Veronica Noonan (also known as Veronica Hoban) v DPP

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 27 July 2007
• Neutral Citation: [2007] IESC 34
• Court: Supreme Court
• Docket Number: [SC No.
• Date: 27 July 2007

[2007] IESC 34

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

No [S.C. No: 405 of 2004]

Noonan (aka Hoban) v DPP

Between/

Veronica Noonan (aka Veronica Hoban)

Applicant/Appellant

And

The Director of Public Prosecutions

Respondent/Respondent

DAWSON v DISTRICT JUSTICE HAMILL (NO 2) 1991 1 IR 213

LARCENY ACT 1916 S32(2)(a)

LARCENY ACT 1990 S9

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

BARKER v WINGO (1972) 407 US 514

DPP v BYRNE 1994 2 IR 236

HEALY, STATE v DONOGHUE 1976 IR 325

M (P) v DPP 2006 3 IR 172

BANKERS' BOOKS EVIDENCE ACT 1879

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

H v DPP UNREP SUPREME 31.7.2006 2006/27/5802 2006 IESC 55

CRIMINAL JUSTICE ACT 1994 S4

DPP v ARTHURS 2000 2 ILRM 363

F (B) v DPP 2001 1 IR 656

HOGAN v PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

MCKENNA v CIRCUIT CRIMINAL COURT & DPP UNREP HIGH COURT KELLY 14.1.2000 1999/17/5316

BRENNAN, STATE v CONNELLAN UNREP HIGH COURT HAMILTON 17.6.1986 1987/1/110

BARRY v IRELAND 2005 ECHR 865

FITZPATRICK v SHIELDS 1989 ILRM 243

BANKERS' BOOKS EVIDENCE ACT 1876<

BANKERS' BOOKS EVIDENCE (AMDT) ACT 1959

CAHALANE v MURPHY 1994 2 IR 262

O'CONNELL, STATE v FAWSITT 1986 IR 362

MAGUIRE v DPP 2004 3 IR 241

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE REPORT ON EUROPEAN JUDICIAL SYSTEMS - EDITION 2006

CRIMINAL LAW

Delay

System delay - Right to expeditious trial - Prohibition by way of judicial review sought - Discretionary remedy - Cumulative situation - Public interest - Balancing of rights - Proportionality - Interests of justice - Dawson v Hamill (No. 2) [1991] 1 IR 213 applied; Cahalane v Murphy [1994] 2 IR 262 considered - Constitution of Ireland 1937, Articles 38.1, 40.3.1 and 40.3.2 - Prohibition granted - (405/2004 - SC - 27/7/2007) [2007] IESC 34

Noonan (aka Hoban) v DPP

The applicant was employed as a bookkeeper by a credit union. The applicant was suspended on the basis of suspected fraud. Two and a half years later, the applicant was arrested and questioned. Two years and ten months after that, the applicant was brought toe the District Court and charged with a single offence. Some months later, she was charged with fifteen further offences. The applicant instituted judicial review proceedings on the grounds of delay and prejudice.

Held that there was unacceptable delay in this case. The appeal was allowed and an order of prohibition against the further prosecution of the applicant was ordered.

Reporter: E.C.

1 JUDGMENT delivered on the 27th day of July 2007 by Murray C.J.

2 In this matter I agree with the judgment of Denham J. who recites the history, facts and circumstances of this case. I wish to add some brief observations.

3 The particular facts of this case require to be considered in order to determine whether the Court, in the exercise of its discretion, should in the special circumstances of the case prohibit the prosecution continuing.

4 The discretion to be exercised by the Court is analogous to that exercised by this Court in Dawson ûv- Hamill (No. 2) 1991 1 I.R. 293, although it concerned a minor offence before the District Court, where Finlay C.J., speaking for the Court, refused to remit a criminal prosecution for retrial or continuance before the District Court after an order of certiorari by way of judicial review had been granted in respect of the initial conviction. The High Court having made such an order had remitted the matter for retrial before the District Court. In allowing the appeal and reversing that order Finlay C.J. stated "The main grounds on which this part of the appeal is brought are that the remittal was unfair and onerous to the plaintiff by reason of the delay in proceeding with the case in a proper manner; that it is a long time since the happening of the event and, on the particular facts, the matter falls to be dealt with too long after the alleged occurrence." These and other factors were taken into account by the Court in that instance and Finlay C.J. in taking into account "...all these considerations and ... the interests of justice" was satisfied that the Court, in the exercise of its discretion, should set aside the order of the High Court for a retrial or a continuance of the prosecution before the District Court.

5 There is of course a public interest in seeing that prosecutions are brought to trial and in this context the gravity of the offence is a relevant consideration. It is a question of proportionality. The offences in this instance, having regard to the particular facts, are far from the higher end of the scale in the calendar of offences. That is an important consideration in conjunction with all the other factors in this case especially the gross and extraordinary delay in a case of this particular nature.

6 Having regard to all the factors arising from the history and gross delay in this case, as outlined in the judgments of Denham J. and Hardiman J. I am satisfied that in the special circumstances of this case that the Court should exercise its discretion and grant the relief sought by the appellant.

7 Judgment delivered the 27 ^th day of July, 2007 by Denham J.

1. Issue

8 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 9 ^th July, 2004, refused her application. The applicant has appealed against that refusal.

2. Basic Facts

9 The offences are alleged to have taken place between the 1 ^st January, 1990, and the 7 ^th 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 8 ^th July, 1992. A complaint was made to An Garda Síochána on the 4 ^th September, 1992. The applicant was arrested and detained for questioning on the 21 ^st February, 1995, charged on 23 ^rd December, 1997, and returned for trial to the Dublin Circuit Criminal Court on the 4 ^th July, 2002. Leave to apply for judicial review was granted on the 22 ^nd November, 2002, by the High Court (Abbot J.)

3. High Court order granting leave to apply for judicial review

10 The High Court made an order granting leave to seek the following reliefs:-

11 (i) An order prohibiting the respondent from taking any further steps in the criminal prosecution entitled D.P.P. v. Veronica Hoban.

12 (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.

13 (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 1 ^st January, 1990, and 7 ^th May, 1992, has irreparably prejudiced the prospect of the applicant obtaining a fair trial in accordance with law.

14 (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.

15 (v) A declaration that the failure on the part of the respondent 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 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.

16 (vi) A declaration that the delay between the charging of the applicant on the 23 ^rd December, 1997, and the order sending the applicant for trial on the 4 ^th 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.

17 The grounds upon which the High Court ordered the review were as follows:

18 (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.

19 (ii) The respondent has violated the applicant's right to a trial on serious charges with reasonable expedition.

20 (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

21 The High Court ( Ó Caoimh J.) refused the application on the 9 ^th 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 23 ^rd 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.

22 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...