DPP v Graham Corbally

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 25 March 2021
• Neutral Citation: [2021] IECA 87
• Docket Number: Record Number: 254/19
• Court: Court of Appeal (Ireland)
• Date: 25 March 2021

Between/

The Director of Public Prosecutions

Respondent

and

Graham Corbally

Appellant

[2021] IECA 87

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 254/19

THE COURT OF APPEAL

Conviction – Possession of a firearm in suspicious circumstances – Chain of evidence – Appellant seeking to appeal against conviction – Whether there was an absence of a direct evidential link from the taking of a DNA sample to the exhibit before the court

Facts: The appellant, Mr Corbally, on the 22nd October 2019, was convicted of three counts, namely: possession of a firearm in suspicious circumstances; possession of ammunition in suspicious circumstances, contrary to s. 27A of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006 and as amended by s. 38 of the Criminal Justice Act 2007; and possession of a firearm without a firearms certificate contrary to s. 2 of the Firearms Act 1925, as amended. The appellant appealed to the Court of Appeal against conviction. The appeal centred on the chain of evidence concerning a swab taken from the appellant for the purpose of DNA analyses. The appellant argued that there was an absence of a direct evidential link from the taking of the sample by Garda Geraghty to the exhibit before the Court. In particular, the appellant pointed to the lack of evidence given by Garda Geraghty in relation to the completion of an FTA card. In arguing that the prosecution failed to prove the clear chain of custody the appellant referred to Whelan v DPP (Unreported, ex tempore, High Court, 2nd February 2009) and The People (DPP) v Hawkins [2014] IECCA 36.

Held by the Court that it was clear from the evidence that there was no break in the chain of evidence regarding the sample. The Court held that this was confirmed by the evidence of Ms McCahey and Dr Clarke; Ms McCahey received the bag from the exhibits officer, labelled the bag and handed it directly to Dr Clarke. The Court held that the details on the FTA card corresponded with the evidence given by the witnesses, and on the evidence, the card was clearly included in the kit furnished to the forensic science laboratory. Insofar as the absence of the original evidence bag was concerned, this did not, in the Court’s view, impact on the integrity of the evidence. The Court looked to the actual evidence adduced, the bag was conveyed by the exhibits officer to the laboratory, evidence was given of it being received there and labelled with the laboratory’s ID and handed directly by way of person to person transfer to Dr Clarke. The Court concluded that the trial judge properly exercised her discretion in permitting the evidence. The Court held that any possible concerns regarding the completion of the FTA card or the absence of the evidence bag, being the matters relied upon by the appellant, were foursquare within the jury’s consideration, to assess and weigh and conclude if the required standard of proof had or had not been reached by the respondent, the Director of Public Prosecutions. The Court held that this was not a case where there was an absence of proof that the swab analysed was the swab taken from the appellant, on the contrary, the necessary witnesses and the necessary evidence were adduced in order to prove the chain of evidence.

The Court held that the appeal would be dismissed.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered on the 25 ^th day of March 2021 by Ms. Justice Isobel Kennedy.

1 . This is an appeal against conviction. On the 22nd October 2019 the appellant was convicted of three counts, namely, possession of a firearm in suspicious circumstances; possession of ammunition in suspicious circumstances, contrary to section 27A of the Firearms Act 1964, as substituted by section 59 of the Criminal Justice Act 2006 and as amended by section 38 of the Criminal Justice Act 2007; and possession of a firearm without a firearms certificate contrary to section 2 of the Firearms Act 1925, as amended.

Background

2 . On the 18th January 2017 members of An Garda Síochána attended the Johnstown Gardens area in Finglas on foot of information that there was a person present in possession of an illegal firearm. Upon arrival at the location, Sergeant Mullan observed the appellant standing on the footpath. He and Detective Garda O'Hare alighted from the garda vehicle and approached him. The appellant ran away and a chase ensued. Sergeant Mullan observed that he was holding a bulky item within his jacket. Upon reaching number 115 Ballygall Parade, Mr Corbally ran into the front garden, removed the package from inside his jacket and threw that into the rear garden. The package was described by Sgt. Mullan as being shotgun shaped, wrapped in plastic and with green electrical tape. He then jumped the garden wall to access the rear garden, retrieved the package and threw the package into the garden of number 113, he again jumped over the wall into that garden from where he threw the package into the rear garden of number 121. Sergeant Mullan remained there to secure the item and directed his colleague as to the appellant's direction of travel. The appellant travelled towards the Ballygall Crescent area where he was apprehended by Gardaí. Sergeant Mullan retrieved the package from the rear garden of House 121. An examination of the items found was carried out at Finglas garda station. The items found included a sawn-off shotgun and several rounds of ammunition within a latex glove.

3 . This appeal centres on the chain of evidence concerning a swab taken from the appellant for the purpose of DNA analyses. The background lies in a buccal swab taken by Garda Geraghty while the appellant was detained on foot of an authorisation granted pursuant to s.13(2) of the Criminal Justice (Forensic Evidence and DNA Database System) Act, 2014. The swab was conveyed to Forensic Science Ireland for analyses which disclosed that the DNA profile obtained from the swabs taken from the shotgun and from the inside of the latex glove matched that of the appellant.

4 . The first point raised is that the sample was placed in a sealed pack and labelled BG1, which was then marked as exhibit 11 at trial, however, exhibit 11 was an empty plastic bag which bore no markings of BG1. Secondly, it is argued that the respondent failed to recall Garda Geraghty in order to identify an ‘ FTA’ card from which the DNA sample was generated.

5 . No issue is taken with the authorisation granted, the conveyance of the exhibits to Forensic Science Ireland or the subsequent analyses. Consequently, the appellant relies on a single ground of appeal in the following terms:

“The learned trial judge erred in law and in fact in refusing an application by counsel for the appellant in relation to the chain of evidence concerning the DNA sample of the appellant in circumstances where documents were lost, misplaced or not properly retained in accordance with best practice and procedure as is required in a criminal trial, therefore resulting in all the circumstances of an unsafe and unsatisfactory conviction.”

The DNA evidence

6 . Garda Brian Geraghty gave evidence that on the 18th January 2017 he took a buccal swab from inside the appellant's mouth. The process involved the witness taking a swab from a sealed container, swabbing the inside of the cheek, replacing the swab in the container, sealing the container and the entire swabbing kit is then sealed. In the present case, the item was labelled as BG1. Garda Geraghty handed the kit to Garda Redmond O'Leary, the exhibits officer.

7 . In cross-examination, Garda Geraghty accepted that the exhibit handed to him was an empty bag which did not have BG1 written upon it and he could not say definitively that the bag handed to him in evidence was the bag in which he had placed the swabbing kit.

8 . Garda O'Leary gave evidence that he transferred BG1 to the Forensic Science Laboratory on the 27th January 2017 and handed it to Ms. Ciara McCahey, Executive Officer of Forensic Science Ireland.

9 . Ms McCahey gave evidence that she received a bag bearing the marking BG1 and what she described as an FTA card of the appellant on the 27th January 2017 from Garda O'Leary. She placed a sticker on the bag bearing the laboratory ID: C17/00706/002/01. The bag was transferred by her to Dr Hilary Clarke on the same date by way of a “person to person transfer”. The witness explained that an FTA card is a DNA sample contained on a piece of paper, together with other written details.

10 . Dr Hilary Clarke was asked about BG1, described as C17/00706/00201 and identified a tamper-evident bag in which the FTA card was originally contained. She confirmed that she opened the bag, which she identified as BG1 which came into the lab on the 27th January 2017 containing an FTA card with the appellant's swab on it, which she analysed.

11 . She explained that the laboratory retains the FTA card and the empty bag in which it was contained is returned to the exhibits officer. The card itself was destroyed, however, a photocopy of the card was maintained and was exhibited during the voir dire. The card contained information concerning the appellant, such as his date of birth, the date the sample was taken and by whom.

12 . Counsel for the defence argued that there were lacunae in the chain of custody which rendered the DNA evidence inadmissible.

The trial judge's ruling

13 . The trial judge summarised the salient question as being whether she could be satisfied to the standard of beyond reasonable doubt that the copy of the FTA card that Dr Hilary Clarke worked on contained the information taken by Detective Garda Geraghty on the 18th January 2017. In concluding that she could be so satisfied the trial judge outlined the relevant evidence as to chain of custody as follows:-

“Detective Garda Geraghty's evidence confirms the steps taken by him with...