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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Guihen v. D.P.P. [2004] IEHC 231 (29 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/231.html Cite as: [2004] IEHC 231, [2005] 3 IR 23 |
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[2004] IEHC 231
[2003 No. 535 JR]
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of O'Leary J. delivered on the 29th day of July, 2004
The applicant was returned for trial on 25th March, 2002 on the following charges:
COUNT NO. 12
Conspiracy to defraud contrary to common law.
MICHAEL GUIHEN between the 28th day of July, 1995 and the 18th day of October, 1995 within the County of the City of Dublin conspired with Peter Leahy and Michael Byrne to defraud the Cornhill Insurance Company Plc., St. Stephen's Green, in the County of the City of Dublin by falsely pretending that a road traffic accident had occurred at Lisnamuck, Longford on the 28th day of July, 1995 and that rising from the circumstances of the accident there was an obligation on the Cornhill Insurance Company to make a payment to Daniel Leahy in the sum of £16,306.25.
COUNT NO. 13
Obtaining by false pretences contrary to section 32(1) of the Larceny Act, 1916 as amended by section 9 of the Larceny Act, 1990.
MICHAEL GUIHEN on the 18th day of October, 1995 within the County of the City of Dublin, obtained cheque No. 13357 in the sum of £16,205 from the Cornhill Insurance Company Plc., St. Stephen's Green, by falsely pretending that a road traffic accident had occurred at Lisnamuck, Longford on the 28th day of July, 1995 and that rising from the circumstances of the accident there was an obligation on the Cornhill Insurance Company to make a payment which pretence was false and made with intent to defraud.
The applicant was returned for trial jointly with two others one Michael Byrne who has been dealt with to completion and one Peter Leahy the progress of whose trial has had a significant effect on the trial of the applicant herein.
The charges on which the applicant was returned for trial, relate to one alleged traffic accident. They consist of one count alleging conspiracy involving the applicant, Michael Byrne and the aforementioned Peter Leahy relating to an alleged traffic accident. A second count relates to the alleged receipt by the applicant alone of a cheque the proceeds of an alleged false claim relating to the aforementioned alleged traffic accident.
The applicant, pursuant to leave granted by Gilligan J. on 21st July, 2003, seeks the following reliefs:
1. An order of Prohibition or in the alternative an Injunction restraining the Respondents his servants or agents from taking any further steps in the criminal proceedings the subject matter of this application
2. Such further or other order as to this Honourable Court shall seem just and proper
3. The costs of and incidental to the application.
The reliefs are sought on the following grounds.
1. There has been a breach of the constitutional right of the Applicant to a trial with due expedition in that the respondent has been guilty of excessive prosecutorial delay in this matter, in particular, the respondent has:
(a) Caused and/or permitted a period in excess of 8 years to elapse between the commission of the alleged offence and the date of trial of same.
(b) Caused and/or permitted a lapse of time over 19 months between the arrest for questioning of the Applicant and his arrest for the purpose of charging.
(c) Caused and/or permitted a lapse of time of over 2 years to conduct and conclude the preliminary examination of the matter in the District Court.
2. The constitutional right of the Applicant to trial in accordance with law is breached in that his ability to properly defend himself has been severely prejudiced by the delay and omissions of the respondent, namely;
(a) The delay of 8 years is excessive and constitutes unconscionable delay in all the circumstances.
(b) The recollection of the Applicant of the events of which he is accused is diminished due to the efflux of time.
3. The constitutional right of the Applicant to a trial with due expedition is breached in that the delay in bringing the matter to trial has caused excessive stress and anxiety on the part of the Applicant.
Leave granted was based on the same grounds as in the application.
The respondent opposes the relief sought on the following grounds:
1. It is denied there has been a breach of the constitutional right of the applicant to a trial with due expedition.
2. It is denied that the respondent has been guilty of excessive prosecutorial delay in all the circumstances of the case.
3. It is denied that the constitutional right of the applicant to trial in accordance with law has been breached.
4. It is denied that the applicant's ability to defend himself has been severely prejudiced.
5. It is denied that the applicant's ability to properly defend himself has been severely prejudiced.
6. It is denied that the respondent has been guilty of delay or omissions.
7. It is denied that the applicant has suffered any or any genuine specific prejudice relevant to these proceedings which would render him unable to fully defend the criminal proceedings, the subject matter of these proceedings.
8. The District Court has already adjudicated on the issue of delay and held against the Applicant and accordingly, this matter is res judicata.
9. The applicant has failed to act promptly in bringing these proceedings and has been guilty of delay. He has failed to show any reason as to why having been returned for trial on the 25th March, 2002, he did not bring an application for leave to apply for judicial review until the 21st July, 2003 in particular in circumstances where the accused'' trial was already listed for hearing on the 10th February, 2003, and then re-listed for hearing for the 1st July, 2003.
10. It is denied that the Applicant is entitled to an order of Prohibition against the respondent from proceeding with the criminal proceedings the subject matter of these proceedings.
11. It is denied that the Applicant is entitled to an injunction restraining the respondent from proceeding with the criminal proceedings the subject matter of these proceedings.
12. It is denied that the Applicant is entitled to the relief claimed nor any other relief.
13. The respondent will rely on such further or other grounds as may be advanced at the hearing of the matter.
The proceedings are supported by a number of affidavits as follows:
1. Grounding affidavit of Pauline E Brady solicitor for the applicant dated 21st July 2003.
2. Replying affidavit of Detective Garda Andrew Brennan 22nd October 2003
3. Affidavit Pauline E Brady 5th December 2003.
4. Affidavit Michael Guihen 9th December 2003.
5. Supplemental affidavit of Detective Garda Brennan 27th March 2004.
Each of these affidavits together with the formal pleadings in the case has been considered by the Court
The factual background to the application appears not to be at issue in the case and the following facts have been determined by the Court from the affidavits provided.
Factual Background to application
The applicant has based his claim on the delay in coming to trial and in that regard the following appears to be the timetable relating to the matter:
1. The alleged offences allegedly occurred between 28th July, 1995 and 18th October, 1995.
2. The applicant was arrested on 30th April, 1998 and questioned about the matters.
3. The applicant was further arrested, charged and brought before a District Court on 21st December, 1999 a warrant having been issued on 8th December, 1999.
4. The applicant having been released on Bail, the matter was adjourned on 26th January, 2000.
5. The book of evidence was served on the applicant on 17th April, 2000.
6. Following a number of postponements at the request of the respondent further evidence was served on 1st June, 2000.
7. An application to refuse to send the applicant forward for trial was adjourned from time to time until 28th September, 2000.
8. At the hearing of 28th September 2000 the respondent sought the taking of requisitions.
9. On 14th January, 2001 a further seven volumes of statements and exhibits were served on the applicant.
10. The depositions were taken on July 2001.
11. After further adjournments the applicant was sent forward for trial on 25th March, 2002. The applicant was to be tried jointly with the aforementioned Peter Leahy and Michael Byrne both of who were mentioned in the conspiracy charge as co-conspirators.
12. The matter was mentioned in the Circuit Criminal Court on 13th June, 2002 when a trial date of 10th February, 2003 was set. Mr. Michael Byrne was to be tried in the meantime on separate charges not involving the applicant. At this earlier trial Mr. Byrne pleaded guilty to some or all of the charges before the court and was dealt with.
13. On the morning of the proposed trial on 10th February, 2003, (at this time to relate only to the applicant and Mr. Leahy) Mr. Peter Leahy's legal team submitted evidence that Mr. Leahy had been injured in an accident on the previous day 9th February, 2003. As a result his trial (and the trial of the applicant) did not proceed on the trial date. In the circumstances the applicant sought a separate trial, as he was ready to meet the case on that date but was refused, the respondent objecting.
14. The matter was listed for mention on 11th February, 2003, 21st February and 31st March when a trial date was set for 1st July, 2003. On each occasion the applicant asked that his trial would proceed, if necessary separate from Mr. Leahy's trial, without success. On each occasion the respondent objected to this applicant's trial proceeding independently.
15. In June 2003 leave was granted to Peter Leahy for judicial review of his proposed trial and a stay was put on Mr. Leahy's trial pending determination of his judicial review proceedings.
16. Mr. Leahy's trial date of 1st July, 2003 was vacated and the applicant's request for separate trial was again refused which resulted in his trial been again postponed.
17. The applicant was dissatisfied with the repeated adjournments of his trial and anticipated that his trial would now not be held until 2005 at the earliest (the joint trial is at present in for mention only on 23rd November, 2004).
18. The applicant applied for and was granted leave to bring judicial review proceedings on 21st July, 2003. The grounds are set out herein before but can be summarised as delay.
Applicant's Submissions
The applicant has submitted that in this case there are a number of different components in the delay which taken individually and together are in such a fundamental breach of the applicants right to an early trial that the trial should be prohibited. Their submissions may be summarised as follows:
1. The time between the date of the alleged crime (October 1995 and the return for trial in March 2002 was excessive.
2. The time between the return for trial in March 2002 and the date of the original trial (February 2003) was at the outer limit of acceptability.
3. Taken together the time between alleged crime and the first trial date i.e. October 1995 to February 2003 was excessive. The applicant acknowledges that (though he believes he would have been justified in seeking Judicial Review because of the delay up to February 2003) he did not make such an application because he was willing to live with the alleged unfairness if, as he believed, the matter was to be dealt with in February 2003.
4. This applicant was in no way the cause of the delay in February 2003 and at that time the applicant had a continuing and separate right to a speedy trial which was independent of the rights of his co-accused and/or any difficulties which arose in proceeding with the trial of his co accused. There was a duty on the DPP to vindicate this applicant's right to a speedy trial to which the DPP had to address his mind independently. This he failed to do.
5. Once the decision to postpone the trial was made in February 2003 the right of the applicant to a speedy trial was a right which continued and could develop and become more urgent with the passing of time.
6. The applicant was upset and dissatisfied with the prospect of the postponement of his trial to later in February 2003 and with each successive postponement he became more dissatisfied and his rights were progressively more compromised. Nevertheless the applicant under protest took no action until after his co-accused had himself sought Judicial Review delaying the joint trial until 2004 at least (this has now slipped to 2005 at the earliest). Even then the applicant had sought a separate trial but the respondent had opposed this.
7. Both in absolute terms and/or in the particular circumstances of this case a delay of 10 years (1995 to 2005) was excessive and in breach of the applicant's right to a speedy trial.
The applicant in an affidavit points out that he has suffered considerable stress and anxiety and that these were exacerbated by the preparations for and subsequent last-minute postponement of his trial for reasons outside his control. He further avers that the continuing uncertainty has had a serious effect on two of his children and imposed a strain on his marriage. Further he has lost his business and now works as a part-time labourer.
The respondent submitted that much of the delay was necessitated by the complex nature of the charges and that the investigation was part of eighty linked suspected cases involving over 1,100 civilian witnesses and over 100 bank accounts. The respondent corrected some dates in the applicant's solicitor's affidavit (which corrected dates are used herein throughout).
A claim made by the respondent, that as the question of delay was canvassed in the District Court it was res judicata, was abandoned at the hearing.
The respondent also pointed out (a fact not disputed) that the long period of time between return for trial, listing and trial date arose because each trial (there being a number as a result of the investigation) was required to be listed before a separate panel of jurors. This separate listing was on consent.
The respondent seeks to justify the later postponements (in particular the postponement from July 1st 2003 to whenever the case against Peter Leahy has completed its judicial review litigation) by an affidavit dated 25th June, 2003 which is exhibited in the main affidavit of 22nd October, 2003 referred to above. This avers that of the 98 witnesses listed in the joint trial some 48 of these will be needed for the trial of this applicant alone. To proceed alone would require these persons to give evidence twice and would involve a separate trial of two weeks duration. The affidavit includes the following:
"10. Accordingly, the Prosecutor is anxious that the matter not proceed as against the second named accused in light of the complex nature of the case, the similar charges brought against the two accused, the conspiracy charge which has been laid against both accused, the large number of witnesses involved and the fact that court time would have to be utilised twice over to hear a similar case at a later stage as against the first named accused if he is not successful in his judicial review proceedings."
In addition to the foregoing the affidavit of the respondent concludes:
"14. I say and believe that the delay in this case is not so excessive as would prejudice the Applicant's right to a trial in due course of law and does not prejudice the Applicant's defence in any way. I further say that the Applicant has failed to point to any genuine specific prejudice which he has suffered relevant to these proceedings in the affidavits filed on his behalf.
15. Having been returned for trial on the 25th March, 2002, 1 say that the applicant failed to bring an application for leave to apply for judicial review until the 21st July, 2003 in circumstances when his initial trial was due to commence on the 10th February, 2003, that trial date having been set on the 13th June, 2002, and then a subsequent trial date having been set on the 31st March, 2003 for the 1st July, 2003. I say that no explanation has been provided by the Applicant to explain the extraordinary delay in bringing these proceedings."
Delay in commencing Judicial Review proceedings
The first matter to be considered in this case is whether the applicant has delayed in seeking relief to such an extent as to be ineligible for judicial review.
Order 84 Rule 21 (1) Rules of Superior Courts provides as follows:
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers there is good reason for extending the period within which the application shall be made."
There was an arguable case that at the time of the return for trial there already had been a delay based on which the accused could have applied for judicial review relating to the length of time between the alleged offence in 1995 and the March 2002 return for trial. In reality, on a full examination of the facts, the application though stateable would probably not have succeeded for the reasons set out hereunder. Once three months had passed that opportunity was lost and the applicant was disbarred from applying based solely on such delay. This does not mean that the applicant was disbarred from applying at a later stage if new circumstances arose. Each new circumstance can, if the Court considers them sufficiently important, give rise to a new right to apply and have an application for prohibition considered on its merits. Further the Court is entitled to have regard to the whole period back to the alleged commission of the crime in assessing the fate of any later application. New circumstances were occurring in this case each time the trial was postponed from its original trial date of 10th February, 2003 up to and including the decision taken on or about 1st July, 2003 to postpone the trial until the judicial review by the co-accused was concluded. That is not to say that the short postponements, in the early months of 2003, would have provided a successful basis for prohibition proceedings but they were new circumstances which had to be assessed by the legal advisers of the accused to judge whether it was in their client's interest to commence judicial review proceedings. Obviously their conclusion (which appears totally reasonable to this Court) up to the final postponement was that they should put up with the delay.
The decision of 1st July was a new factor of significance. The trial was now further postponed for at least twelve months (in fact two years) which when taken with the earlier delay (as seen from the perspective of the accused) justified a fresh assessment of the respective rights of the accused and the prosecution.
The Court is in no doubt that these new circumstances were of such significance that the accused had a new and independent right to consider an application for judicial review. This right accrued on the day his trial was postponed pending the determination of the judicial review proceedings of his co-accused i.e. 1st July, 2003. In applying for relief on 21st July, 2003 the applicant acted within the period laid down by O 84 r 21(1) R.S.C. The submission, by the respondent, of delay, by the applicant, in making the application for judicial review is rejected and the Court finds that this application is within the time laid down by the Superior Court Rules.
The Court must now examine the merits of the application.
The law in this matter has been set out in various ways. One of the clearest expositions was by Keane C.J. in P.M. v Malone [2002] I.R 560 at 572:
"It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.
That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or, presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.
The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his .being brought to trial.
There are thus three interests of defendants which the right to a speedy trial is intended to protect, the third being the possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme Court decision of Barker v. Wingo (1972) 407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial Committee of the Privy Council in Bell v. D.P.P. [1985] AC 937 and by Murphy J. in The State (O'Connell) v. Fawsitt [1986] 1 I R. 362."
Against this matrix the present case can be assessed. The nature of the alleged offences is such that immediate knowledge of their existence by the authorities cannot be presumed. In the case of say a bank robbery everyone knows immediately that a crime has been committed but in a case such as this the existence of a crime may not be discovered for a considerable time. Allowing for this complication no criticism of the conduct of the prosecuting authorities is made up to the date of the applicant's original arrest. Thereafter the explanation tendered by the respondent covering the period up to the charging of the applicant in December 1999, i.e. the complicated nature of the enquiries, is accepted as reasonable. The explanations for a two-year three-month delay between charge and return for trial are accepted as factually correct but nevertheless the Court considers these delays to have been excessive.
However, not all the delay was the responsibility of the respondent. Some small part of the time was taken up by the hearing of submissions from those accused (including the applicant) urging the District Judge not to order a return for trial by reason of delay. The prosecution either directly or as the person carrying the burden of any state delay, was not responsible for the time spent in considering this application. The processing of the case was complicated by the decision of the respondent to seek depositions. The delay in the taking of these depositions was excessive. It is difficult, on the basis of the evidence tendered, to be precise as to the extent of the prosecutorial delay (including both any delay the direct fault of the respondent and any delay within the system for which he must bear the burden) but a maximum of eighteen months appears the outer limit.
Therefore, the prosecutorial delay in this case up to the date set for the first trial, which has not been satisfactorily explained, is in the view of the Court at most eighteen months. If that period was the extent of the delay it is unlikely that the Court would exercise its discretion to prohibit the trial unless the individual circumstances of the applicant were extreme and unusual. In this case, however, there is a further period to be considered.
The day before the 10th February, 2003 the co-accused of the applicant was involved in a traffic accident which necessitated the postponement of his trial. The applicant sought to proceed with his trial separately but the prosecutor objected for the reasons set out in the affidavit mentioned herein i.e. that 48 witnesses would be required to give evidence twice, that the separate trial would take two weeks and the similarity of the charges faced by both accused.
It appears to the Court that these explanations and concerns were entirely reasonable up to June 2003 when the applicant's co-accused obtained leave to judicially review his proposed trial. The Court accepts the respondent's explanations of delay from February 2003 to 25th June, 2003 when the trial date of 1st July was vacated.
When Mr. Leahy's trial was postponed for reasons which were outside the control of the applicant (leading to the possible adjournment of the applicant's trial) a conflict existed between the understandable desire of the respondent for a joint trial and the constitutional right of the applicant to an early trial. The applicant's right to an early trial does not exist in a vacuum. It is a positive right which must be vindicated by all those with responsibility for the trial. The respondent, as the person with the carriage of the action, has a positive duty to vindicate that right and he must be pro-active in relation to it. It is not an optional extra to be included or excluded at the State's convenience. Efforts must be made by the respondent as prosecutor to create circumstances and conditions where the right has real meaning.
Like all rights the right to an early trial is not absolute but arising there from there is a duty (which approaches an absolute duty) on the State to have the feasibility of an early trial considered in a meaningful way. In this case it is clear that, during the early stages of the postponement of the trial, the respondent considered the various factors and assessed that the applicant's right to an early trial had not been interfered with unnecessarily. What is equally clear is that there was no meaningful response or reconsideration of the circumstances by the prosecutor to the problem which arose, for this applicant, when the leave to bring judicial review was granted to his co-accused. The postponement of the trial of the co-accused in no way objectively diminished the constitutional right of this applicant to an early trial. It might be, of course, one of the factors to weighed up in assessing whether that right, subjectively, should be exercisable.
The applicant has rights some based on actual and/or presumptive prejudice, but the first and most straightforward right is that identified by Finlay C.J. in Director of Public Prosecutions v Byrne in [1994] 2 I.R. 236:
"Having reached that conclusion I am driven to the further conclusion that of necessity, instances may occur in which the delay between the date of the alleged commission of the 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 created a risk or probability that the accused capacity to defend himself would be impaired. This must lead to the conclusion that, on an 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 to be determined."
This is the exercise now been undertaken by this Court.
The Court will not attempt to list in total all the factors which the respondent should have considered before seeking the postponement of this applicant's trial but inter alia the following matters should have been considered.
1. The date of the alleged offence.
2. The delay of six years and five months in reaching the return for trial stage.
3. The fact that part of the delay in the return for trial was the unexplained responsibility of the prosecutor or the State authorities for whom he must accept the burden of their delay. It was not necessary to have had this assessed at a specific length of time (eighteen months is this Courts assessment) in order to give the matter weight.
4. The length of the delay between return for trial and the first trial date i.e. eleven months.
5. The delay from February to June 2003 due to the accident to the co- accused.
6. The likely delay to an uncertain date say Spring 2005 which would arise from the judicial review of the co-accused.
7. The final overall period from alleged offence to trial in this case almost ten years.
On any assessment of these matters a reasonable prosecutor would have concluded that the stage had been reached where the prospect of a further year or two delay in the trial could bring the applicant within the category of those identified by Finlay C.J as entitled to an early trial.
The category of right identified by Finlay C.J. is not dependant on prejudice actual or presumed but its uncertain scope is no doubt affected by the circumstances surrounding the actual delay. For example an applicant coming to the margins of eligibility might be, in two otherwise similar applications, more likely to succeed if the reason for the hold-up in a trial related to a prosecutor wanting to go on holiday as and compared with a case where an essential witness was temporarily ill. To that extent the circumstances of the final delay can be relevant. What was the ongoing reason for the delay in the trial in this case? The reason for the delay was not primarily the judicial review of the co-accused as a separate trial would have solved that difficulty. It was the failure of the respondent to respond to the new circumstances in a way which recognised that the reasons justifying a postponement pending the recovery of the ill co-accused were not of themselves sufficient for the much longer delay now in prospect after the judicial review proceedings commenced.
In the context of whose duty it is to progress the matter Barker v. Wingo 407 U.S, 514 is instructive when the Court declares…. the rule we announce today, which comports with constitutional principles, places the primary burden on the Courts and the prosecutors to assure that cases are brought to trial. In that regard the prosecutor has to carry both the burden of his own delay and that of the State
This Court would have expected a thorough re-examination of the matter by the respondent which recognised that the time had come to proceed independently with the trial of the applicant or to abandon the prosecution. The Court has been told in submissions that no request was made to the defence to explore the possibility that documentary evidence could be used in the trial to reduce the necessity of calling some of the witnesses. Such an investigation was the very least that was required in advance of the decision to oppose separate trials.
The Court is satisfied that the respondent erred in failing to vindicate the right of the applicant for an expeditious trial in accordance with Article 38.1 of Bunreacht na hEireann. For this reason the reliefs claimed should be granted.
Actual and Presumptive prejudice
The applicant also based his claim for relief on actual and presumptive prejudice which the Court now separately considers. The facts and findings have already been set out above and may be easily listed.
Actual delay is nine years to date and will rise to ten years. This is sufficiently long to trigger the balancing test as set out in Barker v. Wingo 407 U.S, 514.
The prosecution is responsible for eighteen months of the delay to the first trial date in February 2003 and by reason of its refusal to grant a separate trial must carry the burden of the two years likely after that date. In respect of portion of the period of two years i.e. the nineteen months likely to elapse between the Mr. Leahy's leave for judicial review and the trial date the prosecution is culpable as well as responsible.
The applicant has asserted his right moderately and expeditiously.
The applicant makes two complaints of actual prejudice, that
(1) The recollection of applicant of the events of which he is accused is diminished due to the efflux of time.
(2) The delay has caused excessive stress and anxiety to the applicant.
The Court does not accept that the applicant's recollection is a big problem. The alleged events are so unusual and the applicant has been on notice of the allegations from such an early time that this submission is not accepted.
The stress and anxiety submission has more substance. The applicant has been under investigation for these alleged offences since some date prior to his arrest on 30th April, 1998. His expected trial date is 2005 at the earliest. At that stage he will have been publicly known as a person accused of a serious crime for at least seven years. The Court does not underestimate the impact of this knowledge on the small community in which he resides, Keadue West County Roscommon. The applicant's distress is no doubt exacerbated by the fact that his two elder children who will by then be aged 16 years and 20 years will have lived with the uncertainty and shame associated with such accusations for nearly half their lifetimes. His younger children will have no other memory of their father's status in the community. The applicant's contribution to that delay will have been negligible.
The community by the delay has extracted a high price from the applicant who must be considered an innocent man by this Court.
Also to be weighed in the balance is the presumptive prejudice associated with the delay.
Rights of community
Balanced against these adverse consequences are the right of the community to have alleged crimes of this type adjudicated on by a jury.
Conclusion on merits
In applying the balancing test to this application the Court gives great weight to the behaviour of the applicant. The delay in the matter was (except for a few months before the District Court) entirely the responsibility of others. The delay had come to the limit of acceptability at the time of the proposed trial in February 2003. At that stage every effort was required to minimise any further delay. The respondent by his delay in the period after February 2003 in failing to proceed with the trial has tipped the balance in favour of drawing this long-running saga to a conclusion.
The Court has concluded that it should grant the relief sought on the basis of prejudice for the reasons set out above. This is additional to the decision to grant relief on the basis of delay outlined above
Decision
In the circumstances and for both reasons set out herein I will grant the reliefs sought at paragraphs (1) and (3) of the notice of motion.
Approved: O'Leary J.
