Desmond Flynn (applicant) v The Director of Public Prosecutions (respondent).
Judicial Review - Charge of conspiracy to defraud - Significant delay in the trial of the applicant - Application for order of prohibition prohibiting respondent from prosecution of charges against applicant - Whether inexcusable and unwarranted delay - Whether breach of constitutional right on basis of failure to bring applicant to trial with reasonable expedition - Whether unavailability of witness would cause injustice and/or prejudice - Principles to be applied - Constitution of Ireland 1937, Articles 38.1 and 40.3.
The High Court (before Mr Justice Quirke); judgment delivered 7 October 1997.
Statute law puts no limitation in time on the prosecution of alleged offences. Any such statute of limitation is a matter for the Oireachtas. The Constitution places relevant parameters on a criminal trial in cases of unreasonable delay. The Constitution does not state expressly that there is a right to a speedy trial.
The right to reasonable expedition must be assessed in each case in the light of the particular circumstances of that case. If the accused's defence has been explicitly prejudiced by the State's delay, then he is entitled, on the delay being unreasonable and prejudicial, to an order prohibiting the trial. The court must look at the circumstances in each case, the issues and the constitutional interests of the parties, to determine the matter. There is no definitive time limit. There is no exhaustive or exclusive list of factors. There are interests which must be protected in the constitutional scheme of things.
The court should with considerable caution interfere with the discretion of a judge of the trial court involved and her decision as to what is or is not unreasonable delay, having regard to the particular insight which such a judge would have of the consequences of the trial which is proposed and of the state of affairs in regard to the services attached to the court concerned.
The High Court so held in refusing the relief sought by the applicant.
Peter Charleton SC and John Major BL for the applicant; Diarmaid McGuinness SC and Adrienne Egan BL for the respondent.
Mr Justice Quirke said that by order of Mr Justice Kelly dated 15 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 Prosecutions) v Desmond Flynn and Peter Keely (Bill No 663/94). The bill charged that the applicant on divers dates unknown between 2 March 1987 and 30 November 1988 did within the State conspire with Peter Keely and Peter Noone to defraud Aer Lingus Holidays Ltd of 59 Dawson Street, 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.
Mr Justice Quirke said that the applicant was, by profession, a solicitor who until June 1994 practised under the style and title of Desmond Flynn & Co from premises in Tallaght and who now practised as a solicitor from his home in Sandymount in Dublin 4. During the 21-month period between 2 March 1987 and 30 November 1988 the applicant was from time to time retained by or on behalf of Aer Lingus Holidays Ltd ("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. During the same period ALH employed a Mr Peter Noone as its financial manager and a Mr Peter Keely in the capacity as financial accountant.
On or about 15 May 1990 the then Minister for Tourism and Transport made a complaint to the Garda Commissioner by referring to him a report made by a firm of accountants (Craig Gardiner & Company) into the accounting affairs of ALH and in consequence thereof an investigation was immediately commissioned by the Garda Fraud Squad into the accounting affairs of ALH comprising a full time, full scale commitment by six experienced Garda officers under the leadership of Detective Superintendent O'Donoghue. Between May 1990 and January 1994 exhaustive investigations and inquiries were undertaken and completed by the investigating Garda officers into the accounting affairs of ALH. On 30 December 1993 a warrant was issued by the Dublin Metropolitan District Court for the arrest of the applicant on a charge of conspiring with two other persons to misappropriate monies the property of ALH and on 15 January 1994 the applicant attended by arrangement at the Bridewell Garda Station where he was formally charged on indictment (Bill No 663/1994) with conspiracy to defraud.
Between January 1994 and April 1994 a large number of additional interviews were conducted and further statements taken by investigating gardai and an application was made to the authorities of the Isle of Man to enable inquiries to be carried out in that jurisdiction between 13 and 18 February 1994.
Thereafter substantial additional consultation and further investigation occurred and on 13 April 1994 a book of evidence was served upon the applicant together with thirteen volumes of documentary exhibits.
April 1994 depositions were taken on behalf of the prosecution and in June, September and October 1994 depositions were taken on behalf of Peter Keely (with whom the applicant was jointly charged) and thereafter a preliminary examination of the applicant was conducted by a judge of the district court pursuant to the provisions of the Criminal Procedure Act, 1967. The applicant was returned for trial on 23 November 1994 to the Dublin Circuit Criminal Court where the applicant was arraigned on 9 December 1994 when his trail was fixed for 19 June 1995.
In early December 1994 solicitors on behalf of Peter Keely commenced investigations into further documents with which they had been supplied by the respondent and, following correspondence, issued a motion for discovery of a very large volume of documents which were alleged to be within the possession or power or procurement of ALH and Aer Lingus plc. That motion was listed for hearing on 23 March 1995 but was adjourned by agreement to 4 April 1995 upon which date the application was further adjourned during the course of its hearing by agreement between the parties in order to enable Mr Keely to identify the documents which he required, upon an undertaking supplied by the respondent to categorise all the documents in the possession of the gardai for the benefit of Mr Keely and his solicitors.
Throughout April and May a full review of all documentation in the possession of the gardai was made and regular inspections of documentation by Mr Keely's solicitors was facilitated whilst concurrently the gardai were carrying out additional investigations in the Channel Islands and on 22 May 1995 counsel on behalf of the respondent applied to the Circuit Criminal Court (Mr Justice Moriarty) for an order adjourning the trial of the action on the grounds that an essential witness for the respondent, namely Mr Maurice Harskin, would be unable, by reason of advanced years and ill-health, to attend at the trial of the case which was listed for 19 June 1995. Consequently the trial was adjourned and was on 1 June 1995 rescheduled to be heard on 31 October 1995 and that new trial date was confirmed by the respondent during a further hearing on 10 July 1995 when it was indicated by counsel on behalf of the respondent that it was highly improbable that Mr Harskin would be available to testify at any time at the trial of the action and that the respondent was seeking other means of adducing the same evidence.
On 4 October 1995 an application was made on behalf of Mr Keely to Mr Justice Moriarity for an order for discovery of documents against Aer Lingus plc and that application was heard over a period of three days, being the 4 October 1995, 14 November 1995 and 15 November 1995. Subsequently judgment was given on 23 November 1995 refusing the order sought on behalf of Mr Keely.
On 19 October 1995 Mr Justice Moriarty directed that since neither the prosecution nor Peter Keely (jointly charged with the applicant) were in a position to embark upon the trial on the scheduled date and, since it was and was acknowledged by all interested parties that it was desirable and necessary for practical purposes that the charges preferred against the applicant and against Peter Keely should be tried jointly at the same time, the trail was adjourned on 19 October 1995 and on 1 November 1995 was rescheduled for hearing on 15 April 1996.
On 25 January 1996 Peter Keely sought and obtained an order giving him liberty to seek relief by way of judicial review in the form of an orders of prohibition restraining the respondent from taking any further steps in the prosecution of the charge jointly preferred against him and against the applicant and or in the alternative of certiorari quashing the order of 23 November 1995 refusing discovery.