DPP v Wilson

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke,Ms. Justice Dunne,Ms. Justice O'Malley
• Judgment Date: 19 July 2017
• Neutral Citation: [2017] IESC 54
• Court: Supreme Court
• Docket Number: [Appeal No: 54/2016],[S.C. No. 54 of 2016]
• Date: 19 July 2017

[2017] IESC 54

THE SUPREME COURT

Clarke J.

Dunne J.

O'Malley Iseult J.

Denham C.J.

O'Donnell Donal J.

Clarke J.

Dunne J.

O'Malley Iseult J.

[Appeal No: 54/2016]

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Keith Wilson

Accused/Appellant

Conviction – Murder – DNA evidence – Appellant seeking to appeal against conviction – Whether it should be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances where the sole evidence against the accused is DNA evidence 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 decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court ([2016] IECCA 2). In addition, the Court permitted certain further issues to be raised on the appeal. The certified question related to the manner in which the samples of Mr Wilson's DNA had been obtained and was in the following terms: Is evidence of DNA samples taken from cigarette butts used and discarded by the detained person whilst in custody admissible evidence at his trial? The admissibility issue principally arose out of an alleged breach of Mr Wilson's constitutional right to privacy. In the process of case-management, the Court granted leave to Mr Wilson, pursuant to the procedure for the inclusion of additional grounds where there is a certificate from the Court of Criminal Appeal, to argue the issues raised by him in relation to the strength of the prosecution case and the charge to the jury. The questions as framed were: When the sole evidence against an accused person is DNA evidence, is such sufficient to convict an accused or upon the prosecution case being closed, should a judge withdraw a case from the jury upon an application of the defence that there was no case to answer; Should it be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances where the sole evidence against the accused is DNA evidence alone.

Held by the Court that there was no breach of Mr Wilson's rights and in particular his right to privacy. The Court held that there was no reason in principle why a jury may not be satisfied to the criminal standard of the identity of the perpetrator of a crime where the only evidence of such identity derives from DNA profiling. The Court did not consider that the ground concerning giving a warning to the effect that there were dangers in convicting in circumstances where the only evidence of identity stemmed from DNA profiling was well made out for the Court did not consider, having regard to the general principles by reference to which it has been determined that warnings are required in other cases, that a warning is required in a case where the only evidence of identity is confined to DNA profiling.

The Court held that the appeal should be dismissed.

Appeal dismissed.

Joint Judgment of Mr. Justice Clarke , Ms. Justice Dunne and Ms. Justice O'Malley delivered the 19th July, 2017.

1. Introduction

1.1 There has been a significant growth in the use of forensic evidence in the criminal process over recent decades. This case principally involves issues arising out of the circumstances in which certain DNA evidence was collected and also the extent to which it is possible to establish the identity of the perpetrator of a crime to the criminal standard on the basis of DNA evidence alone. Questions concerning the manner in which such issues should be explained to the jury by the trial judge also arise.

1.2 In circumstances which it will be necessary to outline in greater detail in the course of this judgment, the accused/appellant ('Mr. Wilson') was convicted of murder. Mr. Wilson appealed to the Court of Criminal Appeal who upheld his conviction (see The People (Director of Public Prosecutions) v. Keith Wilson [2014] IECCA 48). However, the Court of Criminal Appeal acceded to an application, under s.29 of the Courts of Justice Act, 1924 as amended, for a certificate that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court (see The People (Director of Public Prosecutions) v. Keith Wilson [2016] IECCA 2). In addition, this Court permitted certain further issues to be raised on the appeal. However, in order to understand the precise issues which require to be addressed it is appropriate to set out, in brief terms, those aspects of the background to Mr. Wilson's trial and conviction which are material to the issues with which this Court is now concerned. We therefore turn first to the background.

2. Background

2.1 On the 14th August, 2010, Mr. Daniel Gaynor was shot dead on a public road in North Dublin by a lone gunman who approached him and fired a handgun a number of times. According to the prosecution evidence in the trial of Mr. Wilson the gunman was seen to be wearing a peaked cap and a white glove. He was also seen to discard items as he ran away and a subsequent search of the area turned up a revolver, a cotton glove, a cream knitted glove, a baseball cap and a hoodie.

2.2 These items were subjected to forensic analysis. Firearm residue was found on the cotton glove, the baseball cap and the front and cuffs of the hoodie. This was of a type described by the relevant forensic witness as providing extremely strong support for the view that these items had been in contact with a source of firearm residue.

2.3 DNA analysis succeeded in generating a full male profile from the cotton glove. Mixed profiles were obtained from the baseball cap and the hoodie, meaning that there was DNA present from more than one person. In both cases the major profile matched the one found on the cotton glove.

2.4 Swabs from the grips of the gun were analysed and a mixed profile was generated. Again, the major profile matched that on the cotton glove.

2.5 Mr. Wilson was arrested on suspicion of the murder in November 2010. It appears that the arrest was grounded upon confidential information rather than on any form of admissible evidence. While he was in Garda custody he refused to cooperate with requests for a bodily sample for the purpose of forensic testing. The Gardaí decided therefore to obtain samples by means of collecting items that came into contact with his mouth while he was in the station. Mr. Wilson was a smoker and a number of cigarette butts discarded by him in the station yard were collected and analysed. Tests revealed a match with the DNA found on the gun, glove, cap and hoodie.

2.6 The prosecution adduced expert evidence concerning DNA which was to the effect that there was only an extremely remote chance of a random match with an unrelated member of the general public. It will be necessary to turn to the evidence in that regard in due course.

2.7 There was no other evidence implicating Mr. Wilson and at his trial for the murder of Mr. Gaynor he challenged both the admissibility and the weight of the DNA evidence. The admissibility issue was concerned with the question whether Mr. Wilson's constitutional rights were breached by the taking and testing of the cigarette butts, while the application for a direction was based on the argument that the statistical analysis offered by the scientist who carried out the DNA testing meant that the DNA profiles could not be said to have been matched beyond reasonable doubt. Having failed to secure either the exclusion of the evidence or a directed acquittal, Mr. Wilson argued unsuccessfully that the jury should be warned that it would be dangerous to convict on the basis of uncorroborated DNA evidence.

3. The Issues in the Appeal

3.1 The certified question related to the manner in which the samples of Mr. Wilson's DNA had been obtained and is in the following terms:

'Is evidence of DNA samples taken from cigarette butts used and discarded by the detained person whilst in custody admissible evidence at his trial?'

3.2 In the process of case-management, this Court granted leave to Mr. Wilson, pursuant to the procedure for the inclusion of additional grounds where there is a certificate from the Court of Criminal Appeal, to argue the issues raised by him in relation to the strength of the prosecution case and the charge to the jury. The questions as framed are:

'When the sole evidence against an accused person is DNA evidence, is such sufficient to convict an accused or upon the prosecution case being closed, should a judge withdraw a case from the jury upon an application of the defence that there was no case to answer?

Should it be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances where the sole evidence against the accused is DNA evidence alone?'

3.3 We turn first to the admissibility issue which principally arises out of an alleged breach of Mr. Wilson's constitutional right to privacy.

4. The Privacy/Admissibility Issue

(a) The method by which the DNA match was obtained

4.1 Mr. Wilson was arrested on suspicion of the murder of Mr. Gaynor late on the evening of the 7th November, 2010. He was taken to Finglas Garda Station, where he was detained under the provisions of s. 50 of the Criminal Justice Act 2007. This section permits detention for a period of up to seven days for the purpose of the proper investigation of the offence. No issue arises in this appeal in relation to the lawfulness of the arrest or detention.

4.2 A standard notice of his rights as a person in custody was provided and explained to Mr. Wilson as...