A former Dublin stockbroker, who is alleged by his former partners to have misappropriated £400,000 (€507,895) from their firm, yesterday asked the High Court to prevent his trial on fraud charges from proceeding. Mr Rory MacCabe SC, for Mr David McKenna, of Drummartin Mews, Lower Kilmacud Road, Goatstown, argued the delay in bringing the proceedings against his client - who is facing six charges related to financial transactions between 1991 and 1992 - is excessive and unjustifiable and has prejudiced his right to a fair trial. As fraud cases go, this case was about as simple as it gets and there was no excuse for the delay in taking proceedings, counsel said. He argued the investigation into the alleged fraud was completed in December 1993 but no charges were put to Mr McKenna until last year. His client had been interviewed in February 1994 and nothing happened then for another four and a half years.
Mr Feichin McDonagh SC, for the DPP, while accepting there was delay, argued it was not inordinate but was excusable because of the very complex nature of the fraud allegedly perpetrated by Mr McKenna. A reasonable explanation for the delay had been given.
The case centred very much on documents and the prosecution had threaded a sequence of events to those documents. There was no risk that Mr McKenna would not get a fair trial.
He added Mr McKenna had declined to answer questions when first interviewed by gardai and while he was entitled to do that, this had prolonged the investigation and Mr McKenna could not now complain about that.
After hearing affidavits and submissions from both sides yesterday, Mr Justice Kelly reserved judgment.
The court was told Mr McKenna was a partner in the Dublin firm of O'Brien Stokes Stockbrokers, formed in 1991, until he was suspended following complaints by other partners in the firm to gardai in December 1992. The complaints related to transactions alleged to have occurred between April 1991 and June 1992. Mr McKenna was not reinstated.
In an affidavit, Mr McKenna said he was not interviewed until 1994 about the alleged fraud although he was available at all times. He was released without charge and believed by the end of 1994 there would be no prosecution. His wife set up an engineering firm where he was employed as manager and that firm now employed seven people. He was taken by surprise when, at 6.40 a.m. on June 11th 1998, he was arrested by gardai on foot of six charges. The complaints against him related to financial transactions which were not complex and the bulk of the evidence had been gathered at the time of his first interview about the matter in February 1994.
The delay in prosecuting the matter was inexcusable. Mr McKenna had formed the legitimate belief there would be no prosecution and his rights and those of his family were infringed. The delay had placed an intolerable burden on his family and himself.
In another affidavit, Mr Robert Eagar, solicitor for Mr McKenna, said the matter first came before the courts in September 1998 and was adjourned a number of times. The issue of delay was raised and the High Court was asked to determine this.
Mr MacCabe read another affidavit from Detective Inspector Terry McGinn, of the Garda Bureau of Fraud Investigation, who said she had been told that, in late December 1992, two partners in the firm O'Brien Stokes stockbrokers had alleged in a complaint to the fraud section that Mr McKenna had misappropriated £400,000. Counsel said he took issue with that amount and remarked the figures did not add up to that.
Inspector McGinn said the matter related to an "elaborate and substantial fraud" and was complex. Written statements had to be taken from a number of people, including persons in England, and inquiries made. A file was sent to the DPP in October 1996,
Draft charges were prepared in May 1998 and Mr McKenna was arrested and charged in June 1998. She said the fraud was perpetrated by the use of fraudulent documents bearing the signatures of Mr McKenna and his wife, Ms Gibson. While his wife had not been charged, Mr McKenna's claim that his family life had been disrupted by the decision to prosecute should be viewed in the absence of any explanation for the signatures.
Mr MacCabe said this comment was "not a nice piece of interpretation of the circumstances". Mr McKenna's wife was being blamed for not answering a question which was never asked of her.
In another affidavit, Mr David Gormally, of the DPP's office, said he received a file on the matter from the gardai in December 1994, raised queries in January 1995, received answers, and made further queries in February. In April, he wrote looking for replies to his letter and sent other reminders in May and July. He received a response in August. The delay might be partly explained because of additional statements regarding handwriting analysis of a number of documents.
He raised other queries and sent reminders about these in October and November 1995. He received a statement regarding his queries in December and sought a legal consultation. Clarification for certain matters was sought in January 1996 and again in February after a legal consultation. A reminder was sent about that and a reply received in April 1996. In May, he asked the gardai to do further inquiries and got a reply in June. He asked for a barrister to be briefed in July 1996. After consultation with counsel, additional statements were requested and these were received in November. Consultations were held and draft charges were prepared in August 1998. He raised inquiries with counsel and considered the file. In May 1998, he finally issued directions that a prosecution be taken.
