DPP v Boyce

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Denham J.
• Judgment Date: 18 November 2008
• Neutral Citation: [2008] IESC 62
• Court: Supreme Court
• Docket Number: [Appeal No. 292 of 2007],[S.C. No. 292 of 2007]
• Date: 18 November 2008

Between/

Director of Public Prosecutions

Respondent

and

Michael Boyce

Appellant

Denham J.

Geoghegan J.

Fennelly J.

Macken J.

Finnegan J.

[Appeal No. 292 of 2007]

THE SUPREME COURT

Abstract:

Criminal law - Evidence - Forensic evidence - Admissibility - Statutory interpretation - Principles to be applied - Extent to which common law powers affected by introduction of statutory powers in same field - Whether legislative scheme established for taking of bodily samples mandatory - Whether effect of legislative scheme is to deprive Gardaí of facility at common law of taking forensic samples on consent - Whether bodily samples lawfully entered into evidence - Criminal Justice (Forensic Evidence) Act 1990, section 2

Facts: section 2 of the Criminal Justice (Forensic Evidence) Act 1990 gives power to the Gardaí to take bodily samples from a person in custody for the purposes of forensic analysis. Section 2(11) provides that "the powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána." Whilst the defendant was in lawful custody pursuant to section 4 of the Criminal Justice Act 1984, blood samples were taken by Gardaí from him on a voluntary basis which laid the foundation for incriminating DNA evidence used in his conviction for rape. The gardaí did not follow the procedures set out in the Act of 1990 but rather obtained the sample on a voluntary basis from the defendant as they had been entitled to do pursuant to common law. The Court of Criminal Appeal dismissed the defendant's application for leave to appeal but granted a certificate pursuant to section 29 of the Courts of Justice Act 1924 on the question of whether it was lawful for a Garda, when taking a sample of blood from a person in custody who voluntarily agreed to provide that sample for the purpose of forensic analysis, to do so without having invoked the provisions of section 2 of the Criminal Justice (Forensic Evidence) Act 1990.

Held by the Supreme Court in dismissing the appeal and holding that the Garda Síochána had the power at common law to take samples for forensic testing where that was done on the basis of a free and voluntary consent of the person detained.

Per Denham J.: That the powers conferred by section 2 of the Criminal Justice (Forensic Evidence) Act 1990 referred to the power to take or cause to be taken samples within a statutory scheme and were without prejudice to any other powers exercisable by a member of the Garda Síochána.

Per Finnegan J.: That, in construing the Act of 1990, regard should be had to existing state of the law and the object and intent of the Act. Accepting that the Act was penal, section 2(11) did not admit of two reasonable constructions so that the more lenient should be preferred. There was nothing in section 2 to suggest a construction which would exclude the preservation of common law powers and it was in accordance with the ordinary usage of the English language to treat section 2(1) of the Act of 1990 as conferring a power on the Garda Síochána to take bodily samples on consent.

Per Fennelly J., dissenting: That the gardaí were not entitled to take the blood sample without following the procedures laid down by the Act of 1990 and that the DNA was, accordingly, taken unlawfully.

Reporter: P.C.

1 Judgment delivered the 18th day of November, 2008 by Denham J.

2 1. Section 29 Appeal

3 This is an appeal brought by Michael Boyce, "the appellant". His primary appeal is pursuant to s.29 of the Courts of Justice Act 1924, as amended, from the refusal by the Court of Criminal Appeal to grant to him leave to appeal against his conviction in the Central Criminal Court on the 17th November, 2000, on counts of rape, attempted rape, indecent assault and sexual assault.

4 2. The following question for this Court was certified by the Court of Criminal Appeal:

5 Is it lawful for a member of An Garda Síochána when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis to do so without having invoked the provisions of Section 2 of the Criminal Justice (Forensic Evidence) Act 1990?

6 3. Issue

7 It was conceded that the statutory scheme under the Criminal Justice (Forensic Evidence) Act 1990, "the Act of 1990", was not engaged. Therefore, the issue is whether a member of An Garda Síochána was entitled

8 to use the common law in the circumstances of this case

9 4. For the reasons given in this judgment I am of the opinion that the question should be answered in the affirmative. A member of An Garda Síochána was entitled to use the common law in

10 the circumstances of this case.

11 5.

Facts

12 The facts were fully set out by the Court of Criminal Appeal in the judgment of the court delivered by Murray C.J. on the 21st December, 2005. For the purpose of this appeal, which raises matters of law, I gratefully adopt those facts, which I summarise, to explain the backdrop to the question of law arising.

13 6. The appellant was tried in the Central Criminal Court on the following counts:

14 Count No. 1. Indecent assault contrary to Common Law as provided for in s.10 of the Criminal Law (Rape) Act, 1981, on the 31st January, 1983.

15 Count No. 2. Rape contrary to s.48 of the Offences Against the Person Act, 1861 and s.2 of the Criminal Law (Rape) Act, 1981, on 5th January, 1984.

16 Count No. 3. Indecent assault contrary to Common Law as provided for in s.10 of the Criminal Law (Rape) Act, 1981, on the 5th January, 1984.

17 Count No. 4. Rape contrary to s.48 of the Offences Against the Person Act, 1861 and s.2 of the Criminal Law (Rape) Act, 1981, on the 6th October, 1985.

18 Count No. 5. Indecent assault contrary to Common Law as provided for in s.10 of the Criminal Law (Rape) Act, 1981, on the 6th October, 1985.

19 Count No. 6. Rape contrary to s.48 of the Offences Against the Person Act, 1861 and s.2 of the Criminal Law (Rape) Act, 1981, on the 22nd December, 1989.

20 Count No. 7. Sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990, on the 16th August, 1991.

21 Count No. 8. Rape contrary to s.48 of the Offences Against the Person Act, 1861 and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990, on the 10th December, 1994.

22 Count No. 9. Sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990, on the 10th

23 December, 1994.

24 7. The appellant was put on trial on the nine counts set out above. He was found guilty on counts 1, 6 and 7. On counts 2, 4 and 8 he was found guilty of the alternative verdict of attempted

25 rape. On counts 3, 5 and 9 the jury reached no verdict.

26 8. The relevant events occurred between January, 1983 and December, 1994. All offences related to the same victim and took place in her home.

27 9. The appellant was convicted and sentenced to terms of imprisonment from 3 years to 8 years.

28 10. As described in the judgment of the Court of Criminal Appeal, the appellant was found guilty, where he was so found, by a majority verdict. On count no. 1 he was found guilty by a majority verdict of ten to two. On count no. 2 he was found guilty of the offence of attempted rape by a majority verdict of ten to two. No verdict was returned on count no. 3. On count no. 4 the jury returned a verdict of not guilty of rape by direction of the trial judge, and the jury found him guilty of attempted rape by a majority of ten to two. No verdict was returned on count no. 5, as it did not arise in light of the verdict on count no. 4. The appellant was convicted on count no. 6 by a majority of eleven to one. He was convicted on count no. 7 by a majority of eleven to one. He was convicted of the offence of attempted rape in relation to count no. 8 by a majority of ten to two. No verdict was returned on count no. 9, as it did not arise because of the verdict in relation to count no. 8.

29 11. The offences arise from six occasions between January, 1983 and December 1994 when the complainant was either indecently assaulted, or the subject of a sexual assault involving an attempted rape, or rape.

30 12. The complainant at the time was an unmarried woman living alone in a small house in a rural area. The house was relatively isolated. The complainant was born in 1928 and was 55 years of

31 age when the first offence was committed in 1983 and 66 years of age when the last offence was committed in 1994. She was 72 years of age at the time of the trial. The complainant did not give

32 evidence identifying the appellant as her assailant. She gave evidence that it was the same man who sexually assaulted her on each occasion.

33 13. On the first occasion in January, 1983 she was at home

34 in her house when the lights went out. She heard a noise in the hall and found a man there who said he was from the E.S.B.. He

35 made advances to her. She used a stick to try and fend him off. He attempted to rape her. She described him as a person in his thirties, low size, stocky build. She said he smelt of oil. After the

36 event, she ran, in a very distressed state, to her neighbours who called the guards. It was later found that the fuse box had been interfered with. In January, 1984 the complainant was asleep when

37 she heard a noise, a man forced his way in the door, pushed the complainant to the floor, and sexually assaulted her, in the dark. The subsequent events all occurred at her home, when the assailant

38 broke in, and sexually assaulted her, in the dark. On some occasions the assailant used the same phrases, or made reference to a previous occasion, when he assaulted her.

39 14. At the trial the Director of Public Prosecutions, "the D.P.P.", relied on DNA evidence from which it...