DPP v Wade
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 28 October 2010 |
| Neutral Citation | [2010] IECCA 114 |
| Court | Court of Criminal Appeal |
| Date | 28 October 2010 |
[2010] IECCA 114
THE COURT OF CRIMINAL APPEAL
Macken, J.
Budd, J.
Herbert, J.
CRIMINAL JUSTICE ACT 1984 S4
RULES FOR THE GOVERNMENT OF PRISONS SI 320/1947 R12
RULES FOR GOVERNMENT OF PRISONS SI 127/1955 REG 3
CRIMINAL LAW ACT 1976 S7
CRIMINAL JUSTICE ACT 1984 S6
CRIMINAL JUSTICE ACT 1984 S28
CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S5
RULES FOR GOVERNMENT OF PRISONS SI 127/1955 REG 4
PRISONS ACT 1866 (UK)
CRIMINAL JUSTICE ADMINISTRATION ACT 1914
PENAL SERVITUDE ACT 1891 (UK) S8
MANDARIN RECORDS LTD v MECHANICAL COPYRIGHT PROTECTION SOCIETY (IRELAND) LTD 1999 1 ILRM 154
KEANE v BORD PLEANALA 1997 1 IR 184
DPP, PEOPLE v O'BRIEN & MCGRATH 1965 99 ILTR 59
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S19(8)
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S19(3)(G)
DESMOND v GLACKIN (NO2) 1993 3 IR 67
CRIMINAL JUSTICE MISCELLANEOUS PROVISIONS) ACT 1997 S19(4)
DPP, PEOPLE v MULLIGAN UNREP CCA KEANE 17.5.2004
CRIMINAL JUSTICE ACT 1999 S42
CRIMINAL JUSTICE ACT 1984 S4
PREVENTION OF CRIME ACT 1871 S6
MEASURING & PHOTOGRAPHING OF PRISONS 1955 SI 114/1955
RULES FOR GOVERNMENT OF PRISONS (SI 127/1955) REG 5
PRISON RULES 1947 R13 SI 1320/1947
AG v O'BRIEN & MCGRATH 1965 99 ILTR 59
CRIMINAL JUSTICE MISCELLANEOUS PROVISIONS ACT 1997 S19(1)
HOFFMAN-LA ROCHE v SECRETARY OF STATE FOR TRADE & INDUSTRY 1975 AC 295
MIN OF HEALTH v KING (EX PARTE YAFFE) 1931 AC 494
PRISONS ACT 2007 S42C
PRISONS ACT 2007 (COMMENCEMENT ORDER) 2007 SI 180/2007
PRISON ACT 2007 S35(1)
PRISON ACT 2007 S35(3)
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S4
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S8
DPP, PEOPLE v CASH UNREP SUPREME 18.1.2010 2010 IESC 1
AG v O'BRIEN 1965 IR 142
DUNNE v CLINTON 1930 IR 366
DPP, PEOPLE v SHAW 1982 1 IR 1
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4(A)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
RANINEN v FINLAND 1998 26 EHRR 563
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)
CRIMINAL JUSTICE ACT 1964 S4(2)
CRIMINAL JUSTICE ACT 1964 S4(1)
DPP v BARNES UNREP CCA 21.12.2006 2006 /17/3410 2006 1 ECCA 165
CRIMINAL LAW
Evidence
Fingerprints - Admissibility - Applicant in prison following previous conviction - Fingerprints taken in prison - Fingerprints used in forming "reasonable suspicion" grounding application for arrest warrant - Whether fingerprints taken illegally and unconstitutionally - Whether statutory scheme empowered prison authorities to take fingerprints - Whether Rules ultra vires - Whether prison authorities empowered to retain fingerprints - Whether prison authorities empowered to disseminate fingerprints to An Garda Síochána - Whether fingerprints unlawfully used to secure arrest warrant - Whether arrest and detention tainted with unconstitutionality and illegality - Whether taking of fingerprints in breach of applicant's rights under European Convention of Human Rights - Whether trial judge's recharge of jury unfair and prejudicial - Whether trial judge erred in failing to direct jury to return verdict of not guilty in respect of murder charge - People (Attorney General) v McGrath (1965) 99 ILTR 59; Hoffman-La Roche v Secretary of State for Trade and Industry [1975] AC 295; DPP v Cash [2010] IESC 1, [2010] 1 IR 609; People (DPP) v Shaw [1982] 1 IR 1 considered - Rules for the Government of Prisons 1947 (SR&O 320/1947), r 12 - Regulations as to the Measuring and Photographing of Prisoners 1955 (SI 114/1955), regs 3, 4 & 5 - Rules for the Government of Prisons 1955 (SI 127/1955) - Prevention of Crime Act 1871 (c 112), s 6 - Penal Servitude Act 1891 (c 69), s 8 - Criminal Justice Act 1964 (No 5), s 4 - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 19 - European Convention on Human Rights Act 2003 (No 20), ss 2 & 4 - Prisons Act 2007 (No 10), s 35 - Constitution of Ireland 1937 - European Convention on Human Rights, art 8 - Leave to appeal refused (53/2007 - CCA - 28/10/2010) [2010] IECCA 114
People (DPP) v Wade
Facts The applicant sought leave to appeal in respect of his conviction for murder and attempted robbery. The main ground of appeal concerned the admissibility of fingerprint evidence. It was also submitted that the court erred in refusing the requisitions sought on behalf of the applicant, and as to those it acceded to, the manner in which the learned trial judge recharged the jury was unfair and prejudicial. It was further submitted that the court erred in law in failing to direct the jury to return a verdict of not guilty in respect of the offence of murder. The applicant's fingerprints were taken by the prison authorities whilst he was serving a sentence in respect of an earlier conviction imposed in 1999. Fingerprints lifted from the scene were matched with those fingerprints previously taken from the applicant and on that basis an arrest warrant was obtained and the applicant was subsequently arrested, charged, tried and convicted on both counts. It was submitted on behalf of the applicant that his fingerprints were taken illegally and unconstitutionally in that they were taken in breach of the provisions of the applicable statutory framework because those powers did not authorise the taking or retention of any fingerprints by the prison authorities, while the applicant was in prison serving a sentence. It was further argued that the prison authorities had no statutory authority either to take the fingerprints at all or to disseminate them to An Garda Siochana. It was further submitted that the Gardai did not have power to receive those fingerprints or retain them and the use of those fingerprints for the purposes of securing the arrest and detention of the applicant was unlawful.
Held by CCA; Macken J. (Budd, Herbert JJ) in refusing the application for leave to appeal on all grounds: That it was not necessary to decide whether the power to take fingerprints prior to 1997, pursuant to the Prison Rules 1947 or the Regulations as to the Measuring and Photographing of Prisoners1955, might have been ultra vires the Parent Acts of any of them. Both of those pieces of legislation were in force within the meaning of s. 19(8) of the Criminal Justice (Miscellaneous Provisions) Act 1997 in the passing of that Act. Sections 19(1) and 19(3)(g) of the Act of 1997 provided a valid legal basis for the making of rules for the taking of finger and palm prints of convicted persons during their detention. In this case the applicant's fingerprints were lawfully made and taken while he was a convicted prisoner some years previously. Furthermore, there was no prohibition contained within the Regulations on the retention of those lawfully obtained fingerprints. In addition, section 19(4) of the 1997 Act provided a lawful basis for the handing over of those fingerprints by the prison authorities to An Garda Siochana. By necessary implication the granting of power to the prison authorities to give the fingerprints, carried a reciprocal right in the Gardai to receive, hold and use that fingerprint evidence. Finally, it was lawful to use that fingerprint evidence as the basis for forming a "reasonable suspicion" upon the application for an arrest warrant and thus the arrest of the applicant was also lawful.
In any event the decision of the Supreme Court in the case of D.P.P. v Cash [2010] IESC 1 (Unreported, the Supreme Court, 18 January 2010) clearly showed that for the purposes of establishing a "reasonable suspicion" it is not necessary that the material relied upon be admissible in evidence at trial.
Reporter: L.O'S.
Judgment of the Court delivered on the 28th day of October, 2010 by Macken, J.
This is an application for leave to appeal in respect of a conviction for murder and attempted robbery. The murder charge related to the death of a Mr. Zhi Song. The attempted robbery was of Miss Xiau Wen Zhou, both of them residing in the same premises in Dublin. The trial took place over seven days from the 26 th February, 2007. The applicant was found guilty of murder on the 7 th March, 2007 and sentenced on the 12 th March, 2007 to the mandatory term of life imprisonment in respect of the murder, and to a term of five years imprisonment in respect of the attempted robbery. This application is for leave to appeal against those convictions. Five grounds of appeal were listed in the Notice of Leave to Appeal.
The applicant was charged with having murdered Zhi Song on the 29 th June, 2005 at premises at 1 Reuben Avenue, South Circular Road in the City of Dublin. It was admitted at the trial that he made his way in through the front window of the house and into the kitchen area and from there made his way upstairs, entering the bedroom of Xiau Wen Zhou. While in that room he took possession of a biscuit tin which contained various items, including jewellery. During this event she woke up and words were exchanged between her and the applicant. Zhi Song was awoken at the same time and he made his way towards the room in which Xiau Wen Zhou had been sleeping. While going along a small landing or hallway at the top of the stairs he encountered the applicant. In the course of some physical exchange between the applicant and Zhi Song, he sustained a knife wound and died.
According to the written submissions of the respondent, which accord with the transcript of the trial, the following relevant evidence, inter alia, was adduced during the trial:
(1) The deceased's girlfriend, Xiau Wen Zhou, who lived in the same premises as the deceased, gave...
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