Breifne O'Brien v DPP

JurisdictionIreland
JudgeDenham C.J.
Judgment Date14 May 2014
Neutral Citation[2014] IESC 39
CourtSupreme Court
Docket Number[S.C. Nos. 277 & 288 of 2013]
Date14 May 2014

[2014] IESC 39

THE SUPREME COURT

Denham C.J.

Murray J.

MacMenamin J.

Appeal No: 277 & 288/2013
O'Brien v DPP
Between/
Breifne O'Brien
Applicant/Appellant

and

The Director of Public Prosecutions
Respondent

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

MCDONALD BUST: HOW THE COURTS HAVE EXPOSED THE ROTTEN HEART OF THE IRISH ECONOMY 2010

DPP v GORMLEY & WHITE UNREP SUPREME 6.3.2014 2014 IESC 17

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(2)

CRIMINAL PROCEDURE ACT 1967 S4A

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL PROCEDURE ACT 1967 S4J

MCGONAGLE MEDIA LAW 2ED 2003 257

LAW REFORM CMSN CONSULTATION PAPER ON CONTEMPT OF COURT (CP 4-1991) 248

LAW REFORM CMSN REPORT ON CONTEMPT OF COURT (LRC 47-1994) PARA 6.36

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

ECKLE v FEDERAL REPUBLIC OF GERMANY 1983 5 EHRR 1

DEWEER v BELGIUM 1980 ECC 169 1979-80 2 EHRR 439

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)

KYPRIANOU v CYPRUS 2007 44 EHRR 27

MINELLI v SWITZERLAND 1983 5 EHRR 554

DE RIBEMONT v FRANCE 1995 20 EHRR 557

BUTKEVICIUS v LITHUANIA UNREP ECHR 26.3.2002 2002 ECHR 331 (APPLICATION NO 48297/99)

SAVAGE v DPP 2009 1 IR 185 2008/58/12074 2008 IESC 39

DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13

DPP v Z 1994 2 IR 476 1994 2 ILRM 481

D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372

REDMOND v DPP & PRESIDENT & JUDGES OF DUBLIN CIRCUIT COURT 2002 4 IR 133 2002/24/6062

DPP v JUDGE HAUGH 2000 1 IR 184 2000/7/2615

RATTIGAN v DPP 2008 4 IR 639 2008/54/11351 2008 IESC 34

Criminal Law – Right to a fair trial – Adverse publicity – Appellant seeking to prohibit his criminal trial – Whether adverse publicity will affect the presumption of innocence and the right to a fair trial

Facts: The appellant, Mr O"Brien, was charged with forty-five charges of theft and deception contrary to ss. 4 and 6 of Criminal Justice (Theft and Fraud Offences) Act 2001 committed between 2003 and 2008. The appellant brought an application by way of judicial review seeking to prohibit his criminal trial on grounds that he could not receive a fair trial by reason of substantial and ongoing adverse publicity. Mr O"Brien appealed to the Supreme Court from the High Court judgment of Kearns P which refused the prohibition of his trial, but ordered that the trial pending before the Dublin Circuit Criminal Court be stayed for a period of twelve months. He sought an adjournment on the grounds that he was a lay litigant who could not afford a legal team or obtain legal aid, and that DPP v Gormley & White [2014] IESC 17 was relevant to his case. The appellant also submitted that the presumption of his innocence, under the ECHR Arts. 6.1 and 6.2, was breached owing to the comments of Kelly J made in the course of the civil proceedings in the Commercial Court, and that the passage of 365 days will not erase the issues Kearns P considered extant and preventative of a fair and impartial trial at that time, relying upon ECtHR cases including Deweer v. Belgium (Application no. 6903/75, 27 February 1980). The respondent, the Director of Public Prosecutions, cross-appealed in respect of the part of the judgment and order where the High Court granted a temporary stay. The respondent submitted that a properly directed jury can fairly try this case and that the order made was unnecessary in that the evidence before the Court was that the case would not come on for hearing before the second quarter of 2014 in any event.

Held by Denham J that applications for legal aid are not a matter within the jurisdiction of the Supreme Court, so the application for adjournment on that basis was dismissed. Furthermore Denham J held that DPP v Gormley & White is not relevant to the facts of this appeal. Denham J held that while the constitutional right to a fair trial is a superior right to that of the community to prosecute, the right to prosecute and the position of victims must also be considered by the Court. Denham J considered the elements of the prejudicial adverse publicity, as set out in the statements by Kelly J in the Commercial Court and the media coverage including those statements, from the aspect of the Constitution of Ireland. Denham J considered the ECHR and the decisions of the ECtHR brought before the Court by the appellant for comparative law purposes. Denham J considered the essential issue to be whether there is a real risk of an unfair trial of the appellant in June 2014, or later. Denham J held that since a very long period has elapsed since the remarks of Kelly J were made, this period is sufficient to allow public memory to fade. Therefore the appellant is presumed innocent, and there is no real risk in the circumstances to a fair trial. Consequently, Denham J dismissed this submission.

Denham J held that the Court would dismiss the appeal. Consequently the trial of the appellant may proceed at any time from June 2014. The respondent"s cross appeal was also dismissed.

Appeal dismissed.

1

Judgment of the Court delivered on the 14th day of May 2014 , by Denham C.J.

2

Judgment delivered by Denham CJ [Nem diss]

3

1. This is an appeal by Breifne O'Brien, the applicant/appellant, referred to as "the appellant", from the judgment of the High Court (Kearns P.) delivered on the 16 th May, 2013, which refused the primary relief sought by the appellant, i.e. the prohibition of his trial, but ordered that the trial, the subject matter of the proceedings entitled The DPP v. Breifne O'Brien, Bill No. DUDP 1081/2012, pending before the Dublin Circuit Criminal Court, be stayed for a period of twelve months from the 16 th May, 2013.

4

2. The Director of Public Prosecutions, the respondent, referred to as "the DPP", filed a cross appeal in respect of that part of the judgment and order where the High Court granted a temporary stay until the end of the second quarter of 2014.

Background Facts
5

3. The President described the background facts as follows:-

"The [appellant] a former businessman, stands charged with 45 charges of theft and deception contrary to ss. 4 and 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 relating to five complainants namely, Evan Newell, Louis Dowley, Martin O'Brien, Pat Doyle and Daniel Maher, all allegedly committed between the 4 th December, 2003 and the 27 th November, 2008 at various locations in counties Dublin and Kildare. In essence, it is alleged that the [appellant] operated a pyramid or ponzi type scheme during the course of which he sought and received large sums of money from the five complainants on the basis of fictitious investment opportunities. His alleged modus operandi was to seek money from one investor and, having promised that investor a return, when the time came for the return of the investment, if he was not able to convince the investor to reinvest in another further bogus transaction, he would seek a different investor and would use the new investment to pay off the first investment and its bogus return. This process is alleged to have been repeated over a ten to fifteen year period, but in December 2008 it became apparent that the [appellant] was in financial difficulty and was unable to repay sums allegedly invested by the complainants and other investors. It transpired that substantial monies had not been held in the manner agreed or used for the purpose agreed but rather were appropriated to fund various uses including meeting the [appellant's] own personal lifestyle, alleged to be of a lavish and high profile nature."

6

4. The appellant brought an application by way of judicial review seeking to prohibit his criminal trial on grounds that he could not now, or in the future, receive a fair trial by reason of substantial and ongoing adverse publicity.

The High Court
7

5. The President of the High Court stated that despite the lengthy interval since the discovery of the appellant's alleged wrongdoing, and the proposed date of trial, it was argued by the appellant that the adverse and negative publicity surrounding his activities were such as to preclude the possibility that he would ever receive a fair trial, and that the primary relief sought was a complete bar to any trial. However, at the hearing in the High Court, and with the Court's leave, counsel for the appellant indicated to the Court that if they did not receive the primary relief, they would seek a lengthy stay or adjournment of his trial to permit the operation of a "fade factor".

8

6. The High Court reviewed the material complained of, which was categorised into four headings as follows:-

9

(i) remarks by Kelly J. during the course of civil proceedings against the appellant;

10

(ii) a chapter in a book entitled "Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy" by Dearbhail McDonald;

11

(iii) numerous articles, many of a lurid and sensational nature, contained in newspapers between 2008 and 2012;

12

(iv) a television documentary entitled "Beware Ireland, Con Artists Caught in the Act", first televised on the 29 th February, 2012, repeated on the 3 rd October, 2012, and again repeated on channel 3e on the 1 st January, 2013.

13

7. The High Court considered each of these categories, and described the material. The learned trial judge also analysed the relevant case-law.

14

8. The High Court accepted that there had been extensive factual and emotive publicity, and evaluated the potential impact of the material in the context of empanelling a jury, in the second quarter of 2014 , to hear and determine the case.

15

9. The President of the High Court concluded:-

"I think the...

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