Kearns -v- Director of Public Prosecutions,  IESC 23 (2015)
|Party Name:||Kearns, Director of Public Prosecutions|
THE SUPREME COURT
JUDICIAL REVIEW[Appeal No. 489/2013]
LUKE KEARNS APPLICANT/APPELLANTv.
THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENT
Judgment of Ms. Justice Dunne delivered the 6th day of March, 2015
The appellant brought judicial review proceedings seeking to prohibit his trial before the Circuit Criminal Court on foot of a bill of indictment bearing the number 1354/11. He was unsuccessful in his proceedings and has appealed to this Court from the refusal of the relief sought in the proceedings before the High Court.
On the 22nd July, 2009 there was a burglary at the home of a family in Tallaght. At the time, the family who resided in the home were away on holiday in Kerry. The gardaí were called to the property by a neighbour and on arrival it was observed that the house had been forcibly entered and ransacked. Various items had been stolen including phones, jewellery, alcohol and a digital camera. Garda David Pidgeon came to the house as part of the “scenes of crime” Unit and he lifted finger marks from a Kodak camera box that had allegedly been handled by the culprit.
Subsequently, on the 22nd February 2011, the appellant was arrested by gardaí investigating the burglary and following his arrest, his fingerprinted. He was interviewed and then charged with burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud) Offences Act 2001. He was remanded in Tallaght District Court from time to time until the Director of Public Prosecutions directed that the matter be sent forward for trial and ultimately the appellant was served with the book of evidence on the 9th November, 2011.
The case was then listed in the Dublin Circuit Court on the 2nd December, 2011 and thereafter adjourned to the 14th February, 2012 for mention and a date for trial was then fixed for the 11th July, 2012.
It is not in dispute that the primary evidence against the appellant at any trial will be fingerprint evidence. That being so, the appellant’s solicitors, Messrs. Whelan Murtagh Solicitors, by letter dated the 4th April, 2012 wrote to the Chief Prosecution Solicitor stating that it was intended to engage a forensic consultant to carry out independent analysis on the fingerprint evidence in the case. They requested disclosure relating to the fingerprint evidence including copies of the alleged fingerprints and such other documents as were used to identify the appellant together with details of the member of the gardaí who carried out the analysis including their qualifications. By letter dated 12th June, 2012, the Chief Prosecution Solicitor replied stating that:
“[T]he Kodak camera box was not seized by the gardaí at the time the fingerprint was lifted off it and it has not been retained by the complainant. Therefore, the camera box will not be available for inspection.”
Thus this is a case in which the appellant seeks to prohibit his trial on the basis of missing evidence. Curiously, given the letter from the Chief State Prosecution Solicitor explaining that the camera box was not seized by the gardaí at the time the fingerprint was lifted off it, it was listed as one of the exhibits in the book of evidence served on the appellant. However, nothing turns on this point.
The decision of the High Court
The learned President of the High Court dealt with the matter in a short ex tempore judgment. He identified the test applicable on the issue before him as follows:
“[I]s there a genuine risk of an unavoidably unfair trial arising by virtue of the fact that the camera box from which the fingerprint was lifted is no longer available?”
He noted that there was conflicting evidence on the issue before him and he referred to the evidence that he had before him, giving rise to the conflict. He went on to observe that the remedy of prohibiting a trial was something that should only be granted in exceptional cases and “very, very cautiously”. He was not satisfied that this was such a case. He emphasised the fact that it was for the applicant in such a case to satisfy the Court that it was appropriate to make such an order. He concluded that it was not a case where he believed that the fact that the camera box was missing would produce an unavoidably unfair trial. Accordingly he refused the application.
Garda Raymond Gannon, a detective garda with the fingerprint section of the Garda Technical Bureau, swore an affidavit on the 16th October, 2012 in relation to this matter. In his affidavit he said:
“In my capacity as a fingerprint expert I examined the finger mark on the finger lift card labelled “DP1” and endorsed as “lifted from Kodak camera box in front sitting room” and I compared it with an electronic set of ten prints bearing the name Francis Kearns, 35 Kilcarrig Close Tallaght, Dublin 24. I am satisfied beyond all doubt that the person who made the finger mark is the same person who made the left middle impression and palm print on the form bearing the name of Francis Kearns. I also examined the fingerprints taken from Luke Kearns on 22nd February 2011 and I also found these to be identical. I now believe all the comparison sets of fingerprints are those of Luke Kearns who had previously given an incorrect name when arrested and his prints were recorded under the name ‘Francis Kearns’. I therefore believe Luke Kearns made the finger mark preserved on ‘lift card’ ‘DP1’.
On 21st June 2012 Caroline Tweedy, an independent expert retained by the applicant, attended Garda Headquarters where she examined the fingerprint lift- cards and the comparison prints of the applicant. We afforded her full co-operation and she received copies of all materials and I cannot think of any way in which the applicant is prejudiced or his ability to defend himself compromised.
In my wide experience of giving evidence in criminal cases, fingerprint evidence is generally given by reference to the fingerprint lift cards taken from a crime scene as compared with the fingerprints taken from a suspect. I believe these are the appropriate reference materials given that the tape lifting of a finger mark removes it from the location where it is originally found and transfers it to the ‘lift card’ with the end result that the lift card is the only place where the finger mark continues to exist and can be examined. I further believe that this procedure of transferring the print to a lift-card is the best way of preserving the finger-mark.”
Garda David Pidgeon also swore an affidavit on the 10th October, 2012. He explained how he conducted the technical examination at the scene of the burglary and in the course of his examination he lifted the finger marks from the Kodak camera box that had allegedly been handled by the culprit. He explained the process of developing those marks using fingerprint development powder and lifting them with fingerprint lifting tape and then placing the “tape lifts” onto fingerprint “lift cards”. He filled in the reverse of the cards with the date and details of examination. He brought the fingerprint lift cards to the fingerprint section at Garda Headquarters. He went on to explain as follows:
“I did not retain the camera box from which I lifted the prints because: firstly, I developed and lifted all the finger marks that were on the box as described above, and by so doing I effectively transferred the finger marks from the box to the ‘lift cards’ such that the fingerprints were then on the lift cards and no longer on the box. As there was then nothing left on the box I believe the box was of no further significance. Secondly, I believed the evidence which could identify the alleged culprit, namely the finger marks that had been taken from the box and placed on the cards was then retained for production in any court proceedings and/or would be available for examination by or on behalf of the defence such a suspect be identified. Thirdly there was no suspect identified and anything seized would have to be retained indefinitely; fourthly, on the basis of my...
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