THE National Court has issued a permanent stay on the prosecution of criminal charges against a lawyer.
The lawyer was charged more than 10 years ago for conspiracy and misappropriation of monies belonging to the National Provident Fund board of trustees. Justice David Cannings also issued orders to discharge Herman Joseph Leahy of the charges in the ex-officio indictment that the Public Prosecutor presented against him after finding that the Public Prosecutor had breached Leahy’s constitutional rights under section 37 (3) of the Constitution by not affording him a fair hearing within a reasonable time. Judge Cannings also made consequential orders discharging him from his bail obligations and his bail monies refunded. Mr Leahy began proceeding for enforcement of his rights under section 37(3) of the Constitution in the National Court human rights track, claiming he was not afforded a fair hearing within a reasonable time. He further claimed that the Public Prosecutor’s undue delay in prosecuting the case was tantamount to a breach of his rights, saying it is now impossible given that the alleged offences were committed 15 years ago and in the interim period many witnesses have died or left the country. The section 37 (3) of the Constitution provides persons charged with an offence be afforded a fair hearing within a reasonable time by an independent and impartial court. According to court files, Leahy was charged in 2003 for conspiracy with five other people for allegedly defrauding K2.65 million belonging to the National Provident Fund board of trustees and misappropriating K70,000 from Kumagai Gumi Co Ltd. The charges stem from the findings of the NPF Commission of Inquiry, chaired by retired judge Tos Barnett. The alleged offences were committed between November 1998 and October 2000 when he was employed by the NPF board of trustees as legal counsel. Ian Molloy for Leahy said there was inadequate explanation for the delay in prosecuting the case since 2003. Justice Cannings said none of the three Supreme Court applications by the plaintiff had a stay order to stop the Public Prosecutor beginning the case.
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