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D.P.P. v. Arthurs [1999] IEHC 73; [2000] 2 ILRM 363 (21st December, 1999)
THE
HIGH COURT
STATE
SIDE
Record No. 1999
No. 1141 SS
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
AND
LIAM
ARTHURS
ACCUSED
JUDGMENT
of Mr. Justice O’Neill delivered on 21st day of December 1999
1. In
this case the learned District judge granted a request for a Consultative Case
Stated, on the 14th of January 1998.
2. It
is alleged that on the 27th of October 1995 that the Accused committed an
assault offence. On that date he was arrested and detained under Section 4 of
the Criminal Justice Act, 1984. He was interviewed on the same date and a
memo of the investigating Garda’s interview with the Accused was made.
On the 26th of June 1996 a warrant was issued by a judge of the District Court.
The Accused was arrested on the 14th of August 1996 and charged pursuant to
charge sheet 720/96. On the 9th of October 1996, the Accused was brought
before the District Court where he elected to be tried summarily. He was
remanded on continuing bail by the District Court. On the 18th of December
1996, directions having been sought from the Director of Public Prosecutions,
the judge of the District Court consented to the summary disposal of the
matter. The case was listed for hearing in the District Court on the 8th of
April 1997. The case was not heard that day because the District judge by
reason of the length of his list was unable to hear it. It was adjourned to
the 2nd of October 1997. On this occasion the same thing happened, the case
was not heard because of the length of the list. It was adjourned to the 6th
of November 1997 and again the same thing happened. It was adjourned to the
13th of January 1998 and when it came on on that date the Accused objected to
the case being heard on the grounds of excessive delay and applied for a
dismissal. This application was heard on the 13th and 14th of January 1998.
3. On
that application the following submissions were made for the Accused:-
1. That
the period of 2 years 3 months approximately from the date of the alleged
offence to the date of the hearing was, in summary proceedings so lengthy as to
inevitably lead to prejudice/unfairness without the Accused having to establish
prejudice itself.
2. That
the Accused was in fact prejudiced in that all of the evidence in the case was
oral evidence based on recollection of witnesses to the event some 2 years 3
months previously.
3. That
the Accused was prejudiced in that he was prevented by statutory provisions in
the
Petty Sessions (Ireland) Act, 1851, from bringing summary proceedings, the
statutory period having expired prior to the commencement of the proceedings
against him.
4. That
the Gardai had contributed to the delay in the case by failing to charge the
Accused until some ten months after the date of the alleged offence and that in
all the circumstances this was unreasonable.
5. That
the Gardai had not acted with due expedition in the investigation and
prosecution of the case.
6. That
by its failure to afford the Accused a hearing on the 8th of April 1997, on the
2nd of October 1997, and on the 6th of November 1997, the Accused had not been
afforded a fair and speedy trial within the nature of summary proceedings.
7.
That there was an onus on the State not just to explain but to justify the
failure to afford the Accused a hearing on those said dates.
8. That
the Accused had not in any way contributed to the delay by seeking adjournments
or by avoiding service of any summons or charge.
4. On
behalf of the Director of Public Prosecutions the following submissions were
made on that application:-
1. That
evidence would be called in relation to the delay between the date of the
alleged offence and the date of the arrest on the 14th of August 1996.
2. That
the reason the matter did not proceed on the three hearing dates was due to the
excessively long court lists and that this amounted to justification for the
delay in relation to the period between the 18th of December 1996 and the 13th
of January 1998.
3. That
the matter of delay and prejudice was one for the discretion of the trial judge.
5. Evidence
was then given by Sergeant Canning, the prosecuting Garda of his investigation
and processing of the matter prior to the issuing of the warrant on the 26th of
June 1996. His evidence was to the effect that despite the arrest, detention
and interview he still wished to speak to the Accused for the proper
investigation of the case. His evidence was that he called to the
Accused’s home on three occasions and asked for the Accused to contact
him. He said that this was not done. Sergeant Canning was not in a position
to say on what dates prosecution witnesses made statements. He agreed in
cross examination that when he subsequently contacted the Accused, the Accused
responded by contacting the Gardai in relation to his subsequent arrest and
charge. He denied in cross examination that his purpose in wishing to contact
the Accused was to establish whether or not the Accused was bringing assault
charges against Garda Carmody.
6. The
learned District judge made the following findings:-
(i) that
there was no undue delay from the date of the alleged offence to the date on
the 26th of June 1996, the date of the issue of the warrant.
(ii) that
the Accused was not prejudiced as his Counsel had said that he was aware of his
legal rights to sue for assault.
(iii) that
although the matter in issue was to be decided on the evidence based on
recollection of events from 2 years and 3 months previous, this did not of
itself mean that the Accused would not get a fair trial and that he would be
prejudiced accordingly.
(iv) that
the explanation by the State that it could do nothing about excessively crowded
court lists amounted to an explanation for any delay so caused.
(v) that
this delay in getting the matter on for hearing did not amount to the Accused
being prejudiced.
(vi) that
the period of 2 years and 3 months approximately from the date of the offence
to the date of hearing was not a delay that of itself was unconscionable and
therefore prejudiced the Accused.
(vii) that
the delay in getting the matter on for hearing from the 18th of December 1996
until the 13th of January 1998 was not one that by itself was unconscionable
and would not accordingly prejudice the Accused.
7. Arising
out of the foregoing, the learned District judge poses the following questions
for the opinion of the High Court by way of Consultative Case Stated.
(a) Was
I correct in law in finding that in the herein summary proceedings a period of
some 2 years and 3 months 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) That
the Accused would get a fair trial and would not be prejudiced notwithstanding
the fact that the entire evidence was based on recollection of events some 2
years 3 months previously.
(c) That
there was no delay by the Gardai in the prosecution of the case from the date
of the offence to the date of the warrant on the 26th of June 1996.
(d) Was
I correct in law in holding that the explanation given by the State in relation
to the failure to get a hearing date amounted to an explanation to my
satisfaction for any delay and did not prejudice the Accused?
(e) Was
I correct in law in holding that the Accused was not prejudiced by virtue of
the fact that his Counsel had suggested that he was aware of his legal rights
in relation to any alleged assault?
(f)
Was I correct in law in holding that the Accused was not prejudiced by virtue
of the fact that he could not now commence proceedings against Garda Carmody
for assault save with the permission of the Director of Public Prosecutions?
8. On
the hearing of this Case Stated before me Mr. de Blacum for the Accused, at the
outset conceded that his client had at all times been aware of his right to
initiate a prosecution against Garda Carmody within six months of the
occurrence of the alleged offence and that hence he was not in this regard
prejudiced by any delay in the processing of the matter, and was not pursuing
the submission which had been made to the District judge to the effect that the
Accused was prejudiced in that he was prevented by statutory provisions in the
Petty Sessions (Ireland) Act, 1851, from bringing summary provisions, the
relevant statutory period having expired prior to the commencement of these
proceedings against him. In the light of this concession it would appear to
be unnecessary for me to answer questions (e) and (f), as posed in the Case
Stated.
9. On
the remainder of the Case Stated Mr. de Blacum made the following submissions:-
1. That
by virtue of the provisions of Article 38 S.1 of the Constitution of Ireland
1937, that there rests on the State an obligation to ensure that the Accused
was tried with reasonable expedition, and that the Accused has a Constitutional
right to a trial with reasonable expedition.
2. That
an essential feature of all summary trials is that they take place speedily
with minimal formality consistent with the administration of justice, and as
soon as is possible after the commission of the alleged offence.
3. That
a delay in total of 2 years and 3 months from the date of the offence to trial
is in the context of summary proceedings grossly excessive and wholly
inordinate.
4. That
delay of this kind inevitably results in impairment of memory and even without
proof of actual prejudice, gives rise necessarily to an inference that the
Accused would be prejudiced by reason of the frailty of memory of the witnesses
to this offence.
5. That
in a case such as this where the alleged offence is one of assault, where the
determination of the guilt or innocence of the Accused depends entirely on oral
testimony of recollections of what happened in the course of the event itself,
without any assistance whatsoever in the form of scientific evidence or
documentary evidence, as would be the case for example in a drink/driving
prosecution, that the inordinate delay as occurred in this case must prejudice
the Accused even though at this point in time, in advance of the trial, the
Accused cannot point to an instance of actual prejudice.
6. That
the purported justification by the State of the delay, namely, that it could
not be avoided because nothing could be done about the length of court lists,
wholly fails to justify the delay in question and put simply, it was not good
enough for the State to withhold an expeditious trial from the Accused for the
reason so stated.
7. That
there was no adequate explanation of the delay from the time of the commission
of the offence and the charging of the Accused some ten months later.
10. Mr.
de Blacum cited in support of his submissions the following cases:-
(a) The
State (William Cuddy) -v- District Justice Joseph Mangan
(1988) I.L.R.N. 720,
(b) The
Director of Public Prosecutions -v- James Carlton
(1993) 1 I.R. 81,
(c) Jeremiah
Anthony Cahalane -v- His Honour Judge Anthony J. Murphy and the Director of
Public Prosecutions
(1994) 2 I.R. 262,
(d) The
Director of Public Prosecutions -v- Barry Byrne
(1994) 2 I.R. 236,
(e) Unreported
Judgment delivered on the 22nd day of July 1998 by O’Flaherty J., in
The Director of Public Prosecutions -v- Coman McNeil
.
11. On
behalf of the State Miss Egan submitted as follows:-
1. That
the offence involved was triable on indictment and
2. That
the Accused had elected for summary trial in the District court on the 9th of
October 1996. Had he elected for trial on indictment he would have been sent
forward for trial in the Circuit court.
3. The
delay in this case should be compared to cases which are tried in the Circuit
court where a delay of the kind involved in this case would not be unusual.
4. That
the delay of 2 years and 3 months could not be said to prejudice a fair trial.
5. That
the relief which is sought here is the equivalent to an Order for Prohibition.
6. That
the onus rests on the Accused to show that he cannot get a fair trial.
7. That
the burden of making out a case on delay rests on the Accused.
8. That
there was no culpable delay between the commission of the offence and the
warrant in June of 1996.
9. That
in those cases in which the Courts had granted Orders of Prohibition preventing
the trials going ahead, that the delays in these cases were much greater than
the delay in this case.
10. That
the Accused cannot point to any actual prejudice and that the delay in this
case is not of such a length that to give rise to an inference of inevitable or
unavoidable prejudice.
12. In
support of her submissions Miss Egan cited the following cases:-
(a) Z.
-v- The Director of Public Prosecutions
(1994) 2. I.R. 476,
(b) The
Director of Public Prosecutions -v- Byrne
(1994) 2. I.R. 236,
(c) Hogan
-v- the President of the Circuit Court
(1994) 2. I.R. 503,
(d) Cahalane
-v- His Honour Judge Anthony J. Murphy and The Director of
Public
Prosecutions
(1994) 2 I.R. 262,
(e) The
State (O’Connell) -v- Fawsitt
(1986) I.R. 362.
13. The
cases cited by both sides appear to me to establish the following principles of
law:-
1. Article
38 S.1 of the Constitution of Ireland 1937 gives to an accused person the right
under the Constitution to a reasonably expeditious trial.
2. As
a corollary to the foregoing right there rests on the State a duty to make
adequate provision to ensure that an accused person can have an expeditious
trial.
3. The
selection of certain offences as suitable for summary trial in the District
court, carries with it the implication
inter
alia
that the time scale for the completion of such trials ought generally to be
shorter than in respect of trials on indictment.
4. Delay
in bringing on a trial can prejudice an accused person by either rendering
unavailable evidence which might otherwise have been available, by impairing
the memories of those witnesses who give evidence and hence rendering the
determination of guilt or innocence less reliable.
5. Delay
may be such as to cause to an accused person an actual identifiable prejudice
or may be of such excessive length as to give rise to a necessary inference
that a fair trial is impaired.
6. That
in considering questions of delay a court must have regard to all of the
relevant circumstances but in particular to the nature of the offences alleged
and the nature of the evidence likely to be tendered at the trial.
7. That
the onus rests on the Accused to establish either actual prejudice to him or
that the delay is of such excessive length as to give rise to a real risk of
prejudice.
8. That
the Prosecutor is answerable in respect of delay caused by all agencies of the
State notwithstanding the fact that the Prosecutor in the discharge of the
duties of his office may not have caused the delay.
9. Where
delay has been proved by the Accused to have been occasioned by the State in
the conduct of the Prosecution or in bringing the case to trial, the onus
shifts to the Prosecutor to explain, excuse or justify the delay. However,
where it appears to a Court where such delay has occurred, that it has caused
or is likely to cause actual prejudice to an Accused in the conduct of his
defence, or is of such excessive length as to give rise to a real risk of
prejudice, notwithstanding that good reasons may be advanced by the Prosecutor
to justify such delay, the court must favour the Accused’s right to a
fair trial over the community’s right to prosecute the alleged offence
and hence prohibit the trial.
10. Even
where the accused cannot prove prejudice, actual or presumptive, where
excessive delay is caused by acts or omissions on the part of State agencies, a
Court may, depending on the nature of the acts or omissions aforesaid, be
compelled to conclude that there has been an invasion of the accused’s
right to an expeditious trial in which circumstance a Court would be compelled
to prevent such infringement of the accused’s constitutional right by
refusing to allow the trial to proceed.
14. In
the present case the delay from the time of the offence to the trial was 2
years and 3 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 opinion
inordinate and excessive. I cannot accept Miss Egan’s submission that
having regard to the fact that the offence is one which could have been tried
on indictment that the appropriate time scale against which to judge delay in
this case is the time normally taken for trials on indictment in the Circuit
court to come on for hearing. While it is the case that proceedings in this
case commenced on a path which could have led to trial on indictment, that
course was changed with the election of the Accused for summary trial and the
consent to that in December of 1996. Thus from that point on the case has to
be treated on the same footing as any other case which has to be tried
summarily in the District court.
15. While
accepting that there was no culpable delay from the date of the offence up to
the issue of the warrant on the 26th of June 1996, on the part of agencies in
respect of which the prosecution is answerable, nevertheless, I am of the view
that a prosecutor conducting proceedings after the occurrence of such delay
would have to be particularly mindful of the existence of that early delay and
extremely vigilant to eliminate, where possible, the occurrence of any further
delay. Unfortunately, further delays did occur and as a consequence of that I
cannot avoid the conclusion that there was inordinate and excessive delay.
16. The
next question which inevitably arises is whether or not the Accused has
suffered or is likely to suffer either actual prejudice or whether the delay
itself is of such an excessive degree as to give rise to a necessary inference
that there is a real risk of the Accused being prejudiced in his defence.
17. Mr.
de Blacum was unable to point to any instance of actual prejudice which had
either accrued as of now or was likely to be there when a trial would come on.
Thus his case must rest on his being able to demonstrate that the period of
delay was of itself so excessive as to give rise to an inference that he would
be prejudiced as a result of such delay and hence or otherwise that there was
an unwarranted invasion of his constitutional right to an expeditious trial.
18. In
determining whether such an invasion has occurred one must identify the correct
test or tests. Is it, on the one hand, the risk of prejudice to the Accused
in the conduct of his defence or is it, on the other hand, the unconscionable
nature of the delay or the causes of this delay having regard to an appropriate
time scale in relation to the trial of summary proceedings, or do both tests
apply?
19. It
would appear to me from reading the judgments of the Supreme Court in the case
of
The
Director of Public Prosecutions -v- Byrne
(1994) 2 I.R. 236, that there are majorities of the court in favour of both
tests as separate tests. Blaney J., with whom Flaherty J., agreed, adopted
the statement of Mann L.J., in the case of
R.
-v- Telford J.J.
(1991) 2 Q.E.78, in which the Court of Appeal had held that there was an onus
on a Defendant to show that he was prejudiced in his defence or that a fair
trial was no longer possible. In the course of that statement, Mann L.J., said
the following:-
“As
in a case of delay, we think the onus will normally be on the Accused to show
that on the balance of probability a fair trial is now impossible. How the
Accused
is to discharge the onus upon him must depend on all the circumstances of the
case.”
20. Blaney
J., went on to hold that the delay in that case had not been unreasonable.
Later in his judgment at page 253 of the report he cites with approval the
following additional passage from the judgment of Mann L.J., in the
R.
-v-
Telford
case where that learned judge says the following:-
“Where
the period of delay is long then it can be legitimate for the court to infer
prejudice without proof of specific prejudice...”.
21. However,
in the course of analysing the factors which constituted the delay in that case
Blaney J., said the following:-
“The
sole target for the criticism of the defence was the delay of about seven
months in the issuing of a summons. That was not, strictly speaking, a delay
in the prosecution of the alleged offence. No doubt the prosecuting Guard, by
making persistent enquiries and complaints in the District court office, might
have been able to have a summons issued more quickly, it was the District court
office that was principally to blame for the delay in the summons being issued.
But even if the prosecution could be said to have been to blame for the delay
in the issuing of the summons, since the summons came on for hearing within ten
months of the date of the alleged offence, I am satisfied that the delay could
not be said to be unreasonable.”
22. Later,
on the same page in the judgment, the learned judge says:-
“But
there still remains the difficult question of determining when a delay or lapse
of time is excessive. It seems to me that no clear rule can be laid down in
regard to this. It will depend on the particular circumstances of each case.
Matters to be taken into account which would include the nature of the offence,
the causes of the delay and the possibility that the defence will be impaired
(see
Bell
-v- The Director of Public Prosecutions
[1985] AC 937). Looking at the present case in the light of these factors I
am satisfied that such delay as there has been has not been excessive.”
23. Having
regard to all of the relevant features of the judgment of Blaney J., it would
appear that he reached a conclusion that the actual length of the delay in that
particular case was not excessive or unreasonable.
24. Denham
J., in her judgment in the same case at page 259 of the report says the
following:-
“However,
as a general principle of law I cannot agree that a time lapse between an
offence and the case coming on for hearing of between nine and ten months, in
the absence of evidence of prejudice to the Accused, is such an unreasonable
delay on behalf of the State that of itself it warrants dismissal of the
summons”.
25. As
already noted, Flaherty J., agreed with the judgment of Blaney J:
26. In
his judgment in this case Finlay C.J., said the following at page 245 of the
report:-
“Having
reached that conclusion I am driven to the further conclusion that, of
necessity, instances may occur in which a delay between the date of the alleged
commission of an offence and the date of a proposed trial identified as
unreasonable would give rise to the necessity for a court to protect the
constitutional right of the Accused by preventing the trial, even where it
could not be established either that the delay involved an oppressive pre-trial
detention, or that it would create a risk or probability that the
Accused’s capacity to defend himself would be impaired. This must lead,
of course, to a conclusion that, on application to prohibit a trial on the
basis of unreasonable delay or lapse of time, failure to establish actual or
presumptive prejudice may not conclude the issues which have to be determined.
The
type of delay which may be involved in this particular form of constitutional
right undoubtedly creates difficulties in that it cannot be assessed in any
measure of certainty of precision. The delay which is indicative of an
improper motive or gross carelessness on the part of prosecuting authorities is
identifiable and is different from the mere failure, with which I am at this
stage dealing, to render to a person a constitutional right to a trial with
reasonable expedition. The delay which has caused, or is likely to cause,
significant or serious impairment of an accused person’s capacity to
defend himself is again readily identifiable and largely may be classified by
reason of its consequences, on the facts of a particular case. The
reasonableness or unreasonableness of a delay which by itself, without any
other consequence is an infringement of a constitutional right, is much more
difficult of definition.
In
the course of his judgment, from which I have already quoted, Powell J., in
Barker
-v- Wingo
(1972) 407 U.S.514, pointed out a number of different factors which might go
into the question as to whether or not reasonably a speedy trial has been
granted to an accused. They involve such matters as the particular
circumstances of the case where he states, for example, that the delay that can
be tolerated for an ordinary street crime is considerably less than for a
serious complex conspiracy charge. He also found, as I have done, pointing to
the difference which will weigh concerning a deliberate attempt to delay a
trial in order to hamper a defence. But at page 531, he stated as follows:-
‘A
more neutral reason such as negligence or overcrowded 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’.”
27. At
page 254 of the report Blaney J., says the following:-
“If
in the present case I had concluded that there had been a breach of the
Respondent’s right to a trial with reasonable expedition I would agree
with the view expressed by the Chief Justice in the present case that such a
conclusion could be reached even though the circumstances were not such as to
establish any actual or presumptive prejudice to the Respondent in his defence
to the prosecution. Taking the view, as I do, that there has been no breach
of the Respondent’s constitutional right there is no need for me to say
anything further on this aspect of the case.”
28. Egan
J., agreed with the judgment of Finlay C.J.
29. The
Supreme Court, in the case of
The
Director of Public Prosecutions -v-
Coman
McNeil
,
judgment delivered 22nd of July 1998, considered this topic again. In his
judgment O’Flaherty J., said the following starting at page 7 of the
unreported judgment:-
“To
recapitulate the law as described in Byrne: ‘where there is unreasonable
delay it is possible to infer prejudice’. That may be the question of
what is unreasonable delay? This must be a matter for resolution in each
individual case and matters are not advanced very much by simply adding on a
couple of months to what was in issue in the Byrne decision. Regard must be
had to the nature of the charge in such a case as this which, as already
related, will depend on scientific findings which are unlikely to be disputed.
But it is clear from a reading of Byrne that the onus is on the Defendant,
asserting delay, that he has been prejudiced. I do not take the Defendant in
this case as having discharged that onus.
In
relation to the charge of drunk driving, that is notorious for throwing up
technical points - and very often specious technical points - we do well to
remind ourselves that courts of law exist to do justice between the parties and
not to act as disciplinary tribunals over the conduct of litigation
CF
Murphy -v- Minister for Defence
(1991) 2I.R. 161... Nonetheless, we do not breach that guideline by repeating
that there is a solemn responsibility on anyone having anything to do with
prosecuting cases to make sure that they are brought to court with all due
expedition.
It
is most likely that the learned District judge and the learned High Court judge
allowed themselves to be over influenced by what they regarded as a degree of
ineptitude in relation to the service of summonses. The courts are not there
to chastise
any
one party who comes before them but rather to make sure that justice is done
between the respective parties”.
30. The
judgments of the Supreme Court in these two cases seem to me to establish that
where an accused person proves to the satisfaction of the Court that there has
been excessive delay in bringing his case to trial caused by the State, he must
thereafter satisfy one or other of two tests before a Court would exercise its
discretion to refuse to proceed with the trial. The first of these tests, is
that the accused person must show that he has or 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. Where an accused person satisfies the above
test, it would seem to me that regardless of what reasons may be advanced by
the prosecution to justify the delay, be they good or bad, that the accused
person’s right to an expeditious trial would necessarily be infringed,
and hence the Accused's constitutional right to an expeditious trial is to be
preferred as against the right of the community to prosecute the alleged offence.
31. The
second test is one which focuses directly on the causes for the delay or the
reasons or excuses that are advanced in order to justify it as distinct from
the effect, specific or inferred, which the delay may have on the Accused's
defence, and would apply in circumstances where in the words of Finlay C.J. at
page 246 of the report in the
Byrne
case:-
“....
failure to establish actual or presumptive prejudice may not conclude the
issues which have to be determined ....”.
32. Here
what is envisaged, as is clear from the judgment of Finlay C.J., are
circumstances where the conduct of the proceedings on behalf of the State might
range from at one extreme conduct amounting to downright mala fides across a
range including gross carelessness or simple negligence, or as was mentioned in
Barker
v. Wingo
case and, as in fact occured in this case, overcrowded Courts. These factors
are relevant because in themselves they can constitute breaches of an accused
person’s constitutional right to a speedy or expeditious trial.
33. The
Courts must be vigilant to ensure that unwarranted invasion of this right does
not occur.
34. If
it is the case that an accused person has a right under the Constitution to a
speedy or expeditious trial, a necessary corollary of that right is that there
rests upon the State a duty to ensure that all reasonable steps are taken to
ensure such a speedy trial is provided. This must necessarily mean conducting
the investigation and prosecution in a manner which, insofar as it is
reasonably practicable, eliminates unnecessary delay, and must additionally
mean that such resources as are necessary for the orderly and expeditious
processing of criminal cases through the Courts are provided.
35. In
this case, as indicated earlier, I am of opinion that a delay of two years and
three months is excessive delay in bringing summary proceedings to trial.
36. 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.
37. 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.
38. 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.
39. In
regard to the second test above-mentioned, the relevant features of the case
are:-
(a)
The
overall length of the delay, i.e. Two years and three months.
(b)
The
fact that on three occasions when the case was listed in the District Court it
did not get on because of overcrowded lists, a factor which contributed nine
months of the overall delay of two years and three months.
40. A
failure on one occasion to get a trial on because of an overcrowded Court list
could be said to be an unfortunate mishap, not necessarily involving any fault
on the part of the State. Where, as in this case, this mishap is repeated two
further times, the inference that these delays are the result of a failure on
the part of the State to have provided adequate resources so that the District
Court could deal with the cases before it in an expeditious manner is
inescapable. 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, as it did, in the adding to an already excessive delay a
further nine months delay, bringing the total delay to two years and three
months, was, in my opinion, an unwarranted invasion of the Accused’s
constitutional right to an expeditious trial. In that circumstance,
notwithstanding the absence of evidence of prejudice, actual or presumptive,
the learned District 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.
41. Turning
finally to the questions posed in the Case Stated, the first thing to be noted
is that no reply is needed in respect of questions (e) and (f) in the light of
the concession by Mr. de Blacum that the Accused was aware of his legal rights
concerning the commencement of the prosecution proceedings against Garda
Carmody and was not therefore prejudiced by the delay in the commencement of
the proceedings against him until after the expiry of the statutory time period
for him to have commenced a prosecution against Garda Carmody.
42. At
the end of her submissions Ms Egan suggested that the questions in the Case
Stated could be profitably amplified by including a general question of the
following nature, namely:
“Was
I correct in law in finding that the application for a dismissal of the case on
the grounds of delay ought to be refused?”.
I agree that the inclusion of this question would add clarity to the effect of
this judgment in relation to the other questions posed. Thus I would include
in the questions the aforesaid question as suggested by Ms Egan as the first
question and my answer to it would be No.
43. In
dealing with the questions as they are set out from (a) to (d) inclusive in the
Case Stated, my answers would be as follows:-
(a) No
(b) Yes
(c) Yes
(d)
No
lgjondpp
© 1999 Irish High Court
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