Supreme Court dismisses appeal on judicial review regarding excessive delay in criminal charges, finding no prejudice to fair trial.

THE SUPREME COURT

304/96

Murphy J

Murray J

Hardiman J

Between:

Anthony McNamara

Applicant/ Appellant

AND

Judge Uinsin MacGruairc, The Director of Public Prosecutions,

Ireland and The Attorney General

Respondents

Judgment of Mr Justice Francis D Murphy delivered the 5th day of July, 2001

On the 30th day of January, 1995, the above named Anthony McNamara (the Applicant) sought and obtained leave to apply by way

of an application for judicial review for an order of prohibition to prevent District Judge MacGruairc from proceeding with charges set

out on Charge Sheet Number 13 of 1994 of McCurtain Street Garda Station, namely:-

“1 That you (Anthony McNamara) the said accused on the 15th day of August 1992 at Pope’s Quay Cork within the District

Court area of Cork City, District Number 19 unlawfully assaulted Sean Manning thereby occasioning him actual bodily harm,

contrary to section 47 of the Offences Against the Person Act 1861 and

2 that you the said accused (Anthony McNamara) on the 15th day of August 1992 at Pope’s Quay Cork within the District

Court area of Cork City, District Number 19, unlawfully and maliciously wounded or inflicted grievous bodily harm upon Sean

Manning, contrary to section 20 of the Offences Against the Person Act 1861.”

The grounds upon which the application was made was the alleged delay in preferring the charges against the Applicant and the

consequent delay of the intended trial.

The application for prohibition was heard by Mr Justice Smith and, as appears from the note of the judgment given by him on the 18th

day of October, 1996, he held that there had been delay and that such delay had not be contributed to by the Applicant. He

concluded, however, that in the circumstances of the case the delay which had occurred would not prejudice a fair trial of the

Applicant on the charges aforesaid. It is from that judgment and the order made thereon that the Applicant appeals to this Court.

Over and above the right of an accused to have a fair trial with the full panoply of rights which that entails there is an additional and

sometimes overlapping unenumerated constitutional right to what in American law is described as “a speedy trial”. That constitutional

right was identified clearly by Finlay CJ in the State (O’Connell .v. Fawsitt 362 at 378) when he endorsed part of a judgment then

under appeal which was expressed in the following terms:-

“It seems to me, therefore, that the authorities have established that the constitutional guarantees to every citizen that the

trial of a person charged with a criminal offence will not be delayed excessively; or, to express the same proposition in positive

terms, that the trial will be heard “with reasonably expedition” .... The nature of the delay must be considered as has already

been pointed out, having regard to the circumstances of the case.”

In that case delay had undoubtedly occurred and the Chief Justice delivering a judgment in which the full Court agreed, concluded

that the fact that a witness was no longer available to the defence because of the delay which had occurred was a factor which

made the delay not merely excessive but also prejudicial to the accused and accordingly an order of prohibition was granted.

There does appear to be some conflict as to the date from which the right to a trial with reasonable expedition commences. Clearly

the right of the accused or the obligation on the State cannot arise until the commission of a crime has become known to the

authorities. In O’Flynn .v. Clifford [1988] IR 740 Gannon J held that a person who was a mere suspect had no legal right to have a

charge made against him nor to have some legal process diligently or expeditiously pursued by arrest or by summons to bring him

before a court. In DPP .v. Byrne [1994] 2 IR 236 Finlay CJ identified (at page 246) the importance of the role played by the Garda

Siochana as the agent of the prosecuting authority in the following terms:-

“I am satisfied that, with regard to the type of delay which is involved on the issues in this particular case, it is not valid to

distinguish between the activity of the members of the Garda Siochana as the agent of the prosecuting authority on the one

hand, and the activities of other State servants engaged in the administration of the Courts Service on the other hand, if the

combined effect of these activities or the effect of one or other of them constitutes an infringement of one of the accuseds

constitutional rights.”

In SF .v. DPP [1999] 3 IR 235 I interpreted the observations aforesaid of Chief Justice Finlay as determining the date from which the

right to an expeditious trial commenced. The difference in approach between Mr Justice Gannon and myself was not resolved in the

present case. However, both parties were satisfied to explore the question of delay on the basis that it commenced at the

commission of the alleged offence on the 15th of August, 1992, or sometime shortly after that date, when the Gardaí had

investigated the matter.

The authority most frequently invoked in relation to delay was the decision of the US Supreme Court in Barker .v. Wingo [1972] 407

US 514. In that case two suspects were arrested and indicted shortly after an horrific murder had been committed. The prosecution

proceeded with the trial against one of the accused but sought and obtained postponements of the trial of the other. The result was

that the second accused was not tried for a period of five years after the indictment. The US Supreme Court rejected a petition for

habeas corpus. It was pointed out that all of the circumstances had to be taken into account and in an analysis which has been

quoted in many subsequent cases in different jurisdictions. Powell J drew attention to the following material factors:-

1 The length of the delay:

2 The reason given by the prosecution to justify the delay:

3 The defendant’s assertion of his right:

4 The prejudice to the defendant including in particular:-

(a) The prevention of excessive pretrial incarceration.

(b) The minimisation of anxiety and concern of an innocent accused.

(c) The danger that the defence would be impaired by the absence, death or loss of memory of a defence witness.

The brutal crime of which the Applicant was accused was alleged to have been committed on the 15th August, 1992. It was alleged

that the Applicant in company with three or four other youths chased, caught and attacked Sean Manning at about 2 am on the

morning of the 15th of August, 1992, in the area of Pope’s Quay, Cork. The victim was punched and kicked as he lay on the ground.

He appears to have sustained serious injuries as a result of which he was detained in hospital for several days.

The Applicant was interviewed briefly by the Gardaí shortly after the incident occurred and he and the other accused were arrested

and clothing worn by them taken and sent for forensic analysis some days following the assault. The prosecution maintain that the

Applicant admitted his guilt and signed a statement to that effect.

It would appear from the statements contained in the Book of Evidence ultimately furnished to the Applicant that the greater part of

the police inquiry was completed in the days following the assault and certainly by the end of August, 1992. It was not until the 14th

November, 1994, that the Applicant was arrested and charged with the offences in question and indeed it was the 13th of December,

1994, when the Book of Evidence was served on him.

In those circumstances the Applicant clearly made out a strong prima facie case of delay.

In an affidavit sworn by him, Mr Barry St J Galvin, State Solicitor for the City of Cork, explained that he first received the Garda file in

this matter in June, 1993, and that between receiving the file and the 21st of September, 1993, he was in correspondence about the

matter with the Director of Public Prosecutions. It appears that the State Solicitor was then engaged in preparing a book of evidence

which, as he subsequently pointed out in evidence, related to 35 witnesses and 36 exhibits and that this and certain additional

evidence was not completed for nearly 12 months.

Without underestimating the burdens imposed on the State Solicitor I would find it difficult to accept that the preparation of the Book

of Evidence in relation to a relatively simple, though serious crime, could explain or justify the delay which occurred. In my view the

learned trial Judge was correct in his finding that there had been delay. Indeed I would categorise the delay as “excessive”. Indeed all

avoidable delay is in one sense excessive.

The issue in this case is whether the delay such as it was was prejudicial to the Applicant having regard to the circumstances of the

case.

The case made by the Applicant in his affidavit grounding his claim for judicial review is very general in its terms. First, it is said in the

affidavit grounding the application for judicial review that as a result of the delay:-

“My memory is necessarily substantially impaired in relation to the recollection of specific detail of any events which may have

occurred around that time and I am not in a position to prepare a proper and/ or adequate defence of any such charges by

reason of the lapse of the time involved.”

Secondly, he asserted that:-

“I will have insurmountable difficulty in furnishing details to my legal representatives in relation to my whereabouts of the

particular evening as I simply do not recollect where I was and what I was doing and who I was with for the duration of that

day. I say that it is grossly unfair and unjust that I should now be called upon to recollect my movements on a day two years

and three months prior to my arrest.”

I find these complaints wholly unconvincing. The Applicant was invited to address his mind to the incident within days, if not hours, of

when it occurred. The very fact of the garda inquiries and indeed the arrest of the Applicant would surely have impressed the whole

matter on anyone - particularly innocent parties - of the entire matter in a manner which would fix the evening clearly in their mind

for many years to come. Furthermore, no suggestion is made to suggest any particular line of defence which might be undermined by

the lapse of time.

Unquestionably the right of an individual to a fair trial far transcends the communal interest or indeed that of the victim to see that

suspects are duly prosecuted. Nevertheless, the interest of the public is, as was pointed out in the Wingo case a factor to be

considered. Likewise regard may be properly had to the fact that the applicants were not incarcerated pending trial. Again it may be

appropriate to advert to the fact that none of the Applicants appears to have made any inquiry as to the progress of the case or

demanded the return of property taken from them for forensic testing. There is no suggestion that the Applicants were led to believe

that they would not be prosecuted or that they were left in any particular state of anxiety or concern by the delay which did take

place.

Whilst I am satisfied, like the trial Judge, that a delay did occur and I take the view that there was no adequate explanation for it I

am satisfied that the delay has in no way prejudiced the Applicants or any of them that in the circumstances having regard to all of

the material facts that it would be unjust and unnecessary to grant the relief sought. I would dismiss the appeal and affirm the order

of the High Court Judge.