Supreme Court allows judicial review to prohibit criminal prosecution due to excessive delay and injustice.

THE SUPREME COURT

No [S.C. No: 405 of 2004]

Murray C.J.

Denham J.

Hardiman J.

BETWEEN/

VERONICA NOONAN

(AKA VERONICA HOBAN)

APPLICANT/APPELLANT

AND

THE DIRECOTR OF PUBLIC PROSECUTIONS

RESPONDENT/RESPONDENT

Judgment delivered the 27th day of July, 2007 by Denham J.

1. Issue

At issue in this case is whether the criminal trial of the applicant (pending before the Dublin Circuit Criminal Court) should be

prohibited. Veronica Noonan (also known as Veronica Hoban), the applicant/appellant, (and hereinafter referred to as 'the applicant')

is being prosecuted on sixteen charges for offences contrary to s. 32(2)(a) of the Larceny Act, 1916, as amended by s.9 of the

Larceny Act, 1990. The applicant has sought, by way of judicial review, an order prohibiting the Director of Public Prosecutions,

hereinafter referred to as "the respondent", from taking further steps in the prosecution of this case. The High Court (Ó Caoimh J.), in

a judgment delivered on the 9th July, 2004, refused her application. The applicant has appealed against that refusal.

2. Basic Facts

The offences are alleged to have taken place between the 1st January, 1990, and the 7th May, 1992. It has been indicated that the

applicant will be pleading not guilty. The charges relate to the applicant's activities as a bookkeeper in the Cabra Credit Union. The

Irish League of Credit Unions prepared an interim report on the applicant's alleged conduct on the 8th July, 1992. A complaint was

made to An Garda Síochána on the 4th September, 1992. The applicant was arrested and detained for questioning on the 21st

February, 1995, charged on 23rd December, 1997, and returned for trial to the Dublin Circuit Criminal Court on the 4th July, 2002.

Leave to apply for judicial review was granted on the 22nd November, 2002, by the High Court

(Abbot J.)

3. High Court order granting leave to apply for judicial review

The High Court made an order granting leave to seek the following reliefs:-

(i) An order prohibiting the respondent from taking any further steps in the criminal prosecution entitled D.P.P. v. Veronica

Hoban.

(ii) An order in the nature of an injunction (including an interim and/or interlocutory order pending the determination of

these proceedings) restraining the respondent from taking any further steps in the criminal prosecution entitled D.P.P. v.

Veronica Hoban.

(iii) A declaration that the delay in the institution of criminal proceedings charging the applicant with offences alleged to

have occurred on dates unknown between 1st January, 1990, and 7th May, 1992, has irreparably prejudiced the prospect

of the applicant obtaining a fair trial in accordance with law.

(iv) A declaration that the delay in the institution of criminal proceedings is a breach of the applicant's right to a trial with

due expedition and to a fair trial in accordance with law.

(v) A declaration that the failure on the part of the respondent to institute criminal proceedings earlier than the 23rd

December, 1997, in circumstances where the respondent had been on notice of the alleged offences concerning the

applicant since the 4th September, 1992, is in breach of the applicant's right to a trial with due expedition and to a fair

trial in accordance with law.

(vi) A declaration that the delay between the charging of the applicant on the 23rd December, 1997, and the order

sending the applicant for trial on the 4th day of July, 2002, was in breach of the applicant's right to a trial with due

expedition and to a fair trial in accordance with law.

The grounds upon which the High Court ordered the review were as follows:

(i) The respondent has violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the

Constitution of Ireland.

(ii) The respondent has violated the applicant's right to a trial on serious charges with reasonable expedition.

(iii) The respondent has prejudiced the applicant in the defence of the proceedings brought by the respondent and/or has

created a real risk that the applicant would be denied a fair trial or be subjected to an unfair trial.

4. High Court decision

The High Court (Ó Caoimh J.) refused the application on the 9th July, 2004. The learned High Court judge stated that essentially two

periods of time had to be considered, (a) the period prior to the charging of the applicant on the 23rd December, 1997; and (b) the

lengthy period of time that the case took in the District Court before an order was made returning the applicant for trial.

As to the first, the learned High Court judge stated that he was guided by the evidence of Detective Sergeant Finan in relation to the

complexity of the case as it involved a serious fraud on a credit union. He held:-

"It is clear that the absence of documentation hampered the gardaí in their investigation and ultimately resulted in a

situation where careful judgment had to be exercised by the Director of Public Prosecutions in the consideration of what

charges might be preferred against the applicant. I do not believe that it is appropriate to judge the case simply by

reference to the number of prosecution witnesses in a book of evidence. What is not in dispute is that the documentation

or records of the Credit Union were in some state of chaos which presented difficulties for those involved in investigating

the affairs of the Credit Union. It is unnecessary to ascribe blame for this state of affairs but the essential fact is not

seriously disputed. That being the situation it must have presented a difficulty to the gardaí in their investigations. While

it is clear that some of the period in question, in relation to the decision making and the preparation of charges, has not

been adequately explained, I am satisfied that in regard to the overall period that no gross or inordinate delay has been

identified such as to warrant granting the applicant the relief which she seeks."

The learned High Court judge then considered the length of time the case was before the District Court, which was agreed to be

approximately four and a half years. He found that there was no prosecutorial delay and that at all stages the prosecution sought to

advance the case in the District Court. The learned High Court judge was equally satisfied that no blame attached to the applicant.

He held that the solicitor for the applicant was entitled to raise the issues which he did and that there was no suggestion of there

being a deliberate attempt to delay the case on the part of the applicant. The High Court then stated:-

"There is, however, the situation whereby a number of delays occurred by reason of factors for which neither party was

to blame, namely the non-availability of members of the District Court and lengthy adjournments for matters to be

addressed. This is what has been referred to as systemic delay in the District Court and is a matter which must be of

some concern. What is of further concern is the fact that one year after she died an application was made on behalf of

the applicant to have May Walters deposed. What is apparent is that there was ignorance on the part of the prosecution

of her death and certainly on the part of the applicant's legal advisors, if not the applicant herself. However, this gave

rise to a further period of unnecessary delay which is unfortunate in the circumstances. But this was delay for which I am

satisfied the Director of Public Prosecutions was not responsible and nor was the District Court or its system."

The learned High Court judge held that the delay had been explained. He held that the overall situation was one where the essential

delay related to necessary events in the District Court, and to periods of time which were unnecessary and caused by the absence of

the judge handling the case. The learned High Court judge held that it did not appear that any great effort was made by either side

to press the matter on at a faster pace in the District Court.

As to the recollection of witnesses, he held:-

"I believe that the nature of the prosecution in question is one that essentially turns on documentary evidence but must

of course be supplemented by oral testimony. I believe that in this light the case is not one which would be greatly

hampered in the context of recollections by reason of the passage of time."

The learned High Court judge noted that there has been no pre-trial incarcerations and no particular anxiety or concern indicated in

the case. He concluded:-

"I am satisfied that notwithstanding the period of delay that the delay in question is not one that has been demonstrated

to have impaired the defence of the applicant. There is one witness who has died, namely May Walters, who has been

identified but again it is a matter of some controversy as to the relevance of this witness in the context of the

prosecution of the applicant. It is clear that she was included as a prosecution witness and in those circumstances I

believe that it is in all probability a situation where her death will have a more detrimental effect on the prosecution case

than on the defence case in the trial in question.

I believe that the circumstances of this case can therefore be contrasted with those in the case of Hogan v. President of

the Circuit Court [1994] 2 I.R. 513 which coincidentally also involved a fraud on a body of a similar nature to the Credit

Union, being the Tontine Society in that case. However, the particular factors of prejudice identified in that case have

not been demonstrated to exist in the instant case. In all of the circumstances therefore, while I am satisfied that there

has been a period of delay, some of which has been inordinate, it is not a situation which in all the circumstances of the

case I am satisfied that the community's right to have the offences prosecuted should not prevail especially in light of the

fact that I do not conclude that the applicant has established to the satisfaction of this court that a fair trial is not

possible in the circumstances. In light of this fact, I refuse to the applicant the relief which she seeks."

5. Appeal

Against that decision of the High Court the applicant has appealed. The applicant submitted that the order perpetrated an injustice

on the applicant. It was submitted that the High Court erred:-

(i) in holding that the prosecution against the applicant was of such complexity that the members of An Garda Síochána

were presented with such difficulties in their investigations as would justify the conclusion that there was no gross or

inordinate delay in the prosecution of the applicant and that she was not entitled to relief;

(ii) in holding that the delay in the prosecution of the case concerning the applicant in the District Court was not wholly

or partly attributable to prosecutorial delay;

(iii) in holding that the systemic delay in the prosecution of the case concerning the applicant in the District Court was

not something for which the respondent, the District Court or its systems, were responsible; or that it was adequately

explained; or that the delay related to the necessary course of events in the District Court;

(iv) in holding that the case against the applicant essentially turns on documentary evidence to be supplemented by oral

testimony and was of such a nature that it would not be greatly hampered in the context of recollections by reason of

the passage of time;

(v) in holding that the applicant had failed to demonstrate impairment of her defence of the criminal charges against her

and was therefore not entitled to relief. Further, that the learned High Court judge erred in law in holding that while some

of the delay was inordinate the community’s right to have the offences prosecuted should prevail and further erred in

concluding that the applicant had not established that a fair trial was not possible and/or erred in concluding that the

applicant had to establish such a fact in judicial review proceedings.

(vi) in holding that the death of a witness listed as a prosecution witness would in all probability have a more detrimental

effect on the prosecution case than on the defence case and that the applicant was therefore not entitled to relief;

(vii) in dividing the time period applicable in the case failed to have any or any adequate regard to the effect of the entire

period of delay on the case of the applicant.

6. Submissions

It was submitted, inter alia, by Mr. Michael O’Higgins, S.C., counsel for the applicant, that this case involves a period of almost 10

years from the notification to An Garda Síochána of a criminal complaint to the order returning the applicant for trial to the Dublin

Circuit Criminal Court. It was submitted that the length of time involved and the consequences arising from that period impact upon

the applicant’s right to an expeditious trial and her right to a fair trial. Counsel submitted that there was a lack of diligence in the

investigation of the complaint from its receipt in September, 1992, to the time when the applicant was detained for questioning on

the 21st February, 1995, and a lack of diligence on behalf of the investigating authorities between February, 1995, and the charging

of the applicant on the 23rd December, 1997. Counsel referred to the circumstances whereby it took four and a half years for the

matter to proceed through the District Court before the applicant was returned for trial and submitted that the delays arose for lack

of diligence and expedition by the respondent. It was submitted that there was prejudice to the applicant arising from the delays,

that there was prejudice to the applicant from the death of a witness, May Walters. Further, it was submitted that there was

prejudice to the applicant arising from the interval between the alleged offences and the possible trial.

7. Law Constitution

The legal foundations for the issues before the Court are to be found in the Constitution and case law. Article 38.1 of the constitution

states:

"No person shall be tried on any criminal charge save in due course of law"

Article 40.3.1° of the Constitution provides:

"The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal

rights of the citizen."

And Article 40.3.2° states:

"The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done,

vindicate the life, person, good name, and property rights of every citizen."

No article of the Constitution explicitly states that a person has a right to an expeditious trial. However, it is part of our jurisprudence

that a person has such a right.

At issue in this case is the delay between the making of the complaint and the return for trial. The delay relates to the investigation

of the case, and the process before the District Court.

The issue of process delay has similarities to the concept of 'speedy trial' in the United States of America. In Barker v Wingo (1972)

407 U.S. 514, Powell J. delivered the judgment for a unanimous court. He held that a defendant’s constitutional right to a speedy trial

cannot be established by any inflexible rule but can be determined only on an ad hoc balancing basis in which the conduct of the

prosecution and the defendant are weighed. He pointed out that the court should assess such factors as the length of and the

reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. This concept of an ad hoc balancing

approach was adopted in Ireland: see D.P.P. v. Byrne [1994] 2 I.R. 236.

However, there is also a broader concept, that of reasonable expedition. The right to reasonable expedition was referred to by

Gannon J. in State (Healy) v. O’Donoghue [1976] I.R. 325 and subsequently endorsed by the Supreme Court. This is a principle which

is wider than prosecutorial or trial process delay.

At the core of all the jurisprudence is the concept of justice. Justice for the individual and a just system for the common good. The

balancing of the various rights, some conflicting, is a matter for the courts to resolve.

In each case the facts have to be considered in light of all the circumstances of the case. Thus, for example, a summary trial is

required to proceed more quickly, to provide summary justice. It is accepted that a trial on indictment may take longer to process.

This application relates to a trial on indictment.

Also relevant is the nature of the crime in issue. A relatively simple crime, for example, of theft, may involve clear facts and is to be

contrasted with a complex case. This is a case of fraud, albeit not a very complex fraud.

8. Decision

I shall consider the case in the order taken by the learned High Court judge. He found that there were two essential periods of time to

be considered, (1) the time prior to the charging of the applicant, and (2) the time the case was processed in the District Court. In

addition, (3), I shall consider the discretion inherent in the Court in applications for judicial review.

8.1 The time prior to the charging of the applicant

In relation to the period prior to the charging of the applicant, a time from the complaint being made to An Garda Síochána on 4th

September, 1992, to the charging of the applicant on 23rd December, 1997, the learned High Court judge stated that he was guided

by the evidence of Detective Sergeant Finan in relation to the complexity of the case. The evidence of Detective Sergeant Finan was

contained in an affidavit deposed on the 30th June, 2003. He is the prosecuting officer in the case. The facts were stated by the

learned trial judge in his judgment and it is not necessary to recite them again in this judgment other than to note the key facts. On

the 27th August, 1992, Mr. Pat Fay, then Chief Operations Manager of the Irish League of Credit Unions communicated a discrepancy

of £184,497.68 to the Board of Cabra Credit Union. 75.29% of the members' passbooks were audited and disclosed the discrepancy,

but the field officer of the Irish League of Credit Unions indicated that it was not possible to establish when and in what amounts

cash had been misappropriated. Reference was made to statements of Mr. Paul Thornton, Mr. Tony Burke and Mr. Ciaran Bishop, all of

whom were attached to the Irish League of Credit Unions. Their reports identified clearly a discrepancy in the accounts of Cabra

Credit Union and the unavailability of certain control documents such as pay-in-slips, cash collection sheets, cash summary sheets,

journal cash records, members' ledger cards, promissory notes and nominal ledger postings. He deposed:

"The only specifics that these reports deal with are the 'Hoban Family Accounts' and account numbers 534 and 535.

These specifics do not form any part of the present charges as Garda investigations concluded that there was insufficient

documentary evidence available. Thus, although the Irish League of Credit Unions prepared an interim report dated the

8th July, 1992, there was nothing in it which would enable the Gardaí to establish any specific criminal act."

Detective Sergeant Finan deposed that the statement of Mr. Goggins, Chairman of the Cabra Credit Union of the 4th September,

1992, made broad allegations of irregularities in relation to discrepancies in the books of the Credit Union. He said that the garda

investigation began at the time of the making of the complaint on the 4th September, 1992, but that the complaint had not identified

any specific criminal act. He deposed:

"To identify these specifics required a re-examination of the available Credit Union records specifically in relation to all

share withdrawals, loan applications and other payments made by Credit Union members. Although we did identify

numerous transactions that were highly suspicious, no potential suspect could be identified as there was insufficient

documentary evidence available. It was eventually decided to concentrate on Credit Union loans to members which was

an area where most, if not all, the control documents were available. This was a lengthy and laborious process. Some of

the documents being relied on in this prosecution were not handed over until the 14th June, 1994."

He deposed that the investigation took a considerable time and effort due to the complexity of the matter, the number of witnesses,

and the fact that the applicant had run the Credit Union in such a way as to leave its books in a chaotic state.

The learned trial judge stated that he was guided by the evidence of Detective Sergeant Finan. There is no evident reason why he

would not be entitled to be guided by that evidence. On that evidence it is axiomatic that the learned High Court judge would find as

he did. I am satisfied that there is no error by the High Court in such a conclusion. Therefore, in relation to the decision as to this

period of time, from the making of the complaint on 4th September, 1992, to the charging of the applicant on the 23rd December,

1997, I would not interfere with the decision of the High Court.

Prosecutorial delay

In addition, I would uphold the determination of the High Court that there was no blameworthy prosecutorial delay. However, even if

there was blameworthy prosecutorial delay, which I do not so find, the test to be applied by a court in such circumstances requires a

further finding before a trial may be prohibited.

This Court has addressed recently the test to be applied in cases where prosecutorial delay is in issue: P.M. v. Director of Public

Prosecutions [2006] 3 I.R. 172. Kearns J., in a judgment with which Murray C.J., Denham J., Hardiman J., and Geoghegan J. agreed,

stated:

"I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be

adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It

means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to

outweigh the public interest in having serious charges proceed to trial. In most cases, pretrial incarceration will not be an

element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels

of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of

such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy

delay took place should not of itself justify the prohibition of a trial.

As part of the balancing exercise it should also be borne in mind that an order of prohibition may not be the only remedy

available in such circumstances. A court may have the ability to direct that a particular trial be brought on speedily and

be given priority, although precisely how this would be policed or operated in practice may be problematic."

Kearns J. defined the applicable test as:

"In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been

established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests

protected by the right to expeditious trial must also shown to have been so interfered with such as would entitle the

applicant to relief."

Applying that test to this aspect of the case, the applicant's appeal fails. First, no blameworthy prosecutorial delay was established.

Secondly, even if it were established, which it was not, it was not established that a further aspect of the applicant's interest were

so interfered with as to entitle the applicant to relief.

8.2 The time in the District Court

The next period of time considered by the High Court was the four and a half years in which this case was before the District Court.

Such a length of time is concerning. The facts are relevant in any review of the passage of time. In this case the facts were set out

in detail, especially in the affidavit of Aonghus Dwane, Senior Prosecution Solicitor of the Chief State Solicitor, deposed to on the 1st

July, 2003, and in the affidavit of Michael O'Sullivan, Solicitor. There is described a history of the charges, their amendment, the Book

of Evidence, additional material, the decision of the respondent to consider depositions, the decision of the respondent to depose two

witnesses, Niamh Beechinor and Sean Carroll, neither of whom had made statements which were contained in the Book of Evidence,

the adjournment for depositions, issues arising on the Bankers Book Evidence Act, 1879, as amended, a District Court ruling on the

Bankers Book Act issue, the depositions not proceeding on 13th July, 1999 as a specific District Judge was not available,

adjournments, extensive legal argument before the District Judge on 16th December, 1999 about the depositions, the ruling of the

District Judge on 21st December, 1999, the adjournment to the 17th May, 2000, at 2.00 p.m. for depositions. It appears that the

relevant District Court Judge was unavailable on 17th May, 2000. There was an adjournment to 4th October, 2000, for continuing

depositions. Further adjournments occurred as the District Judge was not available. On the 17th October, 2000, a date for depositions

was fixed for 23rd February, 2001. A full day was reserved for the case 'in light of the history of the case'. On the 23rd February,

2001, Niamh Beechinor and Sean Carroll were deposed. The applicant sought a deposition from May Walters. On 19th July, 2001 the

Director of Public Prosecutions informed the District Court that May Walters was deceased. The case was adjourned to a date in

September for submissions on the Book of Evidence. On 28th September, 2001, submissions were made to a Judge of the District

Court and the matter remanded to the 3rd December, 2001. On 3rd December, 2001 the solicitor for the State submitted to the

District Court Judge that the relevant District Judge should have seisin as she had heard depositions and legal argument previously.

The case was adjourned to the 10th December, 2001, to the 20th December, 2001 and then to the 3rd January, 2002, for

submissions. On the 3rd January, 2002 the applicant's solicitor was unable to attend court because of a family bereavement and a

District Judge adjourned the case peremptorily against all parties for submissions on the 28th June, 2002, and the District Judge

indicated that she was not retaining seisin of the case. On the 28th June, 2002, submissions were made on behalf of the applicant on

delay and the evidence of the prosecution and the case was adjourned for a decision. On the 4th July, 2002, the return for trial was

made. At this time the applicant instructed a new firm of solicitors. Then application was made on behalf of the applicant for judicial

review in November, 2002.

The learned High Court judge determined that there was no blame to be attached to the applicant or the respondent. He referred to

the lengthy adjournments which occurred in the District Court and found that the systemic delay in the District Court was a matter

for concern. He also raised a concern about the lack of knowledge of the death of May Walters, which gave rise to, what he termed,

unnecessary delay. He concluded that neither the applicant nor the respondent were responsible for the delay. He held that the delay

had not impaired the defence of the applicant. Thus, while he considered some of the delay to be inordinate, in all the circumstances

he held that on this ground the application should be refused.

I do not consider that the learned trial judge fell into any error in his analysis. I would uphold the High Court in its finding that the

respondent could not be held responsible for the delays, nor the applicant for seeking the orders she did. It is clear, that neither side

pressed the District Court for early dates. A laissez faire attitude was maintained. The lengthy time spent in the District Court arose

because of systemic delay in the District Court.

The systemic delay in the District Court is a matter of great concern. It is entirely inappropriate to adjourn matters for many months,

unless there are exceptional circumstances. Even thought the District Court was not dealing with a summary offence, its process

should proceed with summary speed.

As to the issue of prejudice, in this case there exists the specific fact of the death of May Walters. However, I would uphold the

analysis of the learned High Court judge, and am satisfied, that this factor is not of itself such a specific prejudice as, in all the

circumstances of the case, would warrant prohibition of the trial. In all the circumstances, I would not intervene with the decision of

the High Court as to this aspect of the delay.

8.3 Discretion

I am satisfied that individually the specific grounds raised are not such as to entitle the applicant to succeed. However, that is not

the end of the matter. The cumulative situation should not be ignored. In relation to this overall situation the discretionary nature of

judicial review also requires to be considered.

The applicant has sought relief by way of judicial review. Judicial review is not an appeal. Rather, it is a review of the decision making

process. It is well established that the Court retains a discretion in the granting or refusing of relief by way of judicial review.

An order of judicial review is ultimately a matter of discretion for the Court. This is so because of the fundamental nature of such a

process - it is a supervisory role of lower courts and administrative bodies. The rules as to an application for judicial review are to be

found in Order 84 of the Rules of the Superior Courts. However, it is a procedure grown from common law and by which parties may

obtain orders to protect due process. Referring to the great remedy of certiorari, O'Higgins C.J. in State (Abenglen) v. Dublin

Corporation [1984] I.R. 381 at p. 392 described its purpose as to supervise the exercise of jurisdiction by bodies or tribunals having

legal authority to affect rights and having a duty to act judicially. This encapsulates the general purpose of the old prerogative writs

which have been replaced by the Order 84 procedures. This supervisory role of the decision-making process continues to be at the

kernel of the judicial review process. Thus, in each case, the Court is bound to take into account all the relevant circumstances, and

ultimately the grant or refusal of an application is a question of due process.

The circumstances of this appeal have been stated already in this judgment. The relevant events commenced approximately 17 years

ago. The rudimentary facts are as follows:

(i) The alleged offences took place between 1st January, 1990, and 7th May, 1992.

(ii) The Irish League of Credit Unions prepared an interim report, on the applicant's alleged conduct, on the 8th July, 1992.

(iii) A complaint was made to An Garda Síochána on the 4th September, 1992.

(iv) The applicant was arrested and detained for questioning on the 21st February, 1995.

(v) The applicant was charged on 23rd December, 1997.

(vi) The applicant was returned for trial to the Dublin Circuit Criminal Court on the 4th July, 2002.

(vii) Leave to apply for judicial review was granted by the High Court on 22nd November, 2002.

These facts indicate that there has been delay in bringing the case to trial. In any such analysis the nature of the offence alleged is

important. In some cases there may be specific relevant factors. So, for example, in allegations of child sexual abuse there has

developed a specific jurisprudence. The Court has judicial knowledge of the type of circumstances which may delay proceedings: H. v.

Director of Public Prosecutions [2006] I.E.S.C. 55. In this case the nature of the offence is clear - it is an offence of fraud, and not a

very complex fraud. The H. v. Director of Public Prosecutions jurisprudence does not apply.

All the factors of the case require to be considered. I would not intervene in the specific findings of the learned trial judge in the two

time spans specifically analysed and determined by him. However, in all the circumstances of the case, where the alleged offence

took place approximately 17 years ago, where the procedures from complaint to return for trial have taken ten years, a general

overview of the process requires to be taken. In this supervisory review the kernel issue is justice.

The systemic delay in the District Court is a matter for grave concern. In light of the exceptional circumstances of the case, which

include the initial delays, the systemic delays, the death of a witness, all in the context of a prosecution for a relatively simple fraud,

the cumulative situation renders this an exceptional case. I would exercise discretion in favour of the applicant. In the particular

circumstances of the case it would be unjust and oppressive for the prosecution to proceed.

I also agree with the judgment of Murray C.J..

Conclusion

Accordingly, I would allow the appeal.