Allen v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 18 December 2003
• Neutral Citation: 2003 WJSC-CCA 365
• Date: 18 December 2003
• Docket Number: [C.C.A No. 92 of 2002]
• Court: Court of Criminal Appeal

2003 WJSC-CCA 365

COURT OF CRIMINAL APPEAL

McCracken J

Kelly J.

Abbott J.

Record No. 92/02

ALLEN v. DPP

Between

Kenneth Allen

Applicant

-v-

The Director of Public Prosecutions

Respondent

Citations:

DPP V MAGUIRE 1995 2 IR 286

Synopsis:

CRIMINAL LAW

Appeal

Evidence - DNA evidence - Statistical probabilities - Whether statistical significance of evidence sufficiently explained to jury - Whether danger that jury could regard expert evidence as infallible when it was not - Whether re-trial should be ordered on basis that trial unsafe (92/2002 - Court of Criminal Appeal - 18/12/2003)

Allen v DPP - [2003] 4 IR 295

Facts: The applicant was convicted by a jury of, inter alia, armed robbery. DNA evidence linking hair samples from a balaclava found by the gardaí to the applicant was before the jury. The applicant sought leave to appeal his convictions on the ground that relevant evidence had not been before the jury and also sought to admit that additional evidence, the tenor of which was that he had siblings, one of whom had been convicted of a criminal offence and that the probability of DNA profiles matching among siblings was one in ten thousand as opposed to one in one thousand million for unrelated persons. The respondent complained that the applicant had been unable to bring that evidence within any one of the accepted rules for the admission of additional evidence. The applicant, in the alternative, complained that the expert witness evidence was misleading in that it did not disclose any probability findings in relation to siblings to the jury and there was evidence before the jury that the applicant had at least one brother.

Held by the Court of Criminal Appeal (McCracken J; Kelly and Abbott JJ) in granting leave to appeal and ordering a re-trial that one of the primary dangers involved in relying on expert evidence on technical matters was that a jury could jump to the conclusion that that evidence was infallible. That was not so in the case of DNA evidence. That the additional evidence sought to be admitted by the applicant did not come within any of the accepted rules for the admission of additional evidence and would not, accordingly, be admitted. However, the court had an obligation to ensure that justice was done. While the evidence was not admissible at the leave to appeal stage, the failure to elicit the actual statistics concerning siblings had the potential to confuse or mislead the jury into believing that, even among siblings, an increased probability starting from a base of one in one thousand million would still be so improbable that they could disregard it.

Reporter: P.C.

1 Mr Justice McCracken on the 18th day of December, 2003.

2 The applicant was convicted on 8 ^th May 2002 of armed robbery and of possession of a firearm with intent to commit an indictable offence. He was sentenced to 11 years imprisonment on each count, such sentences to run concurrently.

3 The prosecution alleged that the applicant, together with two other persons, entered McDonald's restaurant in Douglas in Cork in the early hours of 4 ^th September 2000. The Gardai were alerted while the raid was taking place and one of the raiders was arrested on the premises. The other two escaped by threatening their pursuers, including members of the Gardai, with a shotgun. All the raiders were wearing balaclavas, and subsequent to the raid certain items of clothing were found near the premises, which the prosecution allege were discarded after the raid. Among those items was a piece of cloth which it is alleged had been used as a balaclava, and it was found in a shrubbery some short distance from the McDonalds premises.

4 This item was sent to Dr. Maureen Smith, who is a forensic scientist employed by the Department of Justice and she extracted DNA samples from the cloth. Her one person, which were distinguishable as major and minor profiles. Dr. Smith also received a sample of hair from the applicant, and gave evidence that the major DNA profile matched that of the applicant, while she was unable to identify any match for the minor DNA profile. This was the primary evidence against the applicant.

5 There was also a security video running in the premises which apparently filmed the events of the raid, but as all the raiders were wearing balaclavas the video itself was of little use in identifying them. However, a still photograph was taken from the video which showed one of the raiders leaving the premises having taken off the balaclava and the prosecution alleged that this identified the applicant. This still photograph was shown to the jury, but when the prosecution sought to call evidence from Garda officers who could identify the accused as being the person in the photograph, such evidence was objected to on behalf of the applicant on the basis that it could be extremely prejudicial, as influencing the jury to believe that the applicant was, in the well known phrase, known to the Gardai, and therefore by inference that he had a criminal record. Quite rightly in the view of this court, such evidence was excluded by the learned trial judge, but the effect of this was that the photograph was put before the jury with no further evidence to identify the person in the photograph as the applicant.

6 The two matters at issue in this appeal are in relation to these two matters. The court proposes to deal with them separately.

The photograph identification

7 A very similar situation to that in the present case arose in the Director of Public Prosecutions v. Maguire [1995] 2 I.R. 286,which was a decision of this court. In that case, as in the present...