DPP v O'Sullivan

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 11 October 2005
• Neutral Citation: [2005] IEHC 389
• Court: High Court
• Date: 11 October 2005

[2005] IEHC 389

THE HIGH COURT

[Record No. 531 SS/2005]

DPP (KELLY) v O'SULLIVAN

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

ROAD TRAFFIC ACTS 1961 - 2004 S49

DPP v ARTHURS 2000 2 ILRM 363

CUDDY (STATE) v MANGAN 1988 ILRM 720

R v WATFORD JUSTICES EX PARTE OUTRIM 1983 RDR 26

CROWN v OXFORD JUSTICES EX PARTE SMITH 1982 RDR 201

DPP v BYRNE 1994 2 IR 236

R v TELFORD JUSTICES 1991 2 QB 78

BARKER v WINGO 1972 407 US 514

BLOOD v DPP UNREP SUPREME 2.3.2005 2005/5/844

FENNELL v DPP UNREP DUNNE 26.4.2005

CONSTITUTION ART 38.1

CRIMINAL LAW

Delay

Trial - Right to trial with reasonable expedition - Right to fair trial - Community's right to have crimes prosecuted - Whether delay culpable - Road traffic offences - Two years and three months between date of alleged offence and date of trial - Whether delay excessive - Whether prejudice could be inferred - Whether applicant suffered unnecessary anxiety - Whether trial judge erred in refusing to dismiss charge - Barker v Wingo (1972) 407 US 514; DPP v Byrne [1994] IR 236; DPP v Arthurs [2000] 2 ILRM 363; Blood v DPP [2005] IESC 8 (Unrep SC 2/3/2005) followed - Road Traffic Acts 1961 to 2004, s 49 - Delay not excessive

Facts: This was an appeal by way of case stated. The opinion of the Court was sought on whether the trial judge was correct in finding that in summary proceedings a period of some two years, three months and twenty one days 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?

Held by Dunne J. in answering the questions of law in the affirmative that there had been an excessive delay in the case but nonetheless there had not been an invasion of the accused's constitutional right to an expeditious trial.

Reporter: R.W.

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

2 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 23rd September, 2004, in relation to a prosecution for drunk driving under the provisions of s. 49 of the Road Traffic Acts, 1961–2004.

3 On 23rd 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:

4 (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?

5 (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?

6 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 2nd June, 2002.

7 A summons was applied for on 21st October, 2002. The return date in respect of the summons was 14th March, 2003. The case was adjourned for hearing to 17th 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 28th 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 29th 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 23rd September, 2004, for hearing.

8 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.

9 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."

10 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."

11 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.

12 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.

13 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."

14 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."

15 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."

16 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."

17 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."

18 Mr. McDonagh also referred to the judgment of Finlay C.J. in that case at p. 245 in which...