THE HIGH COURT
		1997 No.365 J.R.
PATRICK DONOVAN
		APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
		RESPONDENT

Judgment of Ms. Justice Carroll delivered on the 23rd day of February, 1999.

	This is an application for judicial review seeking an Order of Prohibition to prevent the Applicant's trial taking place for fourteen offences under the Forgery Act, 1913 and one offence under the Larceny Act, 1990 in connection with the fraudulent obtaining of cash and cheques.  The offences took place on 26th, 27th, 28th and 29th April and 3rd May, 1994.  
	The Applicant was arrested on 8th June, 1994.  He was remanded to the District Court on 15th June, 1994, then to 27th July, 1994 when further charges were laid.  He was further remanded to 21st September and 19th October, 1994.  The D.P.P. directed on 18th October, 1994 that he be charged on indictment.  He was remanded to 30th November, 1994 for the service of the Book of Evidence and later to 18th January, 1995.  The Book of Evidence was not ready then and the matter was struck out.  
	The D.P.P. decided that one of the charges should not be re-entered.  After further enquiries and obtaining five further written statements, the Chief State Solicitor notified the Gardai that the Applicant was to be charged with the offences set out in the Book of Evidence which were different to the ones originally laid against the Applicant.  He was recharged on 8th May, 1996 and remanded to 5th June, 1996 for service of the Book of Evidence which was served on that date.  The matter was remanded to 12th June, 1996 for submissions, then to 22nd October, 1996 to enable the defence to examine security video tapes and call certain witnesses by way of deposition.  The matter was adjourned to 4th December, 1996 for submissions.  The Applicant was returned for trial on 11th December, 1996.  He was arraigned in the Circuit Court on 8th February, 1997.  The date of his trial was fixed for 22nd October, 1997.  
	The application to seek judicial review was made on 13th October, 1997.  
	The case made in the grounding affidavit is that there was no justification for a delay of five weeks to make an arrest where the offences were committed on five occasions between 26th April, 1994 and 3rd May, 1994.  The Applicant claims the delay prejudiced him in accounting for his whereabouts at the time of the commission of the offences.  He further claimed that the prosecution had all the necessary documentation and evidence to mount a full prosecution by 9th June, 1994 (the day after his arrest).  Therefore, a delay of two years before he was recharged in May 1996 was unreasonable, unfair and unconscionable.  He claims that two years after the event, he has no possibility of being in a position to account for his movements on the relevant dates.  
	The Statement in Opposition claims that the application is made out of time as provided by Order 84, Rule 21 of the Superior Court Rules without an explanation.  The Applicant was returned for trial on 11th December, 1996.  He did not apply for judicial review until 13th October, 1997.  There is no explanation for this delay.  It further claims the Applicant did not establish prejudice in any way.  He was aware six weeks after the date of the first alleged offence that  criminal proceedings were being brought against him.  He could then assemble any evidence relevant to his defence.  The investigation was complex and there was no undue delay.
	The evidence before the Court consists of the Grounding Affidavit of the Applicant and the Replying Affidavit of Sergeant Mulligan on behalf of the Respondent.  
	As regards delay or lapse of time up to arrest Sergeant Mulligan says that having received a complaint from the Educational Building Society (EBS) on 11th May, 1994 regarding the fraudulent obtaining of cash and cheques, he received documentation and videos on 20th May, 1994.  Another member of the Gardai identified the Applicant from an EBS video supplied.  On 21st May, 1994 he called to the Applicant's home and was informed by the Applicant's mother and family that his whereabouts were unknown.  He asked them to arrange for the Applicant to contact him but he failed to do so.  Sergeant Mulligan became aware that the Applicant would be next signing on at Thomas Street Employment Exchange on 8th June, 1994 and he arrested him there.
	In my opinion, there can be no grounds for complaint in respect of lapse of time between the complaint to the guards and the Applicant's arrest.  He was arrested as soon as the guards could find him.  The time that had elapsed at that stage should not have prevented him from marshalling any evidence in his defence including his movements at the time relevant to the commission of the alleged offences.  I can see no reason why he could not have recalled his movements within six weeks after the commission of the first of the alleged offences.  Once having recalled them, I can see no reason why he would forget them again.
	As regards the alleged delay following the arrest, Sergeant Mulligan says that the EBS had a difficulty as regards client confidentiality and when this was overcome he obtained statements between 11th October and 16th November, 1994.  In January, 1995 he had queries from the Chief State Solicitor's Office.  He then obtained seven further written statements between 16th January, 1995 and 23rd March, 1995 which were forwarded on 23rd March, 1995.  He received further correspondence in August from the Chief State Solicitor's Office and further queries were raised in October 1995.  Further statements were taken between 16th November and 10th January and were forwarded on 15th January, 1996.  On 3rd April, 1996 he was notified that the Applicant was to be recharged as set out in the Book of Evidence.  On 8th May, 1996 he recharged the Applicant with charges which were not the same as those originally laid against the Applicant.  He says the complexity normally associated with fraud cases in terms of the continuity of evidence and the tracing of financial transactions are evident in this case also.  
	In my opinion, the lapse of time from his original arrest in June 1994 to the striking out in January 1995 and to his arrest in May 1996 is explained by the fact that being a fraud case it was complex.  It required several additional statements.  It required a redrafting of the charges.  Once Sergeant Mulligan received notification on 3rd April that the Applicant was to be recharged he re-arrested him on 8th May, 1996.  Subsequently, he was served with the Book of Evidence at his first remand on 5th June, 1996.  There was no complaint about delay at this stage.  There were even adjournments at the request of the Defence solicitor.  If the Applicant was serious about prejudicial delay, the application for judicial review should have been made after the return for trial. 
	The only argument made on behalf of the Applicant in relation to delay in applying for relief sought is that he is entitled to it ex debito justitiae even though no reason is given.
	The question of delay or lapse of time in relation to the holding of criminal trials has been dealt with by the Supreme Court on several occasions notably, D.P.P. -v- Byrne (1994) 2 I.R. 23, D -v- D.P.P. (1994) 2 I.R. 465, Z. -v- D.P.P, (1994) 2 I.R 476, 
B -v- D.P.P. (1997) 2 I.L.R.M. 118.  The onus is on the Applicant to establish there is a real risk of an unavoidable unfairness of trial.  There is no clear rule to determine when a delay or lapse of time is excessive and it will depend on the particular circumstances of each case. 
	In my opinion there are no circumstances in this case which would warrant granting the relief sought.  The Applicant has not established that there is a risk that his trial would be unfair.  He has not established any prejudice and in any event he is not entitled to relief since the application was made out of time without giving any reason.