Two former employees of a car dealership have lost separate bids to prevent their trials on multiple counts of theft, forgery and using a false instrument during their employment.
The alleged offences relate mainly to the onward sale of vehicles traded in by customers buying another vehicle from the dealership, the High Court’s Mr Justice Garrett Simons noted.
The prosecution contends that, in certain instances, the fact a customer had traded in a vehicle was not recorded in the sales contract and the vehicle was instead sold privately by each accused as a profit to themselves, he said.
In judgments on Monday, on separate judicial review proceedings by the two applicants, the judge refused to make orders preventing their trials, which have been on hold pending the High Court’s decision.
RM Block
Because of the pending criminal trials, he redacted aspects of the judgments, including the names of the accused and of the car dealership.
Mr Justice Simons noted the core argument in both applications was that prosecutorial delay had deprived each applicant of their entitlement to a fair trial.
The trial arose from offences allegedly committed between 2014 and 2017. Some charges were preferred against each applicant in 2020 and an indictment involving multiple charges was served in late 2023.
It was argued that a fair trial was not possible for reasons including the death of an intended prosecution witness, the managing director of the dealership, after the criminal proceedings were initiated.
One applicant claimed the managing director “signed off on everything” while the other said the alleged offences were done with knowledge of the managing director for the purpose of “getting the deals done” and making a profit on the new vehicles being sold by the dealership.
The delay in bringing the matter to trial, it was submitted, had deprived the applicants of the opportunity to cross-examine the managing director, including putting to him that he had been aware of the full particulars of all transactions and was involved in the paperwork.
It was also argued the delay meant the prosecution would not be able to prove a key element of the alleged offences – absence of consent by the dealership as owner of the vehicles alleged to have been taken.
The modern case law is that the assessment of whether or not there is a real or serious risk of an unfair trial on grounds of prosecutorial delay is “quintessentially” a matter for the court of trial, the judge said. The court of judicial review should intervene only in “very clear-cut” cases in which any potential unfairness would not be affected by the development of evidence at trial.
In this case, the trial court would be better placed than the judicial review court to assess overall fairness, he found. The significance of the unavailability of the managing director would depend on the extent to which he had been the controlling mind of the company, which was “a matter of controversy” and could be properly resolved only at trial. The managing director had given a witness statement which expressly stated he had not consented to the actions of the accused, the judge noted.
The issue of whether the prosecutorial delay was culpable or blameworthy was also best left to the trial court, he said. This was a complex investigation with more than 100 witness statements and extensive disclosure was required.
The argument that the prosecution, due to the managing director’s death, would not now be able to prove a key element of the alleged offences was a matter for the trial court as were complaints concerning the preservation and/or disclosure of documents.
In conclusion, the judge noted the first of the alleged offences took place more than a decade ago. It was “unsatisfactory, to put it neutrally” that the criminal trial had not yet taken place and it was in the interests of justice that a trial date be fixed as soon as possible, he said.
