THE HIGH COURT

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 
(19 & 20 Vict. C. 43) AS EXTENDED BY SECTION 51 OF THE COURTS 
(SUPPEMENTAL PROVISIONS) ACT, 1961 
[2002 No. 375S.S]

Between:
THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
and
ANTHONY BYRNE
Respondent

Judgement of Mr. Justice Aindrias Ó Caoimh delivered the 26th day of June 2002.

	This is an appeal by way of case stated from a decision of the District Court (Judge Murrough Connellan) made on 15th October, 2001 in which he dismissed a charge of drink driving and dangerous driving against the respondent on the basis of a consideration that his constitutional right to a fair trial with reasonable expedition would be violated if the prosecution against the respondent were permitted to proceed after an elapse of 22 months since the date of  commission of the alleged offences.
	The offences charged were that the respondent on 2 January 2000 
(a)	at Halverstown, County Kildare, a public place, drove a motor car while there was present in his body within three hours after so driving a concentration of alcohol in his blood which exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of blood contrary to section 49 (2) and section 6 (a) of the Road Traffic Act, 1961 as inserted by section 10 of the Road Traffic Act, 1994, and
(b)	drove the said vehicle in a manner (including speed) which, having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of traffic which then actually was or might reasonably be expected then to be therein) was dangerous to the public contrary to S. 53 (1) (a) of the Road Traffic Act, 1961 (as amended by S. 51 of the Road Traffic Act, 1968) and Section (2) (B) (as amended by S. 3 of the Road Traffic	(Amendment) Act, 1984) of the Road Traffic Act, 1961.
	The case stated recites the facts of the case as follows:
(a) 	At 8.05 p.m. on 2 January 2000 a collision occurred near Halverstown crossroad, Kilcullen, County Kildare involving a car driven by the respondent and another vehicle driven by Gillian Brennan as a result of which Gillian Brennan was seriously injured and the respondent sustained two broken legs.
(b)	 On 28 June 2000 following the making of complaints in accordance with S. 10 of the Petty Sessions (Ireland) Act, 1851 two summonses were issued by a judge of the District Court charging the respondent with the aforesaid offences.
(c) 	The summonses were returnable for Newbridge District Court on 21st September, 2000.  On that occasion the respondent required the attendance of a witness, namely Garda O’Halloran, an Assistant Public Service Vehicle Inspector.  He was not a witness for the prosecution and the respondent was aware of this fact. As the witness was out of the jurisdiction on that date the matter was adjourned to 7th December, 2000.
(d) 	On 7th December, 2000 the District Court was informed that Garda O’Halloran had been involved in a very serious car accident and was therefore unable to attend court to give evidence.  As it was then unclear as to when he might be available to give evidence the case was adjourned to 18th January, 2001 on which date he was still unfit to attend court and give evidence and again it was not known when he would be able to give evidence and accordingly the matter was adjourned to 15th, March, 2001.
(e)	On 15th March, 2001 the court was informed that Garda O’Halloran would be able to give evidence in April 2001 and accordingly a date for hearing was fixed for 19th April, 2001.
(f) 	On the eve of the hearing it was discovered that only one summons against the respondent had been listed for hearing and it subsequently transpired that the Judge of the District Court had inadvertently struck out one of the summonses, namely that in respect of the offence of dangerous driving although at no time had such an application been made to the court.  When this was brought to the attention of the court on 19th April, 2001 the Judge then sitting in the District Court adjourned the matter to 7th June, 2001 in order to permit the summons in question to be re-issued.
(g)	On 30 April, 2001 Garda Niall Daly appeared before the District Court and applied for the re-issue of the summons and Judge Connellan took the view that this was not necessary and he re-instated the summons which had been struck out and then fixed the hearing for 15th October 2001.
(h)	On 15th October, 2001 counsel for the respondent applied to Judge Connellan to dismiss the summonses against the applicant because of the length of time that had elapsed since the date of the commission of  the offences alleged and the 15th October, 2001 - being a period of 22 months.  Particular reliance was placed upon the decision of the High Court in the case of D.P.P. v. Arthur [2000] 2 I.L.R.M. 363 in which the High Court held that the District Court should have dismissed the summons in question after a delay of two years and three months. Other authorities cited by counsel for the respondent were B.F. v. 	D.P.P. 	(Unreported, Supreme Court, 22nd February 2001) and Carpenter v. Kirby [1990] I.L.R.M. 764. It was submitted that on the basis of these cases the court should dismiss the charges against the respondent. 
(i) 	On behalf of the appellant submissions were made to the District Court detailing the relevant dates and pointing out that the charges had been adjourned on several occasions to facilitate the respondent.  It was indicated that the appellant had been ready to proceed with these charges on 19th April, 2001 but that the summons in relation to dangerous driving had been inadvertently struck out and the matter had to be rectified.  It was submitted that had the S. 49 charge been proceeded with against the respondent on that date and thereafter re-issued the summons in respect of the dangerous driving charge that the respondent might have raised the plea of double jeopardy in bar of the subsequent prosecution.
While the issue of whether the dangerous driving summons should have been re-issued or re-instated was raised by counsel, when the learned judge of the District Court indicated that he did not wish to stand in judgment on the matter that he was quite happy to state a consultative case or afford the respondent a right of appeal on the matter, counsel for the respondent stated that the respondent would accept the decision to re-enter the summons.  The learned District Court judge then adjourned the case to the afternoon to consider the submissions made on the issue after which he ruled that in light of the High Court judgment in the case of D.P.P. v. Arthur [2000] 2 I.L.R.M. 363 and the need for summary proceedings to be proceeded with as expeditiously as possible, the respondent’s constitutional rights to a fair trial and to a trial with reasonable expedition would be violated were the prosecutions allowed to proceed.
	Counsel submits that the learned judge of the District Court erred in law in his determination.  It is agreed by counsel for the appellant and for the respondent that the relevant law is that laid down by the Supreme Court in the case of Director of Public Prosecutions v. Byrne [1994] 2  I.R. 236 and in particular the principles of law laid down by Finlay C.J. save that there is no obligation on the prosecution to seek to justify a period of delay.  Counsel for the Director of Public Prosecutions submits that the onus lies on the respondent of showing that the delay complained of is so inordinate or excessive as to raise an inference that the risk of an unfair trial has been established as a reality or that there has been particular prejudice arising from the delay such as to render the trial unfair. 
	Counsel for the Director of Public Prosecution relies upon the decision of the Supreme Court in the case of McNamara v. MacGruairc (Unreported, 5th July 2001) where the Court held the delay in question to be excessive but proceeded to address the issue as to whether the delay, such as it was, was prejudicial to the applicant having regard to all the circumstances of the case. Further in the case of McKenna v. Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, Kelly J., 14th January 2000) (Unreported, Supreme Court, 7th December 2000) a similar approach was taken in the High Court and by the Supreme Court on appeal where a finding of  “inordinate and inexcusable delay” of some five and a half years was not such as to demonstrate that the applicant could not obtain a fair trial, where no actual prejudice had been shown and the circumstances were held not to be such as to give rise to an inference that the risk of an unfair trial had been established as a reality.  Furthermore, counsel refers this court to the decision of this court in the case of Mulready v. D.P.P. [2001] I.L.R.M.382 in which an application to stay summary proceedings after a delay of 21 months was refused.  Counsel points out that the delay in the case of D.P.P. v. Arthur (supra) was one of 27 months.  In the Mulready case  the court found that of the 21 month delay the prosecution was only responsible for a delay of four months. 
	Counsel submits that in the instant case the period to September 2000, when the case first came before the District Court, is one that cannot in any event be considered as excessive as the summonses were applied for within the time permitted by law and the prosecution was ready to proceed when the matter first came before the District Court.  With regard to the subsequent period that elapsed to enable Garda O’Halloran to give evidence it is submitted that there was no delay as the respondent sought the attendance of the said witness to give evidence on his behalf and the witness was not a prosecution witness at any time. The remaining period of six months from 18th April, 2001 to 15th October, 2001 was due to an error made in the District Court for which the prosecution was not responsible but it was one which the prosecution had to accept but nevertheless it bore no relationship to the facts in the case of D.P.P. v. Arthurs [2000]
2  I.L.R.M. 363.   Counsel further relies on the fact that the respondent has failed to identify any actual prejudice and no inference can be drawn that by reason of the lapse of time the respondent cannot obtain a fair trial or a trial with reasonable expedition.
	On behalf of the respondent counsel submits that the relevant principles of law are those stated by the Chief Justice in the case of  Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 and counsel submits, in line with the judgment of the Chief Justice, that this court should be slow to overturn a decision of a trial judge on the issue of delay.
	Conclusion:
	In the first place the summonses in question were applied for within the time provided for by law and were returnable to the District Court on 21st September, 2000.  Notwithstanding the fact that the application for the summonses was not made until shortly before the expiry of the six month period provided for in s. 10 of the Petty Sessions Act, 1851, it must be concluded that the application was within time and there was no delay prior to 21st September, 2000 which was the initial return date.  It is clear that within this time the respondent was in a position to prepare his defence subject to the fact that he required the attendance of Garda O’Halloran to give evidence on his behalf.

	The period thereafter until 18th April, 2001 was a period afforded the respondent to secure the attendance of a witness to give evidence on his behalf and while the respondent was not guilty of any delay in this regard, the circumstances of the witness gave rise to this further elapse of time.  This period is one for which no blame or responsibility must attach to the Director.
	The final period of six months arose out of an unfortunate error in relation to one of the summonses in question.  It was open to the respondent to indicate in April 2001 that he wished the drink driving summons to be proceeded with at that time.  He did not do this but consented to the matter being adjourned to enable the prosecution to address the problem that had arisen from the inadvertent striking out of the summons relating to the dangerous driving charge.
	It cannot be held that the final period of six months whether taken in isolation or even in conjunction with the earlier period was such as to give rise to a situation where the respondent could not obtain a fair trial and one with reasonable expedition.  No prejudice was shown to have arisen by reason of the final period of delay.  In these circumstances I am satisfied that the learned judge of the District Court erred in law in dismissing the charges against the respondent.  Each case must be taken on its own facts and two identical periods of delay or lapse of time may have differing results.  The fact that the period at issue in the case of  Director of Public Prosecutions v. Arthur  was somewhat similar to that in the instant case does not give rise to a conclusion that the complaints against the respondent in the instant case should be dismissed as the circumstances of  the two cases are very different.  In the former case the accused was ready for trial at all relevant times and attended court on three successive occasions when, due to the length of the list of cases, his case was not heard.
	In conclusion I will answer the question posed by the learned judge of the District Court in the negative and I will remit the case back to the District Court to be proceeded with in accordance with law.