Kelly v DPP & Anor, [2005] IEHC 185 (2005)

Docket Number:2002 488JR
Judge:Quirke J.
 
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Neutral Citation Number: [2005] IEHC 185THE HIGH COURTJUDICIAL REVIEW[2002 No. 488 JR]BETWEENJOHN KELLYAPPLICANT ANDTHE DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE DUBLIN CIRCUIT CRIMINAL COURTRESPONDENTSJUDGMENT of Quirke J. delivered on the 17th of June, 2005.By order of the High Court (Peart J.) dated 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 on foot of bills of indictment whereby the applicant is charged with the commission of offences contrary to the provisions of the Misuse of Drugs Act 1977.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.FACTUAL BACKGROUND1. Between the 10th and 15th July, 2000, the applicant stood trial in the Dublin Circuit Criminal Court in respect of the alleged commission of four offences contrary to the provisions of the Misuse of Drugs Act 1977 (as amended). (a) Two charges alleged possession by the applicant of controlled drugs in or about the N4 Chapelizod By-Pass in an area known as Long Meadows in the city of Dublin on 12th May, 1997: (i) simpliciter contrary to sections 3 and 27 of the Act of 1977 and(ii) for the purpose of selling or otherwise supplying contrary to sections 15 and 27 of the Act of 1977. (b) Two further charges alleged possession by the applicant of controlled drugs at St. Lawrence's Road in the city of Dublin on 12th May, 1997:(i) simpliciter contrary to sections 3 and 27 of the Act of 1977 and(ii) for the purpose of supply contrary to sections 15 and 27 of the Act of 1977. On the 15th July, 2000, the applicant was convicted of the two offences outlined at (a) above, i.e., possession of two five kilogram bags of cannabis resin. The bags had been found buried in a wooded area known as Long Meadows in the City of Dublin on 12th May, 1997.On the same date and within the same trial, the jury failed to agree upon a verdict in respect of the two charges outlined at (b) above which alleged possession by the applicant of two smaller packages containing cannabis resin.2. On 21st March, 2002, the Court of Criminal Appeal quashed the convictions in respect of the charges outlined at (a) above on grounds that the cross-examination of the applicant at the trial was improper and impermissible having regard to the provisions of s. 1(f) of the Criminal Justice (Evidence) Act 1924.The judgment of the Court of Criminal Appeal (Fennelly J.) referring to the charges which are the subject of these proceedings concluded in the following terms:"Now it is said on the other hand on behalf of the prosecution that the evidence supporting…( the charges) … is independent. So the court was being asked to comment in effect on the prejudicial effect of the evidence in relation to the other two counts, … and on another issue, which I will mention but will make no comment on, and that is the fact that although the Gardaí had seen the two bricks or blocks of cannabis being thrown away and they were wrapped in plastic, no fingerprint evidence was obtained or certainly no attempt was made to obtain it early enough to ensure that such evidence would be available. The court does not think it is desirable that there should be any comment on that matter because the court has decided that, while the conviction should be set aside on counts 3 and 4 there should be a new trial, and as it is a matter of course for the Director of Public Prosecutions as to what steps he takes in relation to the new trial this...

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