THE HIGH COURT
			2000 No. 638 SS 
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
			APPELLANT
AND
MICHAEL FERGUSON
			RESPONDENT
Judgment delivered by Mr. Justice Aindrias Ó Caoimh on the 21st day of December 2000.
	This is an appeal by way case stated brought by the Director of Public Prosecutions (hereinafter referred to as the Director), from a decision of Judge Flann Brennan sitting at Dundalk, in the County of Louth, made on the 12th of January 2000 whereby he dismissed a charge of assault against the Respondent alleged to have been on one Tom Conachy, contrary to Section 2 of Non Fatal Offences Against the Persons Act, 1997.  The essential question posed to this Court is whether the Judge of the District Court was correct in law in holding that there had been delay in the prosecution of the said offence which was inordinate, inexcusable and not explained on the facts, so as to entitle him to dismiss the charge.  
	At paragraph two of the case stated it is indicated that the Respondent’s Solicitor Mr. James MacGuill notified the Judge, that he would be making submissions regarding delay in the issue of the first summons which was issued against the Respondent, only two days inside the Statutory time limit and also the delay in the service of the subsequent summons issued on foot of an application made on the 1st of December 1999, for Dundalk District Court on the 15th December 1999.   This occurred in the District Court on the 15th December 1999 and on that occasion in light of the notification given, the learned Judge of the District Court adjourned the case to Dundalk District Court on the 12th of January 2000 for submissions to be made and to enable the prosecution to call such evidence as it wished to rely upon, in respect of the delay and in respect of any application that the prosecution should proceed based on the application for a summons of the 1st of December 1999.  The adjournment was consented to in those circumstances by both the Defence and the prosecution.  
	The case stated recites that it subsequently transpired that three separate summons have been issued in the present case, alleging the same offence and that the third summons was returnable for the 15th December 1999, although the existence of the second summons and the making of the second application did not appear on the face of the third summons, before the court.  The date when the first of application for a summons was made, did, however, appear on the face of the third summons issued.
	The facts indicate that on the 12th January 2000, Garda Michael Giblin of Duleek Garda Station gave evidence of having received both the first and second summons for the purpose of service on the Respondent.  The summonses in this case were:-
a.	Summons applied for on the 12th of July 1999, returnable for the 22nd of September 1999,
b.	Summons applied for on the 4th of November 1999, returnable for the 1st day of December 1999,
c.	Summons applied for on the 1st of December 1999, returnable for the 15th December 1999.
	
	Garda Giblin informed the District Court that he had called to the home of the Respondent on three occasions, but could not effect service as he got no reply at the Respondent’s home.  Garda Giblin also gave evidence of being ill on two occasion during the period and of spending time in hospital.  While in hospital he had the summons in his personal locker at his Garda Station.  His only role was to effect a service of the summons and in the circumstances he could not give any explanation for any delay in applying for the issue of the summons, prior to the 12th of July, 1999  nor in relation to any delay in making any subsequent application for the issue of the summons.  
	The Garda agreed that the Respondent was a man in his 40’s, who had never been in any form of trouble, who was residing at his present address for upwards of 20 years, and was in his present employment for upwards of 20 years.  
	No suggestion was made in any way that the Respondent had attempted to evade service and it was accepted that he had in no way contributed to the delays in this case.  It was agreed that the particular form of summons, was one that could have been served by post.  Garda Giblin indicated that he did not consider serving the summons by post, as he would only resort to the service of a summons by post, if he believed there was an effort to evade personal service and he always like to explain a summons to a Defendant when he served same.  
	During his period of illness the Garda authorities did not have in place any system whereby duties assigned to Garda Giblin would be discharged by other members of An Garda Síochána.  In particular there was no system of identifying outstanding matters in hand by Garda Giblin and no member of An Garda Síochána had access to his personal locker.  Garda Giblin agreed that there was a further lengthy delay between the return by him of the summons, he having failed to serve same and the ultimate application on the 1st of December 1999 for a further summons.  He did not offer any explanation for this delay. 
	The offence alleged against the Respondent is stated to have taken place on the 14th of January 1999.  No evidence was given to the District Court by the Respondent or anyone on his behalf. 
	The learned Judge of the District Court states that he was of the opinion that it was proved or admitted that:-
1.	The delay in applying for the first summons was inordinate and inexcusable, and was not explained on the facts,
2.	The failure to serve such summons in or alternative fashion to personal service was in-excusable and was not explained on the facts;
3.	That the subsequent delays in making a fresh application for a further summons with a view to bringing the matter before the Court was inordinate and inexcusable, and was not explained or the facts;
4.	That the Respondent did not contribute to the delay;
5.	That, in the circumstances of the case, the overall delay being inordinate and inexcusable, the Court was entitled to infer prejudice on the Respondent on the facts of the case and was therefore unwilling to permit a prosecution to take place in these circumstances and therefore he dismissed the charges against the Respondent.
	
	The Submissions of the Parties
	On behalf of the Director it was submitted that the onus rested on the Respondent to establish that by reason of the delay between the date of the alleged offence and the date of the hearing, that there was a real risk of an unfair trial which could not be avoided by appropriate rulings and directions on the part of the trial Judge.  In this regard reliance was placed upon the authorities of the D -v- Director of Public Prosecutions [1994] 2 I.R. 465 and Z -v- Director of Public Prosecutions [1994] 2 I.R. 476.  Further reliance was placed upon the Supreme Court decision in the case of  Director of Public Prosecutions -v- Byrne [1994] 2 I.R. 236 and in particular to the fact that the Supreme Court held in that case that there was no onus on the Director to show that the prosecution has been brought within a reasonable time and that where a Defendant sought to have a valid summons dismissed on the grounds of delay, the onus rested upon him to satisfy the Court that there were grounds for so doing.  While in that case Blayney J and O’Flaherty J indicated that a Court might infer that the Defendant had suffered prejudice as a result of excessive delay such as to enable the Court to dismiss the prosecution, the determination as to whether a delay or lapse of time was excessive depends on the circumstances of each case.  In that case the Court indicated that the matters to be considered included the nature of offence, the cause of the delay and the possibility that the accused’s defence would be impaired.  
	In the Byrne case the Supreme Court held that a lapse of time between the date of the alleged offence and the date of trial being less than ten months was not an unreasonable delay such as would entitle a Judge of the District Court to dismiss the charge, without proof of prejudice to the Respondent.  
	In the course of her judgement, in the same case Denham J cited the American decision of Barker  -v- Wingo [1972] 407 U.S. 514, where Powell J stated, inter alia, as follows:-
“ A balancing test necessarily compels Courts to approach speedy trial cases on an ad hoc basis.  We can do little more than identify some of the factors which Courts should assess in determining whether a particular Defendant has been deprived of his right.  Though some might express them in different ways, we identify four such factors: length of delay, the reason for a delay, the defendant’s assertion of his rights, and the prejudice to the defendant”.

	The U.S. Supreme Court identified three of the interests of the Defendant to be protected in regard to prejudice as:-
1.	To prevent oppressive pre-trial incarceration
2.	To minimise anxiety and concern of the accused
3.	To limit the possibility that the defence will be impaired
	
	The Court said: 
“Of these, the most serious is the last, because the inability of a Defendant adequately to prepare his defence, skews the fairness of the entire system.   If witnesses die or disappear during a delay, the prejudice is obvious.  There is also prejudice if defence witnesses are unable to recall accurately events of the distant past.  Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown”.

	It is submitted that in the present case the Respondent did not establish any particular prejudice as a result of the delay complained of and that therefore if he was entitled to an Order dismissing the charge against him, he would have had to show that the delay involved was so excessive as to entitled the District Court to infer prejudice.  
	Further reliance was placed upon the decision of the Supreme Court in the case of Director of Public Prosecutions (Coleman) -v- McNeill [1999] 1 I.R. 91.  In that case the alleged offence occurred in January 1996.  A summons was issued in April 1996 returnable for a hearing in May of 1996, but the same was not served.  Thereafter summonses again issued in May 1996, August 1996 and January 1997.  The latter summons was eventually served and the matter came on for hearing in February 1997.  In the District Court the prosecution was dismissed on the grounds of delay, but the matter was thereafter successfully appealed by the Director of Public Prosecutions.  
	Like the Byrne case, the McNeill case was also a case involving a charge of drink driving.  In the course of his judgment O’Flaherty J, delivering the judgment of the Court, stated, inter alia, as follows; at page 96 of the report:-
 “To recapitulate the law as delineated in the Director of Public Prosecutions -v- Byrne [1994] 2 I.R. 236 at page 253: “Where, however, the delay is excessive, a prosecution may be dismissed.  In such a case prejudice may be inferred.”  That may beg 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 Director of Public Prosecutions -v- Byrne.  Regard must be had to the nature of the charge in such a case as of this which, as already related, will depend on scientific findings which are unlikely to be disputed.  It is clear from a reading of the Director of Public Prosecutions -v- Byrne that the onus is on a Defendant, asserting delay, to show that he has been prejudiced.  I did not take the Defendant in this case as having discharged that onus”.

	O’Flaherty J repeated on behalf of the Court 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.  He continued:

 “It is most likely that the learned District Court Judge and the learned High Court Judge allowed themselves to over influenced by what they both regarded as a degree of ineptitude in relation to the service of the summons.  But Courts are not there to chastise any one party who comes before them, but rather to make sure that justice is done as between the respective parties”.

	“I would reverse the judgment of the High Court and answer the question posed in the case stated in the negative and accordingly the District Court Judge should hear the case.  Of course if any circumstance of specific prejudice is brought forward, then he will, no doubt, engage in a separate investigation of such a claim.  But that has not been raised so far”.  

	In this case O’Flaherty J referred to the nature of the charge being one for drink driving, where the State would be relying on scientific evidence.  He indicated that this therefore was a simple case to prove, provided all the requisite steps laid down in the legislation have been taken.  He indicated conversely, once proof of excessive concentration of alcohol in the blood is established by the certificate of the Medical Bureau of Road Safety, then there may be little that the Defendant can put forward on the merits of the case.  He can only rely on technical points.  
	However, it was agreed by Counsel on both sides in that case that the Defendant was entitled to have the ability to take such points as might be available to him and that delay could dim his recollection of what those points might be. 
	In the McNeill case, while the delay was over twelve months, nevertheless the Defendant had been served by registered post at an early stage about nine months after the alleged offences and while those summons were mislaid, nevertheless once the Defendant got those summons he must have know that a charge was in offing.  O’Flaherty J added, that once he got back a copy of the certificate from the Medical Bureau of Road Safety he would have had a fair idea that a charge was in the offing and that would have been at a much earlier stage.  
	O’Flaherty J continued:-

 “While there were serious of mishaps about the failure to serve these summons on the Defendant in this case, which still remained unexplained to an extent, I believe that there really was no evidence to lead the District Judge to hold that the Defendant could be prejudiced in any way”. 

	On behalf of the Respondent, Mr. Hugh Harnett Senior Counsel stressed that each case had to decided on its own facts.  He distinguished the cases of Byrne and McNeill relied upon by Counsel on behalf of the Director, on the basis that, in the instant case, the first that the Defendant knew of the prosecution was eleven months down the road, when the summons was received by him and he had no prior intimation of any contemplated proceedings.  He stressed that the only evidence put forward to the District Court was the evidence of the serving officer and that no evidence was put before the Court by any investigation officer dealing with the initial period of almost six months, before which the summons was applied for.  
	In the instant case the District Court Judge wanted to hear evidence explaining the reasons for the delay.  This he received from the summons officer.  He concluded that there was inordinate delay giving rise to finding of actual or presumptive prejudice.  Mr. Hartnett indicated that unlike the McNeill case, in this case the prosecution was not based on scientific evidence or evidence by means of a certificate.  Mr. Hartnett further referred to portion of the judgment of Finlay CJ in Byrne’s case, where he concluded, in regard to general principles, that an appellate Court should with considerable caution interfere with the discretion of a judge of the trial Court involved in a decision as to what is or is not unreasonable delay, having regard to the particular insight which such a Judge would have of the consequences of the trial, which is proposed and of the state of affairs in regard to the services attached to the Court concerned.  On this basis it is submitted that this Court should be slow to interfere with the conclusions reached by the Judge of the District Court in this case.  Mr. Hartnett submitted that the Judge was entitled to find as a matter of law as he did in the instant case.  
	In reply Ms. Adrienne Egan on behalf of the Director of Public Prosecutions indicated that this was not a case of Judicial Review and the only enquiry before this Court is  whether the Judge of the District Court was correct in law in his conclusion and it was not an issue as to whether he was entitled to find something as a matter of law or fact.  With regard to the failure to furnish an explanation for the delay, it was submitted that a similar situation pertained in Byrne’s case where there had been no explanation for the delay.  It is submitted that the issued before this Court is whether the delay of itself was such as to give rise to an inference of prejudice.  Here there is no prejudice as such claimed.  It was submitted that the delay in the instant case was not inordinate. 
 
	Conclusions
	With regard to the application for the first summons all this Court knows is that it was applied for just within the period of six months, from the date of the offences alleged to have been committed.  While this was not explained, it is not of itself such as to give rise to the description of being inordinate or inexcusable.  With regard to the failure to serve the summons in the instant case, other than by personal service, I am of the view some arrangement should have been made in the absence of Garda Giblin for the summons to be served either by personal service or in an alternative matter.  Thirdly, the time taken in applying for the second and third summons cannot of itself be described as inordinate or inexcusable.  Clearly the Respondent did not contribute to the delay.  While the overall delay was somewhat inordinate and only partly excused, the District Court was not entitled to infer prejudice on the Respondent on the facts of the case, when no actual prejudice was demonstrated by the Respondent.  I conclude that the Applicant’s right to a constitutional trial in due course of law has not been abrogated and in the circumstances the case stated should be answered in the negative.  The case should be remitted to the District Court to proceed with the hearing of the case, in circumstances where no evidence touching upon the guilt or innocence of the Respondent has been heard as yet by the learned Judge of the District Court.