DPP v Byrne

JurisdictionIreland
CourtSupreme Court
Judgment Date02 Mar 1994
Docket Number[S.C. No. 68 of 1993]

High Court

Supreme Court

[S.C. No. 68 of 1993]
Director of Public Prosecutions v. Byrne
In the matter of s. 2 of the Summary Jurisdiction Act, 1857, and in the matter of s. 51 of the Courts (Supplemental Provisions) Act, 1961 The Director of Public Prosecutions
Appellant
and
Barry Byrne
Respondent

Cases mentioned in this report:—

Barker v. WingoUNK (1972) 407 U.S. 514.

Bell v. Director of Public ProsecutionsELRWLRUNKUNKUNK [1985] A.C. 937; [1985] 3 W.L.R. 73; [1985] 2 All E.R. 585; (1985) 129 S.J. 448; [1985] Crim. L.R. 738; (1985) 82 L.S. Gaz. 2161.

Clune v. The Director of Public ProsecutionsDLRM [1981] I.L.R.M. 17.

Cullen v. TrimbleELR (1872) L.R. 7 Q.B. 416.

Director of Public Prosecutions v. Bouchier Hayes (Unreported, High Court, Carroll J., 19th December, 1992).

Director of Public Prosecutions v. Burnby (Unreported, High Court, Barr J., 24th July, 1989, ex tempore).

Director of Public Prosecutions v. CarltonIR [1993] 1 I.R. 81.

Director of Public Prosecutions v. CorbettIR [1991] 2 I.R. 1.

Director of Public Prosecutions v. GillIR [1980] I.R. 63.

G. v. Director of Public ProsecutionsIR [1994] 1 I.R. 374.

R. v. HallELR [1891] 1 Q.B. 747.

Reg. v. Telford JJ., ex p. BadhanELRWLRUNKUNKUNKUNK [1991] 2 Q.B. 78; [1991] 2 W.L.R. 866; [1991] 2 All E.R. 854; (1991) 93 Cr. App. R. 171; (1991) 155 J.P. 481; [1991] Crim. L.R. 526.

The State (Cuddy) v. ManganDLRM [1988] I.L.R.M. 720.

The State (Healy) v. DonoghueIR [1976] I.R. 325.

The State (O'Connell) v. FawsittIRDLRM [1986] I.R.362; [1986] I.L.R.M. 639.

The State (McEvitt) v. DelapIR [1981] I.R. 125.

Criminal law - Procedure - Delay - District Court - Summary jurisdiction - Respondent brought to trial ten months after alleged offence - Interval of seven months between application for, and issue of summons by reason of computer malfunction in District Court office - Whether delay such as to warrant dismissal of proceedings without evidence of prejudice to respondent - Whether incumbent upon judge to call upon prosecution to explain or justify delay - Whether prosecution required to explain or justify delay attributable to other State agency - Whether delay such as to amount to breach of respondent's rights to trial with reasonable expedition - Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict., c. 95), s. 10, sub-s. 4 - Constitution of Ireland, 1937, Article 38, s. 1.

Constitution - Personal rights - Trial in due course of law - Right of person accused of a criminal offence to trial with reasonable expedition - Respondent brought to trial ten months after alleged offence - Interval of seven months between application for, and issue of summons - Whether delay such as to amount to breach of respondent's right to trial with reasonable expedition - Criteria - Constitution of Ireland, 1937, Article 38. s. 1.

Case stated.

The facts have been summarised in the headnote and are fully set out in the judgments, post.

Following a hearing in the District Court on the 12th February, 1992, on the application of the Director of Public Prosecutions, Judge Thelma King, a judge of the District Court, signed the case stated on the 20th November, 1992. The questions of law for the opinion of the High Court are set out in the headnote, ante.

The case stated was heard by the High Court (Geoghegan J.) on the 18th January, 1993.

The appellant appealed to the Supreme Court by way of notice of appeal dated the 11th March, 1993.

The appeal was heard by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.) on the 12th October, 1993.

Section 10, sub-s. 4 of the Petty Sessions (Ireland) Act, 1851, provides, inter alia,that, with certain exceptions, in all cases of summary jurisdiction, the application for a summons shall be made ". . . within six months from the Time when the Cause of Complaint shall have arisen, but not otherwise".

On the 19th April, 1991, the respondent was arrested on suspicion of having committed an offence under s. 49 of the Road Traffic Act, 1961, as inserted by the Road Traffic (Amendment) Act, 1978, amounting to drunken driving. On the 27th May, 1991, the prosecuting guard applied for the issue of a summons; the summons was issued on the 19th December, 1991; it was served upon the respondent shortly afterwards, and the respondent's trial came on for hearing on the 12th February, 1992. In the District Court, it was submitted on behalf of the respondent that the case against him ought to be dismissed on the grounds that the prosecution had been guilty of unreasonable delay in the prosecution of the offence. On behalf of the appellant, it was submitted that, as a matter of law, the charge ought not to be dismissed, but no evidence was called, or sought to be called, to explain or justify the delay. The judge dismissed the case against the respondent on the grounds that the State had been guilty of unreasonable and unexplained delay in prosecuting the offence.

On the application of counsel on behalf of the appellant, the District Court Judge stated a case for the opinion of the High Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act, 1961. The question of law for the opinion of the High Court was as follows:—

"The opinion of the High Court is sought as to whether I was correct in law in dismissing the charge against the defendant and in particular:

  1. (a) Whether in the circumstances of the case I was correct in law in holding that there had been unreasonable delay in the prosecution of the said offence which of itself entitled me to dismiss the case as aforesaid, and

  2. (b) if so, whether it was incumbent on me before proceeding to dismiss the case to require or to call upon the prosecution to explain or justify the delay."

In the High Court, it was submitted on behalf of the appellant, inter alia, that, having regard to the provisions of s. 10, sub-s. 4 of the Petty Sessions (Ireland) Act, 1851, the prosecuting guard might lawfully have delayed making his application for the summons until the 18th October, 1991; had that summons then issued on the 19th December, 1991, the District Court Judge would have had no possible grounds for dismissing the case against the applicant on the grounds of delay unless it was established that the defendant had suffered prejudice. Accordingly, it was submitted that it was unjust in the circumstances to dismiss the case against the respondent on the grounds of unconscionable delay.

Held by Geoghegan J., in answering the case stated in the affirmative, 1, that summonses should be issued within a reasonable time after they have been applied for and served within a reasonable time after issue.

Director of Public Prosecutions v. Burnby (Unreported, High Court, Barr J., 24th July, 1989, ex tempore) followed.

2. That the onus of proof was upon the prosecution to explain or justify the delay between the date of the alleged offence and the date of the hearing, and that there was no obligation upon the defendant to establish that he had suffered prejudice as a result of the delay.

Director of Public Prosecutions v. Burnby (Unreported, High Court, Barr J., 24th July, 1989, ex tempore) followed; The State (Cuddy) v. ManganDLRM [1988] I.L.R.M. 720;Director of Public Prosecutions v. CorbettIR[1991] 2 I.R. 1; The Director of Public Prosecutions v. Bouchier Hayes (Unreported, High Court, Carroll J., 19th December, 1992) and Director of Public Prosecutions v. CarltonIR[1993] 1 I.R. 81 distinguished.

3. That while, in the case of most summary offences, the application for the summons was required to be brought within six months pursuant to s. 10, sub-s. 4 of the Petty Sessions (Ireland) Act, 1851, it was bad practice for the prosecuting authorities deliberately or negligently to delay in making the application for the summons. Accordingly, the trial judge was entitled to dismiss the summons in the instant case on grounds of delay, notwithstanding the fact that the interval between the alleged offence and the trial was no greater than it might have been had the summons been applied for immediately before the expiry of the six months specified in s. 10, sub-s. 4 of the Act of 1851.

4. That the District Court Judge was entitled to exercise her discretion in the manner in which she did, having regard to the failure on the part of the prosecution to call or seek to call any evidence to explain or justify the delay that had occurred in prosecuting the offence.

Per curiam: That it was desirable that prosecutions brought pursuant to s. 49 of the Road Traffic Act, 1961, be brought speedily; the speed of the process ought not to be frustrated by computer errors.

The appellant appealed to the Supreme Court. Before the Supreme Court, it was submitted on behalf of the appellant, inter alia, that the delay of seven months between the application for, and the issue of, the summons had been due to difficulties with a computer in the District Court office, and not to any act or omission of the applicant, and that in the premises, the applicant was not answerable for the delay that had been incurred in the prosecution of the charge against the respondent.

Held by the Supreme Court (O'Flaherty, Blayney and Denham JJ., Finlay C.J. and Egan J. dissenting), in allowing the appeal, 1, that there was no onus on the appellant to show that the prosecution had been brought within a reasonable time; where a defendant sought to have a valid summons dismissed on the grounds of delay, the onus was upon him to satisfy the court that there were grounds for so doing.

Dictum of Barr J. in Director of Public Prosecutions v. Burnby (Unreported, High Court, Barr J., 24th July, 1989, ex tempore) overruled; dictum of Mann L.J. in Reg. v. Telford JJ., ex p. BadhanELR[1991] 2 Q.B. 78 followed.

Per Blayney J., O'Flaherty J. concurring: That where excessive delay had been incurred in the prosecution of an offence, the court might infer that the defendant had suffered prejudice as a result of such...

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