DPP (at the suit of Detective Garda Barry Walsh) v John Cash

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Mr. Justice Hardiman.
• Judgment Date: 18 January 2010
• Neutral Citation: [2010] IESC 1
• Date: 18 January 2010
• Court: Supreme Court
• Docket Number: [S.C. Nos. 206 and 258 of 2007]

DPP (Garda Walsh) v Cash

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA BARRY WALSH)

Respondent/Prosecutor

and

JOHN CASH

Appellant/Defendant

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF DETECTIVE GARDA BARRY WALSH)

Respondent/Prosecutor

- and -

JOHN CASH

Appellant/Defendant

[2010] IESC 1

206/2007

206 & 258/07

THE SUPREME COURT

CRIMINAL LAW

Evidence

Fingerprints - Admissibility of evidence - Reasonable suspicion - Basis for reasonable suspicion - Exclusionary rule - Whether burden of proof on prosecution to show that upon which reasonable suspicion founded lawfully obtained - Whether exclusionary rule could be extended to material grounding reasonable suspicion leading to arrest - People (DPP) v Kenny [1990] 2 IR 110 and DPP v McCreesh [1992] 2 IR 239 distinguished; Hussein v Chong Fook Kam [1970] AC 942, O'Brien v Special Criminal Court [2007] IESC 45, [2008] 4 IR 514, Oladapo v Governor of Cloverhill Prison [2009] IESC 42, (Unrep, SC, 20/5/2009), Dunne v Clinton [1930] IR 366 and People (DPP v Shaw [1982] 1 IR 1 considered - Criminal Justice Act 1984 (No 22), ss 4, 6 and 8 - Accused appeal dismissed (206 & 258/2007 - SC - 18/1/2010) [2010] IESC 1

DPP (Walsh) v Cash

Facts: The issue arose on appeal as to whether the prosecution had to prove the material (fingerprints) which was not produced in evidence at trial but which grounded the suspicion which justified the arrest of the accused, was lawfully obtained. The accused was charged with committing a burglary with intent to commit theft, pursuant to s. 12(1)(a) and (3) Criminal Justice (Theft and Fraud Offences) Act 2001. Central to the case were fingerprints found at the crime scene which were matched with prints on records. Evidence was given that the Gardai were uncertain as to whether the prints had been lawfully taken or lawfully kept by the Gardai, having regard to the provisions of s. 8 Criminal Justice Act, 1984. The accused had been arrested on suspicion of commission of an arrestable offence. The District Judge had presented a consultative case stated to the High Court as to the admission of the evidence of the fingerprints. The issue arose as to whether the "absolute protection rule of exclusion" in People (DPP) v. Kenny [1990] 2 IR 110 regarding the admissibility of unconstitutionally obtained evidence in criminal trials could be extended to encompass the lawful provenance of facts which did not form part of the evidence at trial but provided the basis for the suspicion to arrest the accused.

Held by the Supreme Court per Fennelly J. that the appellant had not established that an onus rested upon the prosecution to establish the lawful provenance of material relied upon by a member of the Gardai or that the material was obtained without breach of a constitutional right to form a reasonable case justifying arrest. The Court would dismiss the appeal and affirm the order of the High Court. Otherwise, the appellant would blur the distinction between the arrest and the trial. The first was an essential prerequisite of the second. The Courts had always been astute to control the exercise of powers of arrest to ensure that they were lawfully used and they were not abused. If material could not be admitted in evidence, it could not justify a reasonable suspicion that an offence had been committed Per Hardiman J.: The questions posed by the learned District Judge lacked a sufficient evidential basis and were to that degree moot and it was inappropriate to answer them. The lengthy discussion on the general topic of legally obtained evidence in the High Court decision was obiter. The Court would remit the proceedings to the District Court to proceed.

Reporter: E.F.

COURTS (SUPPLEMENTAL PROVISIONS) 1961 ACT S52

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12(1)(A)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S3

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1984 S6

CRIMINAL JUSTICE ACT 1984 S8

DPP v BOYCE UNREP CCA MURRAY 21.12.2005 2005 IECCA 143

DPP v KENNY 1990 2 IR 110

DPP v BOYCE 2008 IESC 62 2009 1 ILRM 253

CRIMINAL JUSTICE (FORESNSIC EVIDENCE) ACT 1990 S2

DPP, PEOPLE v KENNY 1990 2 IR 110

DPP v MCCREASH 1992 2 IR 239

CRIMINAL JUSTICE ACT 1997 S4

AG, PEOPLE v O'BRIEN 1965 IR 142

WALSH CRIMINAL PROCEDURE ROUNDHALL DUBLIN 2002 176

OLADAPO v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 20.5.2009 2009 IESC 42

IMMIGRATION ACT 2004 S13

O'BRIEN v SPECIAL CRIMINAL COURT 2008 4 IR 514

DUNNE v CLINTON 1930 IR 366

DPP v SHAW 1982 1 IR

BRENNAN & ORS v GOVERNOR OF PORTLAOISE PRISON 2008 3 IR 365 2008 IESC 12

1 JUDGMENT delivered the 18th day of January, 2010by Mr. Justice Hardiman.

2 Fennelly J. |Murray CJ, Geoghegan, Macken & Finnegan J concurring|, Hardiman J.

3 This is a case stated pursuant to s.52of the Courts (Supplemental Provisions) Act. The case was stated on the 21 ^st July, 2005 by Judge Aingal Ní Chonduin, a judge of the District Court assigned to the Dublin Metropolitan District and sitting at the relevant time in the Childrens Court at Smithfield, Dublin.

Background facts.

4 John Cash, who was then below the age of majority, was charged with the offence of entering a building as a trespasser with intent to commit an arrestable offence therein, contrary to s.12(1)(a) and (3) of the Criminal Justice (Fraud and Theft Offences) Act, 2001. The specific terms of the charge against him were as follows:

"For that you, the said accused did on the 21 ^st July, 2003, at St. Martin's, Kylemore Road, Clondalkin, Dublin 22 in the Dublin Metropolitan District, did enter a building known as "St. Martin's", Kylemore Road, Clondalkin, Dublin 22 as a trespasser with intent to commit an arrestable offence towit theft therein."

5 It appears that the premises in question were a dwellinghouse.

6 The relevant evidence given by prosecution witnesses is summarised by the learned District Court Judge as follows:

RELEVANT FACTS AS GIVEN IN EVIDENCE BY PROSECUTION WITNESSES

7 3. Detective Garda Barry Walsh arrived at St. Martin's, Kylmore Road, Dublin 12 on the 21 July 2003 and was met there by the owner of the house, Rosin Walsh who told him that in her absence a bedroom window had been smashed and that property had been taken from the house. Detective Garda Walsh left the scene and contacted the Garda Divisional Scenes of Crime Office and requested a technical examination. That technical examination was conducted by Garda William Jordan on 22 July 2003. Garda Jordan gave evidence that he found finger marks on two pieces of glass in the window frame of St. Martin's, Kylmore Road. He lifted these prints and brought them to the Fingerprint Section in the Garda Technical Bureau on 23 July 2003 where they were given a number TB 15107/2003, put into an envelope, signed and sealed by Garda Jordan.

8 4. Detective Garda Walsh gave evidence that some time after this he received "confidential information" from the Garda Technical Bureau identifying one John Joseph Cash, the Accused, as a suspect in this case. During cross examination Detective Garda Walsh was asked by Counsel for the Accused if he was aware of the evidence grounding the arrest. He stated that it was confidentialinformation and to disclose it to the court would be prejudicial to the accused. Under cross-examination by Counsel for the Accused, Detective Garda Walsh stated that the "confidential information" he was referring to was information that the prints taken from St. Martin's and given the number TB 15107/2003 had been matched with a set of fingerprints of one John Joseph Cash on record at the Garda Technical Bureau. It was put to Detective Garda Walsh by Counsel for the accused that he had no knowledge as to how the print match had been made. He agreed. It was also put to Detective Garda Walsh that he did not know whether the fingerprints with which TB 15107/2003 had been matched (herein after referred to as the "original unexplained prints") had been lawfully taken and lawfully kept by Gardaí in accordance with the requirements of section 8 of the Criminal Justice Act, 1984. He agreed with this.

9 5. On 23 ^rd September 2003 Detective Garda Walsh, accompanied by Garda Brian O'Shaughnessy, arrested the Accused at his home at 24 Labre Park, Ballyfermot, Dublin 10 under the provisions of section 4 Criminal Law Act 1997 on suspicion of commission of an arrestable offence, namely burglary. Under cross-examination, Detective Garda Walsh stated that the sole basis of the suspicion for the arrest was the information he had received from the GardaTechnical Bureau that the original unexplained prints had matched TB 15107/2003.

10 6. Detective Garda Walsh cautioned the Accused and brought him to Clondalkin Garda Station, having informed his parents Michael and Ellen Cash that they would be required to come to Clondalkin Garda Station as soon as practicable, as their son was under 18 years of age. Garda Walsh, Garda O'Shaughnessy and the Accused arrived at Clondalkin Garda Station at 8.10am. The Accused was given a written notice of his rights by Garda Connel Treanor.

11 7. Detective Garda Walsh then req uested that the member in charge, Sergeant Philip Bourke, detain the Accused under the provisions of section 4 of the Criminal Justice Act, 1984. Detective Garda Walsh informed Sergeant Bourke that he was carrying out an investigation into the burglary at St. Martin's and that as a result of prints taken from the scene, the Accused had been "nominated" as a suspect by the Garda Technical Bureau. On the basis of this information Sergeant Bourke detained the Accused under the provisions of section 4.

12 8. At 10.15am Sergeant Bourke, in the presence of Detective Garda Walsh, requested the Accused and his mother to sign a written consent to...