Supreme Court dismisses appeal regarding minor clerical error in prior judgment concerning DNA sample handling timeline.

An Chúirt Uachtarach

The Supreme Court

Denham CJ

O’Donnell J

Clarke J

Dunne J

Charleton J

Record number: 2010/35JR

Appeal number: 22/2013

Cross appeal number: 24/2013

Between

Mark Nash

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Judgment of Mr Justice Charleton delivered on Thursday the 13th of July 2017

1. In concurring with the judgments of O’Donnell J and Clarke J, it is necessary to offer some limited observations. The motion before

the Court identifies my judgment of the 29th of January 2015 as the source of one of the alleged errors now complained of; that the

tiny samples from the jacket of Mark Nash were not in the Forensic Science Laboratory immediately before these were tested to find

an exact correspondence with the DNA of the two murder victims but had to be brought there from storage in a Garda station.

The written submissions of Mark Nash

2. The purpose of written submissions is to highlight for an appellate court the points which a party appealing a judgment of a trial

court considers significant to the outcome. These will be related to the grounds on which an appeal is advanced. Hence, stating with

precision the point in issue as a matter of law is of assistance but so also is giving the facts upon which that submission is argued to

potentially succeed. When it comes to oral argument, this is useful in again directing focus on a point and on why it is claimed to be a

point on which the appeal should turn.

3. At this late stage of the case, it is claimed that a small error occurred in my earlier judgment. That judgment was written on the

basis of the materials before this Court on appeal and was also directed to the questions which extensive oral argument on behalf of

Mark Nash had proposed as decisive to the outcome of that appeal. The written submissions of Mark Nash were dated the 7th of

November 2013. These say little about what is now claimed to be a crucial point: the origin of the sample that was tested after

several other samples had earlier been tested to destruction in an attempt to find out was there any connection that might be

established beyond reasonable doubt to the effect that Mark Nash’s clothing had been stained by DNA from the two murder victims at

this most bloody scene of violence. During this appeal it was even objected on behalf of Mark Nash that it would be conjecture to

describe the samples finally tested and yielding DNA as “blood stains”; this despite there being no evidence of how any other human

tissue could ever have ended up on the clothing of Mark Nash during the assault which ended the lives of the two ladies in the

Grangegorman facility.

4. These written submissions of Mark Nash deal with the factual background to the case, including the ostensible confession of

another individual to the murders, that is Dean Lyons, the unavailability of witnesses, adverse pre-trial publicity, the right to a fair

trial, the principles of expedition and an analysis of the law on damages.

5. Under the part of those written submissions which deal with delay and under the heading related to the availability of forensic

evidence, the submissions for Mark Nash claim that “there was very little activity in respect of the investigation of the appellant’s

potential connection with the murders for most of the period between 1998 and 2009.” The submission states that though some

examination took place “in 2004, nothing with a potential to link the appellant with the murder was examined.” This was an assertion

that the prosecution challenged, in my view correctly. Reference is made to what is asserted to be a decision to re-examine aspects

of the case in 2007. It is then claimed that the “decision to re-examine the jacket appears to have been taken, not in the context of

the investigation, but because a further set of judicial review proceedings had been commenced by the appellant and it was

incumbent on the respondent to demonstrate … that it was not unreasonable” that Mark Nash be refused his application to transfer

his imprisonment back to England under the transfer of prisoners legislation. As to when the technology became available whereby

tiny stains might yield DNA inside the cuff of a garment and on the thread of a button has been the subject already of detailed

analysis in the judgment of Clarke J.

6. In the written submissions on behalf of Mark Nash of the 7th of November 2013 there are several references to the jacket. These

submissions state that the jacket was in Garda custody. The submissions do not state that the jacket was at all times in the Forensic

Science Laboratory, the point that is now urged to be of importance. A garment consists of parts. A jacket has sleeves, cuffs,

threads in lining and in holding on buttons, and a collar. All are part of the jacket. If it is proposed, as it now is, to differentiate the

thread under buttons from the jacket, or the inner lining or part of the inner cuff of the sleeve from the jacket, that should have been

then stated. In the written submissions, however, no such distinction was drawn. These submissions were not accepted by the

prosecution and are considered here solely in the context of whether there was any argument put forward as to the importance of

where the jacket was or whether there was any difference urged as between the jacket and any of its ordinary component parts.

References, in fact, in the written submissions on behalf of Mark Nash are to “the jacket” of Mark Nash. It is useful to set out the

various references in those written submissions on behalf of Mark Nash that preceded my judgment:

…further tests were carried out on the appellant’s jacket (in Garda possession since 1997 but not re-examined over the

intervening 12 years) resulting in an alleged DNA link being made between the appellant and the Grangegorman murders.

[Paragraph 7]

…between 1998 and 2009 no forensic review involving the appellant’s jacket was carried out despite the fact that it was

in Garda possession throughout this period. [Paragraph 8]

…there were sporadic meetings (about 4 in number between 2004 and 2009), ultimately the decision to re-examined the

jacket appears to have been taken, not in the context of the investigation, but because a further set of judicial review

proceedings had been commenced by the appellant… [Paragraph 9]

…a purported DNA link made after such a period of time on a jacket which had previously been tested negative for blood

samples and in respect of which questions arise in relation to chain of custody and storage in the intervening period

(noting that exhibits were kept in Assistant Commissioner Byrne’s office in a series of Garda stations in the intervening

years). [Paragraph 48]

The appellant has been in Garda custody since 1997 and they have been in possession of the jacket upon which the

supposed DNA evidence was found since 1997.

…whilst further tests were discussed at intervals at meetings held sporadically and infrequently, the jacket was never

tested throughout the intervening years until September 2009… [Paragraph 49]

7. As to what was done and when, and as to how technology had developed to enable DNA testing on tiny residual samples, as

opposed to large blood stains etc, is correctly set out in the judgment of Clarke J and in my previous judgment in this case. What the

above demonstrates is that the written submissions on behalf of Mark Nash: (a) did not suggest that any part of the jacket of Mark

Nash was to be considered apart from the garment as such; (b) that any part of the jacket was stored in any place other than in

Garda custody; (c) positively suggest that the jacket was at all times in Garda custody under the control of Assistant Commissioner

Byrne; (d) does not suggest that the jacket was, or any component part of the jacket was, in any other place and in particular; (e)

does not suggest that the jacket or any piece of it was in the Forensic Science Laboratory.

The judgment

8. Thus, my judgment refers to the Garda having that jacket in their custody. That is what the Court was told in writing. Further,

knowledge of the actual practice of how samples are dealt with, which comes over many years of practice in the criminal courts,

demonstrates two things. Firstly, samples – hair, clothing, blood, prints, parts of vehicles, potential weapons – are indeed collected

during police work and are sent to the Forensic Science Laboratory for testing as to those samples which detective analysis suggests

might yield a useful result in the investigation of crime. The results of tests are notified by the laboratory and then samples are

returned to police custody. It is the job of the police to retain and to produce samples in court and to establish that the sample

produced is the sample taken at the scene or from the accused. Hence, the police retain or regain custody for the trial process. No

one ever said on the appeal in this case that led to my earlier judgment that this was different. In fact, in express terms the

submissions on behalf of Mark Nash said, or implied, that it was the same. Secondly, analysis or reanalysis occurs through interaction

between the police the forensic science service. I had never heard of an independent decision being taken in the Forensic Science

Laboratory to take out samples, supposing any were there in their actual custody, which cannot be supposed, without first being

directed to do so by the police or without that suggestion having been made by the police.

9. One then comes to the relevant passages in my judgment. These reflected what the Court had been told on this appeal. At

paragraph 7, a chronology begins which is completely accurate. That states that:

…the murder charge against Dean Lyons was dropped by the prosecution. Later that year, in the Forensic Science

Laboratory, a very small stain was found on the jacket of Mark Nash but it may then have represented too small a sample

to test successfully. Testing also destroyed some samples. Some threads and buttons were forwarded for specialist DNA

examination to a forensic science institute in the United Kingdom, but with no result. In October of that year, Mark Nash

was tried with the other Roscommon murders and he was convicted, as indicated. This resulted in a lengthy sentence,

nominally one of life imprisonment.

10. Paragraph 9 then deals with the interactions with Dean Lyons, who had confessed in the wrong to these murders, and says:

Dean Lyons was visited by an officer of An Garda Síochána prominent in the investigation of the Grangegorman murders.

Apparently as a result he was now willing to become a witness for the prosecution; presumably to rule out any credibility

attaching to his apparent confession. Only a few weeks later, on 12th September, Dean Lyons died, apparently in

consequence of his ongoing troubles with addiction. With developments in DNA profiling, a new extraction technique called

low copy number (“LCN”) profiling became available. When Mark Nash’s first application for transfer to a prison in Britain

had been refused, he initiated an unsuccessful judicial review application seeking to overturn that decision in July 2001. In

May 2003 one of the buttons from the jacket mentioned earlier was tested as being a hopeful source of LCN profiling but,

it seems, with negative or insufficient results. In March 2004 there was a cold case review involving An Garda Síochána

and the Forensic Science Laboratory. Inherent in all of this was the view that Mark Nash could not be tried for these

offences unless something was uncovered that would make a case weakened by what was considered by some gardaí to

be the wrongful confession of Dean Lyons much stronger. In November 2004, a High Court judgment on the judicial review

application refused to overturn the administrative decision by the prison authorities not to transfer Mark Nash to England.

That judgment also noted that the excuse for not doing so, being that the cold case review was ongoing and that there

was hope of a development, could not continue indefinitely. That same month, Mark Nash again applied for a transfer to

serve out the remainder of his sentence across the Irish Sea.

11. Paragraph 11 then sets out how the samples had been tested so that a connection was established between the two women

victims and Mark Nash. That paragraph states:

In February 2009, a meeting between gardaí and forensic scientists came to the view that all the forensic tests that were

available in Ireland had been completed but that it might be possible to pursue the most up-to-date DNA comparison

techniques in another jurisdiction. In March of that year, the Department of Justice in the course of correspondence,

apparently over the prisoner transfer issue, stated that the investigation was continuing and that this new area of DNA

comparison had been “identified and is being pursued.” Mark Nash then initiated a further judicial review in relation to the

refusal of his prison transfer application. Then in June a number of exhibits were brought back to the Forensic Science

Laboratory for further investigation. That July, on the 16th, buttons and thread from the jacket of Mark Nash apparently

developed a DNA profile matching the victim Sylvia Shiels. The jacket itself was re-examined and the seam of the right

sleeve was opened. A DNA profile matching the victim Mary Callinan apparently emerged on the 24th of September.

Matters moved swiftly on the receipt of the relevant scientific reports. That October members of the investigating team

met. On the 10th October, on the direction of the Director of Public Prosecutions, Mark Nash was charged with the double

murder at Grangegorman. The book of evidence was served that December. In the prisoner transfer application, opposition

by the State was based upon the new developments.

Conclusion

12. It will be noted that this paragraph in my prior judgment in this case says that “a number of exhibits were brought back to the

Forensic Science Laboratory” to be investigated. That was consistent with the written submissions of Mark Nash. That judgment also

states that this was, as is the procedure, in the context of scientific and police personnel liaison. In addition to this small point, all of

the points made at the oral hearing are also covered in the judgment, in addition to those in writing, including the point which

dominated the oral hearing which concerned some prayer cards of a religious sect. Hence, I do not accept that there was any

mistake made in the context of the submissions advanced on behalf of Mark Nash.