Kelly v DPP and Judges of the Circuit Criminal Court

• Jurisdiction: Ireland
• Judge: Hardiman J.,Denham J.
• Judgment Date: 21 December 2007
• Court: Supreme Court
• Docket Number: 310/2005
• Date: 21 December 2007

THE SUPREME COURT

Denham J.

Hardiman J.

Macken J.

310/2005

Between:

JOHN KELLY

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

and

THE JUDGES OF THE CIRCUIT CRIMINAL COURT

Respondents

Abstract:

Criminal law - Criminal procedure - Evidence - Missing evidence cases - Drugs cases - Delay - Accused handling cannabis brick - Failure to preserve finger prints - Opportunity to examine - Whether real and serious risk of unfair trial

The applicant alleged that the failure of the Gardai to preserve fingerprints from a brick of cannabis resin that he was alleged to have handled entailed that he could not receive a fair trial.

Held by the Supreme Court (Denham J), that there was a dearth of evidence as to the fingerprint evidence on the cling film of the cannabis resin. The parcels were preserved and no prints were found. The applicant knew that the State case against him was that he had handled the packages since 1997 or 1998 yet he had not sought to have the packaging forensically examined until now. The applicant had not discharged the onus of proof required to show a real risk of an unfair trial.

Reporter: E.F.

1 JUDGMENT delivered the 21st day of December, 2007, by Mr. Justice Hardiman.

2 I agree with the judgment which has been delivered by Mrs. Justice Denham.

3 In my view, the applicant has not engaged with the facts of this case sufficiently to make out a case that would entitle him to relief. In particular he has failed to adduce evidence to show:

• (a) That a person handling the packets covered in cling film in the manner he is alleged to have done would, as a matter of probability, leave a visible fingerprint on them.

• (b) That, again as a matter of probability, it was the treatment of the packets by the gardai or those scientific personnel to whom they gave them, and the effect of such treatment on the cling film, that caused the fingerprints, otherwise probably available, to cease to be visible or available at the time the packaging was eventually examined for fingerprints.

4 In the absence of firm evidence of these points I find it difficult to regard the case advanced by the applicant as anything other than academic, or moot. The onus on the applicant is not a high one and evidence in relation to the fingerprinting of various materials is expert evidence of a sort which is readily available. The applicant would be entitled, if he wishes, to deploy it at his trial. But in its absence he has no case for relief by way of judicial review.

5 I agree with the judgment of Mrs. Justice Denham and the order she proposes.

6 THE SUPREME COURT

7 [S. C. No: 310/2005]

Denham J. Hardiman J. Macken J.

8 Between/

9 John Kelly

10 Applicant/Appellant

11 and

12 The Director of Public Prosecutions and

13 The Judges of the Dublin Circuit Criminal Court

14 Respondents

15 Judgment delivered the 21st day of December, 2007 by Denham J.

16 1. John Kelly, the applicant/appellant, hereinafter referred to as 'the applicant', has brought this appeal from the order and judgment of the High Court (Quirke J.) of the 7th July, 2005, which Court refused to prohibit the trial of the applicant on Bill No DU 195/98, presently pending in the Dublin Circuit Criminal Court.

17 2. There is a long history to this appeal. The relevant facts include the following

• (i) On the 12th May, 1997 the applicant was arrested and charged with offences under s.3 and s.15 of the Misuse of Drugs Acts. There are four counts, which relate to the possession of a controlled drug, cannabis resin, contrary to the Misuse of Drugs Acts. The alleged events took place at or near the entrance to the Liffey Valley Park from St Laurence's Road, Chapelizod, Dublin, on the 12th May, 1997. There were two incidents: the first two counts relate to the possession of two bricks of cannabis resin, which the prosecution allege the applicant threw onto the grass as he approached the exit with another person. Counts three and four relate to two bricks of cannabis resin found by the Garda Siochana buried a few inches beneath the surface of the park.

• (ii) The applicant was charged with the following offences:

18 Count No. 1

19 Possession of a controlled drug for the purpose of supply contrary to Section 15 and Section 27 of the Misuse of Drugs Act, 1977 as amended by Section 6 of the Misuse of Drugs Act, 1984.

20 John Kelly on the 12th of May, 1997 at St. Laurence's Road in the County of the City of Dublin did have in his possession a controlled drug, to wit, Cannabis Resin for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993 made under Section 5 of the Misuse of Drugs Act, 1977.

21 Count No. 2

22 Possession of a controlled drug contrary to Section 3 and Section 27 of the Misuse of Drugs Act, 1977 as amended by Section 6 of the Misuse of Drugs Act, 1984.

23 John Kelly on the 12th of May, 1997 at St. Laurence's Road in the County of the City of Dublin did have unlawfully in his possession a controlled drug, to wit, Cannabis Resin.

24 Count No. 3

25 Possession of a controlled drug for the purpose of selling or otherwise supplying it to another contrary to Section 15 and Section 27 of the Misuse of Drugs Act, 1977.

26 John Kelly on the 12th of May, 1997 in or about the N4 Chapelizod By-Pass being an area known as Long Meadows in the County of the City of Dublin did have in his possession a controlled drug, to wit, Cannabis Resin for the purpose of selling or otherwise supplying it to another in

27 contravention of the Misuse of Drugs Regulations, 1988 and 1993 made under Section 5 of the Misuse of Drugs Act, 1977.

28 Count No. 4

29 Possession of a controlled drug contrary to Section 3 and Section 27 of the Misuse of Drugs Act, 1977 as amended by Section 6 of the Misuse of Drugs Act, 1984.

30 John Kelly on the 12th of May, 1997 in or about the N4 Chapelizod By-Pass being an area known as Long Meadows in the County of the City of Dublin did unlawfully have in his possession a controlled drug, to wit, Cannabis Resin.

• (iii) On the 26th May, 1997 there was an application for bail in the High Court.

• (iv) In February, 1998 the applicant was served with the Book of Evidence.

• (v) On the 23rd March, 1998 the applicant's solicitors wrote to the Director of Public Prosecutions seeking, inter alia, 'the results of any forensic examinations undertaken during the investigation of this case.' A Notice of Additional Evidence with statements detailing the results of the forensic examinations was served on the applicant on or around 19th October, 1998.

• (vi) Between the 10th July, 2000 and the 15th July, 2000 there was a six day trial in the Dublin Circuit Criminal Court leading to the conviction of the applicant on the buried package charges, the jury disagreed on the discarded packages charges.

• (vii) On the 22nd August, 2000 the applicant lodged an appeal against the convictions in the Court of Criminal Appeal.

• (viii) On the 21st of March, 2002 the Court of Criminal Appeal heard the appeal and gave an ex tempore judgment setting aside the convictions on the basis that the questions put in cross examination to the applicant transgressed permissible bounds and infringed the provisions of s.1 (b) of the Criminal Justice (Evidence) Act, 1924. The Court of Criminal Appeal was of the opinion that there should be a new trial.

• (ix) On the 24th May, 2002 the Director of Public Prosecutions ordered a retrial on all four charges.

• (x) On the 24th April, 2002 the applicant's solicitor wrote seeking the results of the forensic examinations of the dashboard and steering wheel of the applicant's vehicle.

• (xi) On the 2nd June, 2002 the date for retrial was set for the 14th October, 2002.

• (xii) On the 31st July, 2002 the applicant was given leave to apply by way of judicial review for orders prohibiting the respondents from proceeding further with the trial of the applicant.

• (xiii) On the 26th May, 2005 the application for judicial review was heard by the High Court (Quirke J.)

• (xiv) On the 17th June, 2005 the High Court delivered judgment, refusing the applicant's application to prohibit his trial.

• (xv) On the 9th August, 2005 Notice of Appeal to this Court was lodged.

• (xvi) On the 25th November, 2005 this Court granted the applicant a stay on the prosecutions, pending determination of this appeal.

31 3. The High Court described the claim of the applicant as follows:

32 "It is claimed on behalf of the applicant that he cannot receive a fair trial in due course of law in accordance with the provisions of Articles 38.1 and 40.4.1 of Bunreacht na hEireann because the Gardai who investigated the offences with which he has been charged, failed to lift, to retain and to properly preserve fingerprints and palm marks from:

• (1) the applicant's motorcar, including the steering wheel and dashboard of the vehicle, and

• (2) the outer packaging surfaces of parcels of cannabis resin which were recovered at or near the location where the offences were alleged to have occurred on 12th May, 1997.

  It is contended that the absence of these fingerprints and palm marks has given rise to a real and serious risk that the applicant, who has already been tried in respect of the charges and now faces a retrial, will not receive a fair retrial in respect of the offences alleged against him."

33 4. The High Court

34 The learned High Court judge refused the application, concluding as follows:

35 "…… I do not believe that the absence of any evidence of the results of earlier fingerprint and palm mark testing will or could result in any possible prejudice to the applicant's capacity to defend himself in respect of the charges preferred against him. I do not accept...