High Court: Car dealer fails in attempt to prohibit criminal prosecution concerning ‘trade-in’ vehicles

About this case:

• Citation:
  [2025] IEHC 513
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Simons concluded that the grounds relied upon by the applicant as rendering his criminal trial unfair “are all ones which the court of trial is best placed to adjudicate upon” but remarked that in circumstances where more than a decade had passed since the alleged criminal events, it is “in the interests of justice that a hearing date be fixed for the criminal trial as soon as possible”.

Colman Fitzgerald SC and Craig Phillips appeared for the applicant instructed by Powderly Solicitors LLP, and David Staunton appeared for the respondent instructed by the Chief Prosecution Solicitor.

Background

The applicant, one of two co-accused, had been employed by a car dealership as a dealer.

The applicant was charged with theft, forgery and using a false instrument contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001.

In particular, the charges concerned the onward sale of “trade-in” vehicles by the applicant between April 2014 to June 2017, with the prosecution alleging that occasionally, the fact that a customer had traded-in a vehicle was not recorded in the sales contract with the customer and the vehicle was, instead, privately sold by the applicant for a personal profit.

The managing director of the dealership died on 3 August 2023, three years following the commencement of proceedings. The applicant alleged that any actions on his part were done with the knowledge of the deceased and that the deceased had signed off on every deal and had the “final say” in respect thereof.

The applicant brought judicial review proceedings seeking to restrain his prosecution before the Circuit Criminal Court on grounds, firstly, that he could no longer cross-examine the deceased as to his participation in all transactions and secondly, that the prosecution would no longer be able to prove a key element of the offences — being the absence of consent on part of the car dealership as owner of the vehicles.

The applicant’s hearing took place as a “rolled up” or “telescoped” hearing, with both the application for leave for judicial review and the substantive hearing coming before the High Court.

The High Court

Mr Justice Simons considered that the key issue governing the assessment of whether a criminal trial has been rendered unfair due to a lapse of time and the death of a witness was that as set out in Director of Public Prosecutions v. C.C. [2019] IESC 94, being whether the accused has lost the real possibility of an obviously useful line of defence.

As to whether the correct forum for that assessment is the court of trial or the court of judicial review, Mr Justice Simons found that it was necessary to examine the prosecution case in the round and to assess both the likelihood of evidence favourable to the defence having been lost due to the lapse of time and the role which that evidence might reasonably have been expected to play at trial.

Turning to the prosecution case, the court noted that it was clear from the book of evidence that the prosecution intended to call oral evidence from individuals on either side of the supposed transactions and to rely on the vehicle order/sales contracts arising from the sales, and that it appeared that the prosecution would allege that the sales contracts had been altered subsequently with the consequence that the details recorded in the copy thereof given to the customer were different from the copy retained by the dealership.

As to the role of the deceased’s evidence, the court heard from the applicant that he had been deprived of the opportunity to raise a reasonable doubt in the mind of the jury as to whether the deceased consented to the transactions, and further, that it could no longer be put to the deceased that his making of a criminal complaint to gardaí was an act of vengeance motivated by his finding out that the applicant intended to set up a rival dealership.

Explaining that the gravamen of that argument was that the trial should not proceed where the death of the deceased had rendered a fair trial impossible, Mr Justice Simons determined that two questions required consideration: firstly, whether there had been blameworthy prosecutorial delay and secondly, whether the alleged prejudice arose in consequence of the delay.

The judge highlighted that modern jurisprudence indicates that the assessment of whether there is a real or serious risk that an accused would not obtain a fair trial by reason of prosecutorial delay is quintessentially a matter for the court of trial, except in “very clear-cut” cases in which any potential unfairness would not be affected by the development of the evidence at trial.

The High Court concluded that the court of trial would be better placed to assess overall fairness where, inter alia, the significance of the unavailability of the deceased as a witness would depend on the extent to which he had been the controlling mind of the company, a matter of controversy between the parties.

The court also found that the applicant had not sufficiently engaged with the prosecution case to establish any real possibility that the deceased’s evidence would assist the defence, and failed to address the witness statements which indicated that the duplicate copy of certain sales contracts appeared to have been altered.

As to the applicant’s argument that the prosecution no longer had a reasonable prospect of securing a conviction following the death of the deceased, Mr Justice Simons confirmed that this was also a matter for the court of trial as that argument was predicated on an assumption that the prosecutor will not be capable of establishing, beyond a reasonable doubt, that no consent was given by the dealership to the private sale of traded-in vehicles.

In that regard, the judge pointed out that a proper assessment of that argument would require consideration of oral testimony by the surviving directors of the dealership and consideration of any admissible business records, which assessment could only be carried out by the court of trial.

Conclusion

Accordingly, the High Court granted leave to apply for judicial review and dismissed the substantive application for judicial review.

S v Director of Public Prosecutions [2025] IEHC 513