Kearns v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,Ms. Justice Dunne
• Judgment Date: 06 March 2015
• Neutral Citation: [2015] IESC 23
• Court: Supreme Court
• Date: 06 March 2015

Kearns v DPP

Between/

JUDICIAL REVIEW

LUKE KEARNS

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

v.

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

v.

[2015] IESC 23

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

Dunne J.

[Appeal No: 489/13]

[Appeal No: 489/2013]

THE SUPREME COURT

Criminal law - Judicial review - Seeking to prohibit trial - Burglary of family home - Gardaí - Fingerprints - Forensic evidence - Camera not seized at the time - Missing evidence - Preservation of evidence - Duty of Gardaí to preserve evidence - Whether real risk of unfair trial

Facts The appellant brought judicial review proceedings. He sought to prohibit his trial before the Circuit Criminal Court on foot of a bill of indictment. He was unsuccessful in his proceedings and subsequently sought to appeal. On 22nd July 2009 a burglary took place in Tallaght, County Dublin. Gardaí of the “Scenes of Crime” unit arrived at the scene and fingerprints were taken from a Kodak camera box that had allegedly been handled by the culprit. On 22nd February 2011, the appellant was arrested, interviewed and charged with burglary contrary to s. 12 (1) (b) and (3) Criminal Justice (Theft and Fraud) Offences Act 2001. He was served with the book of evidence on 9th November 2011. His solicitor wrote to the DPP claiming he was going to engage a forensic consultant for an independent analysis of 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. The Chief Prosecution Solicitor replied stating the Kodak camera was not seized at the time the fingerprint was lifted off it. The appellant therefore sought to prohibit his trial on the basis of missing evidence. The judge asked whether there was a genuine risk of an unavoidably unfair trial arising by virtue of the fact that the camera box from which the fingerprint was lifted was no longer available. 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”. Accordingly, he refused the application.

Held The judge said it was for the appellant to demonstrate that there was a real risk of an unfair trial and to prove that such a risk derived from a failure by the investigating Gardaí to preserve the camera box. The judge concluded the appellant had not discharged the onus of proving that circumstances existed that gave rise to a real risk that the accused would not receive a fair trial.

-Appeal dismissed

1 JUDGMENT of Mr. Justice Hardiman delivered the 6th day of March, 2015.

2 Judgment of Ms. Justice Dunne delivered the 6th day of March, 2015.

3 Judgment delivered by Hardiman J & Dunne J [Denham CJ, Murray J, Hardiman J & O'Donnell J concur.]

4 1. I agree with the order proposed by Ms. Justice Dunne in this case. I also gratefully adopt her summary of the factual background to the case and of the evidence.

5 2. The summary of the evidence clearly establishes that there was a conflict of expert evidence between the State Expert and Ms. Catherine Tweedy, a forensic scientist employed by Keith Borer Consultants for Mr. Kearns. Ms. Tweedy is a fingerprint expert. She was retained by the applicant/appellant. She said:

"Quite commonly fingerprint tape will lift the excess powder and leave the fingerprint itself on an item. Theoretically if a contact mark is very fresh and has only been created by sweat, there may be no mark left after a lift is made but in practice, the fact is that even when contact marks are created by sweat alone, residue of the contact mark is left".

6 Ms. Tweedy went on:

"… I have never examined the box where there was no part of a contact mark left upon it after a fingerprint lift was taken".

7 3. This evidence, however, was contradicted by two gardaí who swore affidavits.

8 4. The significance of the foregoing is that the sole evidence is a fingerprint, allegedly lifted from a box in which a camera was sold, which the gardai say they "lifted" off the box. The gardaí say that this destroys any remnant of the fingerprint on the box, so that it cannot be affirmatively proved (other than on the gardaí's own evidence) that the "lifted" fingerprint was ever on the box. But the appellant's expert says that this is not so and that in the great majority of cases some trace, at least, of the fingerprint will remain on the box. She says she has never examined a box on which a trace was not

9 5. This of course a significant divergence of expert evidence, and might have been decisive, especially in the context that no photograph of the camera box were taken in situ or at all.

10 6. I agree with Ms. Justice Dunne's statement at page 15 of her judgment:

"There is undoubtedly a conflict in the evidence between Ms. Tweedy and Detective Garda Gannon as to whether or not any marks would have been left on the camera box showing the tape lifting of the finger mark. Given that there was such a conflict in the evidence on affidavit below the learned President, it is perhaps surprising that no attempt was made to resolve that conflict by the cross-examination of witnesses before the President. That conflict remains and is not possible on the evidence before this Court to resolve that conflict.".

11 Where it is not possible to resolve a conflict, the relevant issue will naturally be resolved against whichever party carries the onus of proof, which in this case is the applicant/appellant.

12 7. I wish to reiterate what I said in Bolinden Tara Mines v. Cosgrave [2010] i.e. SC, 62, at para. 43:

"It cannot be too strongly emphasised that, where evidence is presented on affidavit, a party who wishes to contradict such evidence must serve a notice of intention to cross-examine. In a case tried on affidavit, it is not otherwise possible to choose between two conflicting versions of fact which may have been deposed to. In a case where there is no contradictory evidence an attack of the evidence which is made before the Court must include cross-examination unless the contradicting party is prepared to rely wholly on a submission that the plaintiff has not made out its case, even taking the evidence it has produced at its height."

13 The above passage was cited by Clarke J. in IBB Internet Services Ltd. v. Motorola Ltd. [2013] IEFC 53. He also referred to his own judgment in McInerney Homes Ltd. (No. 2) [2011] IEHC 4. There, he referred to Bolinden and he added:

"… it is of course open to a party to seek to argue that, even taking its opponent's evidence at its high point, same does not establish a material element of the matters needed to be established in order that the remedy be given by the Court. While Hardiman J. was dealing with a case in which there was no contradictory evidence, it seems to me that similar considerations may apply where there is contradictory evidence but where the evidence on both sides is given on affidavit without cross-examination. It is of course open to a party in such circumstances to say that the Court can rely on uncontradicted aspects of the evidence in reaching its conclusion. Indeed to a material extent that is what counsel for both the Examiner and Mclnerney sought to do. However it is impossible for the Court to resolve material questions where there is a conflict of evidence on matters of significance to an answer to those questions."

14 I hope it will not again occur that contradictory affidavit evidence on a point important to the resolution of the case will simply be left in that condition, with inconsistent sworn statements, and with no attempt to resolve the conflict in the only possible way, by the service of notice of intention to cross-examine pursuant to the rules of Court.

15 8. I should also like to express my agreement with the observations of Ms. Justice Dunne at p.20 of her judgment as to the power and duty of the learned trial judge to ensure that the appellant's right to a fair trial will be vindicated by making appropriate rulings on the issue before the Court. Those powers and duties of the learned trial judge are in no way diminished by the fact that the applicant has failed in these judicial review proceedings.

16 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.

Background

17 On the 22 ^nd 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.

18 Subsequently, on the 22 ^nd 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...