THE HIGH COURT
			1997 No. 1621SS
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 
AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF SUPERINTENDENT COLEMAN) 
			APPELLANT
AND
COMAN McNEILL
			RESPONDENT
JUDGMENT of Mr.  Justice Diarmuid B. O'Donovan delivered on the 27th February 1998

	This is an appeal by way of a Case Stated by District Justice Bernard Brennan, a Judge of the District Court sitting at Roscommon District Court, pursuant to Section 2 of the Summary Jurisdiction Act, 1857, as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961, seeking the opinion of the High Court as to whether he was correct in law in dismissing charges against the Respondent under Section 49(2) and (6) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994 and the Road Traffic Act, 1995 and Section 109(1) of the Road Traffic Act, 1961 and the Road Traffic Act, 1968 and the Road Traffic (Amendment) Act, 1984.  The said  charges were dismissed by the learned District Court Judge on the grounds that there had been excessive delay in the prosecution thereof, such as entitles him to infer that the Respondent had suffered prejudice. 
	The date of the alleged offences was the 15th January, 1996.  Application was made for the issue of summonses on the 10th April, 1996.  However, these summonses were not served and were returned for re-issue.  On the 27th May, 1996, application was made to have the summonses re-issued but, again, service was not effected and, again, they were returned for re-issue.  On the 7th August,1996, a further application was made to have the summonses re-issued and, on that occasion, service was effected by registered post; the summonses being returnable to Roscommon District Court on the 1st October, 1996.  However, the date upon which service was effected by registered post does not appear from the Case Stated and, apparently, the original summons was mislaid and the matter did not come on for hearing.  On the 10th January, 1997, a fourth application was made to have the summonses re-issued, returnable to the District Court at Roscommon on the 4th February, 1997.  These summonses were served and duly came on for hearing on that date (which was twelve and half months from the date of the alleged offences) but were adjourned to the 4th March, 1997, so that the District Court Judge could have evidence with regard to the reasons for the non-service of two of the three sets of summonses previously issued.  At the hearing of the said summonses on the 4th March, 1997, the District Court Judge heard evidence with regard to the non-service of the two sets of summonses  previously issued and, in the light of that evidence, concluded, as a matter of fact, that insufficient efforts had been made to effect service of those summonses.  I consider myself bound by that finding of fact.
	Ms. Egan, on behalf of the Applicant, submitted that, while she conceded 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 that delay whereby the summons should be dismissed, there was, in fact, no such excessive delay in this case from which such an inference could reasonably be drawn and, as no prejudice on the part of the Respondent was, in fact, established; the onus being on him to prove such prejudice, the District Court Judge was wrong in law to dismiss the summons.  In support of that submission, she referred to a majority decision of the Supreme Court given in a case of  D.P.P -v- Byrne (1994 I.R. at page 236) in which the Supreme Court had reversed a decision of Mr. Justice Geoghegan in the High Court that a District Court Judge was entitled to conclude that a delay of ten months in bringing on a prosecution under Section 49 of the Road Traffic Act, 1961 was excessive and, even in the absence of proof of prejudice to the accused, was entitled to dismiss the summons.  In the instant case, Ms. Egan added that, while the prosecution against the Respondent did not come on for hearing until some twelve and a half months after the date of the alleged offences, in the circumstance that he had been served with a summons by registered post within approximately nine months of the alleged offences, although that summons was not proceeded with because the original summons was mislaid, the Court must have regard to the fact that, at that stage, the Respondent would have been aware that a prosecution was being brought against him, when considering whether or not prejudice to him might be inferred  from the delay in bringing on the prosecution to a hearing.
	For the Respondent, Mr. Lenihan submitted that there was excessive delay in bringing on this prosecution; a delay which the District Court Judge found as a fact was due to insufficient effort on the part of the prosecution to serve a summons on the Respondent.  Moreover, he submitted that that delay was such that the District Court Judge was entitled to exercise his discretion to infer that the Respondent was prejudiced by it.  Furthermore, he rejected the suggestion that the fact that the Respondent had been served with a summons by registered post within nine months of the alleged offences was relevant to the issue which the District Court Judge had to decide, in that, as that summons was not proceeded with, its service on the Respondent would have had no effect on him.  In this regard, by the way, I think that it was outrageous that another three months passed before an application to renew the summons was made and no excuse for that further delay was advanced.   Mr. Lenihan also referred to the decision of the Supreme Court in D.P.P. -v- Byrne and, in particular, to the judgment of Finlay C.J., with whom Egan J. and Denham J. concurred, that, when the right of an accused person to trial with reasonable expedition was in issue, the prosecution is answerable to the Court in respect of any delay which has been incurred by an agency of the State.  He also referred to an unreported judgment of the Supreme Court given on the 2nd March, 1994 by Blayney J. in a  case of D.P.P. -v- Carroll, in which, it was held, following the decision in D.P.P. -v- Byrne that a delay of eight and a half months in bringing on a prosecution for hearing was not such as to justify the dismissal of the summons.
	Now, there is no doubt but that an accused person is entitled to trial with reasonable expedition; all the more so in respect of an offence for drunken driving where the consequences of a conviction are extremely serious.  On the other hand, there may be many excusable reasons why a prosecution may be delayed beyond a time that might be considered appropriate.  In my view, there was no excusable reason for the delay in bringing this prosecution on for a hearing.  On the contrary, the District Court Judge concluded, as he was quite entitled to, that it was due to the default of the prosecution in failing to make sufficient effort to serve summonses on the Respondent; a default for which, as I interpret the judgment of the Supreme Court in D.P.P. -v- Byrne, the prosecution are answerable to the Court.  Accordingly, I think that the District Court Judge was quite entitled to exercise his discretion to conclude that the delay in bringing on the prosecution was excessive and I agree with Mr. Lenihan that the fact that the Respondent was served with a summons by registered post sometime between the 7th August, 1996 and the 1st October, 1996 did not preclude the District Court Judge from exercising his discretion in that way.  This begs the question was the District Court Judge entitled to infer that the Respondent suffered prejudice from that delay? In this connection, the matters which he had to take into account would appear to be the nature of the offence, the cause of the delay, and the possibility that the Respondent's defence might be impaired.  Clearly,  the offences charged were most serious, in that, a conviction carried the likelihood of very severe penalties, the cause of the delay was not excused and it is not, in my view, unreasonable to think that a twelve and a half months delay in bringing such charges on for hearing would inhibit the Respondent in his defence; if for no other reason than that time is notorious for clouding memories as the greater the length of time between an event and the effort to recall its circumstances, the more likely it is that error will creep in.  Accordingly, I think that the District Court Judge was quite entitled, in the exercise of his discretion, to infer that the excessive delay in bringing this prosecution on for hearing would prejudice the Respondent. 
	In the foregoing circumstances, I would answer the Case Stated in the affirmative and dismiss the appeal.