appears that there was no reply to this letter but it further appears that the matter was not addressed to the Court prior to the 19th July, 2001.
Dealing with the events of the 28th September, 2001 it is indicated that the defence made submissions on the book of evidence and depositions then before the Court and that Detective Sergeant Finan took a note of these until the arrival of a state solicitor in court. He indicates that the matter was remanded to the 3rd December, 2001 to see if Judge Leonard, who presided on the 28th September, 2001, was available to hear the replies to the submissions made on the 3rd January, 2002. He also indicates that the prosecution was directed to indicate any case law it was relying on in reply on the 3rd December, 2001.
It appears that the view of counsel for the prosecution was that in reality Judge Collins ought to have had seisin of the case as she had heard depositions and protracted legal arguments. On the 3rd January, 2002 the applicant's solicitor was unable to attend court due to a family bereavement and on this occasion Judge Leonard adjourned the case peremptorily against all parties for submissions to the 28th June, 2002. She indicated at the time that she was not retaining seisin of the matter.
Mr. Dwane indicates that on the 28th June, 2002 submissions were raised by the applicant on the issue of delay and on the adequacy of the prosecution evidence and the matter was adjourned for a decision on this question. On the 4th July, 2002 the order returning the applicant for trial was made. He indicates that around this time the applicant had instructed a new firm of solicitors namely, Fahy McGeever, to act on her behalf.
An affidavit has been sworn by Mr. Micheál O'Sullivan, solicitor, who indicates his involvement in the case against the applicant before the District Court. He indicates that he first appeared for the applicant on the 20th January, 1998. He said at that stage the solicitor acting on behalf of the prosecution successfully resisted his application to have the case marked peremptory against the Director of Public Prosecutions for service of the book of evidence. He indicates further that on the 16th March, Ms. Jenny McGeever, solicitor, who was at that time working for the office of Terence Lyons & Company, solicitors appeared in the District Court on his behalf to represent the applicant. He further indicates that on the 11th May, he resisted an application made on behalf of the Director of Public Prosecutions for a further remand in order to have a book of evidence served. He says, however, that the Court remanded the matter back to the 15th June, 1998 but the District Court Judge acceded to his application to have the case marked peremptory against the Director of Public Prosecutions for the service of a book of evidence.
Mr. O'Sullivan indicates that on the 15th June, 1998 there was no indication that the necessity for amending the charge sheets arose because of a typographical error. He further indicates that on the14th July, 1998 it was first indicated by Mr. Dwane, on behalf of the Director of Public Prosecutions, that he was considering deposing witnesses who were not at that stage named in the book of evidence. He indicates that the matter was adjourned at that stage to the 28th July, 1998 to enable the Director of Public Prosecutions to decide whether depositions were to be called and further to allow the applicant consider the evidence in order to make submissions under the Criminal Procedure Act, 1967, if appropriate. The case was marked peremptory against the Director of Public Prosecutions in relation to the issue of depositions and against the applicant in relation to submissions on the book of evidence.
Mr. O'Sullivan indicates that on the 28th July, 1998 the matter was put back to the 11th November, 1998 which was the date fixed for the taking of depositions. He states that at this stage the charges were still unamended and that the Director of Public Prosecutions had not renewed his application to amend the charge sheets. He states that he objected to the proposed amendment on behalf of the applicant. Mr. O'Sullivan refers to other adjournments and to the fact that the taking of depositions was adjourned from December, 1998 to the 27th January, 1999. It is his recollection that the case was adjourned for legal argument in order to assist Mr. Dwane who was unprepared to deal with the arguments raised by giving him a chance to look up the law and to give him a chance to make submissions on the matters raised.
Mr. O'Sullivan indicates that on the 19th January, he telephoned the District Court office to ascertain which dates were available for District Judge Collins to take depositions and was informed that the 12th May, 1999 was available in District Court no. 45 at 2 p.m. Mr. O'Sullivan says that on the 27th January, 1999 the Director of Public Prosecutions in fact applied for a date to be fixed for the 22nd April, 1999 and that this application was acceded to. Mr. O'Sullivan takes issue with the suggestion that he was not in court on the 27th January, 1999. He states that he was present at 2 p.m. when Judge Scally sat that day in court no. 45.
Mr. O'Sullivan indicates that the matter was listed on the 22nd April, 1999 for depositions to be taken. As Judge Collins was unavailable the Court was presided over by District Judge Desmond P. Windle and he indicates that the Director of Public Prosecutions sought and received an adjournment of the matter on the basis that the prosecuting garda was not in court. He says that he was present at that hearing and that the respondent, the Director of Public Prosecutions,chose not to proceed in the absence of Sergeant Finan. He denied having had a telephone conversation with Mr. Dwane of the nature alleged by Mr. Dwane in his affidavit. He indicates however, that by letter of the 27th June, 1999 Mr. Dwane replied to him by supplying more evidentiary material. He indicates that he expressed his concern regarding the Director of Public Prosecutions's ill preparedness and delay in presenting and progressing the case at every juncture.
On the 13th July, 1999 the taking of depositions could not resume as District Judge Collins who had commenced same previously was unavailable. He indicates that the Director of Public Prosecutions sought and obtained a remand on this occasion to the 2nd November, 1999. On this occasion it is indicated that the Director of Public Prosecutions declined to go ahead with his depositions. He refers to the fact that on the 16th December, 1999 the Director of Public Prosecutions was represented by counsel. He confirms that there was an argument in relation to the scope of the evidence to be given by the deposed witnesses and that the Director of Public Prosecutions invited Judge Collins to change a ruling she had previously made on the 13th January, 1999. He indicates that the case was adjourned to the 21st December, 1999 for ruling when Judge Collins ruled that the deposition of Niamh Beechinor should take place and should be restricted to the transactions on Cabra Credit Union's account with the Trustee Savings Bank. She indicated that Mr. Carroll's evidence could be given on an unrestricted basis. The matter was then remanded to the 17th May, 2000 for continuation of the deposition hearings. Mr. O'Sullivan refers to correspondence that he wrote to the Director of Public Prosecutions on the 29th December, 1999, the 15th March, 2000 and the 4th May, 2000. In these letters he sought clarification as to the section of the Criminal Procedure Act under which the proposed depositions were to be taken.
Mr. O'Sullivan makes reference to the letter of the 3rd May, 2001 referred to by Mr. Dwane relating to the death of May Walters. He indicates that this letter was handed to him by Mr. Liam Mulholland of the Chief State Solicitor's Office on the 19th July, 2001. He says that at no stage prior to that date was that letter received by his office. Much of what follows in Mr. O'Sullivan's affidavit is argumentative in nature and it is not proposed to refer to same.
A supplemental affidavit has been sworn by Mr. Dwane in which he repeats a number of the matters previously addressed by him in his affidavit. He confirms that he gave instructions to the gardaí in relation to the preparation of further statements between 1995 and 1997 and that these were served on his instructions to fill in what would have been regarded as potential evidentiary gaps in the book of evidence. They had been served a short time previously; on the 15th June, 1998. This relates to the evidence served on the 14th July, 1998. With regard to a statement which had been prepared for signing by Ms. Beechinor in 1996 he indicates that by the time she got the document she had gone on maternity leave and that the statement in question remained unsigned. On this basis she believes that her statement and deposition, that she signed the statement must have been an error on her part. He indicates that Mr. Sean Carroll refused to tender evidence other than by way of deposition due to the requirements of customer confidentiality. Mr. Dwane repeats that Mr. O'Sullivan was not in court on 27th January, 1999 when the case was called and adjourned. Mr. Dwane further states that he believes that Mr. O'Sullivan may be mistaken in relation to his recollection of the events of the 22nd April, 1999.
SUBMISSIONS
On behalf of the applicant it is submitted by Mr. Michael O'Higgins, S.C., that three essential periods of delay arise in this case. The first he identifies as the time when the initial complaint was made to the gardaí to the stage when the applicant was arrested and detained under s. 4 of the Criminal Justice Act, 1984 being the period from September, 1992 to February, 1995; a period of approximately two years and six months. The second period identified is the period from February, 1995 to the charging of the applicant in December, 1997 being a further period of two years and ten months. Finally counsel refers to the period from the charging of the applicant in December, 1997 to July, 2002 being a period of four years and six months when the matter was adjourned on a number of occasions before the District Court. Counsel categorises the case as having been bogged down and getting worse and worse, with long delays being part of the system's response in the instant case. Counsel submits that the categorisation of the cases as being long and laborious is short in specifics in regard to the period up to the charging of the applicant. Counsel further refers to the apparent delay in the drafting of the charges in the instant case and asks rhetorically what possible difficulties arose in this regard. Counsel refers to the fact that the applicant was charged initially with one offence. Counsel stresses that there is a lack of detail in relation to matters in the affidavits and no example given of the complexity alleged and that there is simply a general averment of the absence of records. Counsel submits that Detective Sergeant Finan had first hand experience of the Credit Union.
Counsel stresses the right of the applicant to a trial with reasonable expedition and submits that there has been a breach of this right and further prosecutorial delay. With regard to the period when the matter was before the District Court, counsel submits that a period of nine to twelve months would be reasonable, in circumstances where it took four and a half years. Counsel complains of delays at the hands of the investigating gardaí, the prosecution and further system delay. With regard to the latter delays, counsel refers to particularly long delays of six months on a number of occasions when the matter was before the District Court.
Counsel submits that the burden rests on the prosecution to show that the delay in the instant case is reasonable. Counsel submits that the matter could have been advanced in the District Court by appropriate applications being made to the President of that court but submits that this was not the function of the applicant or her legal representatives. Counsel submits that the right to a trial with reasonable expedition necessarily carries with it obligations on the part of the prosecution.
On behalf of the Director of Public Prosecutions, Mr. Paul Anthony McDermott, submits that steps could have been taken by the applicant to expedite the matter and counsel submits that there was no real effort made to speed things up and that there was a need for co-operation from both sides in the instant case. Counsel categorises the defence attitude of one of sitting back and acquiescing in the six month adjournments. Counsel submits that the gardaí have explained the delay in the investigation process. Counsel stresses that the reason for the delay relates to the fact that the books of the Credit Union were left in a chaotic state and on this basis counsel submits that on the evidence this cannot be described as a straight forward fraud case. Counsel submits that fraud of its essence involves a concealment or covering up of matters. Counsel stresses that the matter can in no way be described as a simple matter. Counsel submits that on the evidence it can be seen that the gardaí had to work out what they could prove in the instant case. Counsel refers to the Criminal Justice (Theft and Fraud Offences) Act, 2001 and refers to a variety of offences covered by that legislation and the issue being one as to which offence was appropriate in the instant case. Counsel refers to the thirty six witnesses in the book of evidence and submits that this is not the starting point but is more representative of the finishing point after the completion of the investigation and the assembly of evidence on which to prosecute the applicant. Insofar as a witness has died counsel submits that if anything this is something which damages the prosecution case. Counsel submits that the applicant has failed to show any particular detriment to her defence of the charges by reason of the death in question. Further, counsel complains of the delay on the part of the applicant in moving to this Court in the first instance for the relief which she seeks. Counsel submits that the delay in question in making the application has not been explained or justified.
In reply counsel on behalf of the applicant refers to the change of solicitors that took place in the case and refers to the correspondence and the fact that the solicitors in question were looking for the indictment. Counsel refers to the fact that senior counsel was only assigned some four weeks previously to represent the applicant in her trial. Counsel submits that matters were being sought well in advance of the first arraignment of the applicant.
Counsel on each side prepared written submissions for this Court. On behalf of the applicant reference is made to a number of cases involving delay in prosecutions. However, the essential cases referred to are cases involving delay in the context of the prosecution of offences in the nature of child sexual abuse. While these of course illustrate the principle of the right to a trial with reasonable expedition they are in a special category.
Counsel further refers to cases of general delay including The State (O'Connell) v. Fawsitt [1986] I.R. 362 and Director of Public Prosecutions v Byrne [1994] 2 I.R. 236 dealing with the right to a trial with reasonable expedition. Counsel further refers to cases of prosecutorial delay in cases involving the prosecution of offences of child sexual abuse.
Counsel refers to the cases of Hannigan v. Clifford [1990] I.L.R.M. 65 and Fitzpatrick v. Shields [1989] I.L.R.M. 243. Counsel refers in particular to the latter case in which Carroll J. identified the various periods of delay in the prosecution and indicated that the cumulative effect of all the delays is that a long delay at an early stage of the proceedings means that a shorter delay at a later stage which might have been unobjectionable is no longer tolerable. The delay in the preparation of the book of evidence was not tolerable and taking all the circumstances of the case into account she held that an order of prohibition sought by the applicant in that case should be granted. Counsel further refers to the judgment of O'Neill J. in Director of Public Prosecutions v. Arthurs [2000] 2 ILRM 363 where at p. 377 of his judgment O'Neill J. stated as follows:-
"The failure on the part of the State to have made adequate provision for the expeditious conduct of cases in the District Court in question resulting, as it did, in the adding to an already excessive delay a further nine months delay, bringing the total to two years and three months, was, in my opinion, an unwarranted invasion of the accused's constitutional right to an expeditious trial".
Counsel refers to a portion of the judgment of Powell J. in Barker v. Wingo (1972) 407 U.S. 514 where he stated inter alia as follows at p. 532:-
"If witnesses die or disappear during a delay the prejudice is obvious. There is also prejudice if defence witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown".
Counsel also refers to dicta of Hardiman J. in B.J. v. Director of Public Prosecutions (Unreported, Supreme Court, 19th December, 2003) where, dealing with a case of child sexual abuse and delay, Hardiman J. expressed the view that lapse of time in such cases can distort in a radical manner the memories of even trained and experienced people. Counsel further referred to judgment of Hardiman J. in J. O'C v. Director of Public Prosecutions [2000] 3 I.R. 478 and in particular portion of the judgment at p. 515 in which he stated inter alia as follows:-
"The risk of a death or unavailability of witnesses has long been recognised as one of the risks of unfairness attaching to long lapses of time. In my view, in such cases, it is for those wishing to proceed to establish that a trial can be had fairly and not for the defendant to negative the proposition that the witness might have been useless or unavailable even at a much earlier time".
Other cases cited by counsel include P.P. v. Director of Public Prosecutions [2000] 1 IR 403, M.K. v. Groarke (Unreported, High Court, Kearns J., 13th September, 2000) and N.C. v. Director of Public Prosecutions (Unreported, Supreme Court, 5th July, 2001). Finally counsel refers to P.M. v. Malone [2002] 2 IR 560 where Keane C.J. stated inter alia as follows at p. 572:-
"The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial."
In the same case Keane C.J. referred to factors giving rise to anxiety and concern including stigmatisation of the accused, loss of privacy, disruption of family, social life and work, legal costs and uncertainty as to the future.
Counsel on behalf the Director of Public Prosecutions refers to the fact that the applicant has not been able to point to any particular prejudice save for the death of a witness in the book of evidence, May Walters. Counsel stresses that she is a prosecution witness and not a defence witness and that the applicant has made little or no attempt to identify any particular defence to which she would be essential which is not any longer available to the applicant.
Counsel refers to McKenna v. The Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, 14th January, 2000) in which Kelly J. stated, inter alia at p. 9:-
"Fraud cases by their nature are complicated".
Counsel suggests that the applicant was responsible for or acquiesced in almost every adjournment before the District Court and made no effort to progress matters any faster.
Counsel refers to the delay on the part of applicant in moving to this Court for the relief which she seeks. Counsel refers to the fact that the return for trial in this case was on the 4th July, 2002 but leave was sought and obtained to bring these proceedings five months later namely on the 25th November, 2002. Counsel submits that the applicant has failed to move promptly and in any event within three months for the relief in question. Counsel stresses that the applicant is required to show good reason for the court to extend time or overlook the delay in question. In this regard counsel refers to the judgment of Costello J. in O'Donnell v. Dun Laoghaire Corporation [1991] 1. I.L.R.M. 301 and to the judgments of Denham J. and Fennelly J. in De Roiste v. Minister for Defence [2001] 1 IR 190 in which the Supreme Court addressed the factors that should be taken into account in deciding whether there is good reason to extend time and in which the Supreme Court approved of the views of Costello J. in the O'Donnell case in considering how the phrase "good reason" should be construed. Further, in the De Roiste case Fennelly J. stressed that delay in making an application for judicial review requires both an explanation and justification. Counsel further stresses that this case must be addressed in the context of it being an indictable matter rather than a summary matter.
Counsel refers to a number of similar judgments in the field of delay including The State (O'Connell) v. Fawsitt [1986] I.R. 362 and Hannigan v. Clifford [1990] I.L.R.M. 65. In the latter case Walsh J. stated at p. 68 inter alia as follows:-
"… with regard to the interval between the forming of suspicion and a decision to charge everything depends upon the circumstances of the case. In my view, once a decision to charge a person has been taken then it should be effected without delay and the person brought to trial."
He continued as follows at p. 69:-
"…the circumstances of any given case may be such as to indicate that the charges were not laid until an inexcusable delay had occurred. The matter could be one which would prejudicially affect a fair trial because the effect of such a delay could hamper an accused person in the conduct of his defence for reasons similar to those given by this Court in State (O'Connell) v. Fawsitt. There is no evidence in the present case that any circumstances existed to indicate that the prosecuting authorities were in a position to institute their prosecution before they did so or that the delay which occurred between the commission of the offences and the bringing of the charges against persons who were already suspected persons for 18 months was such as could lead to the conclusion that the right to a fair trial had been prejudiced".
Counsel refers to the judgment of Murphy J. in The State (O'Connell) v. Fawsitt [1986] I.R. 362 in which he addressed relevant factors to include the complexity of the charges and secondly whether the applicant "seeks or acquiesces in an adjournment of his trial either to postpone the day of reckoning or for other reasons" (at p. 371).
Counsel further refers to a number of cases involving offences of fraud including The State (Brennan) v. Connellan (Unreported, High Court, 17th June, 1986), Cahalane v. Murphy [1994] 2 I.R. 262, Hogan v. President of the Circuit Court [1994] 2 I.R. 513 and McKenna v. The Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, 14th January, 2000). In the latter case, while Kelly J. concluded that there had been an inordinate delay on the part of the Director of Public Prosecutions in permitting a period of five and a half years to elapse between the first complaint to the police and the issuing of directions from the Director of Public Prosecutions the charges being preferred, he proceeded to consider the legal implications of his finding and concluded, having identified a number of factors, that no actual or particular prejudice had been made out by the applicant. He concluded that the delay in question was not so excessive as to raise an inference that the risk of an unfair trial had been established as a reality. He also relied on the fact that it was a case involving documents rather than one where the recollection of witnesses would be central. In that case, the factors taken into account by Kelly J. included:-
(i) the delay in the case,
(ii) the reason for the 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,
(vii) anxiety and concern,
(viii) impairment of defence,
(ix) circumstances which may render the case into a special category,
(x) the community's right to have offences prosecuted.
In the instant case counsel addresses a number of factors including:-
1. The delay in charging and
2. the delay in the District Court.
With regard to the former counsel refers to the evidence of Detective Sergeant Finan and submits that on this evidence the reasons for the delay are valid and understandable reasons, given the nature of the case and the evidence which had to be collected. With regard to the delay in the District Court, counsel indicates that some of these delays were due to the court, including the non-availability of the District Court Judge on three occasions. Further, counsel concedes that some delays were due to the State, namely on the 11th May, 1998 when the case was adjourned for the service of the book of evidence. Counsel submits that some of the delays were due to the applicant, including the 11th November, 1998 when the case was adjourned to allow the applicant's legal representatives to make legal submissions. Counsel further refers to the occasion of the 22nd April, 1999 when it is stated that the applicant's solicitor did not turn up in court. A further adjournment was necessitated by reason of a death in the family of the solicitor in question in January, 2002. Counsel further refers to the fact that some adjournments were for the benefit of all, including the occasion of the 14th December, 1998 when the applicant's solicitor was sick and the Director of Public Prosecutions wanted more time.
Dealing with the aspect of prejudice counsel submits that the grounding affidavit sworn on behalf of the applicant is vague about the relevance of the dead witness. In this regard counsel refers to the averments of Jenny McGeever. Counsel further refers to the fact that the assertions in this regard are hearsay in nature. Counsel submits that the applicant has not identified any defence which she wishes to raise and which is now unavailable. Counsel submits that there is no suggestion that the dead witness could say anything that would exonerate the applicant.
CONCLUSIONS
Two essential periods must be considered in this case. In the first instance the period prior to the charging of the applicant on the 23rd December, 1997 and secondly, the lengthy period of time that the case took in the District Court before an order was made returning the applicant for trial. In the first instance, I am guided by the evidence of Detective Sergeant Finan in relation to the complexity of the case which must be self-evident in a charge of this nature, involving as it does a serious fraud on a credit union. It is clear that the absence of documentation hampered the gardaí in their investigation and ultimately resulted in a situation where careful judgment had to be exercised by the Director of Public Prosecutions in the consideration of what charges might be preferred against the applicant. I do not believe that it is appropriate to judge the case simply by reference to the number of prosecution witnesses in a book of evidence. What is not in dispute is that the documentation or records of the Credit Union were in some state of chaos which presented difficulties for those involved in investigating the affairs of the Credit Union. It is unnecessary to ascribe blame for this state of affairs but the essential fact is not seriously disputed. That being the situation it must have presented a difficulty to the gardaí in their investigations. While it is clear that some of the period in question, in relation to the decision making and the preparation of charges, has not been adequately explained, I am satisfied that in regard to the overall period that no gross or inordinate delay has been identified such as to warrant granting to the applicant the relief which she seeks. However, it is necessary also to look at the delay in the District Court and to consider whether that delay, which is agreed to be in the order of four and a half years, is such as should enable the applicant to obtain the relief which she seeks. I am not satisfied that the period in question is one attributable to what is described as prosecutorial delay and it appears clear that at all stages the prosecution sought to advance the case through the District Court. Equally, insofar as issues were raised on behalf of the applicant in the District Court by her legal advisors no blame attaches to same. The solicitor in question was entitled to raise the issues notwithstanding the fact that some of these may have been ruled upon against his client and no suggestion is made that there was any deliberate attempt on the part of the applicant to delay the proceedings in the District Court. There is, however, the situation whereby a number of delays occurred by reason of factors for which neither party was to blame; namely the non-availability of members of the District Court and lengthy adjournments for matters to be addressed. This is what has been referred to as systemic delay in the District Court and is a matter which must be of some concern. What is of further concern is the fact that one year after she died an application was made on behalf of the applicant to have May Walters deposed. What is apparent is that there was ignorance on the part of the prosecution of her death and certainly on the part of the applicant's legal advisors, if not the applicant herself. However, this gave rise to a further period of unnecessary delay which is unfortunate in the circumstances. But this was delay for which I am satisfied the Director of Public Prosecutions was not responsible and nor was the District Court or its system. In addressing the factors identified by Kelly J. in McKenna v. Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, 14th January, 2000), I believe that the delay in this case, while significant has been explained in the affidavits put before the Court. There is of course some dispute in relation to some of the dates and whether, for example, cases were adjourned due to the non-attendance of a solicitor, either for the applicant in the District Court or for the prosecution. However, I do not believe that the areas of dispute are of significance in this regard. The overall situation is one where the essential delay related to the necessary course of events in the District Court but further by reason of periods which were unnecessary due to the absence of the judge handling the case in the District Court. While it is suggested on behalf of the applicant by her solicitor, Mr. O'Sullivan, who represented her at the time that he raised the issue of delay, it does not appear that any great effort was made by either side to press the matter on at any faster pace in the District Court. I believe that the nature of the prosecution in question is one that essentially turns on documentary evidence but must of course be supplemented by oral testimony. I believe that in this light that the case is not one which would be greatly hampered in the context of recollections by reason of the passage of time. There will undoubtedly be issues raised in the trial in relation to the degree of control of the affairs of the Credit Union exercised by the applicant or any one else. I believe that it would be inappropriate for me to seek to express any view on this matter at this stage especially as this is a matter which essentially will have to be addressed at the trial of the applicant herself. There has been no pre-trial incarceration and no particular anxiety or concern indicated in the instant case. I am satisfied that notwithstanding the period of delay that the delay in question is not one that has been demonstrated to have impaired the defence of the applicant. There is one witness who has died, namely May Walters, who has been identified but again it is a matter of some controversy as to the relevance of this witness in the context of the prosecution of the applicant. It is clear that she was included as a prosecution witness and in those circumstances I believe that it is in all probability a situation where her death will have a more detrimental effect on the prosecution case than on the defence case in the trial in question.
I believe that the circumstances of this case can therefore be contrasted with those in the case of Hogan v. President of the Circuit Court [1994] 2 I.R. 513 which coincidentally also involved a fraud on a body of a similar nature to the Credit Union, being the Tontine Society in that case. However, the particular factors of prejudice identified in that case have not been demonstrated to exist in the instant case. In all of the circumstances therefore, while I am satisfied that there has been a period of delay, some of which has been inordinate, it is not a situation which in all the circumstances of the case I am satisfied that the community's right to have the offences prosecuted should not prevail especially in light of the fact that I do not conclude that the applicant has established to the satisfaction of this Court that a fair trial is not possible in the circumstances. In light of this fact, I refuse to the applicant the relief which she seeks.
