O'Brien v Director of Public Prosecutions,  IESC 39 (2014)
|Docket Number:||2013 53 JR|
THE SUPREME COURT
Appeal No: 277 & 288/2013
The Director of Public ProsecutionsRespondent
Judgment of the Court delivered on the 14th day of May 2014, by Denham C.J.
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 16th 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 16th May, 2013.
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.
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 4th December, 2003 and the 27th 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.”
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
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”.
The High Court reviewed the material complained of, which was categorised into four headings as follows:-
(i) remarks by Kelly J. during the course of civil proceedings against the appellant;
(ii) a chapter in a book entitled “Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy” by Dearbhail McDonald;
(iii) numerous articles, many of a lurid and sensational nature, contained in newspapers between 2008 and 2012;
(iv) a television documentary entitled “Beware Ireland, Con Artists Caught in the Act”, first televised on the 29th February, 2012, repeated on the 3rd October, 2012, and again repeated on channel 3e on the 1st January, 2013.
The High Court considered each of these categories, and described the material. The learned trial judge also analysed the relevant case-law.
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.
The President of the High Court concluded:-
“I think the television broadcasts, taken in conjunction with the huge volume of printed newspaper articles, are such as to suggest a trial in present circumstances would constitute an appreciable risk of an unavoidably unfair trial having regard to the legal tests outlined about.
I would thus have reservations about a trial proceeding in the immediate future. That said, I see no reason why, after a reasonable interval of time, a trial, suitably managed by a judge who would give all necessary warnings and directions, could not take place.
In the case of this particular application, counsel for the [appellant] indicated that, if his application for a permanent prohibition was unsuccessful, he would in the alternative seek as long a stay as possible to allow the ‘fade factor’ to operate.
On the unchallenged evidence before the Court, a trial is unlikely to occur before the second quarter of 2014. Counsel for the [appellant] stressed that if an earlier trial date became available due to the adjournment or non-commencement of some other lengthy case, the present case might be leapfrogged to an earlier hearing date.
In those circumstances I will direct a stay on the actual trial of the [appellant] for twelve months from today’s date. This need not hold up or otherwise affect the making now of arrangements for the holding of the trial in 12 months time. I do not believe any of the material relied upon [by] the [appellant] in making this application justifies granting any more extensive relief, and certainly not the total prohibition of the trial sought on his behalf. However, that is not to say that the [appellant] would be precluded from bringing a further application if, apart from reports of this judgment and decision, there were to be a significant recrudescence of adverse publicity between now and a trial scheduled for the second quarter of 2014.”
The appellant filed a notice of appeal to this Court on the 24th June, 2013. In the notice, he sought a permanent order of prohibition of his trial, or, in the alternative, an order staying the trial of the appellant for such time as the Court deems appropriate, and a declaration that the criminal prosecution is a violation of the appellant’s right to trial in due course of law. The appellant set out nine grounds of appeal, as follows:-
(i) The learned trial judge erred in law and in fact in holding that the [appellant] herein would be capable of receiving a fair trial at a point in time after May of 2014 or at any point in the future.
(ii) The learned trial judge erred in law and in fact in holding that the comments of Mr. Justice Peter Kelly made in the course of prior civil proceedings and widely repeated in the print broadcast and electronic media, do not give rise to a real and unavoidable risk of unfairness.
(iii) The learned trial judge erred in law and in fact in concluding that the above comments were proportionate and balanced in all of the circumstances and that their making had been permissible and appropriate.
(iv) The learned trial judge erred in law and in fact in holding that the contents of the book entitled Bust: How the courts have exposed the rotten heart of the Irish Economy, authored by Dearbhail McDonald, a full chapter of which is devoted to the [appellant] and the allegations made in respect of him, does not give rise or contribute in any significant way to a real and unavoidable risk of unfairness.
(v) The learned trial judge erred in law and in fact in failing to have regard, when reaching his decision in the case, to the extent to which prejudicial material which is unlikely to be deemed admissible in any subsequent criminal trial of the [appellant] has been widely and repeatedly referenced and disseminated in the print, broadcast and electronic media.
(vi) The learned trial judge erred in law and in fact in failing to have any or any sufficient regard, when considering his decision in this case, to the cumulative effect of the prejudicial material, identified by the appellant in these proceedings, in relation to the appellant personally and his alleged involvement in the criminal conduct the subject matter of the said criminal trial.
(vii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, could adequately be dealt with by way of appropriate judicial warnings and directions.
(viii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, would dissipate sufficiently with the passage of time or by operation of the so-called “fade factor”.
(ix) The learned trial judge erred in law and in fact by attaching in his decision, undue weight to both the efficacy of appropriate judicial warnings and directions and the operation of the so-called “fade factor”, in remedying the impact of adverse pre-trial publicity on the minds of jurors and the attendant risk of unfairness arising therefrom, in the absence of any genuine empirical evidence for same.
The Court received written submissions from the appellant and the DPP.
Oral Submissions from the Appellant
The appellant made oral...
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