DPP v Murphy

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date13 October 2016
Neutral Citation[2016] IECA 287
Docket NumberRecord No. 248/2015
CourtCourt of Appeal (Ireland)
Date13 October 2016
The Director of Public Prosecutions
Respondent
- and -
Eamon Murphy
Appellant

[2016] IECA 287

Record No. 248/2015

THE COURT OF APPEAL

Conviction – Aggravated burglary – Admissibility of evidence – Appellant seeking to appeal against convictions – Whether trial judge erred in law in finding that the retention by An Garda Siochana of a DNA sample beyond the time limits allowed by statute was not in breach of the appellant's constitutional rights

Facts: The appellant, Mr Murphy, was convicted by a jury at Longford Circuit Criminal Court on 19th February 2015 of one count of aggravated burglary, contrary to s. 13(1) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, and one count of unlawfully using a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act 1961. On 23rd October 2015, the appellant was sentenced to ten years imprisonment, with the final three years of that sentence suspended on conditions, in relation to his conviction for aggravated burglary, and a one year sentence of imprisonment in respect of the unlawful taking of the vehicle. The sentences were ordered to be served concurrently. The appellant appealed to the Court of Appeal against these convictions on the grounds that the trial judge erred in law in: 1) finding that the retention by An Garda Siochana of the DNA sample taken from the appellant on 22nd November 2011 beyond the time limits allowed by statute was not in breach of the appellant's constitutional rights; 2) finding that the results of the examination of the DNA sample taken from the appellant on 22nd November 2011 was admissible as evidence in the trial; 3) admitting evidence based on DNA sample retained by An Garda Síochána in breach of the appellant's constitutional rights.

Held by Mahon J that the DNA sample was taken lawfully and was initially lawfully retained. Mahon J noted that during the period in which it was lawfully retained a "match" was identified, and there followed a direction from the respondent, the DPP, to prosecute on indictment; thereafter the legal authority to retain the sample expired, and its continued retention became unlawful. Mahon J held that it was a matter within the discretion of the trial judge as to whether or not the evidence in controversy should be admitted; her decision to admit the evidence, in the circumstances of the case, was not an error of principle.

Mahon J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 13th day of October 2016 by Mr. Justice Mahon
1

The appellant was convicted by a jury at Longford Circuit Criminal Court on 19th February 2015 of one count of aggravated burglary, contrary to s. 13(1) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, and one count of unlawfully using a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended by s. 65 of the Road Traffic Act 1968, and as amended by s. 18 of the Road Traffic Act 2006). This is an appeal against these convictions.

2

On 23rd October 2015, the appellant was sentenced to ten years imprisonment, with the final three years of that sentence suspended on conditions, in relation to his conviction for aggravated burglary, and a one year sentence of imprisonment in respect of the unlawful taking of the vehicle. The sentences were ordered to be served concurrently.

The background facts
3

On 3rd July 2011, at about 3.30 a.m. a couple (Mr. Higgins and Ms. Reilly) were awoken by a noise in their home outside Ballymahon in Co. Longford. Mr. Higgins went downstairs to investigate the noise. As he entered the kitchen, he was confronted by a man with a Dublin accent, wearing a hoody, and wielding a large kitchen knife, which he proceeded to hold against Mr. Higgins's throat. He was told to return upstairs immediately, otherwise he would be killed. In the meantime Ms. Reilly telephoned the gardaí from an upstairs telephone. From his upstairs bedroom window, Mr. Higgins witnessed the theft of his E220 Mercedes from his driveway and it being driven away behind a black coloured vehicle, which he had earlier noticed parked immediately outside his house and which had a visibly damaged front.

4

Mr. Higgins's car was later found crashed and burned out near Strokestown in Co. Roscommon. Inside were a number of items which had been stolen from his home, including a laptop and two televisions.

5

Earlier, an incident had taken place at Main Street, Longford. CCTV footage at a nightclub premises in the town showed two men leaving the nightclub and getting into a black Volvo car. Shortly afterwards the black Volvo car rear ended another car, pushing that car into collision with an unmarked Garda car in which Gda. Orla Geraghy was the observer. The black Volvo car then reversed at speed and drove towards Ballymahon, Co. Longford. Gda. Geraghty recognised the driver, (who was not the appellant), and the car was subsequently traced to an address at Roosky in Co. Roscommon. The car was seized by the gardaí, and its examination established the presence of impact damage to the front grill and displacement of the front bumper which was consistent with the description of the damaged front of the black car which Mr. Higgins noticed parked outside his house.

6

Other CCTV footage showed the two occupants of the black Volvo car leaving the car at Main Street, Longford before entering the nightclub. At trial, there was identification evidence of the appellant being one of these individuals.

The grounds of appeal
7

The appeal is essentially concerned with the retention of the DNA sample taken from the appellant on 22nd November 2011. In his Notice of Appeal the appellant lists the following grounds:-

(a) the learned trial judge erred in law in finding that the retention by An Garda Siochana of the DNA sample taken from the appellant on 22nd November 2011 beyond the time limits allowed by statute was not in breach of the appellant's constitutional rights;

(b) the learned trial judge erred in law in finding that the results of the examination of the DNA sample taken from the appellant on 22nd November 2011 was admissible as evidence in the trial;

(c) the learned trial judge erred in law in admitting evidence based on DNA sample retained by An Garda Síochána in breach of the appellant's constitutional rights.

8

At this Court's request, additional and most helpful written submissions were provided by both parties in relation to, inter alia, the constitutional rights to bodily integrity and privacy in the context of these proceedings, and in the light of the recent judgment of this court in DPP v. Harty [2016] IECA 142.

The relevant legislative provisions
9

In relation to the date of this offence, the relevant statutory provisions are to be found in the Criminal Justice (Forensic Evidence) Act 1990 (the Act of 1990), as amended by the Criminal Justice Act 2006 (the Act of 2006). Subsequently, and currently, the relevant legislative provisions are to be found in the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014.

10

Section 2 of the Act of 1990 (as amended) provides An Garda Síochána with the power to take or cause to be taken from a person for the purpose of forensic testing certain types of samples, from a list of stated samples in s. 2(1). Section 4 of the Act of 1990 (as amended) provides for the destruction of such samples.

11

Section 4 of the Act of 1990 (as amended) provides (to the extent relevant) as follows:-

'4(1) Subject to subsection (5) of this section, every record identifying the person from whom a sample has been taken pursuant to section 2 of this Act shall, if not previously destroyed, be destroyed as this section directs, and every sample identified by such record shall be destroyed in like manner.

(2) Where proceedings for any offence in respect of which a person could be detained under section 30 of the Offences against the State Act, 1939, or section 4 of the Criminal Justice Act, 1984, or section 2 of the Criminal Justice (Drug Trafficking) Act 1996, or section 50 of the Criminal Justice Act 2007 are not instituted against the person from whom the sample was taken within twelve months from the taking of the sample, and the failure to institute the proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction of the record and the sample identified by such record shall be carried out on the expiration of that period unless an order has been made under subsection (5) of this section.

(5) If a court is satisfied, on an application being made to it by or on behalf of the Director of Public Prosecutions, or the person from whom the sample was taken, that there is good reason why records and samples to which this section applies should not be destroyed under this section, it may make an order authorising the retention of such records and samples for such purpose or period as it may direct.'

The facts relating to the taking of the sample
12

The sample was in fact taken to facilitate a comparison of the appellant's DNA profile with a DNA profile generated from a blood stain which was found at the crime scene on 25th July 2011. On 22nd November 2011, the appellant was arrested and the relevant sample was taken for the said forensic purposes using a DNA kit. This sample was received by the Forensic Science Laboratory on 23rd November 2011, and the DNA Kit was returned to the gardaí on 23rd January 2012. On 30th October 2012 the DPP issued the direction to charge the appellant. The appellant was arrested and charged on 8th January 2013 with the offences of which he was later found guilty.

13

The proceedings against the appellant did not commence until 8th January 2013, some fourteen months after the taking of the Buccal sample. This was well outside the twelve month period from...

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2 cases
  • DPP v Roche, Roche, & Freeman
    • Ireland
    • Court of Appeal (Ireland)
    • 19 December 2019
    ...his discretion to admit the evidence. 43 In admitting the evidence, the trial judge relied on the decision of The People (DPP) v. Murphy [2016] IECA 287 and noted that: “It seems to me that it is relevant to consider or not whether there had been or the more real question is whether there h......
  • Criminal Assets Bureau v Mannion
    • Ireland
    • High Court
    • 17 December 2018
    ...it is possible that the State can provide a reason to justify the current absence of such a policy (See, for example, DPP v. Murphy [2016] IECA 287, albeit in the context of a breach of statutory rights, wherein Mahon J. stated that the systemic failure arose from ‘technical difficulty of ......

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