The High Court yesterday dismissed a DPP challenge to the indefinite deferral of the trial of Mr Charles Haughey on charges of obstructing the McCracken tribunal.
However, the court made clear the Director of Public Prosecutions may apply at any time to have a new date set for Mr Haughey's trial. Miss Justice Carroll found the order deferring the trial, made by Circuit Court Judge Kevin Haugh on June 26th, was an order of adjournment and not, as the DPP had argued, an order prohibiting the trial or effectively imposing a permanent stay.
She found Judge Haugh had jurisdiction to make the order and noted that the judge had specifically stated it was not an order staying the trial permanently. Judge Haugh had said he would not grant a permanent stay as there might be a change in circumstances from those he had found in June. She also rejected the DPP's argument that Judge Haugh's decision was irrational or that, before adjourning the matter, he should have empanelled a jury and let them assert whether they could give Mr Haughey a fair trial. In light of those findings, and because the "fade factor" was already operating in relation to publicity, Miss Justice Carroll said it was open to the DPP to apply to Judge Haugh now or at any time for a date for a new trial. It would be up to Mr Haughey to prove at that stage that there was a real risk that he could not get a fair trial .
She made an order dismissing the DPP's action and awarded costs to Mr Haughey against the DPP. She also struck out a prehearing motion brought by Mr Haughey to have the DPP's action dismissed as an abuse of process. She awarded costs of that motion to the DPP against Mr Haughey.
Miss Justice Carroll was delivering her reserved decision on the DPP's challenge, which she heard over five days up to last Tuesday.
The DPP had asked the court to quash the June 26th order of Judge Haugh deferring Mr Haughey's trial to an unspecified time. Mr Haughey had sought the order. Judge Haugh found that due to adverse publicity comments made by the Tanaiste, Ms Harney, about Mr Haughey and alleged circulation of 40,000 copies of a leaflet about a rally to be held concerning Mr Haughey, there was a real and substantial risk that he would receive an unfair trial then.
Yesterday Miss Justice Carroll said Judge Haugh was the judge assigned to hear the Haughey case and was the appropriate person to hear applications such as made by Mr Haughey in June.
She said the DPP had also argued that Judge Haugh had not taken into account the constitutional imperative regarding trial by jury and the people's right to an expeditious trial. The DPP had argued Judge Haugh could not have concluded there was a real risk of an unfair trial without first trying to empanel a jury. It was for the trial judge to decide whether there was an unavoidable unfairness of trial at the time and there was no legal requirement to empanel a jury prior to making that decision.
On the DPP's argument that Judge Haugh's decision was irrational and that he gave too much credence to remarks by Ms Harney, to the alleged circulation of 40,000 leaflets for a rally later attended by just 300 people, Miss Justice Carroll said all such grounds related to the evaluation of the evidence put before Judge Haugh and the inferences and the conclusion to be drawn from that.
It was not for the High Court to decide whether it would have drawn different inferences or conclusions from such evidence, she said - it was Judge Haugh's responsibility. She added that "time has moved on" and the "fade factor", in relation to publicity concerning Mr Haughey was already operating. She noted that in the trial of Mrs Catherine Nevin for the murder of her husband potential jurors were asked whether they had an open mind on the case and some had indicated they had not and were excused.
