Supreme Court dismisses appeal prohibiting trial due to fingerprint evidence chain of custody issues.

THE SUPREME COURT

JUDICIAL REVIEW

[Appeal No. 489/2013]

Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

Dunne J.

BETWEEN

LUKE KEARNS

APPLICANT/APPELLANT

v.

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Ms. Justice Dunne delivered the 6th day of March, 2015

The appellant brought judicial review proceedings seeking to prohibit his trial before the Circuit Criminal Court on foot of a bill of

indictment bearing the number 1354/11. He was unsuccessful in his proceedings and has appealed to this Court from the refusal of

the relief sought in the proceedings before the High Court.

Background

On the 22nd July, 2009 there was a burglary at the home of a family in Tallaght. At the time, the family who resided in the home were

away on holiday in Kerry. The gardaí were called to the property by a neighbour and on arrival it was observed that the house had

been forcibly entered and ransacked. Various items had been stolen including phones, jewellery, alcohol and a digital camera. Garda

David Pidgeon came to the house as part of the “scenes of crime” Unit and he lifted finger marks from a Kodak camera box that had

allegedly been handled by the culprit.

Subsequently, on the 22nd February 2011, the appellant was arrested by gardaí investigating the burglary and following his arrest, his

fingerprinted. He was interviewed and then charged with burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and

Fraud) Offences Act 2001. He was remanded in Tallaght District Court from time to time until the Director of Public Prosecutions

directed that the matter be sent forward for trial and ultimately the appellant was served with the book of evidence on the 9th

November, 2011.

The case was then listed in the Dublin Circuit Court on the 2nd December, 2011 and thereafter adjourned to the 14th February, 2012

for mention and a date for trial was then fixed for the 11th July, 2012.

It is not in dispute that the primary evidence against the appellant at any trial will be fingerprint evidence. That being so, the

appellant’s solicitors, Messrs. Whelan Murtagh Solicitors, by letter dated the 4th April, 2012 wrote to the Chief Prosecution Solicitor

stating that it was intended to engage a forensic consultant to carry out independent analysis on the fingerprint evidence in the

case. They requested disclosure relating to the fingerprint evidence including copies of the alleged fingerprints and such other

documents as were used to identify the appellant together with details of the member of the gardaí who carried out the analysis

including their qualifications. By letter dated 12th June, 2012, the Chief Prosecution Solicitor replied stating that:

“[T]he Kodak camera box was not seized by the gardaí at the time the fingerprint was lifted off it and it has not been

retained by the complainant. Therefore, the camera box will not be available for inspection.”

Thus this is a case in which the appellant seeks to prohibit his trial on the basis of missing evidence. Curiously, given the letter from

the Chief State Prosecution Solicitor explaining that the camera box was not seized by the gardaí at the time the fingerprint was lifted

off it, it was listed as one of the exhibits in the book of evidence served on the appellant. However, nothing turns on this point.

The decision of the High Court

The learned President of the High Court dealt with the matter in a short ex tempore judgment. He identified the test applicable on the

issue before him as follows:

“[I]s there a genuine risk of an unavoidably unfair trial arising by virtue of the fact that the camera box from which the

fingerprint was lifted is no longer available?”

He noted that there was conflicting evidence on the issue before him and he referred to the evidence that he had before him, giving

rise to the conflict. He went on to observe that the remedy of prohibiting a trial was something that should only be granted in

exceptional cases and “very, very cautiously”. He was not satisfied that this was such a case. He emphasised the fact that it was for

the applicant in such a case to satisfy the Court that it was appropriate to make such an order. He concluded that it was not a case

where he believed that the fact that the camera box was missing would produce an unavoidably unfair trial. Accordingly he refused

the application.

The evidence

Garda Raymond Gannon, a detective garda with the fingerprint section of the Garda Technical Bureau, swore an affidavit on the 16th

October, 2012 in relation to this matter. In his affidavit he said:

“In my capacity as a fingerprint expert I examined the finger mark on the finger lift card labelled “DP1” and endorsed as

“lifted from Kodak camera box in front sitting room” and I compared it with an electronic set of ten prints bearing the

name Francis Kearns, 35 Kilcarrig Close Tallaght, Dublin 24. I am satisfied beyond all doubt that the person who made the

finger mark is the same person who made the left middle impression and palm print on the form bearing the name of

Francis Kearns. I also examined the fingerprints taken from Luke Kearns on 22nd February 2011 and I also found these to

be identical. I now believe all the comparison sets of fingerprints are those of Luke Kearns who had previously given an

incorrect name when arrested and his prints were recorded under the name ‘Francis Kearns’. I therefore believe Luke

Kearns made the finger mark preserved on ‘lift card’ ‘DP1’.

5. On 21st June 2012 Caroline Tweedy, an independent expert retained by the applicant, attended Garda Headquarters

where she examined the fingerprint lift- cards and the comparison prints of the applicant. We afforded her full co-

operation and she received copies of all materials and I cannot think of any way in which the applicant is prejudiced or his

ability to defend himself compromised.

6. In my wide experience of giving evidence in criminal cases, fingerprint evidence is generally given by reference to the

fingerprint lift cards taken from a crime scene as compared with the fingerprints taken from a suspect. I believe these are

the appropriate reference materials given that the tape lifting of a finger mark removes it from the location where it is

originally found and transfers it to the ‘lift card’ with the end result that the lift card is the only place where the finger

mark continues to exist and can be examined. I further believe that this procedure of transferring the print to a lift-card is

the best way of preserving the finger-mark.”

Garda David Pidgeon also swore an affidavit on the 10th October, 2012. He explained how he conducted the technical examination at

the scene of the burglary and in the course of his examination he lifted the finger marks from the Kodak camera box that had allegedly

been handled by the culprit. He explained the process of developing those marks using fingerprint development powder and lifting

them with fingerprint lifting tape and then placing the “tape lifts” onto fingerprint “lift cards”. He filled in the reverse of the cards with

the date and details of examination. He brought the fingerprint lift cards to the fingerprint section at Garda Headquarters. He went on

to explain as follows:

“I did not retain the camera box from which I lifted the prints because: firstly, I developed and lifted all the finger marks

that were on the box as described above, and by so doing I effectively transferred the finger marks from the box to the

‘lift cards’ such that the fingerprints were then on the lift cards and no longer on the box. As there was then nothing left

on the box I believe the box was of no further significance. Secondly, I believed the evidence which could identify the

alleged culprit, namely the finger marks that had been taken from the box and placed on the cards was then retained for

production in any court proceedings and/or would be available for examination by or on behalf of the defence such a

suspect be identified. Thirdly there was no suspect identified and anything seized would have to be retained indefinitely;

fourthly, on the basis of my experience, if a finger mark is found at a crime scene and is matched to a suspect, as

happened in this case, I believe it is the fingerprint as lifted that constitutes the evidence tending to place a suspect at a

scene rather than the item upon which the print was found. I believe the inquiry then shifts to determining how the

fingerprint came to be at the scene in the first place.”

He went on to explain his experience of the examination of crime scenes and observed that fingerprints can be lifted from various

items ranging from items like jewellery boxes to items such as doors or cars. He pointed out that it was not possible to retain every

item upon which a print has been found and added that there were insufficient storage facilities to store all such items and further

pointed out the major inconvenience to the owners of property if every item had to be removed and retained for a long period. I think

there is force in that contention. One can only imagine the difficulty that could be caused for the victim of a crime if an item such as

a car was required to be retained because there was a fingerprint found on it, not to mention the difficulty that would be caused if a

fingerprint was found, for example, on the front door of a house. The difficulty of storage of such items never mind the inconvenience

to the owners of the items need hardly be pointed out.

An affidavit was sworn by Catherine Tweedy who is a forensic scientist employed by Keith Borer Consultants. She was asked to give

her opinion on a forensic analysis of the fingerprint evidence in this case on behalf of the appellant. It is necessary to set out at some

length the averments in her affidavit so that one can identify the extent of the conflict of evidence between the parties which was

referred to by Kearns P. in the course of his judgment. She stated:

“7. To create a fingerprint lift, powder is applied to a contact mark found on a surface. That powder is then lifted from

the surface on fingerprint lift tape and normally placed upon a piece of card or acetate. When one removes the fingerprint

powder one does not fully remove the contact mark from the surface, rather one lifts the fingerprint powder from the

surface. That is why one can quite commonly make second lifts. The principle of making second lifts is taught when

training in scene examination techniques.

8. Quite commonly fingerprint tape will lift the excess powder and leave the fingerprint itself on an item. Theoretically if a

contact mark is very fresh and has only been created by sweat, there may be no mark left after a lift is made but in

practice, the fact is that even when contact marks are created by sweat alone residue of the contact mark is left.

9. To the best of my knowledge, I have never examined a box where there was no part of a contact mark left upon it

after a fingerprint lift was taken. Even if it was the case that there was no part of the contact mark left upon a box, an

examination of the box would enable one to examine background detail that can confirm or refute an allegation that a

specific lift came from a specific box.

10. In this case, I was informed by Detective Garda Jennings that a Kodak Camera Box, that was alleged to have had

contact marks on it was not retained and is not available for analysis. I am, therefore, prevented from examining the item

to confirm or refute the alleged origins of the fingerprint lift, labelled DP1 that I have been shown.

11. The background detail in the contact marks within the lift shown to me, the lift labelled ‘DP1’, was such that I have a

high expectation that I could link the lift directly to the specific box that it came from if I was provided with access to

that box. I have previously examined dozens of boxes in various cases and in different cases I have been able to both

confirm and refute the fact that fingerprints were taken from specific boxes. . . .

13. I also understand that no photographs of the Kodak Camera Box were taken in situ or at all. Taking photographs of

contact marks in situ is another easy way to demonstrate what items they were found on, where those items were

located and the orientation of the fingerprints. Such photography would only take a short amount of time require very

little digital storage and can be vital in demonstrating continuity of fingerprint evidence.

14. I say that from a photograph of a contact mark in situ it is possible to confirm whether the fingerprint lift one is

examining was lifted from that contact mark.”

A replying affidavit was furnished by Detective Garda Gannon who confirmed that on examination of the finger mark “DP1” he found

nothing to indicate that the finger mark came from any other source other than a camera box and he noted that Ms. Tweedy did not

claim that there was anything to suggest the print came from any other type of surface or background. He also noted that Ms.

Tweedy having examined the print did not purport to suggest that the fingerprint was other than that of the appellant herein.

It is relevant to note that in this case, the identification of the appellant as a suspect did not occur until February 2011 and that it

was not until the 11th July, 2012 that a trial date was first fixed for the trial of the appellant some three years after the burglary had

occurred. Therefore it should be observed that if it was necessary to retain the Kodak camera box, that it would have been

necessary to do so at least until that date.

I should refer very briefly to a further affidavit of Garda David Pidgeon sworn on the 25th March, 2013 in which he took issue with the

thrust of Catherine Tweedy’s affidavit to the effect that she cannot verify that he is telling the truth as to how and where he

obtained the finger marks of the appellant. He refuted the suggestion or imputation that he may have obtained the finger marks in any

other place than the burgled family home on the 23rd July, 2009.

He reiterated that after he lifted the relevant finger marks from the camera box, he placed them on the lift card and filled in the

details on the back of the cards.

A final issue related to the fact that photographs of the camera box were not available. By way of additional evidence a number of

photographs were made available of the interior of the property that had been burgled. Complaint was made that the photographs did

not contain a picture of the Kodak camera box in situ. In fact, the photographs provided had been taken by the alleged injured parties

and there was no photo of the camera box.

The appeal

The appellant is appealing the decision of the learned President of the High Court on the following grounds:

“1. That the learned trial judge erred in law and in fact in refusing to grant the applicant an order of prohibition by way of

judicial review, prohibiting the respondent, her servants or agents, from taking any further steps in the prosecution of the

applicant herein in respect of the matters alleged to have occurred in and the subject matter of Bill of Indictment No.

1354/11 currently pending before Dublin Circuit Criminal Court.

2. That the learned trial judge erred in law and in fact in refusing to grant the applicant an order in the nature of an

injunction restraining the respondent, her servants or agents from taking any further steps in the prosecution of the

applicant herein on foot of Bill of Indictment No. 1354/11 currently pending before Dublin Circuit Criminal Court.

3. That the learned trial judge erred in law and in fact by holding that the Gardaí did not have a duty to preserve the

evidence in the case against the applicant.

A further ground relied on in the notice of appeal to the effect that the learned trial judge erred in law in applying a test that required

the applicant to show that he faced an unavoidable risk of an unavoidably unfair trial in order to be granted an order of prohibition by

way of judicial review is no longer relied upon by the appellant.

Discussion

There have been many cases over the years in which the duty of the Gardaí to preserve evidence relevant to guilt or innocence, so

far as is necessary and practicable until the conclusion of a trial had been considered, giving rise to a body of law colloquially

described as “missing evidence” cases. The duty to preserve evidence is not a standalone duty. It is derived from the basic right of

any individual to fair procedures in the prosecution of an offence. The alleged breach of this duty has led to a multiplicity of

applications by way of judicial review to prohibit or injunct a trial on the basis that relevant evidence had not been preserved and

consequently that an accused person would not obtain a fair trial. The law in this area was comprehensively reviewed by this Court in

the case of Wall v. The Director of Public Prosecutions [2013] IESC 56. MacMenamin J. at p. 2 of the judgment stated as follows:

“It is by now well established that the onus rests on an accused who seeks judicial review to prohibit a trial to prove that

circumstances exist which give rise to a real risk that the accused would not receive a fair trial, which cannot be avoided

by appropriate rulings and directions on the part of the trial judge (see Z. v Director of Public Prosecutions [1994] 2 I.R.

476 and D. v Director of Public Prosecutions [1994] 2 I.R. 405). The risk must be a real one, and the unfairness of the

trial must be unavoidable. It is well settled, too, that there is a duty on the gardaí to obtain, and to keep track of items

of real evidence relevant to the case (McFarlane v Director of Public Prosecutions [2007] 1 I.R. 134). This judgment

concerns the former situation; it hinges on what is claimed to be ‘unobtained evidence’. It is said here the gardaí should

have obtained this evidence at, or before, a defined point in the course of that investigation. It is contended that the

failure then to obtain such evidence now gives rise to a real risk of an unfair trial. The issues in the case are whether the

appellant, Mr. Jason Wall, can establish that there is, in fact, a real risk of an unfair trial, and whether that risk derives

from a failure in duty by the investigating gardaí.”

As in that case, the contention herein is that the gardaí should have obtained and preserved the item on which a finger mark was

found from which the finger print was subsequently lifted. It is then contended that the failure to obtain and preserve the Kodak

camera box gives rise to a real risk of an unfair trial. Accordingly, it is for the appellant in this case to demonstrate that there is a real

risk of an unfair trial and whether that risk derives from a failure by the investigating gardaí to preserve the camera box.

Missing evidence cases

A series of cases including Braddish v. DPP [2001] 3 I.R. 127, Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305, Bowes v.

Director of Public Prosecutions [2003] 2 I.R. 25, have considered the applicable law in missing evidence cases. As I mentioned, the

law in this area has been reviewed comprehensively in the Wall case referred to above. Denham C.J. in her judgment in that case

stated at page 3 of her judgment summarised the applicable principles:

“In Savage v. Director of Public Prosecutions [2009] 1 I.R. 185, I reviewed relevant case law and held: –

‘(i) each case should be determined on its own circumstances;

(ii) it is the courts' duty to protect due process;

(iii) it is the duty of An Garda Síochána to preserve and disclose material evidence;

(iv) this duty to preserve and disclose material evidence is to do so as far as is necessary and practicable;

(v) the duty to disclose and preserve, as qualified by Lynch J. in Murphy v. Director of Public Prosecutions [1989] I.L.R.M.

71 cannot be precisely defined as it is dependent on all the circumstances of the case;

(vi) the duty does not require the gardaí to engage in a disproportionate commitment of manpower and resources;

(vii) in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in

certain circumstances for the gardaí to have a forensic report on the object;

(viii) the duty should be interpreted in a practical manner on the facts of the case;

(ix) if evidence is destroyed the reason for the destruction, whether bona fide or mala fide, is part of the matrix of the

facts, but it is not a relevant factor in the test to be applied by the court;

(x) all of the above are subject to the fundamental test to be applied by the court, that of ‘real risk’ as described by

Finlay C.J. in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506: –

‘This court in the recent case of D. v. Director of Public Prosecutions [1994] 2 I.R. 465 unanimously laid down the general

principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that

circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by

reason of those circumstances (which in that case also were pre-trial publicity) he could not obtain a fair trial.’

He continued at page 507:

‘where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial

which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the

unfairness of trial must be unavoidable unfairness of trial.’

(xi) the focus of the inquiry is on the issue of the fairness of the intended trial, and not on shortcomings in the garda

investigation. It is not a garda disciplinary process.”

In the course of argument, considerable reliance was placed by Mr. O’Loughlin, S.C. on the decision in the case of McFarlane v.

Director of Public Prosecutions [2007] 1 I.R. 134 in which it was made clear that in the absence of real items of evidence, such as the

item/items on which fingerprints were found, photographs may be admissible in their stead. In that case, the items from which

fingerprints were taken were initially preserved but then lost by the gardaí. The forensic analysis of the items and photographs of the

items in situ were still available. The prosecution intended to rely upon the fingerprint lifts taken from the items. The applicant sought

to prohibit the trial in the absence of those items and was successful in the High Court. However, on appeal the applicant’s case was

dismissed. Hardiman J. observed at page 144 as follows:

“. . . it is true, as the trial judge pointed out, that there was in fact a forensic examination of the missing items prior to

their disappearance and that the results of the forensic analysis have been preserved. It appears from the book of

evidence, exhibited by the applicant, that there is a chain of evidence covering the identification of the fingerprints on

the items, the photographing of the fingerprints on the items and the preservation of the photographs. These

photographs are available for comparison purposes: they have in fact been compared with the applicant's fingerprints and

are available, if desired, for further comparison on behalf of the applicant. A significantly different situation would arise if

this independent comparison were not possible. No attempt has been made in the present case to suggest that

meaningful comparison is not possible, using the photographs, or that any additional advantage might have accrued to the

applicant on the basis of a comparison with the actual marks made on the items as opposed to photographs of them.”

Relying on that decision together with what was described by Mr. O’Loughlin, S.C. as the universal practice in relation to fingerprint

evidence of photographing finger marks in situ, it was contended that as a matter of law there must be available either the object

from which finger marks have been lifted or, alternatively, photographs of the finger marks in situ on the item from which the

fingerprint has been taken.

The core of the argument made on behalf of the appellant finds some resonance in one of the points noted by Denham C.J. referred

to above in Wall: “in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in

certain circumstances for the gardaí to have a forensic report on the object” and as the object in this case, the camera box, is not a

large item but a small cardboard box in which a camera was purchased it was argued that it was quite practicable for the gardaí to

preserve it. It was emphasised that the fingerprint evidence is the primary evidence, indeed, the only evidence, on which the

prosecution rely to allege that the appellant can be connected with the burglary in this case. Reliance was also placed on the well

known decision in Braddish v. Director of Public Prosecutions previously cited and the more recent case of Stirling v. Director of Public

Prosecutions [2014] IESC 13. That was a case in which identification based upon CCTV footage viewed by a member of the gardaí

was at issue. The garda in question had viewed an incident live on CCTV but the footage viewed by the garda was subsequently lost.

The garda was in a position to give evidence of what he had seen. It was held by the Court (Mac Menamin J.) that the trial of the

applicant in that case should be prohibited and he stated as follows:

“The entire essence of the prosecution and defence must be identification; the only objective verifying evidence has

become lost through neglect and failure to preserve the material. None of the ‘list’ of issues identified by counsel for the

appellant, set out earlier in the judgment, can, therefore, be properly pursued at trial. Instead, a District Court judge will,

inevitably, be faced with a procedural impasse; the reliability of the main witness as to fact cannot be tested in the most

obvious way. The defence will be prevented from relying on evidence, which it was the duty of the gardaí, not only to

preserve, but to make available both to the defence and to the court (see Braddish, and the other authorities to that

effect cited in Wall). To the extent that the precept of continuity applies, it must, in this exceptional instance, yield to

the vindication of the appellant’s constitutional right to a fair trial in the circumstances where the trial simply should not

proceed. This is because a main building-block of the case, material plainly within the reasonable scope of the

investigation, has been lost by the prosecution.”

Not only was the Kodak camera box herein not preserved but no photographs of the camera box were taken in situ or at all. Ms.

Tweedy in her affidavit said that there was value in taking photographs of contact marks in situ. In fact, it appears from the replying

affidavits that no photographs were taken at the scene of the burglary by the gardaí. Some photographs which are available were

taken by the family whose home was burgled (but did not show the camera box).

There is undoubtedly a conflict in the evidence between Ms. Tweedy and Detective Garda Gannon as to whether or not any mark

would have been left on the camera box showing the tape lifting of the finger mark. Given that there was such a conflict in the

evidence on affidavit before the learned President, it is perhaps surprising that no attempt was made to resolve that conflict by the

cross-examination of witnesses before the President. That conflict remains and it is not possible on the evidence before this Court to

resolve that conflict.

During the course of the submissions in this case it was suggested by counsel on behalf of the appellant that the standard practice in

relation to fingerprints was to take photographs of the finger marks in situ. There was no evidence on behalf of the appellant to this

effect. Obviously that had occurred in the McFarlane case referred to above. The furthest that the matter is put is in the affidavit of

Garda Raymond Gannon at para. 6 when he stated that:

“In my wide experience of giving evidence in criminal cases, fingerprint evidence is generally given by reference to the

fingerprint lift cards taken at the crime scene as compared with the fingerprints taken from a suspect. I believe these are

the appropriate reference materials given that the tape lifting of a finger mark removes it from the location where it is

originally found and transfers it to the ‘lift card’ with the end result that the lift card is the only place where the finger

mark continues to exist and can be examined. I further believe that this procedure of transferring the print to a lift card is

the best way of preserving the finger mark.”

In a subsequent affidavit Garda Pidgeon who took the lift of the finger mark and placed it on the lift card said that he was not a

photographer and did not photograph the scene or any of the items at the scene and pointed out that that was not something that

he did. Thus the Court is being asked to deal with this aspect of the matter on the basis of a submission as to the “standard

practice” of taking photographs of fingerprints in situ but there is no evidence before the Court as to the standard practice, if any.

Decision

The question to be determined in this case is whether there is a genuine risk of an unavoidably unfair trial. It has been contended

that the appellant cannot have a fair trial by reason of the failure of the gardaí to preserve the Kodak camera box and, failing that, by

reason of the fact that the gardaí did not photograph the finger mark on the Kodak camera box in situ. This Court is faced with the

practical problem that there is a conflict of evidence as to whether or not any finger mark would remain on the camera box following

the lifting of the fingerprint from the box. Further, the suggestion that the standard practice in such circumstances is to photograph

the fingerprint is one on which there is no evidence before this Court and it is simply not possible to say what is the standard practice

in this regard. It goes without saying that if this trial proceeds, the issue as to whether or not fingerprint evidence should be

admissible in this case will focus on whether or not the chain of evidence in relation to the fingerprint evidence is complete if one of

the links is missing, namely the Kodak camera box or in the alternative photographs of the Kodak camera box in situ. At a trial the trial

judge would have the opportunity to hear the evidence of the relevant gardaí and Ms. Tweedy as to the issue of the effect of taking

a fingerprint lift from a box such as the one described. The conflict between the gardai and Ms. Tweedy could be fully ventilated

before the trial Court and it would be a matter then for the trial judge to determine whether, depending on the findings of the trial

judge in that regard, the trial could proceed. Equally, the issue of the photographing of finger marks or fingerprints in situ would be

possible to ventilate and the trial Court would be in a position to determine whether or not it is standard practice to photograph

fingerprints in situ, at least where it is not possible to preserve the item on which the fingerprint is found.

This case concerns the duty on the gardaí to preserve evidence. Fingerprint evidence can be of great significance in the context of

any criminal trial. An accused person may deny having been present in a particular place and the finding of that person’s fingerprint in

the place concerned will obviously be very significant and relevant. The duty of the gardaí to preserve evidence has been considered

in a large number of cases and I have previously referred to the principles identified by Denham J. (as she then was) in the case of

Savage v. DPP. As was noted by Denham J., when enumerating the principles to be applied, the duty to preserve and disclose material

evidence is to do so as far as is necessary and practicable. That is something which should be borne in mind. Fingerprints can be

found in many different places and on many different items. However in some circumstances it simply may not be practicable for the

gardaí to preserve the item as opposed to the fingerprint. Clearly photographs of finger marks have been used in the past when the

item on which the finger mark appears has not been preserved. That is not to say that if an item cannot be preserved by the Gardaí

that it must then be photographed. I would not like to reach any conclusion on this point without evidence of either (a) the general

practice adopted by the gardaí in regard to the photographing of fingerprints and (b) the effectiveness and value of photographs of

that kind. I think it is also important to bear in mind the practicalities involved in preserving or photographing such items. Presumably

if the duty on the gardaí was to preserve either the item or to photograph an item from which a fingerprint was obtained it would

require the gardaí in every instance to dispatch for the investigation of crimes not just the person who is in a position and trained to

develop finger marks such as Garda David Pidgeon but also gardaí who were trained in the photographing of such finger marks. One

must have regard to the issue of the commitment of manpower and resources to the investigation of certain offences. The resources

and manpower available to the gardaí are not unlimited.

At an earlier part of this judgment I referred to the passage from the judgment of MacMenamin J. in the case of Wall v. DPP to the

effect that the onus rests on an accused who seeks judicial review to prohibit a trial to prove that circumstances exist which give

rise to a real risk that the accused would not receive a fair trial which cannot be avoided by appropriate rulings and directions on the

part of the trial judge. It would also be of assistance to refer to a passage from the judgment of O’Donnell J. in the case of Byrne v.

DPP 2011 1 I.R. 346 at p. 356 where he stated:

“In my view, having considered the decided cases, the position has now been reached where it can be said that other

than perhaps the very straight forward type of Braddish case, it would now require something exceptional to persuade a

court to prohibit a trial. This in my view is in accordance with principle. The point was made in McFarlane v DPP & Special

Criminal Court [2007] 1 IR 134 that the fact that an applicant was unsuccessful in judicial review proceedings did not

detract from the power and duty of a court of trial to assess the case developed at the trial….

The constitutional right the infringement of which is alleged to ground an applicant’s entitlement to prohibit a trial, is the

right to fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution. The manner in which the

Constitution contemplates that a fair trial is normally guaranteed, is through the trial and, if necessary, appeal processes

of the Courts established under the Constitution. The primary onus of ensuring that that right is vindicated lies on the

court of trial which will itself be a court established under the Constitution and obliged to administer justice pursuant to

Article 34. It is in my view therefore, entirely consistent with the constitutional order to observe that it will only be in

exceptional cases, that superior courts should intervene and prohibit a trial, particularly on the basis that evidence is

sought to be adduced (in the case of video stills) or is not available (in the case of CCTV evidence itself)….

It is also relevant in my view, that the trial court retains the discretion to exclude the still photographs if the court comes

to the conclusion that producing them in the absence of the original video evidence would be unfair to the accused.”

It is important to emphasise yet again that the jurisdiction to prohibit a trial is one which should only be exercised in exceptional

circumstances. It does not seem to me that the appellant in this case has discharged the onus of proving that the circumstances in

this case, namely the fact that the Kodak camera box on which the finger mark was found was not preserved or, alternatively, that

the finger mark was not photographed in situ on the camera box is such that it gives rise to a real risk that the accused would not

receive a fair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The evidence available

to this Court does not permit of any other conclusion. Quite simply, the appellant has not discharged the onus of proving “that

circumstances exist which give rise to a real risk that the accused would not receive a fair trial…”

Echoing the comments of O’Donnell J. to which I have just referred, I would make the observation that it is for the trial judge to

ensure that the appellant’s right to a fair trial guaranteed by the Constitution will be vindicated by making appropriate rulings on the

issues before the court of trial. Thus, it will be a matter for the trial judge having heard evidence on the matters at issue between the

prosecution and the appellant to decide whether or not the evidence as to the appellant’s fingerprints is admissible. The trial judge

will have the advantage of hearing the evidence of the Gardaí and Ms. Tweedy as to whether anything of use would be left on the

camera box following the process by which the finger mark is lifted from the box. The trial judge will also have the advantage of

hearing evidence as to what the practice is in relation to photographing of finger marks in situ and indeed the effectiveness of such

photographs. Given the state of the evidence before this Court on these issues, it seems to me that the issues raised are matters

which are best left to the trial court to determine.

In all the circumstances I would dismiss the appeal herein.