Title: Kelly -v- DPP SUPREME COURTJudgment delivered December 21st, 2007, by Denham J, sitting with Mr Justice Hardiman and Ms Justice Macken, who concurred.
JUDGMENT
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, Mrs Justice Denham found. She stated this was on the facts of the case, adding that her decision was not a decision on law, nor was it either expressly or by inference an extension of the law as stated in Braddish v. D.P.P.
The case was an appeal brought by John Kelly against a decision of the High Court to refuse to prohibit his retrial in the Dublin Circuit Criminal Court on drug charges.
BACKGROUND
On May 12th, 1997, John Kelly was arrested and charged with offences under s.3 and s.15 of the Misuse of Drugs Acts. There were four counts, which related 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 May 12th, 1997. There were two incidents: the first two counts related to the possession of two bricks of cannabis resin, which the prosecution alleged the applicant threw onto the grass as he approached the exit with another person. Counts three and four related to two bricks of cannabis resin found by the Garda Síochána buried a few inches beneath the surface of the park.
In July, 2000, there was a six-day trial in the Dublin Circuit Criminal Court leading to the conviction of Kelly on the buried package charges. The jury disagreed on the discarded packages charges. On August 22nd, 2000, he lodged an appeal against the convictions in the Court of Criminal Appeal.
On March 21st, 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.
On May 24th, 2002, the Director of Public Prosecutions ordered a retrial on all four charges. Kelly then brought judicial review proceedings in the High Court seeking to stop the retrial going ahead.
In the High Court he claimed he could not receive a fair trial in due course of law in accordance with the provisions of Articles 38.1 and 40.1 of Bunreacht na hEireann because the Gardai who investigated the offences failed to lift, to retain and to preserve properly fingerprints and palm marks from his car and from the outer packaging of parcels of cannabis resin which were recovered at or near where the offences were alleged to have occurred.
Mr Justice Quirke refused the application, stating: "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."
Kelly then appealed to the Supreme Court. Among the many grounds of appeal was that he had been deprived of potentially exculpatory evidence, that preservation and fingerprinting of the discarded packages would have proved that another man, 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.
Submissions were received from Mr Conor Devally, SC, for the DPP and from Mr Diarmuid McGuinness, SC, for Kelly.
DECISION
In giving her decision, Mrs Justice Denham stated that 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.
"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."
She said she was satisfied that there was no evidential basis for the applicant's submissions and that the applicant had not discharged the onus required of him to show that there was a real risk of an unfair trial as the result of any failure to examine properly and preserve the packaging. She affirmed the judgment of the High Court.
The full judgment is available on www.courts.ie.
Solicitors: Philip Hannon and Co, Capel Building, Dublin 7 (for the Applicant); Chief Prosecution Solicitor (for the Respondent)