The managing director of Zoe Developments Ltd, one of the State's largest property developers, has claimed extensive publicity about its safety record and previous convictions has grossly and irredeemably prejudiced its chances of a fair trial for alleged safety breaches.
Mr Liam Carroll said Zoe would be pleading not guilty to the charges.
He claimed the National Authority for Occupational Safety and Health (NAOSH), while effectively maintaining the prosecution against its company for alleged safety breaches, had disclosed to the media on an "absolutely methodical and premeditated basis" the fact that Zoe has previous convictions related to breaches of the work safety Acts.
The risk of unfairness created by the deliberate acts of the authority could not be remedied by the judge, he said.
The claims were made in an affidavit by Mr Carroll, of La Touche House, Grove Road, Rath mines, Dublin, on the opening day of a High Court application by Zoe, with a registered office at Fleet Street, Dublin, to stop its trial before Dublin Circuit Criminal Court.
The trial for alleged safety breaches was originally listed for May 1997 but was adjourned pending the outcome of the company's judicial review proceedings against the DPP and the safety authority.
In the hearing before Mr Justice Geoghegan, Zoe seeks an order prohibiting the DPP from further prosecuting it or restraining the prosecution pending further court order.
It is also seeking orders restraining the authority from publishing or circulating by press release or otherwise any material calculated or liable to prejudice the jury at the hearing (if any) of the prosecution of Zoe and, in particular, restraining the authority from disseminating material to the effect that Zoe has previous convictions.
The court is also asked to declare that the circulation to the media of material in a press release from the authority, dated November 6th, 1997, was an activity giving rise to a real or serious risk of prejudicing a fair trial.
In court yesterday, Mr Adrian Hardiman SC, for Zoe, said the case arose from the issuing by the authority of a press release on November 6th, 1997, which identified Zoe, stated it had 12 convictions for breaches of safety legislation since 1991, that there were two potential indictable offences pending and that over a period three people had died in accidents on sites Zoe managed.
The press release was issued when Zoe was facing trial for alleged safety breaches just over a month later, on December 8th 1997, counsel said.
The release attracted enormous publicity, which continued for some 21 days and included a High Court hearing in which Mr Justice Peter Kelly - who had not been made aware of the pending trial - described Zoe as a "recidivist criminal".
Counsel produced press cuttings from November 1997 featuring headlines such as "The man who built on blood" and "Unsafe As Houses".
This was not a simple case of pre-trial publicity, Mr Hardiman said. There were absolutely unique aspects of that but it was also a case where the pre-trial publicity was generated by the safety authority, which was, in effect, a party to the proceedings. This was intended to damage Zoe.
Zoe applied to Dublin Circuit Criminal Court to stop the trial, and when it was unsuccessful there, applied to the High Court, where it was given leave to take the present proceedings.
In an affidavit, Mr Tom Walsh, director general of the safety and health authority, denied it had carriage of the prosecution of Zoe and said the authority's primary objective was to secure the health and safety of workers.
He said Mr Liam Carroll, in his affidavit, appeared to believe that because criminal proceedings were pending against Zoe in December 1997, the safety authority was precluded from exercising its powers under the 1989 Health and Safety Act in respect of other activities by Zoe.
It was a "striking aspect" of Mr Carroll's affidavit that it failed to make any reference to the fatal accident that set in train events that gave rise to the present proceedings.
He said the reason why the safety authority had referred in its press release to the previous convictions of Zoe was to explain why the authority had decided to order work be stopped at the Zoe site on Charlotte Quay, Dublin, in November 1997, following a fatal accident there on November 3rd.
Mr Walsh said Zoe's attitude to safety, as demonstrated by its past record, was a relevant fact in persuading the High Court to grant the order closing that site.
In his statement of opposition in the proceedings, the DPP denies the safety authority has effective conduct of the proceedings.
The DPP had no knowledge of the press release of November 6th, 1997, and denied the disclosure of Zoe's previous convictions carried or created a real or substantial risk or prejudice to Zoe's right to a fair trial.
Alternatively, the DPP said if disclosure of the convictions did carry a risk of prejudice, such a risk no longer continued, did not warrant an order prohibiting the prosecution and could be obviated by appropriate directions of the trial judge.
