The Supreme Court has dismissed Breifne O’Brien’s appeal to prohibit his criminal trial, ruling that years of elapsed time, the possibility of jury directions and the presumption of innocence meant there was no longer a real risk of an unfair trial from pre-trial publicity. It said the trial could proceed at any time from June 2014.
O’Brien faces 45 charges of theft and deception relating to five complainants and alleged conduct between December 2003 and November 2008 in Dublin and Kildare. The allegations, which have not been determined at trial, concern a purported investment scheme. The judgment said the prosecution alleges that money from later investors was used to repay earlier investors, and that funds were also used for other purposes, including O’Brien’s personal lifestyle.
O’Brien sought to stop the trial on the basis that publicity had made a fair trial impossible. The High Court refused a permanent prohibition in May 2013 but ordered a 12-month stay, citing an appreciable risk of an unavoidably unfair trial in the immediate future. O’Brien appealed, seeking prohibition or a further stay. The Director of Public Prosecutions cross-appealed the temporary stay.
The Supreme Court considered publicity that included comments by a High Court judge in separate civil proceedings, newspaper coverage, a 2010 book chapter and a television documentary screened in 2012 and repeated in January 2013. It described the publicity as damaging and said some of the civil judge’s comments were “not wise”. But it found that the judge had made no decision about criminal guilt, and would not preside over the criminal trial. O’Brien had not contested the relevant civil proceedings.
The Court rejected O’Brien’s arguments that the comments breached the presumption of innocence or showed bias affecting the criminal proceedings. It also refused his requests to adjourn the appeal: inability to afford a legal team was not a basis for an adjournment, and a recent Supreme Court case he cited was not relevant to the appeal.
In dismissing the appeal, the Court relied on the years since most of the publicity, the “fade factor” and the ability of a trial judge to direct the jury. The ruling addressed whether the trial could proceed, not whether O’Brien was guilty of the charges.
The DPP’s cross-appeal was also dismissed. The Court said the High Court stay had, by then, taken effect through the passage of time, leaving no issue to decide about it.