William Kiely v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 05 March 2021 |
| Neutral Citation | [2021] IEHC 156 |
| Docket Number | [Record No. 2020/304 JR] |
| Court | High Court |
| Date | 05 March 2021 |
[2021] IEHC 156
[Record No. 2020/304 JR]
THE HIGH COURT
Prohibition – Prosecution – Right to fair trial with due expedition – Applicant seeking an order prohibiting his further prosecution – Whether the applicant’s prosecution was in breach of his right to a fair trial with due expedition
Facts: The applicant, Mr Kiely, applied to the High Court seeking: (a) an order prohibiting his further prosecution on foot of charges within a Book of Evidence served on him on 5 February 2020; and (b) a declaration that his prosecution is in breach of his right to (i) a fair trial with due expedition under Article 38.1 of the Constitution and Article 6 of the European Convention on Human Rights, and (ii) private and family life contrary to Article 8 of the European Convention on Human Rights. The statement to ground the application of 30 April 2020 identified nine headings of claim, however, the essence of the argument made by the applicant was to the effect that there was prosecutorial delay from the date when the first complaint was made, to the date when he was served with the Book of Evidence, which amounted to blameworthy prosecutorial delay. Added to this was the assertion that he had suffered general prejudice in that he had gotten on with his life, therefore it would be unfair to continue with the prosecution against him. The claim did not assert a deficiency of evidence at trial, but rather prosecutorial/State delay coupled with prejudice, therefore it was stated that it was not within the remit of matters which are considered best raised before the trial judge. It was said the High Court therefore was the appropriate forum to determine the accused’s issues.
Held by the Court that it had not been demonstrated that there was any real or serious risk that the trial of the accused would be unfair. The Court held that the asserted prejudice arising because of the delay (namely the accused secured a job in 2016 which he held on 1 May 2020, together with the fact that he visits his parents once or twice a month) was minimal. The Court held that a fair trial was possible, same being the overarching test in a determination of whether or not prohibition is appropriate.
The Court held that prohibition should not be granted.
Prohibition refused.
JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 5th day of March, 2021.
The applicant herein is seeking:
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a. an order prohibiting his further prosecution on foot of charges within a Book of Evidence served on him on 5 February 2020;
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b. a declaration that his prosecution is in breach of his right to:
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i. a fair trial with due expedition under Article 38.1 of the Constitution and Article 6 of the European Convention on Human Rights;
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ii. private and family life contrary to Article 8 of the European Convention on Human Rights.
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The statement to ground the application of 30 April 2020 identifies nine headings of claim, however, the essence of the argument made by the applicant was to the effect that there was prosecutorial delay from the date when the first complaint was made, to the date when he was served with the Book of Evidence, which amounts to blameworthy prosecutorial delay. Added to this is the assertion that he has suffered general prejudice in that he has got on with his life, therefore it would be unfair now to continue with the prosecution against him. This claim does not assert a deficiency of evidence at trial, but rather prosecutorial/State delay coupled with prejudice, therefore it is stated that it is not within the remit of matters which are considered best raised before the trial judge. It is said the High Court therefore is the appropriate forum to determine the accused's issues.
The alleged offences are that of theft which allegedly occurred between 10 November 2008 and 15 February 2013. The amount involved is in dispute between the parties but is in or about €1 million. There are thirteen complainants involved. The alleged offence is to the effect that monies from the thirteen complainants by themselves or through their agents, were furnished to the accused, then a financial adviser, for the purposes of investment in the United States property market which investment was never actually made, nor were the monies repaid.
It is alleged that the accused had indicated that the monies would be repaid to the investors by 30 June 2011, however this did not occur and as a consequence Mr. Terry Devitt, who acted for eight of the within complainants, forwarded a complaint to An Garda Síochána on 15 August 2011. The accused was first interviewed in April 2017 and was ultimately charged on 31 July 2019, however, he was not returned for trial until 5 February 2020 when the Book of Evidence was served. The accused secured leave to maintain the within application by order of 1 May 2020.
In the statement to ground the claim the accused set out the various charges against him and then went on to identify the various dates upon which statements were taken from the complainants. The statement of Sergeant Stephen Nyland who was assigned to the investigation in February 2014 is quoted extensively, wherein he identifies the steps he had taken during the currency of the investigation. Sergeant Nyland's involvement ceased on 28 August 2017, and subsequently on 8 September 2017 Detective Garda Ivor Scully was assigned to the investigation. The accused had been interviewed by the gardaí in April and May 2017, and viewed certain documentation with his solicitor in November 2017. He was interviewed again on 29 March 2018.
The statement identifies large periods of delay in the investigation and prosecution of the alleged offences which are said to be unexplained, including delay between the date of first interview and ultimate charging. The statement identifies seven to eight years of delay between the making of the first complaint, and the charging of the applicant, and suggests that if the trial does not take place until late 2022 or 2023 there will be up to 14 or 15 years from the date of the earliest alleged offence, and the date of trial.
The accused asserts that the Director of Public Prosecutions and An Garda Síochána are guilty of inordinate, culpable, and utterly unjustified delay in this matter, resulting in significant prejudice to the accused. It is also suggested that the accused had been clearly prejudiced by reason of the delay. Under a separate heading it is suggested that there is a real and serious risk that the trial of the accused will be unfair. It is argued that the delay herein has breached the accused's constitutional right to fair procedures, and breached his right to a fair trial with due expedition.
In May 2016 the applicant secured employment and moved to his current address. He is currently the director of corporate finance within a limited liability company and he visits his parents once or twice per month. The foregoing comprises the full detail of the accused's personal circumstances identified in the statement. The statement records that the accused intends to contest the charges.
In the accused's grounding affidavit of 30 April 2020 he confines himself to stating that he has read the statement of grounds, and so much of same as relates to his own acts and deeds is true, and otherwise he believes same to be true.
There is also an affidavit of Mr. Eddie O'Connor of 30 April 2020, being the solicitor on behalf of the accused, and he too states that facts set out in the statement of grounds are true to the best of his knowledge and belief, and for completeness he exhibited the Book of Evidence.
The statement of opposition is dated 5 October 2020 and complains that prohibition is a remedy that lies only in exceptional circumstances. It is stated that the applicant has not made out any case, and has made bare assertions only, without evidence. It denies that the applicant has engaged with the facts, and it further denies that there is blameworthy prosecutorial delay. The applicant's right to a trial with expedition is said not to have been breached and it is stated that because of the seriousness of the offences, and the complexity of the investigation, there are no unexplained periods of delay.
The statement of opposition is grounded on two affidavits respectively dated 5 October 2020.
In the affidavit of Detective Inspector Patrick Linehan it is stated that the unit to which the within complaints were assigned was already involved in excess of thirty investigations. He states that the reason for the passage of time in the early stages of the matter was owing to a limited amount of resources, and the prioritisation of cases. However, it is suggested that the investigation into the accused received attention on an ongoing basis and was continually monitored, although progress in the case in 2012 and 2013 was hindered owing to the demands placed on the unit.
In the affidavit of Detective Garda Scully the chronology of the investigation is set out including securing documentation from lending institutions within this jurisdiction, and making mutual assistance requests of the United States and the United Kingdom. In his conclusion at para. 46 Detective Garda Scully says that the investigation was conducted expeditiously and any lapse of time was by reason of the seriousness of the offence and the complexity of the investigation, together with the need to consider large volumes of financial documents, to obtain court orders, and the need to advance the investigation to a significant degree before interviewing the accused. He highlights that the charges relate to the theft of a significant sum of money from people in respect of whom the accused was in a position of trust and it is essential that such activity is...
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