DPP -v- Cash,  IESC (2010)
|Docket Number:||206 & 258/07|
|Party Name:||DPP, Cash|
THE SUPREME COURT
Murray C.J. 206 & 258/2007
THE DIRECTOR OF PUBLIC PROSECUTIONS
(AT THE SUIT OF GARDA BARRY WALSH)
JUDGMENT delivered the 18th day of January, 2010 by Mr. Justice Hardiman.
This is a case stated pursuant to s.52of the Courts (Supplemental Provisions) Act. The case was stated on the 21st 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.
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 21st 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."
It appears that the premises in question were a dwellinghouse.
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
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.
Detective Garda Walsh gave evidence that some time after this he received "confidential information" from t he 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 confidential information 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.
On 23rd 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 Garda Technical Bureau that the original unexplained prints had matched TB 15107/2003.
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.
Detective Garda Walsh then requested 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.
At 10.15am Sergeant Bourke, in the presence of Detective Garda Walsh, requested the Accused and his mother to sign a written consent to providing his photograph and fingerprints. It was put to Sergeant Bourke by Counsel for the accused that the Accused was initially anxious not to give his fingerprints. Sergeant Bourke stated that he informed the Accused that if didn't wish to give his consent to have his fingerprints taken, that permission would be sought from a Superintendent. This was explained to the Accused and his mother. He stated that he explained and read...
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