A judge has ruled that a four-year delay in hearing drink-driving cases could affect witnesses's recall of events as he dismissed four such cases and indicated that he would deal with similarly long-standing cases in the same way save for aggravating circumstances.
Judge Con O'Leary said that expecting prosecution witnesses including gardaí to recall individual drink-driving prosecutions dating back more than four years was "asking a lot" as he proceeded to address the issue of the delay caused by legal challenges to the use of "intoxilysers" by gardaí.
Cases had originally been adjourned on the application of the State and later when the State asked for hearing dates, on undertakings from defence teams that they would not raise the issue of delay. "Nobody thought it would go on for this long or get so out of hand," he said.
Judge O'Leary said that defendants should not be convicted exclusively on evidence "which is so far out of memory of the witness that he cannot give evidence without having it written out before him".
He also cautioned against using such evidence when it could not be tested on cross-examination "because the defendant does not know the right questions to ask because he has forgotten and the prosecution witness cannot go outside his written record because he does not remember."
Judge O'Leary made his comments at Cork District Court yesterday when dismissing the case against Eoin McMahon of Rossa Avenue, Bishopstown who was prosecuted for a drink-driving offence at Lancaster Quay in Cork city on December 3rd, 2001.
Judge O'Leary noted that the case originally came to court on May 30th, 2002 but was adjourned a total of 10 times by either the State or the defence with the other party's consent until September 23rd, 2005 when the State asked for a hearing date.
The adjournments arose because of successive challenges in the High Court and an appeal to the Supreme Court, which is pending since September 14th, 2004, but when granting such adjournments no one in the district court expected such delays would arise, he said.
"It is a situation in which we have all drifted. We, the prosecutors, this court, the superior courts and the defence, have all contributed to the situation," said Judge O'Leary in the course of a 10-page written judgment.
