DPP v Nash

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 08 May 2018
• Neutral Citation: [2018] IECA 147
• Docket Number: Record No. 120/2015
• Court: Court of Appeal (Ireland)
• Date: 08 May 2018

[2018] IECA 147

THE COURT OF APPEAL

Mahon J.

Mahon J.

Edwards J.

White J.

Record No. 120/2015

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

MARK NASH

APPELLANT

Conviction – Murder – Scientific evidence – Appellant seeking to appeal against conviction – Whether the risk of contamination was such as to render evidence extremely weak, discredited, unreliable, unfair and of no probative value

Facts: The appellant, Mr Nash, appealed to the Court of Appeal against his conviction on the 20th April 2015 for the murder of Ms Shields and Ms Callinan in their home (No. 1, Orchard View, Grangegorman, Dublin 7) on the 7th March 1997 following a lengthy trial at the Central Criminal Court. He was sentenced to life imprisonment on the same date. The grounds of appeal submitted on behalf of the appellant fell under the following general headings: (i) s. 4 of the Criminal Justice Act 1984; (ii) admissions made by the appellant; (iii) access to a solicitor; (iv) the scientific evidence; (v) admission of other evidence; (vi) other applications to discharge the jury; (vii) the charge to the jury.

Held by the Court that the lengthy and complex trial was conducted by a very experienced criminal trial judge in a careful, indeed exemplary, fashion. It was, in general terms, in the strong view of the Court, an entirely fair trial which produced a verdict well justified by the evidence. No grounds of appeal were upheld by the Court.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 8th day of May 2018 by Mr. Justice Mahon

1 The appellant has appealed against his conviction on the 20th April 2015 for the murder of Sylvia Shields and Mary Callinan in their home No. 1, Orchard View, Grangegorman, Dublin 7 on the 7th March 1997 (the 'Grangegorman Murders) following a lengthy trial at the Central Criminal Court. He was sentenced to life imprisonment on the same date. The murders of the two women were horrific and brutal. Post mortem examinations established that they had each received multiple stab wounds and that their bodies had been gratuitously mutilated. Dr. Harbison, the State Pathologist who conducted the post mortems stated, inter alia, in his report:-

'These injuries were outside my experience in twenty six years of pathology practice. The similarity between the injuries to the genital tracts of both of these women..was remarkable.'

2 Ms. Shields and Ms. Callinan lived in the house with a Ms. Mernagh who is since deceased. All were middle aged, and had a history of psychiatric illness. Their home was owned by St Brendan's Hospital, Grangegorman, and they were living there under the general care of the hospital as part of a community based facility. They had all resided in the house for some considerable time prior to 7th March 1997.

3 Another double murder of a couple in their home in Co. Roscommon occurred about five months later, on the 15th August 1997, (the 'Roscommon Murders'). On the same date and at the same address Sarah Jane Doyle, a relative of one of the victims, and the then girlfriend of the appellant, was seriously assaulted with a hammer. The appellant was seen fleeing the scene on a bicycle and was arrested by gardaí later the same day. He was convicted of the murders of the Roscommon couple and the assault on Ms. Doyle following a lengthy trial in the Central Criminal Court in 1998, and in respect of which he was sentenced to life imprisonment and ten years imprisonment respectively. The appellant is currently serving the life sentences imposed in respect of both sets of murders.

4 Following his arrest on the 16th August 1997 the appellant was questioned at Galway's Mill Street garda station in relation to the Roscommon Murders and the assault on Ms. Doyle. He was not at that time a suspect in the Grangegorman Murders. The gardai in Galway had had no involvement in the investigation of those crimes and their only interest at the time in the appellant was in connection with the Roscommon Murders and the assault on Ms. Doyle.

5 In the course of his detention and questioning at Mill Street garda station in relation to the events in County Roscommon the appellant made a voluntary and entirely unprompted admission of his involvement in the Grangegorman Murders. He signed a cautioned statement on the 16th August 1997. He maintained that on his way home from Dublin city centre to Stoneybatter he had attacked the two women. On the following day, the 17th August 1997, the appellant volunteered a lengthy and detailed statement of admission in relation to the Grangegorman Murders and on the same day prepared a number of sketches in relation to the venue of the killings and of the footwear worn by him and the knife used on that occasion. On a further occasion on the same date he again insisted that he had been involved in those murders. Also on the same day when being ferried by gardai from Galway to Mountjoy Prison the appellant expressed a wish to point out to the gardai accompanying him to the house where he claimed he had murdered the two women. He was again cautioned and proceeded to give directions to the driver of the garda car to proceed to the house in which the two murders had occurred at Orchard View, Grangegorman. He also signed a note confirming the information he had given to the gardai on this occasion. Other admissions were also made by the appellant both before and after his arrest on the 16th August 1997 relating to the Roscommon Murders and the assault on his then girlfriend. Admissions were also made by the appellant to his solicitor, Mr. Peter Allen, and to a Prison Chaplin at Mountjoy Prison. Subsequently, in a number of verbal and written communications with the gardaí, the appellant retracted all of his inculpatory admissions made by him in relation to the Grangegorman murders.

6 Approximately three weeks prior to the Roscommon Murders, Dean Lyons was arrested and questioned at the Bridewell garda station in Dublin in relation to the Grangegorman Murders and made admissions in relation to them, of which led to him being charged with the murders. His confession had been volunteered by him to gardai and subsequently repeated to numerous other persons. His first confession was videotaped, but his second and third confessions were not; they were recorded in handwriting by gardaí instead. Mr. Lyons had a history of drug addiction and homelessness. Information provided by him in the course of his admissions to the gardaí displayed a certain familiarity with details of the murder of the two women including the nature of the wounds inflicted, the number and type of weapons used and the movements of the killer in the house.

7 By January 1998 the gardaí were satisfied that Dean Lyons had had no involvement in the Grangegorman Murders and charges preferred against him in respect thereof were withdrawn on the 29th April 1998.

8 Consideration was given in August 1997 to charging the appellant with the Grangegorman Murders. A decision however was taken not to do so essentially because of lack of evidence. A jacket and a pair of boots belonging to the appellant and seized by gardaí shortly after his arrest were subjected to forensic / DNA analysis by the State Forensic Science Laboratory ("FSL") but did not reveal anything of evidential value. A decision by the then Director of Public Prosecutions in 1999 to charge the appellant with the Grangegorman Murders was subsequently withdrawn, and was not proceeded with, until a new direction was made by the then Director of Public Prosecutions in 2009. In 2009, with the help of advancements in DNA forensic science, two DNA profiles were found on the appellant's jacket, one relating to each of the Grangegorman victims. The circumstances in which the clothing items were taken by gardaí and the possible contamination of the jacket are matters which are very much the subject of this appeal and are discussed later in this judgment.

9 A number of enquiries took place because of concerns relating to the admissions made by Dean Lyons, particularly in circumstances where it became clear that he had no involvement with the murders. Dean Lyons died in 2000 shortly having been released from an English prison. Earlier, the gardaí had interviewed Mr. Lyons in Strangeways Prison in the U.K. and had obtained from him his agreement to give evidence in the course of proceedings which were then being contemplated against the appellant. Investigative reports had also been prepared by Assistant Commissioner McHugh in 1997 and 1998 and by Superintendant Kelly in relation to aspects of the garda investigation into the involvement of Dean Lyons.

10 Proceedings seeking the prohibition of the trial because of delay and for other reasons were heard by the High Court (Moriarty J.) in 2012 and in an appeal from the decision of the High Court to the Supreme Court in 2015. Both the High Court and the Supreme Court refused to prohibit the trial. In the concluding paragraph of the judgment of Hardiman J. in the Supreme Court case of Nash v DPP [2015] IESC 32 it was stated:-

'In the result, there is no basis upon which it can be argued that Mark Nash will not obtain a fair trial. Any reference to evidence in this judgment is not a finding of fact but merely an indication of the limited issues that have been referenced by affidavit and in argument. Questions of the admissibility of evidence, the overall fairness of the trial, the adequacy of disclosure, the proper selection of jurors and what warnings may need to be given to the jury are now matters for the trial judge.'

11 The core aspects of the prosecution case against the appellant was, in general terms, based upon the following:-

(i) Admissions made by the appellant to gardaí and others, both before and after his detention at Galway garda station on the 17th August 1997, including a...