K v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Max Barrett |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] IEHC 511 |
| Court | High Court |
| Docket Number | Record No: JR 134/2014 |
| Date | 31 July 2015 |
[2015] IEHC 511
Record No: JR 134/2014
THE HIGH COURT
Crime & Sentencing – Burglary and Sexual assault – Limited scientific evidence – order of prohibition
Facts: The applicant sought an order of prohibition in relation to the pending prosecution of the applicant accused of burglary and sexual assault on the ground of a statement made by the State Forensic Laboratory that a scientific examination would not further the investigation in any direction.
Mr. Justice Max Barrett refused to grant an order of prohibition to the applicant. The Court held that the aforesaid statement would not be taken to mean that there was lack of evidence or insufficient evidence warranting the prosecution of the applicant. The Court found that the forensic samples of the applicant, corroboration of independent witnesses and medical report of the physical examination of the complainant were sufficient to bring the accused within trial. The Court opined that the statement made by the State Forensic Laboratory that the scientific examination would not further the investigation was ambiguous and hence, it would not preclude the Gardia to challenge.
This is an application for an order of prohibition in respect of the pending prosecution of the Applicant for certain alleged offences.
The Applicant is accused of burglary and sexual assault. It is alleged that in October 2008, after consuming alcohol, the Applicant twice entered the Complainant's hotel bedroom uninvited and committed a sexual assault upon the Complainant. The Applicant admits that he was twice present in the Complainant's hotel bedroom and that he came into physical contact with the Complainant when he sought to rouse her from her sleep. The Applicant denies that he committed any sexual offence.
The Gardaí were called to the hotel and arrived less than an hour after the alleged offence was committed. Thereafter the Complainant was brought to the sexual assault unit of a nearby hospital and various tests done and samples taken. DNA swabs were used and blood was taken. A physical examination of the Complainant showed that she was suffering from some internal bleeding. The doctor who examined the Complainant found no conclusive evidence of a sexual assault but concluded that the finding of blood was ‘ consistent with trauma’ to the area of the alleged assault.
The Applicant was brought to the local Garda station. Counsel for the Applicant contends that, given the particular nature of the offence that is alleged to have occurred, the full details of which it is not necessary to recount in the within judgment, an obvious procedure would have been to place the Applicant's hands into evidence bags at the hotel room, bring him to the Garda station and perform forensic tests on his hands for later comparison with such swabs as were taken from the Complainant. In fact, no forensic examination was carried out on the Applicant at this time. The Applicant was subsequently released but returned on a later occasion to the Garda station where he provided saliva samples from his mouth. It was understood by the Applicant and his legal team that the saliva samples were taken for comparison with DNA samples recovered in the forensic examination previously carried out on the Complainant.
The Applicant's legal team eventually realised, following receipt of a notice of additional evidence dated 14th February, 2014, that no forensic examination of the samples taken from the Complainant or the Applicant had been conducted. The DPP maintains that the Applicant's legal team would have known from the time the book of evidence was served on 7th February, 2011, that no test results or analyses of samples taken from the Complainant and/or the Applicant was to be relied upon. However, it seems to the court that there is a significant difference between knowing that no such evidence will be relied upon, and realising that no such evidence exists. The court accepts that the applicant's legal team did not so realise, and had no reason to so realise, until 14th February, 2014. All this leads to the inexorable conclusion that there has been no delay in bringing the within proceedings, which were in truth commenced with admirable promptness by notice of motion on 3rd March, 2014. The claim by the DPP that there has been delay in bringing the within application for an order of prohibition is not therefore accepted by the court.
Why are there no test results or analyses of the various samples taken? Shortly put, because after reviewing the samples taken from the Complainant and the Applicant and the information supplied by the Gardaí, a senior member of the State Forensic Laboratory concluded, in a letter of 2nd June, 2009, that ‘ Having assessed the information supplied, it is my opinion that a scientific examination will not further the investigation in any direction.’ Counsel for the Applicant contends that for the now-pending trial to proceed in the absence of test results or analyses of samples taken from the Complainant and the Applicant would, to use counsel's words, render it akin to “Hamlet without the Prince”. More particularly, counsel for the Applicant claims that the absence of such evidence is sufficient to justify the requested order of prohibition because:
(a) such evidence would, it is claimed, have shown that the Complainant had consumed a considerable quantity of alcohol on the night in question (a factor relevant to the level of the Complainant's consciousness at the time of the alleged assault and a “dream theory” that the defence may seek to advance);
(b) the only scientific evidence corroborating the Complainant is that of the doctor who examined her on the night of the alleged assault, and the samples she (the doctor) obtained should have been forensically examined;
(c) had DNA analysis been conducted on the swabs taken from the Complainant on the night of the alleged assault, this, it is claimed, would have disclosed that none of the Applicant's DNA subsisted in same;
(d) had the blood found within the Complainant been analysed, this, it is claimed, would have disclosed whether, for example, the blood found within the Complainant was attributable to menstruation.
Given the foregoing, counsel for the Applicant contends that there is a real risk that his client will not obtain a fair trial or that a trial will be unfair in the absence of the forensic evidence.
Before moving on from its consideration of the background facts, the court notes that counsel for the Applicant sought to make much ado about (a) the form of forensic testing requested by the Gardaí of the State Forensic Laboratory in a form completed on or before 23rd February, 2009, not being compatible with the content of an Acceptance Form signed by a member of the State Forensic Laboratory and (b) the fact that the member of An Garda Síochána with whom the State Forensic Laboratory corresponded on 2nd June, 2009, was not the member who had requested the testing, and that had it communicated with the Garda who submitted the request for testing he would have queried the conclusion reached by the State Forensic Laboratory. The court would make a number of observations in this regard:
- first, the Form C.56 completed by the member of An Garda Síochána seeking testing, a copy of which has been seen by the court, requests “DNA/Biology” testing.
- second, the “Biology, Chemistry & DNA Case Acceptance Form” that issued, it appears, to An Garda Síochána mentions “Biology” testing only but is not the form in which the testing sought is requested.
- third, the letter of 2nd June from the State Forensic Laboratory states that ‘a scientific examination will not further the investigation in any direction’.
- fourth, the court notes that the wording ‘ scientific examination’, read naturally, would appear to embrace all scientific examinations, not just those sought.
- fifth, the court accepts that the member of An Garda Síochána who completed the form and the member of An Garda Síochána who received the letter were different.
- sixth, the court accepts the contention for the DPP that no regular member of An Garda Síochána would have the competence to challenge the view of the State Forensic Laboratory that ‘ a scientific examination will not further the investigation in any direction.’
- seventh, the court does not consider, to apply various tests that will be considered in detail hereafter, that either or both of the circumstances mentioned at points (a) and (b) above justifies/justify an exceptional intervention by way of prohibition, or offers/offer an example of circumstances that entail a real or serious risk that the Applicant cannot obtain a fair trial. If anything, they seem precisely the type of issues that would be better addressed by appropriate examination of witnesses at a court of trial under the watchful eye of a presiding judge.
To the extent it is contended that, in the absence of the above-mentioned forensic evidence, the proposed trial will descend into nothing more than “one person's word against another”, the court does not accept that this is so. The proposed trial will involve more than the testimony of the Complainant and such testimony as the Applicant may elect himself to provide. Thus the Complainant's sister, who was also staying at the hotel but was not with the Complainant at the time of the alleged assault, witnessed the early report of the alleged assault by the Complainant, and her condition in the immediate aftermath of same. There is also evidence from the hotel manager and the...
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