DPP v White

JurisdictionIreland
JudgeMacken, J.
Judgment Date19 October 2011
Neutral Citation[2011] IECCA 78
CourtCourt of Criminal Appeal
Date19 October 2011

[2011] IECCA 78

THE COURT OF CRIMINAL APPEAL

Macken, J.

Budd, J.

O'Keeffe, J.

[CCA No: 218/09]
DPP v White
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
-and-
CRAIG WHITE
Applicant

CRIMINAL JUSTICE ACT 1999 S42(2)

MAYFIELD v UNITED STATES OF AMERICA 26.9.2007 OREGON DISTRICT COURT

MCKIE v STRATHCLYDE JOINT POLICE BOARD & ORS 2003 SCOTSC 353

DPP v RATTIGAN UNREP CENTRAL CRIMINAL COURT 2.2.2009 [TRANSCRIPT UNAVAILABLE]

DPP v ABDI 2005 1 ILRM 382

PEOPLE (DPP) v KEHOE 1997 1 ILRM 481

R v BUCKLEY 1999 AER (D) 1523

DPP v ALLEN 2003 4 IR 295

CRIMINAL JUSTICE ACT 1999 S42(2)(A)

CRIMINAL JUSTICE ACT 1999 S42(2)(B)

CRIMINAL JUSTICE ACT 1999 S42(2)(C)

DPP v OWENS 1999 2 IR 16

SIMPLE IMPORTS LTD v REVENUE COMMISSIONERS 2000 2 IR 243

DPP v DUNNE 1994 2 IR 537

DPP v EDGEWORTH 2001 2 IR 131

DPP v BALFE 1998 4 IR 50

DCR 1997

DISTRICT COURT (CRIMINAL JUSTICE)(NO.2) RULES SI 448/2001

CRIMINAL JUSTICE ACT 1999 S42(6)

CRIMINAL JUSTICE ACT 1999 S42(5)

CRIMINAL JUSTICE ACT 1999 S42

DPP v MCCARTHY UNREP CCA 12.10.2010 2010/15/3825 2010 IECCA 89

PEOPLE (DPP) v BALFE 1998 4 IR 50

SIMPLE IMPORTS v REVENUE COMMISSIONERS 2000 2 IR 243

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S3

PEOPLE (DPP) v HEALY 1990 2 IR 73

PEOPLE (DPP) v BUCK 2002 2 IR 268

DPP v GORMLEY UNREP CCA 27.7.2009 2009/16/3832 2009 IECCA 86

DPP (GARDA LAVELLE) v MCCREA UNREP SUPREME 9.12.2010 2010/16/3844 2010 IESC 60

PEOPLE (DPP) v BOYCE UNREP CCA 21.12.2005 2005 IECCA 143

PEOPLE (DPP) v KENNY 1977 IR 336

DPP v CASH 2008 1 ILRM 443 2007/17/3461 2007 IEHC 108

DPP (GARDA WALSH) v CASH 2010 1 ILRM 389 2010 IESC 1

DPP v BOYCE 2009 1 ILRM 253 2008 IESC 62

R v GALBRAITH 1981 1 WLR 1039

DPP v M UNREP CCA 15.2.2001 2001/8/1990

DPP v DUNBAR (ORSE MCMANUS) UNREP CCA 12.4.2011 2011 IECCA 32

PEOPLE (AG) v MCMAHON 1946 IR 267

PEOPLE (DPP) v O'T (D) 2003 4 IR 286

PEOPLE (DPP) v FINNERTY 1994 4 IR 364

PEOPLE (DPP) v CODDINGTON UNREP CCA 31.5.2001 2001/7/1688

PEOPLE (DPP) v K (M) 2005 3 IR 423

DPP v NEVIN 2003 3 IR 348

CRIMINAL LAW

Evidence

Forensic evidence - Fingerprint evidence - Expert witnesses - Whether expert witness entitled to give evidence in terms of certainty - Whether expert opinion subverted jury's role - Validity of arrest warrant - Whether arrest warrant required to show jurisdiction on its face - Whether same scrutiny as applies to search warrants should be applied to arrest warrants - Whether arrest warrant rendered invalid by illegality - Whether accused denied access to solicitor - Whether forensic samples given before consulting with solicitor distinguishable from statements to Gardaí - Whether consent to give samples vitiated by lack of legal advice - Whether trial judge ought to have granted direction - Whether jury sufficiently warned not to draw adverse inference from accused not giving evidence - Onus of proof - Presumption of Innocence - Whether standard of proof higher in cases of circumstantial evidence - Whether trial judge's charge confused jury - R v Buckley 1999 AER (D) 1523 and People (DPP) v Allen [2003] 4 IR 295 considered, People (DPP) v Abdi [2005] 1 ILRM 382 distinguished; Mayfield v USA (Oregon DCt 26/9/2007) and McKie v Strathclyde Police 2003 ScotSC 353 considered; People (DPP) v Cash [2010] IESC 1 [2010] 1 ILRM 389 and [2007] IEHC 108 [2008] 1 ILRM 443, People (DPP) v Boyce [2008] IESC 62 [2009] ILRM 253 and [2005] IECCA 143 (Unrep, CCA, 21/12/2005), People (DPP) v McCrea [2010] IESC 60 (Unrep, SC, 9/12/2010) applied; R v Galbraith [1981] I WLR 1039 and People (DPP) v M (Unrep, CCA, 15/2/2001) applied; People (DPP) v Finnerty [1994] 4 IR 364 and People (DPP) v Coddington (Unrep, CCA, 31/5/2001) applied; People (DPP) v O'T (D) [2003] 4 IR 286 and People (Attorney General) v McMahon [1946] IR 267 considered - Appeal refused (218/2009 - CCA - 19/10/2011) [2011] IECCA 78

People (DPP) v White

Facts The applicant sought leave to appeal against his conviction of murder. The murder took place on 15 November 2005 when the deceased who was travelling as a passenger in a car was shot by someone travelling in another car. Forensic evidence was of considerable importance and evidence was given at trial that the applicant's fingerprints were found on the handles of a brown paper bag within which the gun used in the murder was found. Gloves were found near the abandoned car that had been used in the murder and fibre evidence from those gloves suggested that they were similar to the pair recovered from the car. Expert evidence was given at the trial by a Detective Garda, who stated that he "had no doubt" the fingerprints found at the scene matched those of the applicant. Counsel on behalf of the applicant objected to such opinion being given in evidence and a voir dire was held in this respect. The applicant was arrested in 2005 in connection with the murder but was released without charge. He was later arrested whilst serving a prison sentence pursuant to an arrest warrant issued under s. 42(2) of the Criminal Justice Act 1999. The applicant's solicitor was contacted after the applicant arrived at the Garda Station and the solicitor indicated she would attend immediately. In the meantime the applicant was requested to provide forensic samples and he consented to those samples being taken. At the close of the prosecution case, counsel on behalf of the applicant applied to have the case withdrawn from the jury on the basis that there was no case to answer. This applicant for leave is based on the grounds that the learned trial judge erred in law: 1. in ruling that the fingerprints of the applicant were admissible having regard to the opinion given by the expert that he had 'no doubt' the fingerprints matched the applicants. 2. In ruling that the arrest of the applicant pursuant to s. 42(2) of the 1999 Act was lawful in circumstances where the warrant to arrest the applicant did not show jurisdiction on its face by reason of the fact that it did not specifically record that the judge was satisfied as to the matters required by subsections (a) and (c) of section 42(2). 3. In ruling that the taking of samples from the applicant pursuant to the Criminal Justice (Forensic Evidence) Act, 1992 was lawful in circumstances where same breached the applicant's right of reasonable access to his solicitor. 4. In failing to withdraw the case from the jury upon the application of the defence that there was no case to answer. 5. In failing adequately to charge the jury on the presumption of innocence and the prosecution's onus of proof with respect to that presumption and 6. in failing to adequately charge the jury that it could draw no inference from the fact that the applicant had not given evidence. 7. In charging the jury that if they were to convict the applicant they must be of the view that not to find the applicant guilty would be an affront to common sense. In respect of grounds 5 and 6 it was submitted that the learned trial judge was required to state in the charge both that the onus lay on the prosecution to prove every element of the case, and also that the prosecution was required to negative every supposition consistent with innocence. It was submitted that the particular wording of the charge could possibly have caused confusion in the minds of the jury. Furthermore, it was submitted that it should have been explicitly pointed out to the jury that they should draw no inference from the fact that the applicant did not give evidence.

Held by the CCA; Macken J. (Budd, O'Keeffe JJ) in refusing the application:

1. That the learned trial judge made no error in law in the manner in which he heard and dealt with the issue arising in relation to the strength or otherwise of the view expressed by the expert witness. The expression by the witness that he had 'no doubt' about the results of the fingerprint evidence was not in any way suspect and was not open to criticism and did not seek to usurp the role of the jury. The evidence as given did not lead to an unfair trial or an unsafe conviction.

2. That there was no constitutional protection invoked in this case and consequently it was unclear why the same scrutiny as attached to search warrants should automatically, or at all, apply equally to the issue of an arrest warrant permitting the arrest of a person who was a prisoner. Provided, as occurred here, there was adequate evidence that all of the matters provided for in s. 42(2) (a) and (c) of the 1999 Act were put before the learned District Court Judge, the arrest warrant was not invalid by the failure independently to recite the judge's satisfaction as to the existence of each (a) and (c) of s. 42(2) on the face of the warrant.

3. That there was no refusal to postpone the taking of samples in this case and the applicant consented to the samples being taken. Consequently, the learned trial judge was entitled, in the exercise of his discretion, to rule that the taking of the samples was lawful and that the applicant's right of reasonable access to his solicitor was not infringed.

4. That this was not a case in which there was no evidence upon which the jury could convict the applicant, or no evidence upon which the jury, properly charged, should convict such as to oblige the trial judge to withdraw the case from the jury.

5. That the applicant failed to make out that the learned trial judge's charge was in any way inadequate or required further clarification in respect of the presumption of innocence, the burden of proof and adverse inferences.

6. That the statement complained of by the applicant in respect of the judge's charge regarding circumstantial evidence was not likely to lead to confusion in the minds of the jury. The charge on this issue was one which, taken in context, allowed the jury to afford to the applicant...

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2 cases
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