McDonagh v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 19 June 2015
• Neutral Citation: [2015] IEHC 390
• Court: High Court
• Docket Number: [2013 No. 72 J.R.],[2013 No. 72 JR]
• Date: 19 June 2015

[2015] IEHC 390

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2013 No. 72 J.R.]

BETWEEN

JOHN GERARD MCDONAGH

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, ASSISTANT COMMISSIONER JOHN O'MAHONEY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Crime & Sentences – Rape & Murder – Conviction – S. 2 of the Criminal Procedure Act 1993 – Access to new expert opinion – Whether re-investigation of offence following a conviction on the basis of new evidence permissible – Fair procedures

Facts: Following the conviction of the applicant for rape and murder based on forensic evidence, the applicant now sought an order of mandamus directing the first and second named respondents to permit access to the evidence gathered during the investigation of the rape and murder of the victim leading to the conviction of the applicant. The applicant contended that the new evidence based on new DNA sampling techniques as propounded by experts was a vital link in order to exculpate him.

Mr. Justice McDermott refused to grant an order of Mandamus to the applicant but gave liberty to the applicant for seeking an order by way of judicial review for quashing the decision of the second named respondent who refused to entertain the applicant's application for fresh consideration of evidence under new techniques. The Court was of the view that the second named respondent could very well consider the matter on merits and there was no need for the second named respondent to seek judicial intervention. The Court held that the maxim presumption of innocence was of no use to a convicted person; however, the criminal justice system required that he must be given an opportunity to establish new evidence that was not present at the first instance. The Court held that an expert opinion could be considered a new evidence if it had the material impact of causing an acquittal. The Court held that under s. 2 of the Criminal Procedure Act, 1993, an application for access to expert opinion for application of new scientific techniques should first be made to the second respondent and subsequently to the Court of Appeals, if there was any need to do so. The Court dwelled at length on the criminal justice system of U.K., Canada and the United States and held that right of discovery of materials facts post-conviction would be within fair procedures and imbibed in the criminal justice system.

JUDGMENT of Mr. Justice McDermott delivered on 19th day of June, 2015

1 The applicant was granted leave to apply for judicial review on 4th February, 2013, (Peart J.) seeking an order of mandamus, or alternatively an injunction, directing the first and second named respondents to permit appropriately qualified experts access to forensic evidence gathered during the investigation into the murder and rape of Siobhan Hynes on 6th December, 1998, at Carraroe, Co. Galway. The applicant seeks to have items of real evidence submitted to new scientific procedures which, it is claimed, were discovered or became available, following the original investigation, and/or the applicant's conviction for the rape and murder of the late Ms. Hynes and the dismissal of his appeal by the Court of Criminal Appeal. A number of other related declarations are also sought.

2 The applicant was convicted on 17th June, 2001 following a 28 day trial. The jury was directed to find the applicant not guilty of a s. 2 rape in the absence of evidence of penile penetration. A sentence of life imprisonment was imposed in respect of the murder charge and a sentence of 10 years imprisonment in respect of the s. 4 rape.

3 Leave to appeal was sought against conviction and sentence, but refused in an ex tempore judgment of the Court of Criminal Appeal, delivered on 14th February, 2007.

4 On the 13th August 2012 the solicitors for the applicant wrote to the first named respondent (the Commissioner) requesting access to items of evidence gathered during the course of the investigation, for the purpose of submitting them to new forensic testing procedures which came into existence since the original investigation, trial and/or appeal. The letter set out in summary the conclusions reached by a forensic expert who had re-examined the case. They were said to be based upon advances in testing which had resulted in DNA being extracted and tested in cases where it was not previously possible to do so. It was claimed that the expert expressed cause for concern in respect of the applicants conviction in the light of post-trial advances in testing techniques and that these advances might show:-

‘(a) That DNA found under the deceased's finger nails might be identified and a male profile extracted which in 1999 was not possible if such DNA was masked by a female profile (only female DNA was identified in the DNA found under Siobhan Hynes' nails).

(b) Relevant fibres and hairs found can now be tested using new STR/DNA techniques and mitochondrial testing

(c) The deceased's clothing could provide “touch DNA” samples or epithelial cells in circumstances where she was dressed in her jeans when found and as it is likely, or at least possible, that her jeans were placed back upon her body by the culprit when she was unconscious. DNA might be present on that clothing as well as on her panties.’

It was argued that DNA profiles found under the deceased's nails or on her clothing ‘may inculpate or exculpate’ Mr. McDonagh and had they been available at the time of trial might have led to evidence which would have materially affected the jury's decision.

5 A reply was received from Assistant Commissioner John O'Mahoney dated 21st November, 2012 in which he stated:-

‘Having given this matter much consideration I am of the view that I cannot accede to your request to disclose the evidence sought in the absence of a court order directing such disclosure.’

6 In earlier correspondence the Commissioner suggested that the applicant should apply under s. 2 of the Criminal Procedure Act 1993 to quash the conviction on the basis of ‘new facts’ or ‘newly discovered facts’ and seek the directions of the Court of Criminal Appeal (now the Court of Appeal) in respect of access to items of evidence for the purpose of testing. Though there is mention in the correspondence and reference to a Garda policy permitting the forensic testing of exhibits post-trial, this is not elaborated upon in the exhibited correspondence and no evidence was adduced that An Garda Síochána operates a policy of granting such access without a court order. The request was not rejected on its merits though that aspect of the decision is not challenged in these proceedings.

The Evidence

7 No DNA evidence was adduced in this case at the trial. It was accepted that a DNA examination was carried out, but deemed to be ‘neutral’. It is clear that the case was based largely on circumstantial evidence and on some forensic evidence based on the significance of fibres found. All these matters were addressed in the judgment of the Court of Criminal Appeal which states that the forensic evidence which established a connection between garments worn by the applicant and garments worn by the deceased was an important piece of evidence.

8 A summary of the evidence relied upon at the trial is found in the judgment of the Court of Criminal Appeal and in the affidavit of Mr. Robinson, Solicitor. He stated that the prosecution's case relied heavily on forensic evidence based on the finding of fibres, and expert conclusions that:-

(a) There was very strong support for the proposition that the applicant's jumper had been in contact with the deceased's clothing, and

(b) There was support for the proposition that the deceased had been in the applicant's car.

At the appeal, the applicant was refused leave to adduce new scientific evidence relating to fibre evidence. The remaining evidence was summarised as follows:-

‘That the applicant was not seen in the village of Carraroe between the hours of 12.50am and 1.45am during which period the prosecution contended the rape and murder of Siobhan Hynes took place; that when he was seen again after 1.45am he had changed his top; evidence that the applicant had scratches on his body and a mark on his hand the day following the death; that when requested by the gardaí to hand into the garda station the jumper he was wearing on the night of the 5th/6th December, 1998, he handed in the wrong jumper and when questioned, initially denied that he had been wearing the white jumper on which the fibres were found; that the applicant had denied that the deceased was ever in his car although fibres were found supporting the proposition that she had been.’

9 Mr. Robinson states that a forensic expert gave evidence that she received all the clothing which the deceased had been wearing on the night which included black socks, navy denim jeans, a wine polo neck jumper, a dark blue fleece and a white bra in separate sealed bags. There were no positive matches for the applicant's blood or semen on any of the items. Nail scrapings only showed tissues belonging to the deceased. There was blood staining on the crotch of her jeans extending up the front, on the legs and on the seat of the jeans. No grouping was obtained from the blood. Blood on the deceased's jumper was thought likely to be her own blood as it was consistent with her own blood group, which was the same as the applicant's. The forensic report could not determine whether or not it was his blood, though from its pattern and location it was said to be consistent with the deceased's blood.

10 The clothes found at the applicant's house were also tested for evidence of contact with the deceased, but no blood grouping was possible. No head hairs matching the deceased were found in the applicant's car. There were very few head hairs on the...