High Court of Ireland Decisions

Neutral Citation No: [2005] IEHC 389

THE HIGH COURT

[Record No. 2005 531 SS]

IN THE MATTER OF S. 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY S. 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA DECLAN KELLY)

PROSECUTOR

AND COLIN O'SULLIVAN

ACCUSED

JUDGMENT delivered by Ms. Justice Dunne on the 11th day of October, 2005

This matter comes before the Court as an appeal by way of case stated pursuant to the provisions of s. 2 of the Summary Jurisdiction Act, 1857, as extended by s. 52(1) of the Courts (Supplemental Provisions) Act, 1961. The accused was before the District Court on 23^rd September, 2004, in relation to a prosecution for drunk driving under the provisions of s. 49 of the Road Traffic Acts, 1961-2004.

On 23^rd September, 2004, a preliminary application was made to the learned trial Judge to the effect that the charge should be struck out on the ground that the accused's right to a trial with reasonable expedition had been violated in that there had been excessive delay which had not been contributed to by the accused or indeed the prosecution. Reference was made to the decision in D.P.P. v. Arthurs [2000], 2 ILRM 363. The learned trial Judge refused the preliminary application, proceeded to hear the case and convicted the accused. Accordingly the opinion of this Court is sought on two questions of law namely:

(a) Was the learned trial Judge correct in law in finding that in the summary proceedings a period of some two years, three months and twenty one days approximately from the date of the offence to the date of the hearing was not a delay that of itself amounted to injustice and therefore prejudice?

(b) Was the learned trial Judge correct in law in finding that the application for a dismissal of the case on the grounds of delay ought to be refused?

It may be useful at this point to indicate some outline of the chronology of events in this particular case. The date on which the alleged offence occurred was 2^nd June, 2002.

A summons was applied for on 21^st October, 2002. The return date in respect of the summons was 14^th March, 2003. The case was adjourned for hearing to 17^th October, 2003. That hearing date was adjourned in advance as it clashed with the date fixed for a Judges' conference. In that regard both prosecution and accused were written to informing them of this fact. The case was then allocated a hearing date by letter of 28^th June, 2004. Both sides appeared in Court on that date at 2pm for the hearing. The case did not appear in the list on that date. Apparently due to an administrative error it was in fact listed for 29^th June, 2004. The case could not be heard on that date because that was a date assigned to hearing family law matters in Dun Laoghaire District Court. The case was then adjourned to 23^rd September, 2004, for hearing.

As indicated above a preliminary application was made to have the trial halted on the grounds of excessive delay in bringing the case before the Court. Reliance was placed on the decision of D.P.P. v. Arthurs referred to above. The learned trial Judge accepted the principles set out in that case but held that she had a discretion in the matter and refused the application.

Mr. McDonagh S.C., on behalf of the Prosecutor, referred firstly to the decision of D'Arcy J. in the case of The State (Cuddy) v. Mangan [1988] ILRM 720 and argued that that decision was an authority for the proposition that delay alone could stop a case and that in certain circumstances prejudice should clearly be inferred. In his judgment in that case D'Arcy J. referred to a decision of the Master of the Rolls, Lord Justice Donaldson in the case of R. v. Watford Justices, ex parte Outrim, 1983 RDR 26 where he stated as follows:

"In this case it seems to me that while it can be said, as was the case in R. v. Oxford City Justices, ex parte Smith, that the actual certificate recording the proportion of alcohol in the blood is just as good two years later or eighteen months later as it was at the time. There are other matters which the accused person may want to challenge and he may want to have an accurate recollection of the procedures in order to decide whether he has grounds for challenging the police evidence. The passage of time of the order of time which has elapsed in this case would make that very difficult, so that although there was no specific allegation of prejudice the possibility of prejudice is clear."

As can be seen Lord Donaldson in his judgment relied on an earlier decision of Lord Lane C. J. in the case of Crown v. Oxford Justices, ex parte Smith, 1982 RDR 201 where there had been a delay in serving summonses and it was stated in that case by Lord Lane as follows:

"Was the procedure correctly carried out by the police before and after the specimen of urine was obtained and so on? These are matters which the applicant, in his affidavit, says that he has now forgotten. He points out that the friends, who were with him at the time, even if they could be traced, would doubtless have forgotten them too and, in other words, this is the type of delay by its nature and its length which inevitably, in my judgment, must lead to prejudice, unfairness and injustice to the applicant.

In those circumstances it seems to me that the justices, although they examine the matter with great care and we are grateful to them for the way in which they so clearly set it out for our benefit are not justified in the conclusion that they reached, and insofar as they had a discretion in the matter that discretion was not exercised upon a proper basis. That being the case, in my judgment this application should succeed and the order of prohibition should go."

Accordingly D'Arcy J. noted with approval the judgments referred to by him and concluded that delay in the service of a summons may prejudice a defendant in his defence and so should be dismissed.

In those circumstances, Mr. McDonagh argued that because the main evidence in the case before the Court was a certificate it was more important given the nature of the technical defences that could arise to ensure that such a case would be heard sooner rather than later.

Mr. McDonagh then referred to the decision in the case of D.P.P. v. Barry Byrne [1994] IR 236, a decision of the Supreme Court in a case which also involved an offence under s. 49. In that case there was a delay of nine months approximately. In particular he referred to the judgment of Denham J. at p. 257 where she stated:

"It is not an answer to the respondent's case that a State agency, other than the Director of Public Prosecutions, is to blame. If the applicant's right of reasonable expedition is an issue arising out of State delay, whether it be of the prosecution or not, it is for the prosecution to explain or defend and bear responsibility at the hearing of the case."

She went on to say:

"The fact of the delay be it by the Director of Public Prosecutions office, the Garda Office, or other State or Court agency, is a potentially detrimental matter to the accused for which the prosecution has to answer in Court."

Mr. McDonagh also referred to the judgment of Blayney J. in that case and in particular to a passage at p. 252. Having considered the basis for the delay in that particular case Blayney J. went on to say as follows:

"Where, however, the delay is excessive, a prosecution may be dismissed. In such a case prejudice may be inferred."

Blayney J. then referred to the decision in the case of R. v. Telford J.J., ex parte, Badhan [1991] 2 QB 78 and having quoted as follows from the judgment of Mann L.J. at p. 91 stated:

"Where the period of delay is long then it can be legitimate for the Court to infer prejudice without proof of specific prejudice."

Blayney J. went on to say as follows:

"And the position is the same where there has been no delay but there has been a long lapse of time for which the prosecution is not to blame."

Mr. McDonagh also referred to the judgment of Finlay C.J. in that case at p. 245 in which he referred to the decision of the Supreme Court of the United States in Barker v. Wingo [1972] 407 US 514 where Powell J. at p. 532 stated as follows:

"Prejudice of Court should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests:

i. to prevent oppressive pre-trial incarceration;

ii. to minimise anxiety and concern of the accused; and

iii. to limit the possibility that the defence will be impaired."

Mr. McDonagh argued on the basis of the above judgment that the focus is on the interests of the accused, i.e. prejudice to the defence is one factor to be taken into account and the second factor is to minimise pre-trial anxiety. Mr. McDonagh pointed out that the decision in that case was a three/two decision in which the majority held in favour of the D.P.P. Two members of the Court had been of the view that a ten month delay was too long in the circumstances of the case where as the majority, Denham J., Blayney J. and O'Flaherty J. were of the opposite view. However, there was no dispute as to the principles applicable.

He then referred to the decision in the case of D.P.P. v. Arthurs [2000] 2 ILRM 363 in extenso. In particular he referred to paras. 3, 5 and 6 of the head note. He laid particular emphasis on para. 6 which is as follows:

"The failure on the part of the State to have made adequate provisions for the expeditious conduct of cases in the District Court in question, resulting in adding to an already excessive delay, was an unwarranted invasion of the accused's constitutional right to an expeditious trial. Accordingly, notwithstanding the absence of evidence of prejudice, actual or presumptive, the District Court Judge was obliged to prevent such an invasion of the accused's constitutional right and should have acceded to the accused's request not to allow the trial to proceed."

In relying on this authority Mr. McDonagh pointed out that it was one thing for a case not to be heard on a particular day in circumstances where there was a reasonable or possibly reasonable excuse for example, a Judge's conference although Mr. McDonagh did not go so far as to concede that that was, in fact, a reasonable excuse, but he added that if the date was to be vacated then it should be given a much sooner date than was in fact given on this particular occasion. As a result of that delay the case was not then listed until June and as already set out the case did not get on then for reasons explained.

He also referred to the decision in the case of Blood v. D.P.P. Unreported, Supreme Court, 2^nd March, 2005, a judgment of McGuinness J. That was a case in which the applicant was charged with possession of a pistol and ammunition in such circumstances as to give rise to a reasonable inference that he had not got them in his possession for a lawful purpose. He sought to prohibit his trial on the grounds of prosecutorial delay. The offence was one which appeared to arise out of the investigation into an unlawful killing which occurred in 1994. The applicant in that case was originally arrested and charged on 6^th July, 1999. The trial date was not until 2001. Accordingly it is a case in which there was significant delay. In the course of her judgment at p. 36 McGuinness J. stated as follows:

"I would accept that the applicant in the present case has not provided very strong evidence of specific prejudice resulting from the delay which has occurred in prosecuting the offences with which he has been charged. However, it seems from the material contained in the book of evidence which was served on the applicant that all the events connected both with the death of Steven Murphy and with the offences alleged against the applicant occurred in the context of what the applicant described as 'motor bicycle fraternity'. In those circumstances his evidence that he has ceased to associate with any of that fraternity and has lost contact with any potential witnesses is of at least of some importance. He appears also to have suffered stress arising from the impending proceedings which has contributed to the breakdown of his marriage. A further consideration to be taken into account when assessing prosecutorial delay in the circumstances of this case is the fact that the applicant who in 1994 and 1996 was being investigated in connection with the charge of murder, is now charged with a significantly less serious offence."

She went on to say at p. 38 as follows:

"The right to an expeditious trial is implied in the right to a fair trial. There is a danger that a lengthy delay in itself will, through its effect on the memory of potential witnesses and of the accused person himself, render a trial unfair…. In the case of the applicant his loss of contact with his motor cycling associates, together with his anxiety and concern at the impending proceedings against him and the fact that he has now been charged with a less serious offence must be added factors.

As has already been pointed out, cases involving delay in prosecution or the denial of the right to an expeditious trial must be decided on an ad hoc basis, in the particular circumstances of the case. In the particular circumstances of this case, taken as a whole, it seems to me that the delays in the latter period of the prosecution of the applicant amount to a denial of his right to an expeditious trial. There is also a real risk that this may lead to an unfair trial."

Thus Mr. McDonagh in this case has argued that there is excessive delay in this particular case. He makes the point that a summary offence such as this is straight forward to prosecute but difficult to defend. He accepts that there is no question of mala fides. However, he argues that there is no appropriate excuse for the delay nor is it justified by an argument in respect of inadequate resources. He argued that the delay is unconscionably long and that accordingly prejudice can be inferred without proof. He argued that the delay in bringing the summons on for hearing unfairly prejudiced the accused in making his defence and invaded his constitutional rights to natural justice and required the district judge to vindicate those rights and dismiss the summons. He argued also that this case came within the same framework as applied in the decision in D.P.P. v. Arthurs. Finally he referred to a decision of this Court in a case called Fennell v. D.P.P. Unreported, 26^th April, 2005, and distinguished that case from the facts of the present one.

Mr. Ferriter, Barrister at Law, appeared on behalf of the D.P.P. and sought to argue that the present case was not different from the facts of D.P.P. v. Fennell referred to above. He argued that Mr. McDonagh had not contended that any specific prejudice had been made out in the course of the application before the District Court. Insofar as Mr. McDonagh referred to alleged prejudice or anxiety, Mr. Ferriter argued that such a contention did not stand up to serious scrutiny. He pointed out that there was no reference in the case stated to actual or presumptive prejudice and there was no reference to anxiety. He contended that actual grounds of prejudice would have been opened to the learned trial judge if in fact reliance was placed on such specific grounds. All that is relied on in the case stated is a reference to the decision in the case of D.P.P. v. Arthurs.

Mr. Ferriter did not disagree with the general principles outlined by Mr. McDonagh as being applicable to this type of situation. He too referred to the U.S. Supreme Court decision in Barker v. Wingo referred to above, to the decision in D.P.P. v. Byrne and in particular the judgment of Finlay C.J. in which the relevant dictum from Barker and Wingo was quoted with approval. He argued that the onus was on the accused in this case to establish that there had been a breach of his right to a fair trial. He then referred at length to the decision in the case of D.P.P. v. Arthurs. He contrasted the facts of that case with the facts of the present case. That was a case involving an allegation of assault. He pointed out that a lengthy delay would have a significant effect on recollection. In the Arthurs case, the accused in that case turned up on three occasions for the hearing of the assault case but due to overcrowded lists it was not reached. In the present case the accused was written to in advance of the first hearing date i.e. 17^th October, 2003, and was informed that the case was not going to be dealt with on that date. On the second occasion there was inadvertence in re-listing the case as a result of which it didn't get on. He agreed that there was undoubted delay but he argued that there was not systemic delay or fault on the part of State authorities. In this regard he argued that different reasons for a delay may attract different levels of weight and he referred to a passage quoted by Finlay C.J. in D.P.P. v. Byrne, referred to above, from the judgment of Powell J. in Barker v. Wingo to the following effect:

"A more neutral reason such as negligence or over crowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the Government rather than with the defendant (see p. 246 of the judgment of Finlay C.J.)."

Finally he argued on this particular point that weight must be given to the express assessment as to the consequences of delay by the trial judge in the exercise of her discretion. In this regard he referred again to the judgment of Finlay C.J. in D.P.P. v. Byrne at p. 247 as follows:

"Lastly, in regard to general principles, I would conclude that an appellate Court, such as we are in relation to these proceedings, should with considerable caution interfere with a discretion of a Judge at the trial Court involved on her decision as to what is or is not unreasonable delay, having regard to the particular insight which such a Judge would have of the consequences of the trial which is proposed and the state of affairs in regard to the services attached to the Court concerned."

Mr. Ferriter went on to refer to the judgment of Denham J. in the case of D.P.P. v. Byrne at p. 258 thereof where she stated that she agreed with Blayney J. that the onus was not on the prosecution to explain or justify delay. She went on to say that the onus rested upon the defendant. She added:-

"There was no evidence before the court of specific prejudice occurring to the respondent because of delay."

Mr. Ferriter in relying on this passage reiterated that in this particular case there is no evidence that anything emerged in the running of the case that could give rise to inferred or presumed prejudice. Finally he referred to a decision of this court in the case of Fennell v. D.P.P. referred to above where it had been argued by Mr. Ferriter who appeared in that case for the respondent that in considering the second test enumerated by O'Neill J. in D.P.P. v. Arthurs it is necessary to ask the question can the delay be justified or excused. He argued that the facts of this case are clearly distinguishable from those in Arthurs v. D.P.P. In the present case, the first hearing date did not go ahead for the reason that a Judge's conference was being held on the same date, a rare occurrence in respect of which advance notice was given. He pointed out that the D.P.P. was not at fault in that regard. He then dealt with the fact that State inadvertence led to the second trial date being adjourned but he argued that no prejudice arose from this. He emphasised that no particular anxiety or prejudice was demonstrated by the accused.

He concluded by arguing that when the Court is required to determine the issue as to whether a criminal prosecution should proceed in the light of a claim that an accused's right to trial with reasonable expedition has been interfered with the Court must conduct a balancing exercise between the community's right to have the charge prosecuted and the accused's entitlement not to have his rights interfered with to a constitutionally unacceptable degree. He submitted that an appropriate discharge of this balancing exercise on the facts of this case justified the trial Judge in proceeding with the hearing of the case. Accordingly he argued that in circumstances where no interest protected by the accused's right to trial with reasonable expedition has been adversely affected and the delay is otherwise excusable or at a very low level of State culpability, the accused has not made out a case for interference with a speedy trial right of an order which entitles him to have the charge struck out.

By way of response, Mr. McDonagh argued that the overall timeframe in this case was not acceptable. He pointed out that at the earliest date the matter came to Court in March, a plea of not guilty was entered and that in the past the case would then have been heard. He posed the question as to whether it could be acceptable to adjourn for hearing following a plea of not guilty being entered for such a lengthy period. He referred again to the decision in the State (Cuddy) v. Mangan and reiterated that the discretion referred to in the passage quoted from the judgment of Lord Lane in relation to discretion did not refer to a broad discretion.

Conclusion

Both parties in this case placed considerable emphasis on the decision of O'Neill J. in the case of D.P.P. v. Arthurs. That case was opened before the learned trial Judge who in applying the principles enunciated in that decision decided in her discretion that it was not an appropriate case in which to refuse to proceed with the trial. I think it would be helpful to consider briefly the principles expressed in that decision. In that case, O'Neill J. decided that the District Court Judge dealing with an assault alleged to have been committed on 27^th October, 1995 was wrong in refusing to dismiss the case on the ground of excessive delay when the matter came before him, the District Judge, on 13^th and 14^th January, 1998. Thereafter, a case was stated by the learned District Judge as to whether he was correct in that decision. In the course of his decision O'Neill J. held that Article 38.1 of the Constitution gives an accused person the right to a reasonably expeditious trial. He identified as a corollary to this right a duty on the State to make adequate provision to ensure that an accused person can have an expeditious trial. He pointed out that delay in bringing a case to trial may cause actual identifiable prejudice to an accused person or it may be of such excessive length as to give rise to a necessary inference that a fair trial is impaired. He then held that where an accused person proves to the satisfaction of the Court that there has been excessive delay caused by the State in bringing his case to trial, he must thereafter satisfy one or other of two tests before a court would exercise its discretion to refuse to proceed with the trial. In the course of his judgment he identified the two tests referred to as follows:

1. The accused person must show that he is likely to suffer an actual specified prejudice or that the length of the delay is so inordinate or excessive as to give rise to a necessary inference that there is a real risk that the trial will be unfair.

2. The second test focuses on the causes for the delay or the reasons or excuses that are advanced in order to justify that delay and would apply in circumstances when failure to establish actual or presumptive prejudice may not conclude the matter.

Insofar as that case was concerned O'Neill J. concluded that in regard to the first test that the delay, excessive though it was in the context of summary proceedings, was not such as to give rise to a necessary inference that the trial would be unfair by reason of frailty of recollection of the witness. Accordingly he was not satisfied that he could or should infer that the accused would be prejudiced in the conduct of his defence by the delay that had occurred.

At this point I should note that the delay in the case before me is of a similar order to that applicable in the case of D.P.P. v. Arthurs. There was no evidence before the learned trial Judge of actual identifiable prejudice. Therefore, applying the test as enunciated by O'Neill J. the next question to consider is whether the length of the delay is so inordinate or excessive as to give rise to a necessary inference that there is a real risk that the trial will be unfair. I cannot see any factual basis or reason for reaching the conclusion that the delay in this case, excessive though it has been, is such as to give rise to a necessary inference that there was a real risk that the trial would be unfair. Mr. McDonagh in his submissions had argued that the delay in the present case was unconscionably long and that prejudice could be inferred without proof. He relied on a passage from the judgment of O'Neill J. in Arthurs at p. 371 of the judgment as follows:

"In the present case the delay from the time of the offence to the trial was two years and three months approximately. For summary proceedings a delay of this length is well beyond what would be considered on any view to be an appropriate time frame in which a summary trial should be completed and is in my view inordinate and excessive."

Mr. Justice O'Neill then went on to analyse whether the delay was such as to give rise to the necessary inference that the accused would be prejudiced as a result of such delay. At p. 376 of his judgment he stated as follows:-

"In regard to the first of what I have considered to be the two tests which an accused person must satisfy before being granted relief in respect of delay I have come to the conclusion that the delay in this case, excessive though it is in the context of summary proceedings is not such that it gives rise to a necessary inference that the trial will be unfair by reason of frailty of recollection of the witnesses. The capacity to recollect varies from person to person. There are those whose recollection is unreliable even after a short lapse of time. Others have perfect recollection many years later. An integral part of the task of every trial Judge hearing contested issues of fact is to assess the reliability of the various witnesses. In this task the trial Judge is assisted by cross-examination designed to test the reliability of recollection.

If it were the case that the accused apprehended that witnesses whom he intended to call on his behalf were by reason of the lapse of time unable to recall the events or less well able to recall the events, one would have expected that this would be advanced by the accused as a ground of specific prejudice. No such case has been made in these proceedings on behalf of the accused. I am therefore not satisfied that I can or that I should infer that the accused will be prejudiced in the conduct of his defence by the delay that has occurred."

It is appropriate to note that there is a distinction between this case and the Arthurs case in that the appeal by way of case stated herein necessarily took place after the conclusion of the hearing of the trial. Accordingly the trial Judge had the advantage at that point in time of having heard all of the witnesses in the case. There is no suggestion in the case stated before me that there was any failure or inability to defend the case by reason of the excessive delay. Accordingly I conclude that so far as the first test enumerated by O'Neill J. in the case of D.P.P. v. Arthurs is concerned the accused is not entitled to succeed.

It therefore becomes necessary to consider the second test. As indicated above the second test focuses on the causes for the delay or the reasons or excuses that are advanced in order to justify the delay. There is some difference in relation to the facts of the Arthurs case and the present case. In the Arthurs case, the case was listed for hearing on three separate occasions. On each occasion when it was listed the case did not get on because of pressure of time due to overcrowded lists. In that case O'Neill J. pointed out that the delay caused by the failure to hear the case due to overcrowded lists contributed nine months to an overall delay of two years and three months. In that case it was accepted that there was no delay on the part of the D.P.P. or accused in relation to that element of the delay. In the Arthurs case it was concluded by O'Neill J. that the failure on the part of the State to have made adequate provision for the expeditious conduct of cases in the District Court in question resulting in adding to an already excessive delay, was an unwarranted invasion of the accused's constitutional right to an expeditious trial. In those circumstances notwithstanding the absence of evidence of prejudice, actual or presumptive he held that the District Judge was obliged to prevent such an invasion of the accused constitutional right and should have acceded to the accused's request not to allow the trial to proceed.

I note that in the instant case the position is that the delay between the first hearing date namely the 17^th October, 2003, and the final hearing date the 23^rd September, 2004, is a period of approximately eleven months. Obviously this period is longer than the period of time identified by O'Neill J. as being the time period due to what he identified as a failure on the part of the State to have made adequate provision for the expeditious conduct of cases in the District Court in question in the Arthurs case. In relation to the application of the second test enumerated by O'Neill J., I do not think it is a matter simply of looking at the time element involved. As he indicated, one must look at the causes for the delay or reasons or excuses that are advanced in order to justify that delay. In this regard it seems to me that it is worth reiterating the first principle identified by O'Neill J., namely, that as an accused person has a right to a reasonably expeditious trial the corollary of that right is that there is a duty on the State to make adequate provision to ensure that an accused person can have an expeditious trial. Thus one must look again at the reasons for delay advanced in the particular case.

It does not seem to me that this is a case in which there was a systemic failure on the part of the State to make adequate provision for the hearing of cases. In relation to the first hearing date, it was postponed in advance in somewhat unusual circumstances i.e. the holding of a Judge's conference on the relevant date. The trial date in this case was fixed on the return date, namely 14^th March, 2003. It is unfortunate that the trial date given coincided with the holding of a Judge's conference but this was an unusual circumstance and it is as likely as not that at the time of fixing the trial date, the date for the Judge's conference had not been arranged. Thereafter a second trial date was fixed which, unfortunately, due to an administrative mix up led to both sides being disappointed when they turned up for the hearing on 28^th June, 2004, even though the case had in fact been listed for 29^th June, 2004. The case was then listed and heard on 23^rd September, 2004. Accordingly, there was an appropriate reason for the postponement of the first hearing date and the accused was properly notified in advance of the adjournment. The delay caused on the second hearing date was most unfortunate but could hardly be considered as a systemic failure on the part of the State to make adequate provision for an accused to have an expeditious trial. I fully accept that there has been an excessive delay in this case but nonetheless I am not of the view that as a consequence of that delay that there has been an invasion of the accused's constitutional right to an expeditious trial.

Accordingly in relation to the two questions of law on which the opinion of this court is sought, I would answer those questions as follows:

(a) Yes

(b) Yes.

Approved: Dunne J.