DPP v Wilson

JurisdictionIreland
JudgeMr. Justice William McKechnie
Judgment Date27 November 2014
Neutral Citation[2014] IECCA 48
CourtCourt of Criminal Appeal
Docket Number[Appeal No: 260/2011]
Date27 November 2014

[2014] IECCA 48

THE COURT OF CRIMINAL APPEAL

McKechnie J.

[Appeal No: 260/2011]

McKechnie J.

Moriarty J.

Herbert J.

Between/
The People (At the suit of the Director of Public Prosecutions)
Prosecutor/Respondent
and
Keith Wilson
Accused Person/Appellant

Conviction ? Murder ? DNA evidence ? Appellant seeking to appeal against conviction ? Whether trial judge erred in law

Facts: The appellant, Mr Wilson, on the basis of confidential information received by the Gardaí, was arrested for the murder of a Mr Gaynor at Dublin Airport on the 7th November, 2010. Immediately upon his arrest, he was informed of the reasons therefor. He was conveyed to Finglas Garda Station, where on arrival a notice outlining his rights was read to him. At the point in the notice where reference was made to the taking of personal samples for DNA testing, the accused indicated that he would not be consenting to having any such samples taken from him. Mr Wilson was detained under s. 50 of the Criminal Justice Act 2007. On the 7th November, 2011, Mr Wilson was convicted by unanimous jury verdict of the murder of Mr Gaynor contrary to s. 4 of the Criminal Justice Act 1964, and of possession of a firearm with intent to endanger life contrary to s. 15(1) of the Firearm Acts 1925. In respect of the murder conviction, he received a mandatory life sentence, and for the firearm offence a sentence of eight years to run concurrent with the life sentence. In his Notice of Appeal dated the 20th December, 2011, Mr Wilson sought leave from the Court of Criminal Appeal to appeal the convictions entered against him, on the grounds that the trial judge erred in law in: 1) ruling that the arrest of the appellant was lawful in circumstances where the arresting garda did not state the power of arrest and there was no evidence before the court as to what power, if any, was invoked; (2) ruling that the DNA samples taken from cigarette butts used by the accused while in custody was admissible evidence; 3) failing to withdraw the case from the jury upon an application of the defence that there was no case to answer; 4) failing to discharge the jury in circumstances where the expert witness, Dr O?Sullivan, stated in her evidence that if the brothers of the appellant provided forensic samples, they could be eliminated as potential matches to the DNA found at the scene; 5) failing to warn the jury of the dangers of convicting the accused in circumstances where the sole evidence against him was DNA evidence alone. The respondent, the DPP, submitted that: 1) it was not necessary for the arresting garda to have specified a particular statutory provision or an express power when arresting Mr Wilson as it was sufficient that the appellant was informed of the reason for his arrest; 2) the DNA samples taken from the cigarette butts discarded by the appellant while in custody were correctly admitted in evidence; 3) the trial judge did not err in refusing to withdraw the case from the jury on the basis that there was no case to answer as this complaint related to the quality of the DNA evidence upon which the jury was asked to consider the question of Mr Wilson?s guilt or innocence; 4) Dr O?Sullivan could not be said to have given any hearsay evidence and the trial judge made it clear, in his summing up to the jury, that the onus of proof was on the prosecution and that there was no evidence before them relating to the DNA profiles of any of the brothers of the appellant; 5) it was not necessary to give to the jury any special warning simply because the only evidence in the case was DNA evidence.

Held by McKechnie J that there was no authority to support the proposition that s. 4 of the Criminal Law Act 1997 should have been mentioned by name when the appellant was arrested and that there was no requirement to that effect. McKechnie J held that it was expressly stated in s. 2(11) of the Criminal Justice (Forensic Evidence) Act 1990 that the powers so conferred by the Act are without prejudice to any other powers exercisable by members of An Garda Síochána; therefore, recourse to common law powers which validly exist and which are validly exercised is not prohibited. Accordingly McKechnie J held that the trial judge was correct to admit the DNA evidence obtained from the cigarette butts. Having carefully reviewed how the trial judge addressed the jury, the Court was satisfied that he was correct in not withdrawing the case from the jury and in treating the matter as being one for their consideration. McKechnie J held that on any rational interpretation of what Dr O?Sullivan said, the inference as suggested was highly remote. In the Court?s view the trial judge adequately discharged the duty and obligation upon him so that the trial of Mr Wilson could afford him his constitutional rights; whilst it was open to the judge to issue a special warning, he was not obliged to do so.

McKechnie J held that he would refuse leave to appeal.

Appeal dismissed.

Judgment of the Court delivered on the 27 th November, 2014 by Mr. Justice William McKechnie .
1

On the evening of the 14 th of August, 2010, one Daniel Gaynor was shot dead by a lone gunman as he walked with his girlfriend and his two young children at St Helena's Road in Finglas. The gunman, who appeared to be dressed in white gloves, a cap and a hoodie, approached from the rear and discharged several shots, with one of them fatally wounding the deceased. The prosecution asserted that the gunman then fled the scene, discarding the gun, followed by the cap, then the gloves and finally the hoodie. All of these items, save for one glove, were later discovered close to the scene of the shooting, with each piece of clothing having firearm residue on it. On examination, the DNA profile of a single initially unidentified person was found on all of these items. By reason of further investigations the D.P.P. claimed that the DNA profile as obtained matched that of the accused person: hence the subsequent events as next described.

2

On the basis of confidential information received by the gardaí, Mr. Wilson was arrested for the murder of Daniel Gaynor at Dublin Airport on the 7th November, 2010, at 11:35pm, having arrived on a flight from Malaga, Spain. Immediately upon his arrest, he was informed of the reasons therefor, namely on suspicion of having murdered Daniel Gaynor. He was duly conveyed to Finglas Garda Station, where on arrival a notice outlining his rights was read to him. At the point in the notice where reference was made to the taking of personal samples for DNA testing, the accused indicated that he would not be consenting to having any such samples taken from him. When making this comment the evidence showed that he used words to the effect that there was ?not a chance? of him so consenting.

3

At 1:05am on the morning of the 8 th November, some one and a half hours after he had been arrested, Mr. Wilson was detained under section 50 of the Criminal Justice Act 2007 (?the 2007 Act?). This provision provides for the detention of a person suspected of having committed specific offences, one of which is murder with a firearm. Section 50(2) reads:

?(2) Where a member of the Garda Síochána arrests without warrant, whether in a Garda Síochána station or elsewhere, a person (in this section referred to as ?the arrested person?) whom he or she, with reasonable cause, suspects of having committed an offence to which this section applies, the arrested person

?

(a) if not already in a Garda Síochána station, may be taken to and detained in a Garda Síochána station, or

(b) if he or she is arrested in a Garda Síochána station, may be detained in the station?.

4

Under subsection (3)(a) of that section, a suspect may be detained for up to 6 hours. At 5:15am later that morning, his detention was extended for a further period of 18 hours, as it finally was again at approximately 11:30pm for yet an additional period of 24 hours. Nothing turns on the various extensions made in respect of the original period.

5

During the course of the morning of the 8 th November, 2010, the arresting garda, Det/Sgt Alan Brady, obtained consent from Superintendent David Dowling to take a buccal swab sample from Mr. Wilson pursuant to section 2 of the Criminal Justice (Forensic Evidence) Act 1990, as amended by section 14 of the Criminal Justice Act 2006 and section 53 of the Criminal Justice Act 2007. The relevant provisions of that Act are as follows:

?2-(1) Subject to the provisions of subsections (4) to (8A) of this section, where a person is in custody under the provisions of section 30 of the Offences against the State Act, 1939, section 4 of the Criminal Justice Act, 1984, section 2 of the Criminal Justice (Drug Trafficking) Act 1996 or section 50 of the Criminal Justice Act 2007, a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely?

(a) a sample of?

(i) blood,

(ii) pubic hair,

(iii) urine,

(iv) saliva,

(v) hair other than pubic hair,

(vi) (vi) a nail,

(vii) (vii) any material found under a nail,

(b) a swab from any part of the body including the mouth but not from any other body orifice or a genital region,

(c) a swab from a body orifice, other than the mouth, or a genital region,

(d) a dental impression,

(e) a footprint or similar impression of any part of the person's body other than a part of his hand.

(1A) A reference in subsection (1) of this section to the mouth shall be read as including a reference to the inside of the mouth.?

Subsection (4) states:

?(4) A sample may be taken under this section only if?

(a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

(b)...

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1 cases
  • DPP v Wilson
    • Ireland
    • Supreme Court
    • 19 July 2017
    ...alone Facts: The appellant, Mr Wilson, was convicted of murder. He appealed to the Court of Criminal Appeal who upheld his conviction ([2014] IECCA 48). However, the Court of Criminal Appeal acceded to an application, under s. 29 of the Courts of Justice Act 1924, for a certificate that its......

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