Supreme Court dismisses appeal for prohibition of trial on forgery charges due to lack of unfair trial risk.

THE SUPREME COURT

[S.C. No. 138 of 2006]

Denham J.

Geoghegan J.

Macken J.

Between/

Patrick Enright

Applicant/Appellant

and

Judge Terence Finn and the Director of Public Prosecutions

Respondents

Judgment delivered the 29th day of July, 2008 by Denham J.

1. This appeal came on for hearing before the Court on the 29th May, 2008. Having heard the oral submissions

advanced on behalf of the parties the Court stated that it would affirm the judgment of the High Court and dismiss the

appeal, and that reasons would be given at a later date. This judgment contains the reasons for the decision.

2. This is an appeal by Patrick Enright, the applicant/appellant, "the applicant", from a judgment of the High Court

(O'Neill J.) delivered on the 21st December, 2005 and an order of 11th January, 2006, which refused the motion of

the applicant seeking to prohibit his trial on ten offences, contrary to s.4(1) of the Forgery Act, 1913, which offences

were alleged to have been committed on dates between 1st January and 23rd August, 1994.

3. The applicant appealed on the grounds:-

"… that the Learned Trial Judge erred in law and or in fact and or in the interpretation of either or both, further and or

in the alternative that the Learned Trial Judge incorrectly exercised his discretion on the facts and circumstances of the

case herein."

There is insufficient detail of the grounds of appeal set out in the Notice of Appeal. However, individual issues were

addressed in written and oral submissions, and I will consider them on this occasion.

4. The major grounds advanced in the written and oral submissions were:-

"(i) Non-compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to the exhibits.

(ii) Delay

(iii) Loss of witnesses

(iv) A sidebar agreement that the matter would not proceed if the applicant accommodated his former employer.

(v) "The attack" upon the applicant by the Law Society.

(vi) Discretion of the Court.

5. The High Court gave a reserved judgment on the application in which all matters, including some which fell outside

the grant of judicial review, were analysed and a decision given. The learned trial judge addressed carefully the issues

raised by the applicant. In the submissions before this Court the applicant has shown no error by the High Court. No

reason has been advanced which would warrant the reversing of that judgment. I would affirm the judgment of the

High Court and dismiss the appeal. My reasons are as follows.

6. Background

The applicant is charged with ten offences contrary to s.4(1) of the Forgery Act, 1913, which it is alleged were

committed on dates unknown between the 1st January and the 23rd August, 1994. He was interviewed by An Garda

Síochána on 21st October, 1994, on which date he made a statement after caution, in which he made a number of

admissions in connection with the matters under investigation. On the 4th January, 1995, the applicant's house was

searched pursuant to a search warrant. For reasons set out in the affidavit of Patrick Sullivan, an Inspector of An

Garda Síochána, it was only in January, 1996 that he was in a position to send a file to the Director of Public

Prosecutions. Directions to prosecute the applicant were received in August, 1996. The applicant was charged on the

15th August, 1996. On 27th January, 1997, the applicant elected for trial on indictment on a plea of not guilty. There

was an application made to extend time for the service of a Book of Evidence, which was served on 25th February,

1997. Between February and June 1997 there was extensive communication between the applicant and the State

Solicitor on the preliminary examination. (Details of this are set out in the affidavit of Inspector Sullivan dated 18th

November, 1997).

On 17th June, 1997, the applicant brought an application for this judicial review. On 28th November, 1997, the

Director of Public Prosecutions filed a Statement of Opposition.

In March, 1998 the applicant sought third party discovery of certain documents from the Law Society. On 21st May,

1998, the application for judicial review was adjourned generally. On the 3rd July, 1998, the Master of the High Court

struck out the applicant's motion relating to the Law Society and awarded costs to the Law Society. On the 12th

February, 1999, the High Court affirmed the order of the Master of the High Court and dismissed the applicant's

claim. On 17th May, 2001, this Court partially allowed the applicant's appeal by directing that the Law Society make

discovery of documents which it had received from the Director of Public Prosecutions, his servants or agents, and An

Garda Síochána, between 21st and 27th October, 1994, on condition that the applicant discontinue his plenary

proceedings against the Law Society. In an affidavit dated 13th June, 2001, the Registrar of Solicitors, Patrick Joseph

Connolly deposed that the Law Society did not have any documents in its power, possession or procurement pursuant

to the order of this Court.

On the 4th October, 2001, the Office of the Chief State Solicitor wrote to the applicant seeking confirmation that the

applicant was ready to proceed. On 12th October, 2001, the applicant indicated that there would be a final affidavit on

the discovery issue. On the 30th August, 2002, the Office of the Chief State Solicitor wrote inquiring about his

application. On 10th September, 2002, the applicant wrote stating that he had not obtained a copy of the Supreme

Court order of 17th May, 2001. On 19th October, 2001 the Office of the Chief Prosecution Solicitor responded that it

had sought a copy and would send it on to him. By letter dated 27th November, 2002 the applicant sought further

information. On 5th March, 2003, the applicant deposed a further affidavit in these proceedings. After further

correspondence, on 9th June, 2003 Inspector Sullivan swore an affidavit in which he discovered all material relevant to

the dispute in this application.

On 14th July, 2003, the Director of Public Prosecutions applied to the High Court for an order re-entering the motion

of 26th June, 1997 - which order was made on 13th October, 2003. (On 27th August, 2003, Inspector Sullivan had

deposed an affidavit in response to that filed by the applicant). On the 19th April, 2004, the applicant's motion for

"specific performance of the agreement for voluntary discovery outlined in correspondence … dated 23rd May, 2003",

was listed for hearing and adjourned on the application of the applicant. On the 10th May, 2004, the motion was

struck out, with costs reserved.

On the 27th July, 2004, the judicial review application was given a date for hearing - 9th December, 2004. Owing to a

lack of judges on that day the case was not heard and went back into the list to fix dates, with priority. On 16th

December, 2004, a new date for hearing was fixed - 27th January, 2005. The hearing commenced on that date but

was not concluded. The hearing was completed on the 3rd May, 2005. Judgment was reserved and delivered on the

21st December, 2005. The issue of costs was ruled upon on 11th January, 2006. Notice of Appeal was lodged within

time. The applicant delivered submissions on 5th March, 2008. The case was heard in the Supreme Court on the 29th

May, 2008, when the appeal was dismissed.

7. Non-compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to exhibits.

This matter was considered in detail by the learned High Court judge. The terms of s.6 of the Criminal Procedure Act,

1967, as amended, are set out in his judgment. Of relevance to the applicant's claim is the requirement of the

prosecutor to cause certain documents to be served on an accused, including "a list of exhibits (if any)." An accused

has the right to inspect all exhibits. The applicant submitted that he was entitled to treat as an exhibit every document

referred to in the statements in the Book of Evidence, and that he was entitled to these documents prior to a

preliminary examination taking place, and that if these documents were not furnished the District Court Judge did not

have jurisdiction to conduct the preliminary examination. The District Court refused his application.

The issue which has arisen in this judicial review is whether the term "exhibits" extends to all documents referred to in

the statements contained in the Book of Evidence. The learned High Court judge held:-

"I am satisfied that the extent of the obligation on the [Director of Public Prosecutions] to list exhibits in the list of

exhibits which must be included in the Book of Evidence is confined to those exhibits which it is intended by the

prosecution to bring into evidence at the trial. The non-listing amongst the exhibits, of documents referred to in

statements in the Book of Evidence carries with it the necessary implication that these documents will not be sought by

the prosecution to be brought into evidence at the trial. Hence for the purposes of the preliminary examination it

necessarily follows that there is no obligation on the part of the [Director of Public Prosecutions] to furnish documents

other than those listed in the list of exhibits. Indeed it could be said that there isn’t a statutory obligation to furnish

exhibits, the extent of the obligation being to list the exhibits, whereupon the applicant has, of course, a right to inspect

these documents."

All of the documents in the list of exhibits were furnished and available to the applicant prior to the date of the

preliminary examination in June, 1997. Thus the High Court held, and I would confirm, that the District Court Judge

had jurisdiction to proceed with the matter.

The issue for a District Court, pursuant to the statutory powers, is whether there is a sufficient case to put the accused

on trial for the offence with which he is being charged. If there is, the District Court Judge shall send him forward for

trial. This was the obligation for the District Court on the preliminary examination. It was not the trial of the offences.

It was a specific statutory jurisdiction.

In this case the Director of Public Prosecutions complied with the statutory law, the District Court had jurisdiction to

proceed, and the learned High Court judge was correct in his judgment. This, of course, does not exclude the

possibility of issues of disclosure arising prior to or during the trial of an accused.

8. Delay

The second issue raised on behalf of the applicant was delay. The passage of time in issue was described by counsel

for the applicant as follows. In September, 1994 investigations began into the events in issue. On the 21st October,

1994 An Garda Síochána went to the applicant's business premises to investigate the complaint. On the 4th January,

1995, on foot of a search warrant for the applicant's residence, a search was conducted. On the 15th August, 1996,

the applicant was charged with 10 counts of forgery. It is this duration of time - approximately twenty three months -

which Counsel on behalf of the applicant submitted to the Court was an inordinate delay.

Counsel submitted that twenty-three months was too long. It was argued that investigation of a fraud case may take a

long time but that one cannot just say "fraud case" and excuse a situation in that way. The Book of Evidence produced

should be examined to see if its contents show complexity. In this case there are nine civilian witnesses and the rest are

from An Garda Síochána. It was submitted that from the Book of Evidence it should be inferred that it was not a

complex fraud case and that therefore twenty-three months is an inordinate delay.

I am not satisfied that the applicant has made out his case. It is a fraud case. Inherently such cases are more complex

than a more routine criminal offence, such as assault. As to this twenty three month period of time, the learned High

Court judge held:-

"I would be inclined to accept the explanation for the length of time taken to complete the investigation set out in the

affidavit of Patrick O’Sullivan which is to the effect that the fraud involved was a complex one necessitating at an

initial stage an application to this court for an order under the Bankers Book of Evidence Act, so that bank accounts in

this jurisdiction could be examined, and also involved the assembly of proofs from another jurisdiction. It could not

have been sufficient for the prosecution simply to rely upon the admissions made by the applicant in his two

statements particular having regard to the fact that the applicant contends that the first statement was not a voluntary

statement. It would at all times have been necessary for the prosecution to have exhaustively investigated the matter

and as best they could assemble all of the relevant and available proofs.

I am satisfied that there was no inordinate delay in the matter leading up to the charging of the applicant on the 15th

August, 1996."

I would adopt and affirm this finding, and dismiss this ground of appeal. In all the circumstances the time of twenty-

three months was not inordinate delay.

The delay in obtaining a speedy trial after August, 1996, was a consequence of the applicant's choice to litigate several

issues, in both trial and appellate courts. This he was entitled to do. However, he then suffers the resultant delay in his

trial.

Even if it was inordinate delay, which I am satisfied it was not, the law requires the existence of a further factor as was

clarified in P.M. v. Malone [2002] 2 I.R. 560 and in P.M. v. Director of Public Prosecutions [2006] 3 I.R. 172. On

the facts I find no such further factor.

9. Loss of Witnesses

On this appeal counsel for the applicant submitted that some witnesses are not now available for a criminal trial, and

that they are essential witnesses. However, there was no sufficient indication of the evidence which they might have

given and are not now able to give. This submission was speculative. There was no analysis, as has arisen in some

other cases, of lost evidence. If an applicant wishes to submit that because of delay he is missing witnesses, he should

provide adequate detail as to the consequential loss of evidence arising from the absence of such witnesses. The Court

would then be in a position to assess the situation. No adequate assistance was provided to the Court by the applicant.

Consequently it is not possible to analyse the loss. I would dismiss this ground of appeal also.

10. Sidebar agreement

The applicant raised what he submitted was a sidebar agreement that the matter would not proceed to prosecution if

the applicant accommodated his former employer. The applicant referred to an undertaking that he entered into

addressed to New York Life Insurance Company, in which he stated that he undertook to repay monies allegedly due

to it. He deposed that all monies allegedly due to his former employer were in fact tendered to them, the last payment

being in 1995.

When the gardaí received a complaint, and interviewed the applicant, they were told that he was in negotiation with the

company and that it would be resolved, and it was. The applicant maintains that it was a contractual dispute and that

he assisted the gardaí. The applicant deposed in his affidavit of 5th March, 2003, inter alia, that:-

"… I repeated my claim regarding my entitlement to the monies in dispute. I say that, to date, the prosecuting

authorities never undertook an investigation into the bona fides of my claim as outlined to them formally in writing on

two occasions (and again orally to the investigating officers)."

The learned trial judge pointed out that this was not a ground included on the statement of grounds and could be

dismissed on that basis, but that even if it were a ground he would have no hesitation in concluding that it lacked any

real merit or substance, that it should not be given any weight as a factor warranting prohibition of the prosecution. I

would affirm this finding. The issues raised by the applicant go to defence. They are matters appropriate to the trial

and are not a basis upon which to prohibit the trial when the Director of Public Prosecutions has decided to prosecute.

11. Admissions

If there have been admissions by an applicant this is an important factor in an application to prohibit a trial, even if

they are subsequently contested. This factor goes into the factual mix upon which the Court applies the appropriate

legal test. The relevance of admissions in the application for judicial review has been recognised previously. I noted it

as a factor in my judgment in B. v. The Director of Public Prosecutions [1997] 3 I.R. 140 at p.202, and Hardiman

J. observed its relevance in S.A. v. The Director of Public Prosecutions [2007] IESC 43. Thus, the statements in

this case are relevant in this process, even if they are to be contested at the trial.

The High Court referred to statements of the applicant. The learned trial judge found that the statement of the

applicant of the 4th January, 1995, is an inculpatory statement, and he held:-

"In an application for prohibition such as this I am of opinion that the authorities permit me to have regard to the

inculpatory nature of this statement on 4th January, 1995, as a factor to which some weight be given in determining

whether or not there should be an order of prohibition or not. It would necessarily follow in my view that where there

is an inculpatory statement and where it is not contended that that statement is anything other than voluntary, the

weight to be attached to that statement should be against the granting of an order of prohibition, and so it is in this

case."

I would affirm the approach of the High Court on this issue.

12. Stress

The applicant deposed that he was distressed to be subjected to two concurrent investigations, one by the gardaí and

one by the Law Society. The applicant also submitted that he was distressed by a leak of the details from the garda

criminal investigation to the Law Society in 2004, and to a local newspaper in January, 1995.

The investigating garda has denied the leak. While there can be no doubt that such a leak of information would be

distressful, the applicant has not proved that his position was such as to meet the required burden of proof. This was

not submitted to be a significant ground of appeal, quite correctly in my view.

13. "The attack" upon the applicant by the Law Society

It was submitted that there was an attack on the applicant by the Law Society. I can find no basis for this. The issue of

discovery of documents has already been the subject of separate litigation. While counsel for the applicant spoke of

"dark forces conspiring against the applicant", there is nothing other than speculation before the Court. Clearly the

applicant found the inquiries on behalf of the gardaí and the Law Society upsetting. However, no grounds have been

established upon which to prohibit the trial of the applicant

14. The applicant raised many matters in the High Court which were considered by the learned trial judge. In this

Court, while all matters were opened, particular stress was laid on the issues of non-compliance with s.6 of the

Criminal Procedure Act, 1967, as amended, with reference to the exhibits, and the submitted 23 months delay. On

these issues the applicant has not established any error of the High Court.

Applying the principles, long adopted in this jurisdiction, of Barker v. Wingo 407 U.S. 514 (1972), I am satisfied that

the applicant has not met the required test. The reasons for the length of delay have been considered by the High

Court. The applicant has had a role in the delay with this and other litigation, which acted against a speedy trial. There

is no question of pre-trial incarceration. While the applicant has suffered stress it is not incompatible with fair process,

in all the circumstances. Further, the applicant's loss of witnesses was approached in a speculative fashion and it has

not been established that there is a real risk of an unfair trial.

The facts of this case are distinguishable from those in Noonan (aka Hoban) v. D.P.P. [2007] I.E.S.C. 34. The role

of the applicant and his choice to litigate, which he was entitled to do, place his circumstances in an entirely different

light.

The High Court dealt carefully and correctly with each issue raised by the applicant, even those for which leave was

not granted. Ultimately the issue is whether there is a real risk of an unfair trial: D. v. Director of Public

Prosecutions [1994] 2 I.R. 465 and Z. v. Director of Public Prosecutions [1994] I.R. 476.

I find that there is no reason in law to prohibit the trial of the applicant. Consequently, I would dismiss the appeal and

affirm the judgment and order of the High Court.