The Trial-First Rule for Delay and Deceased-Witness Challenges: M v Director of Public Prosecutions [2025] IEHC 512

The Trial-First Rule for Delay and Deceased-Witness Challenges: M v Director of Public Prosecutions [2025] IEHC 512

Introduction

In this judicial review, the High Court (Simons J) refused to restrain a pending Circuit Criminal Court prosecution arising from alleged theft, forgery and use of a false instrument in the motor trade. The accused, formerly a dealer principal at a car dealership, argued that delay had rendered a fair trial impossible following the death of the managing director—an intended prosecution witness—who, the defence said, would have supported a consent-based defence. The accused also claimed that An Garda Síochána failed to seek out and preserve exculpatory business records.

The decision addresses two recurring and practically important questions: (i) which forum—trial court or judicial review—is best placed to assess fairness objections arising from prosecutorial delay and lost evidence, and (ii) what threshold must an accused meet when asserting that the death of a witness has deprived them of a fair trial. Against a detailed factual background that includes alleged alterations to SIMI Vehicle Order/Sales Contracts and contested narratives about internal dealership practices, the Court reaffirms a “trial-first” approach and the requirement for an accused to show the real possibility of an obviously useful line of defence being lost.

The judgment is anonymised to protect the integrity of the forthcoming jury trial and is subject to tailored reporting restrictions pursuant to the High Court’s common law jurisdiction to safeguard fair trial rights (Gilchrist v Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 IR 284).

Summary of the Judgment

The High Court dismissed the application to prohibit the trial. Simons J held that:

  • The proper forum to assess whether prosecutorial delay and the death of a witness have created a real and unavoidable risk of an unfair trial is, save in very clear-cut cases, the court of trial, not judicial review. This aligns with the Supreme Court’s guidance in Director of Public Prosecutions v C.C. [2019] IESC 94 and Byrne v DPP [2010] IESC 54, [2011] 1 IR 346 (approved in People (DPP) v Casey [2019] IESC 7, [2019] 3 IR 482).
  • The applicant did not establish that the loss of the deceased managing director’s evidence produced the real possibility of losing an obviously useful line of defence. Critically, the deceased’s witness statement denied consent to the accused’s actions, which would have aided the prosecution rather than the defence. Hypothetical suggestions that cross-examination might have shifted the evidence were insufficient.
  • The issues concerning disclosure and preservation of business records (including alleged “car wash out statements”) are quintessentially for the trial court’s case management and evidential rulings, not for intervention by judicial review, absent exceptional circumstances.
  • Although the history of the case (events from 2014–2017, charges in 2020, amended indictment in 2023, and a vacated 2024 trial date) gives cause for concern, the complexity of the investigation and ongoing disclosure issues meant culpable delay could not be found on the limited affidavit record. The Court urged expedition of the trial date in the interests of justice.

Analysis

Precedents Cited and Their Influence

  • DPP v C.C. [2019] IESC 94:
    • This is the lodestar for applications alleging trial unfairness due to delay and missing evidence. O’Malley J’s summary (para 4) provides the controlling test: the trial judge must assess (i) the prosecution case, (ii) whether there is a legitimate, reasonable basis to infer that particular, potentially defence-favourable evidence might have been available had the trial occurred earlier, and (iii) whether the missing evidence could realistically influence the jury, especially where the prosecution case is strong. The pivotal question: has the accused lost the real possibility of an obviously useful line of defence?
    • O’Donnell J (para 28) underscores trial robustness: trials are not rendered unfair simply by the absence of a non-essential witness; only where the cumulative impact renders the trial impossible or unfair does intervention arise.
    • O’Donnell J (para 44) explains the forum principle: fairness is best assessed at trial on live evidence, not in advance on speculative affidavit assertions. Applicants must “directly engage” with the prosecution case rather than raise hypotheticals.
  • Byrne v DPP [2010] IESC 54; [2011] 1 IR 346 (per O’Donnell J), approved in People (DPP) v Casey [2019] IESC 7; [2019] 3 IR 482:
    • Prohibition by judicial review is exceptional. The primary constitutional mechanism to secure a fair trial is through the trial and appeal process, and the court of trial carries the primary onus of vindicating fairness (referencing McFarlane v DPP [2007] 1 IR 134).
    • The fact that a judicial review fails does not preclude the trial court from later granting relief or remedies if unfairness emerges on the evidence at trial.
  • Braddish v DPP [2001] 3 IR 127:
    • Often cited concerning the State’s duty to seek out and preserve evidence. Byrne confines pre-trial prohibition to the “very straightforward” type of Braddish scenario; typically, issues about missing or destroyed materials are better resolved by the trial court’s evidential rulings and remedies.
  • Gilchrist v Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 IR 284:
    • Authority for the High Court’s common law power to impose proportionate reporting restrictions to protect the integrity of a prospective jury trial while respecting open justice. Simons J applies this to anonymise parties and confine restrictions to this judgment’s reportage.

Legal Reasoning: How the Court Reached Its Decision

The Court’s reasoning proceeds in two steps: forum allocation and substantive threshold.

1) Forum Allocation: Why the Trial Court Is Better Placed

The Court emphasises that assessing whether delay and the death of a witness have rendered a trial unfair is “quintessentially” for the trial judge unless the case is clear-cut and the alleged unfairness is unaffected by how the trial evidence might unfold (para 39).

Two aspects made the trial court the proper forum here:

  • Contested factual landscape (para 41): The materiality of the managing director’s absence depends on whether he was the controlling mind (as the defence claims) or whether the accused, as dealer principal, had overall responsibility (as another director’s statement suggests). This central factual dispute can only be resolved by oral evidence at trial.
  • Context-sensitive evaluation of missing evidence (paras 42–47): The accused had not specifically engaged with the prosecution case to show how the deceased’s evidence would likely assist the defence. Indeed, the deceased’s existing witness statement denied consent for the accused’s acts (para 45), which cuts against the defence. The suggestion that cross-examination might have changed that evidence was speculative and did not satisfy the “real possibility” standard. The trial judge, with the full prosecution and defence evidence, can best determine what role the missing evidence might have played.

2) Substantive Threshold: “Real Possibility of an Obviously Useful Line of Defence”

Applying DPP v C.C., the Court asks whether the accused has lost a real possibility of an obviously useful defence because of the witness’s death. The answer was no:

  • The deceased managing director’s witness statement affirmatively denied consent to the accused’s actions—a key issue in theft, which requires proof of appropriation without the owner’s consent and dishonesty (Criminal Justice (Theft and Fraud Offences) Act 2001, s. 4; s. 2 defines “dishonestly” as “without a claim of right made in good faith”) (paras 35, 45). That statement would have aided the prosecution, not the defence.
  • The accused did not show why the managing director would plausibly have approved alleged alterations to sales records that appear to confer no benefit on the dealership (para 43, referencing para 26 as an example). Without particulars tied to the prosecution’s documentary and witness case, the claim remained hypothetical (paras 43–47).
  • The Court reiterated that mere theoretical possibilities—e.g., that cross-examination might have undermined the deceased’s credibility or induced a recantation—do not meet the standard. Direct engagement with the prosecution evidence is required.

3) Prosecutorial Delay and Complexity

The Court could not conclude on the limited affidavit record that there was culpable or blameworthy delay (para 48). The Garda investigation was extensive (over 100 witness statements), and the vacated trial date related to disclosure management—a familiar and complex dynamic in economic crime cases. Whether time taken was reasonable is better assessed at trial with evidence from those involved (paras 48, 56).

4) Preservation and Disclosure of Evidence

Allegations that Gardaí failed to seek out/preserve business records—such as original “car wash out statements” or workshop costings—were held to be matters for the trial court (paras 49–55). The Circuit Court had been undertaking intensive case management before the judicial review. Whether specific categories in fact existed, were destroyed, or are irrelevant requires evidence and, potentially, viva voce testimony (para 55). Under Byrne and Casey, pre-trial prohibition on such bases is exceptional.

5) The Right to Silence and the Claim of Being “Compelled” to Testify

The accused argued that, with the managing director unavailable, he would be forced to testify to mount a consent-based defence, undermining his right to silence (paras 31, 34). The Court did not accept that this point established unfairness justifying prohibition. The core problem remained the absence of a demonstrated real possibility that the deceased would have materially assisted the defence (paras 43–47). Moreover, the fairness of any decision to testify, and the trial court’s capacity to manage any prejudice, are matters for the trial judge.

6) Reporting Restrictions

The Court imposed proportionate reporting restrictions to avoid jurors being exposed to potentially inadmissible details recited in the judgment (paras 7–11). The restrictions apply only to reportage of this judgment and will lapse at trial’s conclusion, preserving open justice to the greatest extent consistent with fair trial rights.

Impact: Why This Case Matters

  • Reaffirmation of the “trial-first” forum rule: Practitioners should expect that fairness objections grounded in delay, witness death, or incomplete records will ordinarily be resolved by the trial judge. Judicial review remains a narrow avenue for truly clear-cut cases where further trial development cannot matter.
  • Heightened pleading discipline for defence applications: Applicants must tether assertions to the prosecution’s case “in the round,” identifying how missing evidence would be obviously useful, not theoretically helpful. Where a deceased witness has left a statement adverse to the defence (as here), the threshold is even harder to meet.
  • Case management centrality: The Circuit Court’s active management of disclosure and evidential issues is endorsed. Disputes about whether specific business records existed or were wrongly withheld will typically be determined at trial via evidence and tailored remedies.
  • Economic crime prosecutions: This judgment underscores that the complexity of financial/documentary investigations can justify timelines that, at first glance, seem long. Culpability for delay is fact-intensive and ill-suited to determination on affidavit.
  • Consent and theft in employer–employee contexts: The case highlights how a consent-based defence must be substantiated with concrete, case-specific particulars—especially where records appear to have been altered with no obvious corporate benefit.
  • Reporting restrictions model: The decision provides a measured template for anonymisation to protect future juries while enabling meaningful coverage of pre-trial rulings—a particularly useful approach where a judgment canvasses material that may later be ruled inadmissible.

Complex Concepts Simplified

  • Prosecutorial delay: Time taken after charge (and sometimes during investigation) that may prejudice a fair trial. Not every delay is culpable; the question is whether the delay is blameworthy and whether it creates a real risk of an unfair trial. Complexity of the case and legitimate disclosure burdens can justify elapsed time.
  • “Real possibility of an obviously useful line of defence” (from DPP v C.C.): The accused must show that a missing witness or piece of evidence could realistically have provided a clear, helpful line of defence—more than a speculative or tangential possibility.
  • Judicial review vs. trial court motion: Judicial review asks a superior court to stop the trial before it happens. The Irish courts insist that most fairness issues be addressed by the trial judge, who sees the case unfold live. Only in exceptional, clear-cut scenarios will a trial be prohibited in advance.
  • Business records: Documents created in the ordinary course of business may be admissible to prove facts without calling the author, if statutory and evidential conditions are met. Here, the SIMI Vehicle Order/Sales Contracts appear to be central business records the prosecution may rely upon.
  • False instrument (Criminal Justice (Theft and Fraud Offences) Act 2001, s. 30): A document that is false and used with the requisite mental element for offences such as forgery or using a false instrument.
  • Theft elements and “claim of right”: Theft requires dishonesty and lack of consent of the owner. Dishonesty under the 2001 Act is acting “without a claim of right made in good faith” (s. 2). A belief (even if mistaken) that the owner consented can negate dishonesty—but it must be genuinely held and, in contested cases, supported by evidence.
  • Right to silence and tactical choices: An accused has a right to remain silent when interviewed. Later, at trial, the accused may choose to give evidence; that choice can be influenced by how the case has developed, but the mere fact that giving evidence may become strategically important does not itself establish trial unfairness necessitating prohibition.
  • Reporting restrictions: Courts can restrict publication of certain identifying details to protect an impending jury from exposure to potentially inadmissible information, striking a balance between fairness and open justice.

Key Factual Context

  • Alleged conduct dates: April 2014–June 2017; charges first laid September 2020; an “amended” indictment served December 2023.
  • Prosecution theory: Profits on trade-in vehicles were diverted, with some SIMI sales contracts allegedly altered (e.g., trade-in entries omitted or replaced; references to “personal finance”) and certain vehicles allegedly sold privately rather than through the dealership.
  • Defence theory: The accused acted with the knowledge or consent of the managing director to “get the deals done,” minimise preparation/warranty costs, and enhance new vehicle sales; alleged evidence includes that the managing director initialled numerous contracts and provided a dedicated phone for private sales.
  • Deceased witness: The managing director died August 2023. His witness statement denied consent—a fact central to the Court’s conclusion on the “real possibility” test.
  • Disclosure disputes: Defence contends key business records (e.g., “car wash out statements,” workshop costings) are missing; the Court holds such disputes are to be handled by the trial court’s case management and evidential rulings.

Practical Guidance for Future Cases

  • For defence teams:
    • When alleging unfairness due to the death of a witness, identify precisely what the witness would likely have said, how that fits with the prosecution’s case, and why it would be obviously useful. Engage with specific documents and witness statements in the book of evidence.
    • If the deceased left a statement, explain with specificity why cross-examination might realistically have changed the position (e.g., highlight contradictions, other records, or witnesses). Mere speculation will not suffice in judicial review.
    • Preservation/disclosure issues should be advanced through robust pre-trial case management, targeted disclosure motions, and, if necessary, evidential challenges at trial.
  • For prosecutors:
    • Maintain detailed disclosure logs; explain non-availability of business records with evidence where necessary. Expect that trial judges will adjudicate these issues in real time, with judicial review remaining exceptional.
    • Where key witnesses die, consider whether prior statements can be admitted consistently with evidentiary rules; prepare to meet “real possibility” arguments by showing why the missing evidence would not have been obviously useful to the defence in context.
  • For trial judges:
    • Employ active case management for disclosure and evidential disputes; take evidence where needed on the existence and relevance of contested business records; and calibrate remedies (e.g., admissions, limitations, or exclusions) to ensure fairness.
    • Apply DPP v C.C. rigorously when assessing alleged prejudice from missing witnesses or documents, measuring the alleged loss against the prosecution case “in the round.”

Conclusion

M v Director of Public Prosecutions [2025] IEHC 512 robustly reaffirms that the court of trial is the primary forum for assessing alleged unfairness arising from prosecutorial delay, the death of material witnesses, and purported failures in preservation or disclosure of evidence. Pre-trial prohibition via judicial review remains an exceptional remedy, available only in clear-cut cases where further development at trial cannot alter the fairness calculus. The decision underscores that an applicant must specifically engage with the prosecution’s case and demonstrate a real possibility of losing an obviously useful line of defence, not merely hypothesize potential benefits from cross-examination foreclosed by a witness’s death.

In an economic crime context driven by documentary proof—here, SIMI sales contracts and associated dealership records—the judgment also highlights the centrality of trial-level case management to resolve granular evidential and disclosure issues. Finally, through tailored reporting restrictions, the judgment provides a pragmatic model for balancing open justice with fair trial rights when pre-trial rulings canvass material that may later be ruled inadmissible.

The practical message is clear: fairness objections of this genre will, almost invariably, be determined at trial, on evidence, by a judge with full visibility of the prosecution case “in the round.” Defence and prosecution alike should prepare for that forum, marshalling concrete, case-specific particulars rather than speculative assertions. In the meantime, the Court’s call for expedition of the trial date underlines that justice—both for the accused and for the public—demands timely resolution.

Case Details

Year: 2025
Court: High Court of Ireland

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