DPP v McDonald

JudgeMr. Justice Gerard Hogan,Mr Justice Peter Charleton
Judgment Date30 June 2022
Neutral Citation[2022] IESC 29
CourtSupreme Court
Docket NumberSupreme Court appeal number: S:AP:IE:2021:000104 High Court Record Number: CCCDP0114/2015
The People at the Suit of the Director of Public Prosecutions
Christopher McDonald

[2022] IESC 29

O'Donnell CJ

Charleton J

O'Malley J

Woulfe J

Hogan J

Supreme Court appeal number: S:AP:IE:2021:000104

Court of Appeal Record Number: 197/17

High Court Record Number: CCCDP0114/2015

An Chúirt Uachtarach

The Supreme Court

Conviction – Murder – Forensic evidence – Appellant seeking to appeal against conviction – Whether forensic samples were taken unlawfully

Facts: The appellant, Mr McDonald, was found guilty by a jury in the Central Criminal Court on 10 July 2017 of the murder of Mr Walker on 12 June 2015 at Blanchardstown Racing Pigeon Club. The appellant appealed to the Court of Appeal on thirteen grounds. The sixth ground was that the trial judge erred in law and in fact in admitting evidence in respect of forensic samples taken from the appellant in circumstances where it had not been established in evidence that the samples were lawfully taken. The Court of Appeal rejected each ground of appeal, holding that “none of the grounds advanced by way of written or oral submission have caused us to doubt the fairness of the trial or the safety of the verdict”. Essentially, the argument put forward on behalf of the appellant in the Court of Appeal was the point advanced on appeal to the Supreme Court, with counsel for the appellant submitting that the samples were taken unlawfully if they were to be deemed taken pursuant to the Criminal Justice (Forensic Evidence) Act 1990 on the basis that the relevant procedures had not been followed, or, if taken on foot of the common law power, as held by the trial judge, the evidence was unlawfully obtained on the basis that it had been obtained on foot of consent in breach of the appellant’s constitutional right of access to a lawyer.

Held by the Court that there was no basis for any ruling that the consensual taking of a blood sample from a person in custody who had been given a notice of rights and who had availed of a telephone conversation with a solicitor was unlawfully taken.

The Court dismissed the appeal.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Thursday 30 June 2022


The issues on this appeal are, firstly, whether an arrested person, by virtue of common law principle, may validly give consent to the taking of forensic samples from his person (usually various plucked and cut hair samples and blood or other DNA by swabbing) notwithstanding that the Criminal Justice (Forensic Evidence) Act 1990, Regulations 1992, s 2 provides a procedure for taking such samples and, secondly, whether the presence of a solicitor is necessary for such consent to be given validly.


The first issue arises by virtue of the necessity to properly consider the issues in the appeal with a view to a proper assessment and is integral to the decision of this Court granting leave to appeal where, [2021] IESCDET 135, the question for appeal was thus stated:

The Court is of the opinion that this case does involve a matter of general public importance regarding the extent of the entitlement of a person in custody to access legal advice in respect of non-mandatory forensic sampling. The Court notes that these issues may arise in other criminal trials in the future and it would be in the public interest to obtain further clarity.


Christopher McDonald was found guilty by a jury in the Central Criminal Court on 10 July 2017 of the murder of Keith Walker on 12 June 2015 at Blanchardstown Racing Pigeon Club. The circumstances were such that investigation into trace elements might be expected to potentially yield material which might be used to establish a link to the perpetrator. In the area of the club, eyewitnesses encountered an individual, who appeared to be a woman. That individual was described by witnesses as wearing a long black wig and women's sunglasses and a cut was noticed over the person's right eye. In so far as the getup was designed to deceive, it was not successful. Witnesses in the neighbourhood testified to having encountered a man in women's clothing who was carrying a handbag. This person asked them for directions to the club; apparently innocently. That individual, however, had a firearm concealed in the handbag draped over their arm. Shortly afterwards, the victim drove up near to the club and parked his car. As he alighted having secured the vehicle, the person dressed as a woman pulled a submachine gun from the handbag, aimed the weapon and opened fire on the victim, killing him.


There is no question raised as to the rationality of the suspicion focusing on Christopher McDonald in consequence of an exhaustive garda enquiry. On 16 June 2015, gardaí went to a public laneway in Sheepmoor Grove and located a handbag, matching the description given by eyewitnesses from the scene of the shooting, a firearm, a wig, a clear disposable glove, and an earplug. The discharged bullets found at the scene of the shooting were of the same type as would be loaded into a machine gun of that type. Prior to recovery of this evidence, on the day after the shooting, on, 13 June 2015, the District Court issued a search warrant for a residence in County Meath. Christopher McDonald appeared to be staying there and he was there arrested. On arrest, gardaí noted him to have what seemed to be makeup on his face and there was a cut over his right eye, similar to a cut described on the individual by the two witnesses from the day of the shooting. He was arrested at 06:10 hours. On arrest, his detention was authorised by the member in charge of Blanchardstown garda station. He indicated on being detained that he was taking methadone 30 ml periodically. He was handed a notice of his rights. He had a two minute telephone call with his solicitor John Quinn; but there was no face-to-face meeting with his legal advisor until later. Shortly afterwards, Christopher McDonald signed a document consenting to the taking of forensic samples. The sampling centred on the discharge of a firearm, which leaves chemical residues on those in the immediate vicinity of firing, resulting from the explosive propellant that drives the bullets. Hence, swabs were taken from him for firearms residue analysis, swabs were also taken for DNA comparisons and a swab of what was suspected to be the makeup on his face.


Subsequent testing yielded a DNA profile from the disposable glove at Sheepmore Grove, which matched the DNA profile of Christopher McDonald, as did one source of the mixture of DNA from more than two sources found on the wig. The finding of two sources means no more than that some other person had handled or worn the wig prior to or after the suspect. Thomas Hannigan, a forensic scientist at the Forensic Science Laboratory, testified at trial that the forensic analysis provided very strong support for the suggestion that the items in question had been worn by the shooter. Hence, the forensic connection established as between the person wielding the machine gun who killed the victim and Christopher McDonald was a key building block of the prosecution case.

Statutory regime

At the time the samples were taken from Christopher McDonald, it was possible to require a suspect in garda custody to give samples in circumstances where an inference might be drawn from refusal but only where the statutory regime was followed. Statutory authority derived from the Criminal Justice (Forensic Evidence) Act 1990 s 2, as amended by the Criminal Justice (Drug Trafficking) Act 1996, the Criminal Justice Act 2006 and the Criminal Justice Act 2007. This is the wording extant at the time since the substantive sections of the Criminal Justice (Forensic Evidence and DNA Database) Act 2014 were not commenced until 20 November 2015. This was after the relevant samples in this case were obtained. The relevant section is quoted as agreed and as reproduced in O'Sullivan, Criminal Legislation in Ireland (2nd edition, Dublin, 2014):

(1) Subject to the provisions of subsections (4) to (8A) of this section, where a person is in custody under the provisions of section 30 of the Offences against the State Act, 1939, section 4 of the Criminal Justice Act, 1984, section 2 of the Criminal Justice (Drug Trafficking) Act, 1996 or section 50 of the Criminal Justice Act 2007, a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely—

(a) a sample of—

(i) blood,

(ii) pubic hair,

(iii) urine,

(iv) saliva,

(v) hair other than pubic hair,

(vi) a nail,

(vii) any material found under a nail,

(b) a swab from any part of the body including the mouth but not from any other body orifice or a genital region,

(c) a swab from a body orifice, other than the mouth, or a genital region,

(d) a dental impression,

(e) a footprint or similar impression of any part of the person's body other than a part of his hand.

(1A) A reference in subsection (1) of this section to the mouth shall be read as including a reference to the inside of the mouth. (2) […]

(2)[Omitted.] (3) [Omitted.]

(4) A sample may be taken under this section only if –

(a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

(b) in the case of a sample mentioned in subparagraph (i), (ii) or (iii) of paragraph (a) of subsection (1) of this section, or in paragraph (c) or (d) of the said subsection (1), the appropriate consent has been given in writing.

(5) An authorisation to take a sample under this section shall not be given unless the member of the Garda Síochána giving it has reasonable grounds –

(a) for suspecting the involvement of the person from whom the sample is to be taken –

(i) in a case where the person is in custody, in the offence in respect of which he is in custody, or


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