DPP v Costigan

JurisdictionIreland
JudgeMacken J.
Judgment Date28 April 2006
Neutral Citation[2006] IECCA 57
Date28 April 2006
CourtCourt of Criminal Appeal
Docket Number[C.C.A.
People (DPP) v Costigan

Between:

The People at the Suit of the Director of Public Prosecutions

AND

Mark Costigan
Applicant

[2006] IECCA 57

Macken J.

O'Neill J.

Herbert J.

8/05

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Evidence

Admissibility - Blood samples -Informed consent - Procured by unlawful means - Court's discretion to exclude - Relevant factors to consider - Trial judge's charge to jury - Whether gardaiÇê considered applicant suspect when blood sample was taken - Whether blood samples obtained by way of trick - Whether there was evidence that consent was not informed - Whether trial judge obliged to exclude blood samples - Whether errors in trial judge's charge to jury capable of remedy by way of recharge - Leave to appeal refused (8/2005 - CCA - 28/4/2006) [2006] IECCA 57

People (DPP) v Costigan

R v WILLIS 1992 7 OR (3D) 337

CANADIAN CHARTER OF RIGHTS & FREEDOMS

SHAABAN BIN HUSSEIN SBH & ORS v CHONK FOOD KAM CFK 1970 AC 942

AG v O'BRIEN 1965 IR 142

DPP v MCMAHON 1986 IR 393

DPP v WALSH 1980 IR 294

1

28th day of April 2006 by Macken J.

2

The Applicant was, on the 10 th of December 2004, by unanimous verdict of a jury following trial at the Central Criminal Court, convicted of the murder of a Ms. Christine Quinn.

The Facts
3

Ms. Quinn's body was found in the afternoon of the 5 th December 2002 at her home in Kilkenny. She had been stabbed approximately 35 times and had fatal injuries to her lung, liver and heart. The evidence established that in the course of the forensic examination of the premises as part of the murder investigation, a number of blood splatters were found. Samples from these were taken and subsequently examined in the Forensic Science Laboratory of the Department of Justice, Equality and Law Reform. The evidence also established that on the 23 rd December 2002 a sample of the Applicant's blood was taken at Kilkenny Garda Station in the presence of a Detective Garda. This sample, and others, were also taken to the aforesaid forensic laboratory on the 27 th December 2002 and tested.

4

According to the Applicant, it was conceded by the prosecution in the course of the trial that the only evidence which tended to connect the Applicant, as accused, with the premises where Ms. Quinn's body was found was DNA evidence arising on the aforesaid tests, purporting to establish a match between blood stains swabbed in the upstairs of the house and a sample of blood taken from the Applicant on the 23 rd December 2002. It is common case that he had been a visitor to the house in the past.

Grounds of Appeal
5

The Applicant seeks leave to appeal his conviction on two grounds: (a) that the learned trial judge erred in law in admitting the blood sample taken from the Applicant on the 23 rd December 2002, and (b) that he also erred in law in refusing to discharge the jury on an application made to him arising from part of the learned trial judge's charge to the jury.

6

As to the first of these grounds, there are two parts to it. Firstly, there was no informed consent given by the Applicant's father, as his guardian, to the taking of blood, the Applicant being at the time 16 years of age. Secondly, the blood sample should have been excluded on the basis that members of An Garda Siochana (hereinafter "an Garda") had misled the Applicant's father by assuring him the Applicant was not a suspect as of the 23 rd December 2002 when he clearly was, and had therefore secured the blood sample by a trick.

7

As to the first of these sub grounds, it is common case between the parties that the taking of a blood sample is technically an assault, and may constitute a violation of the citizen's constitutional right to bodily integrity. According to the Applicant's argument, any consent to it involves a waiver of a constitutional right, and the consent must therefore be both voluntary and informed. It follows that the Applicant's father, as his guardian, had to be informed of his right to withhold consent.

8

The Applicant submits that to constitute a valid informed consent, the prosecution is obliged to establish, beyond reasonable doubt, all of the following criteria:

9

1 That there was a consent, express or implied.

10

2 That the giver of the consent had the authority to do so.

11

3 That the consent was voluntary and not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested.

12

4 That the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent.

13

5 That the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested.

14

6 Finally, that the giver of the consent was aware of the potential consequences of giving the consent.

15

The Applicant invokes a Canadian decision R. v Willis [1992] 7 Or (3d) 337 in support of his argument as to these criteria.

16

According to the Applicant, no consent had been given by his father acting as his guardian, and no caution had been administered to his father in that capacity. While it was admitted that a consent form was signed by the Applicant's father, Counsel for the Applicant, Mr. Coffey, Senior Counsel, argues that there was no evidence that it had been either read over to the father or that he had read its contents before signing it. Counsel further argues that the form of the consent was materially different to the oral caution given to the Applicant's father, Counsel for the Applicant in addition submits that the learned trial judge misdirected himself as to the requisite oral caution which ought to have been administered to the Applicant's father, and as to the onus of proof required, by drawing inferences as to consent from the fact that the Applicant's father raised no issue as to what was happening.

17

For the Respondent Senior Counsel Mr. Owens contends that, although the taking of a blood sample is an invasive procedure, the medical consequences are minimal, and there is no evidence that there was not an informed consent to that medical procedure, nor any evidence to support the proposition that the Applicant's constitutional right of bodily integrity was interfered with unlawfully. He further argues that the evidence clearly demonstrated that both the Applicant and his father were made fully aware of the fact that the blood sample was needed because the Applicant had been a visitor to the house, that blood samples were being sought from a number of people who had previous contact with the house, and that the sample could be used for forensic purposes relating to the investigation. Counsel for the Respondent contends that the Applicant and his father well understood the caution given to each of them which emphasised that they were under no obligation to consent to the giving of a blood sample, and both had signed the consent forms mentioned above.

18

According to the Respondent the Applicant's reliance on the case of R. v Willis, supra, is misconceived as that case was decided on the basis of provisions in the Canadian Charter of Rights and Freedoms relating to "search and seizure". He also argues that in the present case there is no suggestion, and there could be no suggestion, that the Applicant was assaulted by the doctor or by members of the Garda when the blood sample was taken, so that the decision in R v. Willis has no application, even by analogy, in the circumstances of the instant case. Even assuming that the criteria set out in R. v Willis, supra, must all be established beyond reasonable doubt when a blood sample is taken, the Respondent contends that those criteria were satisfied in the present case.

19

As to the second sub ground of the first ground of appeal, it had been argued on behalf of the Applicant in the course of the trial that the consent obtained by Detective Garda Murphy was deficient because (a) the members of the Garda failed to inform the Applicant or his father of the reason for seeking the sample, namely that bloodstains had been found and swabbed at the scene of the murder; and (b) the members of the Garda failed to inform the Applicant or his father of their knowledge that the Applicant was bleeding from his right hand at 5.25 pm on the day of the murder.

20

The Applicant submits the Garda considered him a suspect for the murder as of the 23 rd December 2002 because the breakthrough in the investigation came on the 22 nd December 2002 when a video was viewed, and a statement was taken from a Mr. Paul Murphy. Further, when the Garda applied to the District Court for a search warrant on the 30 th December 2002, they relied solely on that video as well as on the existence of cuts to the Applicant's hand, and made no mention of any matters which allegedly became significant after the 23 rd December 2002.

21

Moreover, the Applicant argues that the purported consent of the Applicant's father was tainted by an assurance given to him that the Applicant was not, as of the 23 rd December 2002, a suspect in respect of the murder. In reality it is argued that the blood sample was procured by means of a type of ruse or trick. Counsel for the Applicant contends that the evidence established that members of the Garda did consider the Applicant to be a suspect, at that date: that as of that date they had not procured any evidence of significance against anybody other than the Applicant: and that although other persons were contacted by telephone and arrangements for the taking of their blood samples were agreed, by appointment, in or about the 31 st December 2002, two members of the Garda actually called to the home of the Applicant to bring him and his father to the garda station on the 23 rd December 2002....

To continue reading

Request your trial
3 cases
  • DPP v Cash
    • Ireland
    • High Court
    • 28 d3 Março d3 2007
    ...2 FREWEN 57 LAW REFORM COMMISSION REPORT ON THE ESTABLISHMENT OF A DNA DATABASE LRC 78 2005 PARA 5.39 DPP v COSTIGAN UNREP CCA 28.4.2006 2006 IECCA 57 JUDGES RULES r1 DPP v BOYCE UNREP CCA 21.12.2005 2005 IECCA 143 CRIMINAL JUSTICE ACT 1984 S18 CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSON......
  • DPP v Masznicz
    • Ireland
    • Court of Appeal (Ireland)
    • 18 d2 Outubro d2 2022
    ...draw it to the attention of the jury that they must adopt, to quote the former Court of Criminal Appeal in The People (DPP) v. Costigan, [2006] IECCA 57, any “rational explanation which can point to innocence.” We would observe that the observation (of Macken J.) in Costigan to which the ap......
  • DPP v Brian Mcginley
    • Ireland
    • Court of Criminal Appeal
    • 14 d4 Março d4 2013
    ...1060 1981 1 WLR 1039 1981 73 CR APP R 124 NORTHERN BANKING CORP v CARPENTER 1931 IR 268 MCGRATH EVIDENCE 2005 93 DPP, PEOPLE v COSTIGAN 2007 4 IR 511 2006 IECCA 57 DPP v RATTIGAN UNREP CCA 19.2.2013 2013 IECCA 3 Criminal law- Criminal procedure- DNA evidence- Blood- Car- Burglary- Evidenc......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT