Noonan v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 09 July 2004 |
| Neutral Citation | [2004] IEHC 137 |
| Date | 09 July 2004 |
| Docket Number | HC 282\04. |
| Court | High Court |
[2004] IEHC 137
THE HIGH COURT
BETWEEN
AND
Citations:
CONSTITUTION ART 38.1
LARCENY ACT 1916 S32(2)
LARCENY ACT 1990 S9
CRIMINAL JUSTICE ACT 1984 S4
BANKERS BOOKS EVIDENCE ACT 1879
CRIMINAL PROCEDURE ACT 1967
CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001
O'CONNELL, STATE V FAWSITT 1986 IR 362
DPP V BYRNE 1994 2 IR 236
HANNIGAN V CLIFFORD 1990 ILRM 65
FITZPATRICK V SHIELDS 1989 ILRM 243
DPP V ARTHURS 2000 2 ILRM 363
BARKER V WINGO 1972 407 US 514
J (B) V DPP 2003 4 IR 525 2003/28/6503
O'C (J) V DPP 2000 3 IR 478
P (P) V DPP 2000 1 IR 403
K (M) V GROARKE & DPP UNREP KEARNS 13.9.2000 2000/11/4324
C (N) V DPP UNREP SUPREME 5.7.2001 2001/3/603
M (P) V MALONE 2002 2 IR 560
MCKENNA V CIRCUIT CRIMINAL COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316
O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 1 ILRM 301
DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33
BRENNAN, STATE V CONNELLAN UNREP HAMILTON 17.6.1986 1987/1/110
CAHALANE V MURPHY 1994 2 IR 262
HOGAN V PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513
Judicial review - Prohibition - Delay - Lapse of time before applicant charged - Delay of 4 ½ years in District Court - Documentary evidence - Whether fair trial not possible
Facts: The applicant applied by way of judicial review for, inter alia, an order prohibiting the DPP from taking any further steps in prosecuting her on grounds, inter alia, that the DPP had prejudiced the applicant in the defence of the proceedings and created a real risk that the applicant would be denied a fair trial. The applicant relied on the period of time which elapsed prior to the charging of the applicant and also on the lengthy period of time that the case took in the District Court before an order was made returning the applicant for trial.
Held by O Caoimh J. in refusing the relief sought that the applicant had not established that a fair trial was not possible. While there had been a period of delay, some of which had been inordinate, it was a situation where in all the circumstances the community's right to have offences prosecuted should prevail. The prosecution case turned essentially on documentary evidence. The case was not one that would be greatly hampered in the context of recollections by the passage of time.
Reporter: R.W.
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 9th day of July, 2004.
By order of this Court (Abbott J.) made the 22 nd 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 1 st January, 1990 and the 7 th 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 23 rd December, 1997 in circumstances where the respondent had been on notice of the alleged offences concerning the applicant herein since the 4 th 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 23 rd December, 1997 and the order sending the applicant herein for trial on the 4 th 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 6 th December, 2002. She indicates that she had written on the 8 th 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 22 ndNovember, 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 1 st January, 1990 and the 7 th 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 2 nd and the 6 th July, 1992. It appears that an interim report was prepared dated the 8 th 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 27 th August, 1992.
It appears from the book of evidence that a decision was taken on the 27 th 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 4 th September, 1992 by Mr. John Goggins who was a witness in the book of evidence. Thereafter, a garda investigation commenced. On the 21 st February, 1995 the applicant was arrested and detained pursuant to s. 4 of the Criminal Justice Act, 1984at 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 21 stFebruary, 1995 the applicant was released from Mountjoy Garda Station without charge.
On the 23 rd 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 1 st January, 1990 and the 23 rd 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 20 th January, 1998.
On 20 th January, 1998 the applicant appeared again before the District Court at which stage the respondent asked for a remand for eight weeks...
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