DPP -v- Cash, [2010] IESC 1 (2010)

Docket Number:206 & 258/07
Party Name:DPP, Cash
Judge:Fennelly J.
 
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THE SUPREME COURT

206 & 258/07Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Macken J.

Finnegan J.

BETWEEN:

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

Respondent/Prosecutor- and -

JOHN CASHAppellant/DefendantJUDGMENT of Mr. Justice Fennelly delivered the 18th day of January 2010

1. This appeal has narrowed down to a single point. Does the prosecution have to prove that material (fingerprints), which is not produced in evidence at trial, but which grounded the suspicion which justified the arrest of the accused, was lawfully obtained?

2. There is a separate point concerning the lawful taking of a second set of fingerprints from the accused while in detention. This does not appear to be any longer in issue and I will refer to it briefly.

3. The appellant appeals against a number of rulings made by Charleton J. in the High Court on a case stated from the District Court.

The Essential Facts

4. The appellant was born on 24th August 1986. He stands charged before the District Court with committing burglary by entering a building at Kylemore Rd, Clondalkin, Dublin 22 as a trespasser on 21st July 2003, with intent to commit the offence of theft, contrary to section 12 (1) (a) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Sub-section 3 of the section provides that a "person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both."

5. The facts are as found by the learned District Judge. They are set out in the case stated, which has been sent forward at the end of the prosecution case. I relate only those facts necessary for an appreciation of the legal points in issue on the appeal. The case is all about three sets of fingerprints, as I will now explain.

6. On 21st of July 2003, Detective Garda Barry Walsh attended at the house at Kylemore Road, where the burglary was alleged to have taken place, and met the owner. A bedroom window had been smashed and property taken. Garda William Jordan found finger marks on two pieces of glass in the window frame. The prints of these finger marks were retained at the Fingerprint Section of the Garda Technical Bureau. The matching of these fingerprints is central to the case. I will call them Prints 2, because they are the second set of prints in point of time.

7. Detective Garda Walsh gave evidence that he later received "confidential information" from the Garda Technical Bureau identifying the accused as a suspect. Having initially insisted that the information was confidential, the Garda told the court that he was referring to information to the effect that Prints 2 had been matched with an earlier set of fingerprints (Prints 1) found on record at the Garda Technical Bureau and said to belong to the accused. Detective Garda Walsh said, in evidence, that he did not know whether Prints 1 had been lawfully taken or lawfully kept by the Gardaí in accordance with the requirements of section 8 of the Criminal Justice Act, 1984.

8. On 23rd September 2003 Detective Garda Walsh arrested the accused pursuant to section 4 of the Criminal Law Act, 1997 on suspicion of commission of an arrestable offence as there defined, namely burglary. In evidence, he agreed that the sole basis for that suspicion was the information that Prints 2, taken from the broken window, had been matched with Prints 1 which were in garda records..

9. Following arrest, the accused was taken to Clondalkin Garda Station and there detained pursuant to the provisions of section 4 of the Criminal Justice Act, 1984. It has not been contended that this detention was unlawful.

10. While he was in detention, the accused signed a written consent to the taking of his photograph and fingerprints. His fingerprints (Prints 3) were accordingly taken by Detective Garda Joseph Maguire. The Gardaí maintained in the District Court that they were taking the fingerprints on the basis of the consent of the accused and not pursuant to the statutory power conferred by section 6 of the Act of 1984 to take fingerprints from a person detained pursuant to section 4 of that Act. They would, on the other hand, have resorted to the statutory power, if the accused had refused consent. Insofar as the admissibility of Prints 3 is raised in the case stated and on this appeal, it must be assumed that the prints were taken with the consent of the appellant. Whether there was consent in fact is a matter for the learned District Judge to decide, having heard all the evidence. At this point, she has merely said that she is minded to admit the evidence. It is entirely possible that, having heard all the evidence, she will decide that Prints 3 were not taken with the consent of the appellant.

11. Prints 3 were produced to Detective Garda Gannon, a fingerprint expert. His evidence was that he was satisfied beyond doubt that Prints 2 and 3 were made by the same person.

12. Detective Garda Gannon also gave evidence regarding Prints 1. He produced these fingerprints which bore the name of the appellant and were dated 31st March 2002. He did not know whether those prints had been taken pursuant to section 6 of the Act of 1984. It was put to him that he could not "stand over whether these prints were lawfully taken or kept" and he agreed. The potential significance of this point is that section 8 of the Act of 1984 requires, subject to certain conditions, that a fingerprint and any record of it taken pursuant to section 6 be destroyed after six months, if there is no prosecution. Prints 1 were taken more than six months before the burglary of July 2003.

District Court Proceedings and Case Stated

13. The proceedings were conducted before Judge Aingeal Ní Chondúin, a judge assigned to the Dublin Metropolitan District, sitting at the Children's Court at Smithfield commencing on the 14th of October 2003. The substantive hearing took place on 30th January 2004. Some prosecution evidence was then heard. The matter was adjourned for further evidence and, for various reasons, from time to time. Ultimately it came on for further hearing on 20th December 2004, when further evidence was given.

14. At the end of the prosecution case, counsel for the appellant submitted that there was no case to answer. He sought a direction. It was common ground that the fingerprints represented the only evidence. The learned judge indicated that she was "minded to admit all the prosecution evidence and on that basis that the prosecution had made out a prima facie case and the accused had a case to answer."

15. The learned judge decided to present a consultative case stated to the High Court pursuant to the provisions of section 52...

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