Supreme Court dismisses appeal where applicant failed to prove real risk of unfair trial due to delayed evidence examination.

THE SUPREME COURT

[S.C. No: 310/2005]

Denham J.

Hardiman J.

Macken J.

BETWEEN/

JOHN KELLY

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND

THE JUDGES OF THE DUBLIN CIRCUIT CRIMINAL COURT

RESPONDENTS

Judgment delivered the 21st day of December, 2007 by Denham J.

1. John Kelly, the applicant/appellant, hereinafter referred to as 'the applicant', has brought this appeal from the order and judgment

of the High Court (Quirke J.) of the 7th July, 2005, which Court refused to prohibit the trial of the applicant on Bill No DU 195/98,

presently pending in the Dublin Circuit Criminal Court.

2. There is a long history to this appeal. The relevant facts include the following:-

(i) On the 12th May, 1997 the applicant was arrested and charged with offences under s.3 and s.15 of the Misuse of

Drugs Acts. There are four counts, which relate to the possession of a controlled drug, cannabis resin, contrary to the

Misuse of Drugs Acts. The alleged events took place at or near the entrance to the Liffey Valley Park from St Laurence's

Road, Chapelizod, Dublin, on the 12th May, 1997. There were two incidents: the first two counts relate to the possession

of two bricks of cannabis resin, which the prosecution allege the applicant threw onto the grass as he approached the

exit with another person. Counts three and four relate to two bricks of cannabis resin found by the Garda Síochána buried

a few inches beneath the surface of the park.

(ii) The applicant was charged with the following offences:

Count No. 1

Possession of a controlled drug for the purpose of supply contrary to Section 15 and Section 27 of the Misuse of

Drugs Act, 1977 as amended by Section 6 of the Misuse of Drugs Act, 1984.

John Kelly on the 12th of May, 1997 at St. Laurence's Road in the County of the City of Dublin did have in his

possession a controlled drug, to wit, Cannabis Resin for the purpose of selling or otherwise supplying it to another in

contravention of the Misuse of Drugs Regulations, 1988 and 1993 made under Section 5 of the Misuse of Drugs Act,

1977.

Count No. 2

Possession of a controlled drug contrary to Section 3 and Section 27 of the Misuse of Drugs Act, 1977 as amended

by Section 6 of the Misuse of Drugs Act, 1984.

John Kelly on the 12th of May, 1997 at St. Laurence's Road in the County of the City of Dublin did have unlawfully in

his possession a controlled drug, to wit, Cannabis Resin.

Count No. 3

Possession of a controlled drug for the purpose of selling or otherwise supplying it to another contrary to Section 15

and Section 27 of the Misuse of Drugs Act, 1977.

John Kelly on the 12th of May, 1997 in or about the N4 Chapelizod By-Pass being an area known as Long Meadows

in the County of the City of Dublin did have in his possession a controlled drug, to wit, Cannabis Resin for the

purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and

1993 made under Section 5 of the Misuse of Drugs Act, 1977.

Count No. 4

Possession of a controlled drug contrary to Section 3 and Section 27 of the Misuse of Drugs Act, 1977 as amended

by Section 6 of the Misuse of Drugs Act, 1984.

John Kelly on the 12th of May, 1997 in or about the N4 Chapelizod By-Pass being an area known as Long Meadows

in the County of the City of Dublin did unlawfully have in his possession a controlled drug, to wit, Cannabis Resin.

(iii) On the 26th May, 1997 there was an application for bail in the High Court.

(iv) In February, 1998 the applicant was served with the Book of Evidence.

(v) On the 23rd March, 1998 the applicant's solicitors wrote to the Director of Public Prosecutions seeking, inter alia, 'the

results of any forensic examinations undertaken during the investigation of this case.' A Notice of Additional Evidence with

statements detailing the results of the forensic examinations was served on the applicant on or around 19th October,

1998.

(vi) Between the 10th July, 2000 and the 15th July, 2000 there was a six day trial in the Dublin Circuit Criminal Court

leading to the conviction of the applicant on the buried package charges, the jury disagreed on the discarded packages

charges.

(vii) On the 22nd August, 2000 the applicant lodged an appeal against the convictions in the Court of Criminal Appeal.

(viii) On the 21st of March, 2002 the Court of Criminal Appeal heard the appeal and gave an ex tempore judgment setting

aside the convictions on the basis that the questions put in cross examination to the applicant transgressed permissible

bounds and infringed the provisions of s.1(b) of the Criminal Justice (Evidence) Act, 1924. The Court of Criminal Appeal

was of the opinion that there should be a new trial.

(ix) On the 24th May, 2002 the Director of Public Prosecutions ordered a retrial on all four charges.

(x) On the 24th April, 2002 the applicant's solicitor wrote seeking the results of the forensic examinations of the

dashboard and steering wheel of the applicant's vehicle.

(xi) On the 2nd June, 2002 the date for retrial was set for the 14th October, 2002.

(xii) On the 31st July, 2002 the applicant was given leave to apply by way of judicial review for orders prohibiting the

respondents from proceeding further with the trial of the applicant.

(xiii) On the 26th May, 2005 the application for judicial review was heard by the High Court (Quirke J.)

(xiv) On the 17th June, 2005 the High Court delivered judgment, refusing the applicant's application to prohibit his trial.

(xv) On the 9th August, 2005 Notice of Appeal to this Court was lodged.

(xvi) On the 25th November, 2005 this Court granted the applicant a stay on the prosecutions, pending determination of

this appeal.

3. The High Court described the claim of the applicant as follows:

"It is claimed on behalf of the applicant that he cannot receive a fair trial in due course of law in accordance with the

provisions of Articles 38.1 and 40.4.1 of Bunreacht na hÉireann because the Gardaí who investigated the offences with

which he has been charged, failed to lift, to retain and to properly preserve fingerprints and palm marks from:

(1) the applicant’s motorcar, including the steering wheel and dashboard of the vehicle, and

(2) the outer packaging surfaces of parcels of cannabis resin which were recovered at or near the location where

the offences were alleged to have occurred on 12th May, 1997.

It is contended that the absence of these fingerprints and palm marks has given rise to a real and serious risk that the

applicant, who has already been tried in respect of the charges and now faces a retrial, will not receive a fair retrial in

respect of the offences alleged against him."

4. The High Court

The learned High Court judge refused the application, concluding as follows:-

"… … I do not believe that the absence of any evidence of the results of earlier fingerprint and palm mark testing will or

could result in any possible prejudice to the applicant’s capacity to defend himself in respect of the charges preferred

against him. I do not accept that the absence of that evidence will in any respect expose him to the risk of an unfair

retrial.

It follows that I am not satisfied that the retrial of the applicant should be prohibited on the ground that the Gardaí failed

to obtain and preserve fingerprints and palm marks from the outer packaging surfaces of the parcels of cannabis resin

which were recovered at or near the location where the offences are alleged to have occurred.

In the light of the foregoing, it is unnecessary for me to consider the submissions made on behalf of the respondents

relative to the alleged delay on the part of the applicant in seeking the relief which has been sought herein.

I should point out in passing that the duty which rests upon the prosecuting authorities to preserve evidence and to do

so “as far as is necessary and practicable” is a duty which has been identified repeatedly by the courts before and after

the decision of the High Court (Lynch J.) in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71.

It is noteworthy in the instant case that the applicant’s solicitors sought the results of “any forensic examinations

undertaken” from the State on the 28th March, 1998. The Book of Evidence in the case was delivered to the applicant on

6th February, 1998.

The applicant claimed at his trial that when he read the Book of Evidence in February of 1998 he “…wanted fingerprint

evidence …” If that was so then, in February 1998, the applicant and his advisors considered such evidence to be

relevant to the issues to be determined at his trial.

However, no step was taken on behalf of the applicant to seek the relief which has been sought in these proceedings

until 12th August, 2002.

As I have indicated, however, it is unnecessary for me to consider that aspect of the case since I am not satisfied on the

evidence that the applicant has proved that he is entitled to the relief which has been sought.

Accordingly the relief sought is refused."

5. Grounds of Appeal

The applicant filed many grounds of appeal. However, in essence it was the applicant's case that there is a real risk of an unfair trial

as the investigating gardaí failed to take, retain and preserve fingerprint or palm mark evidence from the outer packaging of the

parcels of cannabis resin recovered at the scene. It was claimed that the failure of the investigating gardaí (on behalf of the Director

of Public Prosecutions) to lift, retain and properly preserve palm and fingerprint marks from the packaging or parcels of cannabis resin

recovered in Chapelizod on the 12th May, 1997, or from the applicant's motor car recovered nearby, gave rise to a real risk of an

unfair trial. It was alleged that the specific unfairness to the applicant is that proper forensic examination would have given him the

opportunity to demonstrate the truth of Mr O'Reilly's testimony by the presence of Mr O'Reilly's fingerprints, and would have given real

value and meaning to the absence of the applicant's own fingerprints. It was claimed that the applicant has been deprived of

potentially exculpatory evidence, that preservation and fingerprinting of the discarded packages would have proved that Francis

O'Reilly in fact handled the packages, and proper preservation and fingerprinting of the dashboard and steering wheel of the

applicant's car would have proved that Francis O'Reilly drove the car to Long Meadows Park on the date of the alleged offences.

6. The Law

The law has been clearly established. As Lynch J. said in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71 at p.76:-

"The authorities establish that evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the

conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to the reasonable possibility of

securing relevant evidence."

The Court was also referred to Braddish v. Director of Public Prosecutions & Anor [2001] 3 IR 127 where this Court confirmed that

evidence relevant to guilt or innocence must, so far as was necessary and practicable, be kept until the conclusion of a trial. Counsel

also opened Dunne v. D.P.P. [2002] 2 IR 305; Bowes v. D.P.P. and McGrath v. D.P.P. [2003] 2 IR 25; D.P.P. v. Cristo, [2005] IECCA 3,

Scully v. D.P.P. [2005] IESC 11, and McFarlane v. D.P.P. [2006] IESC 11.

7. Submissions

Written and oral submissions were received from the parties in this case, which I have considered carefully. Mr Conor Devally S.C.,

counsel for the applicant, stressed that it was the applicant's case that the procedure and findings in respect of fingerprint evidence

were unsatisfactory and that this amounts to a denial of a real opportunity to demonstrate his defence, that a real possibility of

securing relevant evidence was lost. The specific unfairness to the applicant, he submitted, was that proper forensic examination

would have given him the opportunity to demonstrate the truth of Francis O'Reilly's evidence by the presence of Mr O'Reilly's

fingerprints on the surfaces, and would have given real value and meaning to the absence of the applicant's fingerprints from these

surfaces.

Mr Diarmaid McGuinness S.C., counsel for the respondents, submitted, inter alia, that (i) the evidence was preserved, (ii) it was

always the intent that the fingerprint evidence be sought, (iii) this was done, (iv) the applicant has made no request to examine the

evidence, (v) this matter has been ventilated at a trial already, (vi) a retrial has been ordered, (vii) that no cogent case has been

made that the applicant is impaired from mounting his defence, (viii) this matter did not come within the Braddish v. D.P.P.

jurisprudence; and that the Court should not extend the law as stated in Braddish v. D.P.P.

8. Decision

There was a lack of evidence on the fingerprint evidence on the cling film, taken off the bricks of cannabis resin. There was a dearth

of expert evidence on the nature of fingerprint evidence on cling film, the taking of it, the preserving of it, the handling of it, and the

expertise required in such situations. I shall refer to such evidence as there is.

While the pleadings and written submissions also referred to the question of fingerprint evidence in the applicant's car, this was,

correctly in my view, not pressed. The primary matter is the question of fingerprint evidence on the packaging of the bricks of

cannabis resin. It is this aspect which determines the appeal.

Thus this appeal revolves around issues of fact, indeed around the absence of factual evidence.

In this case the parcels were preserved and examined forensically. Evidence of the forensic examination was made available to the

applicant before his trial, and the evidence was given at his trial. The result of the forensic examination was that no fingerprints were

found on the packaging of the parcels.

The applicant's solicitor wrote to the Chief State Solicitor in March, 1998, shortly after receiving the Book of Evidence seeking:

"The results of any forensic examinations undertaken during the investigation of this case."

These were provided in October, 1998.

The State case that he was seen handling the packages was known to him, perhaps at the bail hearing, but certainly from the time

when the Book of Evidence was served on him in February, 1998.

The applicant has never sought to have the packaging forensically examined. It remains open to the applicant to seek such a forensic

examination. The applicant has a duty to seek examinations of any matter of relevance. Yet never, since May, 1997, has the

applicant sought to examine the wrappings in issue. The wrappings exist and could yet be examined.

There is no evidence that the passage of time, or handling, would destroy fingerprints. Garda Short, the arresting and investigating

member of An Garda Síochána, described the situation after the arrest in relation to the packages as follows:-

"Q. In due course, were the packets referred to the fingerprints experts in the Garda Headquarters in Dublin?

A. The packets, in that - there was a lot of evidence to be obtained from each individual packet. I travelled to the Depo,

where I meet with John Power. I explained to John Power the type of case we had, and I explained to him to be careful

with both the packages, with a view to them being sent for fingerprinting.

Q. Did you tell Mr Power that part of your account was that you had seen John Kelly throw the packets into the grass?

A. Yes, that is the account he would have been given, he was given.

Q. That he was not wearing gloves at the time?

A. I can, honestly, say, I wouldn't have said to him that he wasn't wearing gloves, but my intention was - the query was

for him, was several quires to - (1) to analyses what was within the pack age, (2) to analyses the blue dye, and (3) was

a request for fingerprint evidence. They were the three requests that, with regard to the articles recovered, and the

articles given to John Power.

Q. Insofar as the four items, the four packages with the cling film on, can you say were they subjected to fingerprint

analyses.

A. They were subjected to fingerprint analyses at a very late stage. The situation with the cling film, the cling film was

cut off by John Power to retain as much of the outer surface, because it's cling film, and when cling film is wrapped

around an article, it shrinks in and overlaps and overlaps, and to preserve any fingerprints that could have been there it

was cut in a particular position, which could preserve it as best as possible.

It was then transferred from there to the forensic - to the chemistry lab, which is Sheila Willis. She in turn examined it.

Examining the blue dyes, but also keeping in mind the possibility of potential fingerprint examination. She would be in a

position to give evidence in relation to that.

I am satisfied from enquiries, after we recovered the articles from the forensic lab, that fingerprint analyses had not been

done by the time we collected them, and it was at a later date that we sent the plastics back in, but the plastics, as

they had been returned from Doctor Willis, in a sealed bag, retained in the sealed bag, and then as a sort of query they

were sent back to the forensic lab, in the sealed bag, where they were tested for fingerprints.

……

Q. These packets, that were on the ground, discovered by Jake, were the packets that you say that John Kelly throw

away as he was coming towards the exit of the gate?

A. Yes, that is correct.

Q. Here we now know, immediately, that they are cannabis resin, and the question is, do they contain the finger-marks of

John Kelly, or do they not?

A. I had no reason to be concerned with finger-marks at the time, but my concern, at the time, was to, again, the

broader picture, to link one scene with the other scene.

Q. Yes, but if the packets had been delivered directly to the fingerprint people, and having regard to the sample of John

Kelly's fingerprints, taken while he was in Ballyfermot Garda Station, at that stage could it have been dealt with before

you opened the packets?

A. No, the fingerprint section have two methods. I can only tell you from my knowledge, I am not experienced as a

fingerprint person, but they have two methods in which they will examine an article; one, would be examined with powder,

which is not suitable for the plastics. Two, is the most successful way, it is what's called a 'gloom machine'. The gloom

machine would definitely contaminate each individual package if it was to be examined by the fingerprint section.

I was 100% satisfied that Mr. Kelly had handled these two packages, and my intention was to link the two 1 kilos to the

two 5 kilos. That is the direction I took, and I close to take that direction.

Q. You are 100% satisfied, do you think the jury should be 100% satisfied as well, and, therefore, there is no need for

you to send these for fingerprint analyses immediately?

A. Judge, fingerprint analyses would contaminate each individual pack, and, again, would link each individual pack. If a

person was to examine the outer packs, prior to them going to the chemistry section, it would contaminate all packets, …

…"

Detective Sergeant Donahue, who has been attached to the fingerprint section at Garda Headquarters for over 20 years, gave

evidence. He stated:-

"A. That is correct, on the 3rd June of 1998 I received from Detective Garda Short 4 exhibits TS 1, TS 2 TS 13, and TS

14 and he required me to examine these items for fingerprint marks.

Q. I think that these were various plastic wrappings?

A. Well they were actually in four different packages they were cling film four separate piece.

Q. Did you examine them?

A. I examined each of the items for finger and indeed marks with negative results.

Q. And you subsequently returned them back to another Guard, … …?

A. Yes. … …"

The Detective Sergeant, who was an expert on fingerprint evidence, was cross examined by Mr Blaise O'Connell S.C., counsel for the

applicant. His evidence included the following:-

"Q. Mr. O'Carroll: When you carried out your examination was that sometime between the 3rd June and the 17th June

1998?

A. That's correct.

Q. An in respect of an offence that was alleged committed back on the 12th May 1997?

A. Yes.

Q. More than a year later.

A. That's correct My Lord."

He was asked how long a finger mark remains. He answered:-

"A. Very difficult to say My Lord it would be very dependent on the item or the items in question, the conditions of the

weather, whether it was outside or inside, the handling of the package, the time factor indeed would all have a bearing on

it. There is no definitive answer with regard to how I could say that would last any specific length of time.

Q. What would the good practice rule be in terms of checking for fingerprints?

A. The practice to my mind would be carefully handling, packaging and correct examination.

Q. Is there not a time factor in good practice?

A. Yes, well more often than not it would be examined sooner rather than later. I can probably best explain that in

relation to a burglary or a crime that a scene of crime examiner would go out and retrieve evidence and have it examined,

he would do that sooner rather than later.

Q. Just to summarise the position here are we talking about later as opposed to sooner?

A. I would say later."

I am satisfied that there is no evidential basis for the applicant's submissions. In Murphy v. D.P.P. [1989] ILRM 71 at p.79, Lynch J.

set out the relevant test. The authorities are required to preserve articles which may give rise to the reasonable possibility of

securing relevant evidence. The wrappings of the packages have been preserved in this case, and are available to the applicant to

have examined.

I am satisfied that the applicant has not discharged the onus required of him to show that there is a real risk of an unfair trial as the

result of any failure to examine properly and preserve the packaging. There is no evidence of any contrary approach. The evidence

itself is neutral. Also, the applicant has never sought to have an expert analyse for fingerprints. As Hardiman J. states, and with

which I agree, the applicant has not engaged with the facts of this case sufficiently to make out a case that would entitle him to

relief.

I would affirm the judgment of the High Court. The absence of any evidence of fingerprints or palm prints will not expose the applicant

to a real or serious risk of an unfair trial. I reach this decision on the facts of the case. My decision is not a decision on law, nor is it

either expressly or by inference an extension of the law as stated in Braddish v. D.P.P.

Conclusion

For the reasons given I would dismiss the appeal. Because of the passage of time this matter should be brought immediately to the

attention of the Dublin Circuit Criminal Court.