Kelly v DPP and Another
| Jurisdiction | Ireland |
| Judge | Denham J.,Mr. Justice Hardiman. |
| Judgment Date | 21 December 2007 |
| Neutral Citation | [2007] IESC 69 |
| Court | Supreme Court |
| Date | 21 December 2007 |
[2007] IESC 69
THE SUPREME COURT
Denham J.
Hardiman J.
Macken J.
and
MISUSE OF DRUGS ACT 1977 S3
MISUSE OF DRUGS ACT 1977 S15
MISUSE OF DRUGS ACT 1977 S27
MISUSE OF DRUGS ACT 1984 S6
MISUSE OF DRUGS ACT 1977 S5
CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(b)
MURPHY v DPP 1989 ILRM 71
BRADDISH v DPP 2001 3 IR 127 2002 1 ILRM 151
DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645
BOWES & MCGRATH v DPP 2003 2 IR 25
DPP v CHRISTO UNREP CCA 31.1.2005 2005/19/3869 2005 IECCA 3
SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005 54 11281 2005 IESC 11
MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP SUPREME 7.3.2006 2006 IESC 11
21st day of December, 2007 by Denham J.
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.
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 Síochána buried a few inches beneath the surface of the park.
(ii) The applicant was charged with the following offences:
Count No. 1
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.
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.
Count No. 2
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.
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.
Count No. 3
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.
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 contravention of the Misuse of Drugs Regulations, 1988 and 1993 made under Section 5 of the Misuse of Drugs Act, 1977.
Count No. 4
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.
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.
3. The High Court described the claim of the applicant as follows:
"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 hÉireann because the Gardaí 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."
The learned High Court judge refused the application, concluding as follows:-
"…… 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 that the absence of that evidence will in any respect expose him to the risk of an unfair retrial.
It follows that I am not satisfied that the retrial of the applicant should be prohibited on the ground that the Gardaí failed to obtain and preserve fingerprints and palm marks from the outer packaging surfaces of the parcels of cannabis resin which were recovered at or near the location where the offences are alleged to have occurred.
In the light of the foregoing, it is unnecessary for me to consider the submissions made on behalf of the respondents relative to the alleged delay on the part of the applicant in seeking the relief which has been sought herein.
I should point out in passing that the duty which rests upon the prosecuting authorities to preserve evidence and to do so " as far as is necessary and practicable" is a duty which has been identified repeatedly by the courts before and after the decision of the High Court (Lynch J.) in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71.
It is noteworthy in the instant case that the applicant's solicitors sought the results of " any forensic examinations undertaken" from the State on the 28th March, 1998. The Book of Evidence in the case was delivered to the applicant on 6th February, 1998.
The applicant claimed at his trial that when he read the Book of Evidence in February of 1998 he "…wanted fingerprint evidence …" If that was so then, in February 1998, the applicant and his advisors considered such evidence to be relevant to the issues to be determined at his trial.
However, no step was taken on behalf of the applicant to seek the relief which has been sought in these proceedings until 12th August, 2002.
As I have indicated, however, it is unnecessary for me to consider that aspect of the case since I am not satisfied on the evidence that the applicant has proved that he is entitled to the relief which has been sought.
Accordingly the relief sought is refused."
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