DPP v Nash
| Jurisdiction | Ireland |
| Judge | O'Donnell Donal J.,McKechnie J.,Finlay Geoghegan J. |
| Judgment Date | 24 October 2018 |
| Neutral Citation | [2018] IESCDET 148 |
| Court | Supreme Court |
| Date | 24 October 2018 |
[2018] IESCDET 148
THE SUPREME COURT
DETERMINATION
O'Donnell Donal J.
McKechnie J.
Finlay Geoghegan J.
The applicant, Mr. Nash, seeks leave to appeal to this Court from the order of the Court of Appeal made on 8 May 2018 (and perfected on 19 June 2018) dismissing the appeal of the applicant from his conviction in the Central Criminal Court on 20 April 2015 on charges of murder contrary to common law and as provided by s. 4 of the Criminal Justice Act 1964. The reasons for the decision of the Court of Appeal are set out in the written judgment of the Court delivered on 8 May 2018 by Mahon J.: [2018] IECA 147.
As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.
The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Cooper (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73 (‘ Price Waterhouse Cooper’).
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The applicant's conviction was for the murder of two elderly ladies at Grangegorman in March 1997. The applicant had been arrested in August 1997 in connection with other matters and at the time made admissions in relation to these murders. However, one Dean Lyons had already made detailed admissions in relation to the same murders, admitting that he had carried them out and was then in custody charged with the murders. Dean Lyons retracted his admissions (as did the applicant).
Faced with admissions from two separate people, the Director of Public Prosecutions did not bring a prosecution against the appellant. At the time, all scientific examination of the appellant's clothing and of the scene had failed to provide any DNA or forensic evidence associating him with the crime.
In 2009, further DNA testing was carried out using new and highly sensitive tests. Evidence of the DNA of both victims was found on the applicant's clothing. The applicant was charged with the murders. The defence had concerns about the possibility of contamination and sought to halt the trial by injunction proceedings. That application failed. The defence retained two experts, both of whom ultimately gave evidence of a risk of contamination. The scientific evidence called by the prosecution was to the effect that there was not contamination. This evidential dispute gave rise to certain of the grounds of appeal to the Court of Appeal and is relevant to one of the questions upon which leave is now sought.
The second relevant dispute relates to the manner in which the trial judge charged the jury in relation to those extracts from statements made by Dean Lyons selected by the defence and those selected by the prosecution and admitted into evidence. There was no dispute about the admission into evidence of the extracts from the statements. Rather, the ground of appeal before the Court of Appeal related to the judge's charge.
The first main ground of appeal to the Court of Appeal related to the refusal by the trial judge of an application for a direction from defence counsel, upon the basis that the risk of contamination was such as to render the forensic evidence extremely weak, discredited, unreliable, unfair and of no probative value. An application for a direction had been made at the conclusion of the prosecution case and again at the end of the defence case.
The Court of Appeal at para. 70 concluded that ‘the extensive scientific evidence given to the jury did not conclusively prove or disprove contamination’. However, it also concluded that ‘it is well established that for a matter to be left to the jury it does not have to be on the basis of particularly strong evidence in one direction or another’.
The Court of Appeal explained this latter conclusion by reference to the well-known principles set out by Lord Lane C.J. in R. v. Galbraith [1981] 1 WLR 1039, at p. 1042, as further applied and explained in...
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