Criminal proceedings against Zoe Developments Ltd are to go ahead following a decision of the High Court yesterday. The Dublin-based builder and property development company was refused an order prohibiting the trial on the grounds that its right to a fair trial had been prejudiced by adverse publicity. Mr Justice Geogh egan said the trial should not take place before October.
In his reserved judgment on judicial review proceedings taken by Zoe against the Director of Public Prosecutions and the Health and Safety Authority, Mr Justice Geoghegan said Zoe complained it had suffered pre-trial publicity which might prejudice a fair trial in pending criminal proceedings.
To prevent his judgment being itself the source of additional pre-trial publicity to which Zoe might object, he had decided on balancing the constitutional rights that it ought not be publicised in the media pending final disposal of the criminal proceedings.
He said a supplied summary of his judgment could be publicised. In it he said the application was for a court order prohibiting or staying the criminal proceedings because of certain matters refer red to in a press release issued by the authority shortly before the original trial date and reference to
the same or similar matters in an affidavit on behalf of the authority. It was used to ground a civil application to the High Court for an order closing a building site, made between the time of the press release, "consequent publicity" and the original trial date.
The matters in question did not relate to the subject of the trial and would not be admissible or relevant evidence at it, the judge said. He concluded it was not necessary to have included these matters in the press release, and the authority, being in a quasi-prosecutorial role insofar as it was effectively the investigator leading up to the prosecution, acted wrongly in including them. Mr Justice Geoghegan continued: "I have expressed the view that a body with such a role ought to acquaint itself with the well-established safeguards developed over centuries for ensuring the fairness of a criminal trial but, although I have held that the authority was negligent in failing in that obligation, I have also held that in including the matters complained of in the press release, the authority was not deliberately attempting to influence the outcome of the trial.
"On the other hand, I have held that it was in all the circumstances necessary and appropriate that the matters complained of should have been included in the affidavit in the civil application.
"I have further held that having regard to the nature of the prosecution, the corporate nature of the accused, the type of issues involved and the type of evidence that may be in controversy, there is no serious danger of an unfair trial, but as a further precaution, I have directed that the trial ought not to take place before the Michaelmas sittings of 1999."
He said that although there was no reference to it in the statement of grounds, counsel for Zoe relied on alleged prosecutorial misconduct as a ground for stopping the trial. He accepted that prosecutorial misconduct might, in certain circumstances, lead a court to stay a criminal proceeding even though there was not a serious risk that an unfair trial would ensue.
Because the inclusion of the matters objected to in the press release was not done with the deliberate intention of influencing the criminal trial, he did not consider there had been prosecutorial misconduct of a kind as would justify the stopping of the trial.