Noonan (aka Hoban) -v- DPP, [2007] IESC 34 (2007)

Docket Number:405/04
Party Name:Noonan (aka Hoban), DPP
Judge:Denham J. / Hardiman J.
 
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JUDGMENT BY: Denham J.THE SUPREME COURTNo [S.C. No: 405 of 2004] Murray C.J. Denham J. Hardiman J. Between/Veronica Noonan(aka Veronica Hoban)Applicant/Appellant AndThe Director of Public ProsecutionsRespondent/Respondent Judgment delivered the 27th day of July, 2007 by Denham J. 1. Issue At issue in this case is whether the criminal trial of the applicant (pending before the Dublin Circuit Criminal Court) should be prohibited. Veronica Noonan (also known as Veronica Hoban), the applicant/appellant, (and hereinafter referred to as 'the applicant') is being prosecuted on sixteen charges for offences contrary to s. 32(2)(a) of the Larceny Act, 1916, as amended by s.9 of the Larceny Act, 1990. The applicant has sought, by way of judicial review, an order prohibiting the Director of Public Prosecutions, hereinafter referred to as "the respondent", from taking further steps in the prosecution of this case. The High Court (Ó Caoimh J.), in a judgment delivered on the 9th July, 2004, refused her application. The applicant has appealed against that refusal.2. Basic Facts The offences are alleged to have taken place between the 1st January, 1990, and the 7th May, 1992. It has been indicated that the applicant will be pleading not guilty. The charges relate to the applicant's activities as a bookkeeper in the Cabra Credit Union. The Irish League of Credit Unions prepared an interim report on the applicant's alleged conduct on the 8th July, 1992. A complaint was made to An Garda Síochána on the 4th September, 1992. The applicant was arrested and detained for questioning on the 21st February, 1995, charged on 23rd December, 1997, and returned for trial to the Dublin Circuit Criminal Court on the 4th July, 2002. Leave to apply for judicial review was granted on the 22nd November, 2002, by the High Court(Abbot J.)3. High Court order granting leave to apply for judicial reviewThe High Court made an order granting leave to seek the following reliefs:-(i) An order prohibiting the respondent from taking any further steps in the criminal prosecution entitled D.P.P. 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 from taking any further steps in the criminal prosecution entitled D.P.P. v. Veronica Hoban.(iii) A declaration that the delay in the institution of criminal proceedings charging the applicant with offences alleged to have occurred on dates unknown between 1st January, 1990, and 7th May, 1992, 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 is a 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 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 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 on the 23rd December, 1997, and the order sending the applicant for trial on the 4th day of 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 grounds upon which the High Court ordered the review were as follows: (i) The respondent has violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution of Ireland.(ii) The respondent 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 and/or has created a real risk that the applicant would be denied a fair trial or be subjected to an unfair trial.4. High Court decision The High Court (Ó Caoimh J.) refused the application on the 9th July, 2004. The learned High Court judge stated that essentially two periods of time had to be considered, (a) the period prior to the charging of the applicant on the 23rd December, 1997; and (b) the lengthy period of time that the case took in the District Court before an order was made returning the applicant for trial.As to the first, the learned High Court judge stated that he was guided by the evidence of Detective Sergeant Finan in relation to the complexity of the case as it involved a serious fraud on a credit union. He held:- "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 the applicant the relief which she seeks."The learned High Court judge then considered the length of time the case was before the District Court, which was agreed to be approximately four and a half years. He found that there was no prosecutorial delay and that at all stages the prosecution sought to advance the case in the District Court. The learned High Court judge was equally satisfied that no blame attached to the applicant. He held that the solicitor for the applicant was entitled to raise the issues which he did and that there was no suggestion of there being a deliberate attempt to delay the case on the part of the applicant. The High Court then stated:- "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."The learned High Court judge held that the delay had been explained. He held that the overall situation was one where the essential delay related to necessary events in the District Court, and to periods of time which were unnecessary and caused by the absence of the judge handling the case. The learned High Court judge held that it did not appear that any great effort was made by either side to press the matter on at a faster pace in the District Court.As to the recollection of witnesses, he held:- "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 the case is not one which would be greatly hampered in the context of recollections by reason of the passage of time."The learned High Court judge noted that there has been no pre-trial incarcerations and no particular anxiety or concern indicated in the case. He concluded:- "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...

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