O’Brien loses bid to halt trial for alleged theft

Businessman Breifne O’Brien has lost his Sup-reme Court bid to halt his trial for alleged offences including theft and deception.

A three-judge Supreme Court ruled yesterday the trial could proceed at any time after June 2014.

The court accepted there had been unsatisfactory publicity in relation to the matter arising from various media reports, statements made by Mr Justice Peter Kelly in civil proceedings against Mr O’Brien, a chapter in a book written by journalist Dearbhail McDonald, and a TV3 documentary.

The media should strive better to contain reporting prior to criminal proceedings when such proceedings may be anticipated, said Chief Justice Susan Denham.

Cork-born Mr O’Brien had not shown there was a real risk of an unfair trial or any breach of his rights in that regard under the European Convention on Human Rights, she ruled.

Years had passed since the bulk of the publicity and the “fade factor” applied, she said. The fact the trial judge would be able to give directions to the jury and to ensure there was a fair trial all contributed to the court’s conclusion there was no longer a real risk of an unfair trial.

She said remarks by Mr Justice Kelly in 2009 during civil proceedings brought against Mr O’Brien, prior to the businessman being charged in September 2012 with criminal offences, were, while justified by uncontested material before him, “not wise comments”. The judge should have considered the possibility there would be subsequent criminal proceedings, she said.

Rejecting Mr O’Brien’s claims that the remarks damaged his presumption of innocence, the chief justice said Mr Justice Kelly had made no decision in relation to any criminal trial, other than to refer matters to the Garda Bureau of Fraud Investigation. The statements made in the Commercial Court were based on evidence before the judge, including the fact that Mr O’Brien did not contest the facts put before the court.

Mr O’Brien, aged 51, of Kilmore, Monkstown Grove, Monkstown, Dublin, who represented himself for his appeal, had claimed he cannot get a fair trial due to significant amounts of adverse publicity in the print and broadcast media.

Mr O’Brien, who denies all the charges against him, has been sent forward for trial before a judge and jury at Dublin Circuit Criminal Court. He is charged with 19 counts of theft involving sums totalling about €11m from five individuals between 2006 and 2008. Another 19 charges involve alleged deception of the same people. A further seven charges of deception involving €1.9m relate one of those five people between 2003 and 2008.