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Cite as: [2000] 2 ILRM 363, [1999] IEHC 73

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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



















































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