High Court of Ireland Decisions

1. By Order of Kelly J. dated the 15th day of July 1996 the Applicant was granted leave to apply for relief against the Respondent by way of Judicial Review in the form of an Order of Prohibition in respect of the prosecution entitled The People (at the Suit of the Director of Public Prosecution) -v- Desmond P. Flynn and Peter Keely

2. Dublin 2 by misappropriating monies the property of the said Company for use without the said Company's consent to purchase for his own use and benefit and that of the said Peter Keely and Peter Noone a group of residential apartments in the Los Hibiscos Apartment Complex situate at Puerto Del Carmen, Lanzarotte, Canary Islands, Spain.

3. Dublin 4. During the twenty-one month period between the 2nd March, 1987 and the 30th November, 1988 the Applicant was from time to time retained by or on behalf of Aer Lingus Holidays Limited (hereinafter referred to "ALH") to carry out certain work on its behalf. During that period the ordinary share capital of ALH was wholly owned by Aer Lingus plc. which is a State sponsored body which controls the national airline for the Republic of Ireland. During the same period ALH employed a Mr. Peter Noone as a its Financial Manager and a Mr. Peter Keely in the capacity of financial accountant.

4. Mr. Keely to Moriarty J. for an Order for Discovery of documents against Aer Lingus Plc. and that application was heard over a period of three days, being the 4th October, 1995, the 14th November, 1995 and the 15th November, 1995. Subsequently Judgment was given on 23rd day of November, 1995 refusing the Order sought on behalf of Mr. Keely.

5. Stg. £2,340,000 which was paid by way of a series of payments.

6. Stg. £50,000 from Barclays Bank, Piccadilly, London to Barclays Bank, Ramsey, Isle of Man for the account of Delmont Investments Limited t/a Harskin Properties purported to be signed in terms

7. Mr. Peter Noone for the purchase of the La Penita apartments and the Las Vegas apartments were made in the manner described in the second, third and fourth pages of the statement of Maurice Harskin and payments made in respect of the Los Hibiscos Apartment Complex was made in the manner described in the fifth and sixth pages of the statement of Mr. Harskin.

8. The Applicant claims an Order of Prohibition prohibiting the Respondent from proceeding with the prosecution of the charge which is preferred against him in the proceedings entitled The People (At the Suit of the Director of Public Prosecutions) -v- Desmond P. Flynn and Peter Keely (Bill No. 663/94) on the following grounds:

9. Certain legal principles must be applied by the Courts during the consideration of applications for relief of the type which has been sought herein.

10. In the light of the observations of Finlay C.J. in D.P.P. -v- Byrne [1994] 2 I.R. (at p. 245) to the intent that those interests represented:

11. Having confirmed the right of the community to have criminal offences prosecuted and emphasised the need to balance that right with the (greater) right of an accused person to receive a fair trial, the Court went on to deal with the special factors which affected the case then under consideration.

12. Applying the foregoing principles to the instant case, it follows that I must determine whether, on the evidence, the defence of the Applicant " ... has been explicitly prejudiced by the State's delay ... by the non-availability of a material witness ... " in which case he would be entitled " ... on the delay being unreasonable and prejudicial ... " to the relief which he seeks.

13. In addition, I have concluded that I must assess the Applicant's right to trial with reasonable expedition " ... in the light of the particular circumstances ... " of this case.

14. It is also very clear that I must investigate the reason for the delay in considerable detail and that I should have regard to the interests of the Applicant and of the community including the ten factors identified by the Supreme Court in B. -v- D.P.P. as outlined above.

15. Finally, although this is not an appellate Court, I take the view that I should have regard for the observations of Finlay C.J. in The Director of Public Prosecutions -v- Byrne [1994] 2 I.R. at p. 247 warning that the Court

16. Having regard to the positive constitutional right of the Applicant to have the trial of this criminal offence heard "with reasonable expedition" and having further regard to the obligation of the Respondent to provide for and protect that right it is necessary for me to determine, on the evidence, whether

17. A. there has been a significant delay in the trial of the charge against the Applicant and if so whether

18. B. that delay has been unreasonable having regard to the particular circumstances of this case or indeed has been of the kind which ".....has crossed the border-line into the area of unconscionable delay which calls for an explanation from the State ..." (see Cahalane v Judge Murphy [1994]

19. C. the Applicant's defence has been explicitly prejudiced by delay on the part of the Respondent or otherwise (this will require me to determine, on the evidence, whether the unavailability of Mr Maurice Harskin will prejudice the Applicant's capacity to adduce vital evidence in his defence and thereby work an injustice upon him).

20. A. Has there been a significant delay in the trial of the charge against the Applicant?

21. As I have indicated earlier the complaint was first made to the Garda Commissioner on 15th May, 1990 relative to events which were said to have occurred between March of 1987 and November of 1988. The Applicant was charged on the 15th day of January, 1994, was returned for trial on the

22. B. Whether the delay has been unreasonable in the light of the particular circumstances of this case, or of such a character as to have ".....crossed the border-line into the area of unconscionable delay which calls for an explanation from the State....." ?

23. Reviewing the facts of this case, I am satisfied as follows:

24. Between May of 1990 and January 1994 the Respondent, through the officers and agencies of the State, took all steps which were reasonably open to him to ensure that the trial of the charge which had been preferred against the Applicant would be heard with reasonable expedition.

25. The evidence adduced on Affidavit by Detective Sergeant John McCann discloses the exhaustive investigation and enquiries which were necessary between May 1990 and January 1994, in order to gather and assemble the very large volume of documentary and other evidence which was necessary in order to enable the Respondent to competently discharge his statutory and other obligations and to protect and vindicate the right of the Community to have criminal offences prosecuted early and properly. Counsel on behalf of the Applicant pointed to the fact that for a substantial period throughout 1992 and 1993 the investigation was taken up with consultation between the investigating officers and the legal advisors retained by the Respondent but when all of the evidence adduced by Detective McCann is taken together with the evidence adduced on behalf of the Applicant it is clear that the whole of the period between May of 1990 and January of 1994 was taken up with necessary work undertaken by the investigating officers directed towards the thorough investigation associated with the charge which has been preferred and that these investigations could not have been reasonably undertaken and completed within a lesser period.

26. It is also possibly of some significance that at all stages between May of 1990 and January of 1994 the Applicant was represented by experienced and highly competent legal advisors and that whilst Counsel on behalf of the Applicant clearly indicated in May and June of 1995 that the Applicant was anxious that his trial should proceed there was no complaint made by or on behalf of the Applicant of unreasonable or other delay on the part of the Respondent of the type which is alleged herein until the institution of the proceedings herein. In addition the Applicant himself applied by way of Motion on the 23rd day of March 1995 for an Order for Discovery of documentation which he believed to be vital to his defence and subsequently (on the 4th April 1995) reached agreement with the Respondent relative to the identification and categorisation of a large volume of documents which were made available for his inspection in the weeks following April of 1995. It would appear from the foregoing that the Applicant was himself not in a position to proceed with the defence of the charges preferred against him until sometime after 4th April, 1995 and so it would seem to follow that there was no unreasonable delay on the part of the Respondent before the summer of 1995 and if that is correct then it can hardly be suggested that there was unreasonable delay between May of 1990 and January 1994.

27. The principle events which are relevant to the proceedings herein which occurred between January 1994 and January 1996 have been set out herein (at paragraphs 5, 6, 7, 8, 9, 10 and 11 under the heading " THE FACTS "). I am bound to say that upon reviewing those events I cannot discover evidence of delay on the part of the Respondent which could be regarded as unreasonable.

28. Mr. Peter Keely, which said motion was not heard and fully determined until the 23rd November, 1995. I am cognisant of the fact that the Applicant did not cause or contribute to the adjournment which was granted on the 22nd May, 1995 but I am quite satisfied that the Application made by the Respondent on that occasion was perfectly reasonable having regard to the fact that the Respondent had just been advised that Mr. Harskin was unable to testify and the Respondent notified the Court as soon as was reasonably possible after he had himself received notification of the indisposition of Mr. Harskin.

29. I am further satisfied that immediately after the 22nd May, 1995 it would not have been practicable or reasonable for the Respondent to seek or agree to seek separate trials of the Applicant and of Mr. Peter Keely or indeed that such separate trials could at that time have reasonably have been expected to have lent expedition to the

30. Applicant's trial. At that time the preparation of separate documentary and other evidence for presentation at two separate trials might well have served only to delay both trials in all of the circumstances which then existed.

31. On the 25th January, 1996 Mr. Peter Keely sought and obtained an Order giving him liberty to seek relief by way of Judicial Review in the form of an Order for Prohibition of the type sought herein and in consequence the trial of the charge preferred against the Applicant was further adjourned and cannot proceed until the determination of Mr. Keely's Application and the Application herein.

32. It is contended on behalf of the Applicant that there has been unreasonable delay on the part of the Respondent in failing to expedite the Judicial Review proceedings brought by Peter Keely between the 25th January, 1996 when

33. Mr. Keely was given liberty to seek the appropriate reliefs and the 8th day of November 1996 when the Respondent delivered a Statement of Opposition.

34. In a separate judgment delivered herewith in the proceedings entitled "The High Court Judicial Review between Peter Keely Applicant and Judge Michael Moriarty and the Director of Public Prosecutions Respondent" I have dealt with and made findings relative to the actions of the Respondent between January 1996 and the 8th November, 1996 in so far as it is related to the prosecution of the concurrent charge preferred against Peter Keely (who is jointly accused with the Applicant) (Bill No. 663/94).

35. I found that between the 25th January, 1996 and the 8th November, 1996 the Respondent spent a substantial amount of time investigating what then appeared to be the substantive complaint being advanced on behalf of Peter Keely, that is to say the fact that he was denied access to documents which he claimed were of vital importance to his defence. I found that it was reasonable for the Respondent to take this course of action with the object of expediting the trial of Mr. Keely.

36. I found further that during the period between the 25th January, 1996 and the 8th November, 1996 a concurrent application was made to the Circuit Criminal Court for relief virtually identical to the relief which has been sought herein and on the same grounds which have been advanced herein and that after a full hearing on the 17th June, 1996 the relief was refused by the Circuit Criminal Court (Kelly J.) on the 21st June, 1996.

37. Since I have found that the Respondent did not act unreasonably throughout the period concerned in the prosecution of the charge against Peter Keely the only conceivable criticism which could be levelled against the Respondent relative to the trial of the Applicant is that the Respondent did not seek a separate trial of the Applicant between January 1996 and November 1996.

38. I am satisfied on the evidence that between the 25th January, 1996 and the

39. Accordingly and during the period concerned a Judge of the trial Court in the course of considering an application made upon the same grounds which have been advanced herein seeking relief similar to the relief sought herein was enabled to consider all steps taken by the Respondent in the prosecution of the charge against the Applicant up to and including the 21st June 1996 and concluded that there had been no unreasonable delay on the part of the Respondent during that time.

40. I respectfully agree with that conclusion, having regard in particular to the fact that during the period in question the Respondent was occupied both in contesting the application relative to Discovery and indeed with the application to the Circuit Criminal Court which, if successful, would have prohibited a trial, whether separate or joint.

41. I do not believe that there was unreasonable delay on the part of the Respondent in delivering a Statement of Opposition to the claim of Peter Keely (or the claim herein) between the 21st June, 1996 and the 8th November, 1996 particularly having regard to the fact that the proceedings herein appear to have been served upon the Respondent a matter of days after the refusal of relief in the Circuit Criminal Court and having further regard to the fact that the application for the relief sought herein was made at the very conclusion of the Trinity term 1996 (15th July, 1996) and the Statement of Opposition was delivered on behalf of the Respondent at a very early stage in Michaelmas Term 1996

42. In the light of the foregoing I am satisfied that whilst there has been a significant delay in the trial of the charge preferred against the Applicant, this delay has not been unreasonable having regard to the circumstances which gave rise to it. Analysis of the reason for the delay - that is to say the circumstances which gave rise to it - discloses that at no time between the date when a complaint was first made to the Garda Commissioner on the 15th May, 1990 and the date of hearing of the proceedings herein has the Respondent, by himself or by any investigating officer or agency of state, failed in his obligation to bring the charge preferred against the Applicant to trial with reasonable expedition and to provide for and protect the right of the Applicant to an expeditious trial. I am satisfied that the Respondent and the State authorities acted with reasonable expedition having regard to all of the circumstances which affected the investigation of the complaint and the prosecution of the proceedings against the Applicant up to and including the date of the hearing of the proceedings herein.

43. It follows from the foregoing that I do not find this case to be a case which

44. The question raised at C. above now falls to be determined, that is to say whether or not the Applicant's defence has been explicitly prejudiced either:

45. It is important that I should state quite clearly, at this point, that the case advanced on behalf of the Applicant alleging that he had been prejudiced in his capacity to adduce vital evidence in his defence has been confined to the allegation that the prejudice arises by reason of the fact that Mr Maurice Harskin will not now be available to testify at the trial and that his absence will work an injustice upon the Applicant. At the hearing of the proceedings herein no other prejudice of any nature or kind has been alleged to have arisen which will affect the Applicant's capacity to defend himself against the charge levelled against him.

46. Notwithstanding the foregoing it falls to me to consider

47. Bearing in mind that the prejudice which has been alleged is the fact that Mr Maurice Harskin will not be available to testify at the trial, it is important to consider precisely when Mr Harskin became unavailable. It is clear from the evidence that Counsel on behalf of the Respondent notified the Court on the 22nd May, 1995 that he had just been informed of the fact that Mr Harskin would be unable, by reason of advanced years and ill-health, to attend at the trial of the case which was listed for the 19th June, 1995.

48. I appreciate that a period of five years elapsed between the date of the making of the complaint and the date when Mr Harskin became unavailable, but as I have already indicated I do not believe that this was an inordinately lengthy period having regard to the complexity of the issues involved in the case and the amount of investigation which was required. It is of some significance that the Applicant was himself not ready or in a position to proceed with his own defence until sometime after the 4th April, 1995 and probably until after the

49. The Applicant's contention must, of necessity, be based upon the proposition that the trial of the charge preferred against him should have been heard in full on or before the 22nd May, 1995 (when

50. Mr Harskin became unavailable) and that because it was not so heard he has been prejudiced by reason of delay. It is difficult to accept that contention in the light of the fact (as I have already pointed out) that the Applicant was probably not himself in a position to present his case in May of 1995 but on the evidence I am satisfied that, having regard to the nature and complexity of the investigation to be undertaken by the State, to the "Community's Right" recognised in B. -v- D.P.P. (above) and to the necessity recognised by Gannon J. in O'Flynn -v- Clifford [1988] I.R. 740 that the public interest and good sense require that every crime be properly investigated, the events which occurred and the prosecution of the charge preferred against the Applicant between May of 1990 and May of 1995 do not disclose acts or omissions which could reasonably be described as "delay". On the evidence the significant "delay" in the prosecution of the charge against the Applicant occurred after May of 1995 and largely arose as a result of a strongly contested Motion for Discovery on the part of Peter Keely followed by the initiation of the proceedings herein.

51. Amongst the "factors" recognised and identified by the Supreme Court in B -v- D.P.P. [1997] 2 I.L.R.M. 118 (and in Barker -v- Wingo ) are the "length of time of pre-trial anxiety and concern of the accused". I accept that the Applicant has been disadvantaged in his personal and professional life and has become restricted in his capacity to earn his livelihood. In particular I accept that he has found it impossible to continue in practice in Tallaght, Co. Dublin and has had to seek to earn a reduced living in practice in his home in Sandymount but this occurred in June 1994 and could not have been caused by any delay on the part of the Respondent or otherwise.

52. I further accept that the Applicant has suffered considerable anxiety and concern arising out of the charge which has been preferred against him and that his anxiety and concern has been exacerbated to a significant degree by the fact that the trial has been adjourned on three occasions and is further delayed by the proceedings herein but I am satisfied that:

53. No further or additional "factors" have been advanced on behalf the Applicant which should be taken into account in determining whether the delay was by virtue of its duration alone sufficient to cause explicit prejudice and accordingly I have concluded that the duration of the delay has not by itself alone been sufficient to cause prejudice to the Applicant sufficient to deprive him of a fair and reasonably expeditious trial.

54. Mr. Maurice Harskin will not now be available to testify on behalf of the Prosecution at the trial of the charge preferred against the Applicant that the Applicant's defence has been explicitly prejudiced and that his absence will work an injustice upon the Applicant in that it will prejudice his capacity to adduce vital evidence in his defence and deprive him of his constitutional right to a fair trial. In support of that contention, the Applicant relies, inter alia , upon the decisions of the Supreme Court in The People (The Director of Public Prosecutions) -v- Christopher Qulligan and Patrick O'Reilly (No. 3.) [1993]

55. With regard to the latter authority, I accept that it is the obligation of the prosecution under Irish Law to procure the attendance of all relevant witnesses insofar as that is reasonably possible. On the evidence, I am satisfied that in the instant case, the Respondent has discharged that obligation conscientiously.

56. With regard to the former authority, I similarly accept without question that where it is determined by a Court of law that prejudice will undoubtedly potentially exist as a result of the non-availability of a particular witness (in the "Quilligan" case, a potential alibi witness became unavailable by reason of decease) then it will almost certainly be appropriate for the Court to prohibit the trial in order to prevent a possible injustice to the accused.

57. What has to be determined in the instant case is whether the fact that Mr. Maurice Harskin will not now be available to testify on behalf of the prosecution will cause explicit prejudice to the capacity of the Applicant to adduce vital evidence in his defence, thereby working an injustice upon him.

58. I have already indicated herein (see para.13(a) to (d) under the heading "The Facts") the testimony which I believe Mr. Harskin would have been in a position to adduce, were he available to testify at the trial.

59. In addition, the Respondent has openly offered (through his Counsel at the trial of the proceedings herein) to admit that the entire of the Statement of Evidence of Maurice Harskin pursuant to Section 21 of the Criminal Justice Act, 1984 together with the exhibits therein referred to. Further, or in the alternative, the Respondent through his Counsel in the proceedings herein openly offered to make specific admissions pursuant to Section 22 of the 1984 Act, many of which were favourable to the Applicant.

60. It was explained on behalf of the Applicant that the presence of

61. Mr. Harskin was vitally necessary in the interest of the Applicant in order to enable the Applicant to adduce evidence on the part of

62. Mr. Harskin by way of cross-examination. It is contended on behalf of the Applicant that it may be possible to elicit answers from

63. Mr. Harskin in the course of cross-examination which will raise doubts in the minds of jurors in such a manner as to potentially implicate

64. Mr. Harskin himself in possible irregular dealings involving the officers and directors of ALH and Aer Lingus Plc. Reliance was placed upon reference within the statement of Mr. Harskin to three bank drafts dated 13th October, 1988 and it was suggested that in the course of cross-examination this reference and others could be used to discredit other officers and directors of ALH and Aer Lingus Plc and possibly Mr. Harskin himself raising potential doubts in the minds of prospective jurors.

65. I should say that, having reviewed the very large volume of documentation which came before me at the trial of this action, I cannot find within it a shred of support for the suggestion that

66. Mr. Harskin could be implicated in some way with the directors or officers of ALH or Aer Lingus Plc.

67. The absence of Mr.Harskin will deprive the prosecution of potential testimony suggesting that the signature of Mr.Harskin was forged by some person on a bank draft and, furthermore, that Mr. Harskin did not authorise the use of the business name "Harskin Properties" by Delmont Investments Limited (which appears to have been partly owned by the Applicant) but the absence of that testimony could hardly be said to work an injustice on the Applicant and rather the contrary would appear to be the case.

68. I am satisfied on the evidence that a substantial amount of what is contained within the statement of Maurice Harskin can be adduced on behalf of the Respondent by other means without causing any disadvantage to the Applicant and I cannot discover within that statement any evidence (other than evidence which is clearly unfavourable to the interests of the Applicant) which is not capable of being adduced by other means on behalf of the Applicant himself.

69. Much stress has been placed on behalf of the Applicant upon an allegation that ALH (and possibly Aer Lingus Plc) were engaged in "off balance sheet" borrowing and trading and that evidence can be adduced during the cross-examination of Mr. Harskin which would confirm that such was the case. It seems to me that if, as is alleged, ALH or any of its officers or officials or Aer Lingus Plc. or any of its officers or officials were engaged upon the activity known as "off balance sheet" borrowing and trading then the evidence of this practice can be adduced by means far more effective than the cross-examination of Mr. Harskin having regard to the large volume of documentation which is now being discovered and the very considerable number of senior officers from ALH and Aer Lingus Plc. who will be called to testify at the trial.

70. What has been eloquently argued on behalf of the Applicant amounts really to the assertion that if Mr. Harskin were to testify on behalf of the prosecution then during the course of cross-examination he might either consciously or inadvertently let slip some observation or make some admission which would give rise to doubt within the minds of potential jurors. The existence of such a possibility does not, in my opinion, place Mr. Harskin in such a category that his testimony at the trial is essential in the interests of providing the Applicant with a fair trial and I do not believe that the fact that he will not now be available to testify at the trial of the charge which has been preferred against the Applicant will work an injustice upon the Applicant or that it will prejudice his capacity to adduce vital evidence in his defence.

71. In summary then, I am satisfied that the Applicant's defence has not been prejudiced either by unreasonable delay on the part of the Respondent or by any other delay or by reason of the fact that

72. Mr. Harskin will not now be available to testify.

73. In the circumstances, the relief sought by the Applicant is refused.