Appeal No: 489/13

IpsofactoJ.com: International Cases [2015] Part 4 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

Luke Kearns

- vs -

Director of Public Prosecutions

Denham CJ

Murray J

Hardiman J

O’Donnell J

Dunne J

6 MARCH 2015


Judgment

Justice Hardiman

  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.

  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:

  3. 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.

    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.

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

  5. 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 left.

  6. 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.

  7. I agree with Ms. Justice Dunne’s statement at page 15 of her judgment:

  8. 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.

    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.

  9. I wish to reiterate what I said in Bolinden Tara Mines v Cosgrave [2010] IESC, 62, at para. 43:

  10. 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.

    The above passage was cited by Clarke J. in IBB Internet Services Ltd. v Motorola Ltd. [2013] IESC 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 McInerney 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.

    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.

  11. 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.

    Justice Dunne

  12. 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.

  13. Background

  14. On the 22nd 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.

  15. Subsequently, on the 22nd 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 of evidence on the 9th November, 2011.

  16. The case was then listed in the Dublin Circuit Court on the 2nd December, 2011 and thereafter adjourned to the 14th February, 2012 for mention and a date for trial was then fixed for the 11th July, 2012.

  17. It is not in dispute that the primary evidence against the appellant at any trial will be fingerprint evidence. That being so, the appellant’s solicitors, Messrs. Whelan Murtagh Solicitors, by letter dated the 4th April, 2012 wrote to the Chief Prosecution Solicitor stating that it was intended to engage a forensic consultant to carry out independent analysis on the fingerprint evidence in the case. They requested disclosure relating to 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. By letter dated 12th June, 2012, the Chief Prosecution Solicitor replied stating that:

  18. [T]he Kodak camera box was not seized by the gardaí at the time the fingerprint was lifted off it and it has not been retained by the complainant. Therefore, the camera box will not be available for inspection.

  19. Thus this is a case in which the appellant seeks to prohibit his trial on the basis of missing evidence. Curiously, given the letter from the Chief State Prosecution Solicitor explaining that the camera box was not seized by the gardaí at the time the fingerprint was lifted off it, it was listed as one of the exhibits in the book of evidence served on the appellant. However, nothing turns on this point.

  20. The decision of the High Court

  21. The learned President of the High Court dealt with the matter in a short ex tempore judgment. He identified the test applicable on the issue before him as follows:

  22. [I]s there a genuine risk of an unavoidably unfair trial arising by virtue of the fact that the camera box from which the fingerprint was lifted is no longer available?

  23. He noted that there was conflicting evidence on the issue before him and he referred to the evidence that he had before him, giving rise to the conflict. 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”. He was not satisfied that this was such a case. He emphasised the fact that it was for the applicant in such a case to satisfy the Court that it was appropriate to make such an order. He concluded that it was not a case where he believed that the fact that the camera box was missing would produce an unavoidably unfair trial. Accordingly he refused the application.

  24. The evidence

  25. Garda Raymond Gannon, a detective garda with the fingerprint section of the Garda Technical Bureau, swore an affidavit on the 16th October, 2012 in relation to this matter. In his affidavit he said:

  26. 4.

    In my capacity as a fingerprint expert I examined the finger mark on the finger lift card labelled “DP1” and endorsed as “lifted from Kodak camera box in front sitting room” and I compared it with an electronic set of ten prints bearing the name Francis Kearns, 35 Kilcarrig Close Tallaght, Dublin 24. I am satisfied beyond all doubt that the person who made the finger mark is the same person who made the left middle impression and palm print on the form bearing the name of Francis Kearns. I also examined the fingerprints taken from Luke Kearns on 22nd February 2011 and I also found these to be identical. I now believe all the comparison sets of fingerprints are those of Luke Kearns who had previously given an incorrect name when arrested and his prints were recorded under the name ‘Francis Kearns’. I therefore believe Luke Kearns made the finger mark preserved on ‘lift card’ ‘DP1’.

    5.

    On 21st June 2012 Caroline Tweedy, an independent expert retained by the applicant, attended Garda Headquarters where she examined the fingerprint lift- cards and the comparison prints of the applicant. We afforded her full co-operation and she received copies of all materials and I cannot think of any way in which the applicant is prejudiced or his ability to defend himself compromised.

    6.

    In my wide experience of giving evidence in criminal cases, fingerprint evidence is generally given by reference to the fingerprint lift cards taken from a crime scene as compared with the fingerprints taken from a suspect. I believe these are the appropriate reference materials given that the tape lifting of a finger mark removes it from the location where it is originally found and transfers it to the ‘lift card’ with the end result that the lift card is the only place where the finger mark continues to exist and can be examined. I further believe that this procedure of transferring the print to a lift-card is the best way of preserving the finger-mark.

  27. Garda David Pidgeon also swore an affidavit on the 10th October, 2012. He explained how he conducted the technical examination at the scene of the burglary and in the course of his examination he lifted the finger marks from the Kodak camera box that had allegedly been handled by the culprit. He explained the process of developing those marks using fingerprint development powder and lifting them with fingerprint lifting tape and then placing the “tape lifts” onto fingerprint “lift cards”. He filled in the reverse of the cards with the date and details of examination. He brought the fingerprint lift cards to the fingerprint section at Garda Headquarters. He went on to explain as follows:

  28. I did not retain the camera box from which I lifted the prints because: firstly, I developed and lifted all the finger marks that were on the box as described above, and by so doing I effectively transferred the finger marks from the box to the ‘lift cards’ such that the fingerprints were then on the lift cards and no longer on the box. As there was then nothing left on the box I believe the box was of no further significance. Secondly, I believed the evidence which could identify the alleged culprit, namely the finger marks that had been taken from the box and placed on the cards was then retained for production in any court proceedings and/or would be available for examination by or on behalf of the defence such a suspect be identified. Thirdly there was no suspect identified and anything seized would have to be retained indefinitely; fourthly, on the basis of my experience, if a finger mark is found at a crime scene and is matched to a suspect, as happened in this case, I believe it is the fingerprint as lifted that constitutes the evidence tending to place a suspect at a scene rather than the item upon which the print was found. I believe the inquiry then shifts to determining how the fingerprint came to be at the scene in the first place.

  29. He went on to explain his experience of the examination of crime scenes and observed that fingerprints can be lifted from various items ranging from items like jewellery boxes to items such as doors or cars. He pointed out that it was not possible to retain every item upon which a print has been found and added that there were insufficient storage facilities to store all such items and further pointed out the major inconvenience to the owners of property if every item had to be removed and retained for a long period. I think there is force in that contention. One can only imagine the difficulty that could be caused for the victim of a crime if an item such as a car was required to be retained because there was a fingerprint found on it, not to mention the difficulty that would be caused if a fingerprint was found, for example, on the front door of a house. The difficulty of storage of such items never mind the inconvenience to the owners of the items need hardly be pointed out.

  30. An affidavit was sworn by Catherine Tweedy who is a forensic scientist employed by Keith Borer Consultants. She was asked to give her opinion on a forensic analysis of the fingerprint evidence in this case on behalf of the appellant. It is necessary to set out at some length the averments in her affidavit so that one can identify the extent of the conflict of evidence between the parties which was referred to by Kearns P. in the course of his judgment. She stated:

  31. 7.

    To create a fingerprint lift, powder is applied to a contact mark found on a surface. That powder is then lifted from the surface on fingerprint lift tape and normally placed upon a piece of card or acetate. When one removes the fingerprint powder one does not fully remove the contact mark from the surface, rather one lifts the fingerprint powder from the surface. That is why one can quite commonly make second lifts. The principle of making second lifts is taught when training in scene examination techniques.

    8.

    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.

    9.

    To the best of my knowledge, I have never examined a box where there was no part of a contact mark left upon it after a fingerprint lift was taken. Even if it was the case that there was no part of the contact mark left upon a box, an examination of the box would enable one to examine background detail that can confirm or refute an allegation that a specific lift came from a specific box.

    10.

    In this case, I was informed by Detective Garda Jennings that a Kodak Camera Box, that was alleged to have had contact marks on it was not retained and is not available for analysis. I am, therefore, prevented from examining the item to confirm or refute the alleged origins of the fingerprint lift, labelled DP1 that I have been shown.

    11.

    The background detail in the contact marks within the lift shown to me, the lift labelled ‘DP1’, was such that I have a high expectation that I could link the lift directly to the specific box that it came from if I was provided with access to that box. I have previously examined dozens of boxes in various cases and in different cases I have been able to both confirm and refute the fact that fingerprints were taken from specific boxes.

    ....

    13.

     

    I also understand that no photographs of the Kodak Camera Box were taken in situ or at all. Taking photographs of contact marks in situ is another easy way to demonstrate what items they were found on, where those items were located and the orientation of the fingerprints. Such photography would only take a short amount of time require very little digital storage and can be vital in demonstrating continuity of fingerprint evidence.

    14.

    I say that from a photograph of a contact mark in situ it is possible to confirm whether the fingerprint lift one is examining was lifted from that contact mark.

  32. A replying affidavit was furnished by Detective Garda Gannon who confirmed that on examination of the finger mark “DP1” he found nothing to indicate that the finger mark came from any other source other than a camera box and he noted that Ms. Tweedy did not claim that there was anything to suggest the print came from any other type of surface or background. He also noted that Ms. Tweedy having examined the print did not purport to suggest that the fingerprint was other than that of the appellant herein.

  33. It is relevant to note that in this case, the identification of the appellant as a suspect did not occur until February 2011 and that it was not until the 11th July, 2012 that a trial date was first fixed for the trial of the appellant some three years after the burglary had occurred. Therefore it should be observed that if it was necessary to retain the Kodak camera box, that it would have been necessary to do so at least until that date.

  34. I should refer very briefly to a further affidavit of Garda David Pidgeon sworn on the 25th March, 2013 in which he took issue with the thrust of Catherine Tweedy’s affidavit to the effect that she cannot verify that he is telling the truth as to how and where he obtained the finger marks of the appellant. He refuted the suggestion or imputation that he may have obtained the finger marks in any other place than the burgled family home on the 23rd July, 2009.

  35. He reiterated that after he lifted the relevant finger marks from the camera box, he placed them on the lift card and filled in the details on the back of the cards.

  36. A final issue related to the fact that photographs of the camera box were not available. By way of additional evidence a number of photographs were made available of the interior of the property that had been burgled. Complaint was made that the photographs did not contain a picture of the Kodak camera box in situ. In fact, the photographs provided had been taken by the alleged injured parties and there was no photo of the camera box.

  37. The appeal

  38. The appellant is appealing the decision of the learned President of the High Court on the following grounds:

    1. That the learned trial judge erred in law and in fact in refusing to grant the applicant an order of prohibition by way of judicial review, prohibiting the respondent, her servants or agents, from taking any further steps in the prosecution of the applicant herein in respect of the matters alleged to have occurred in and the subject matter of Bill of Indictment No. 1354/11 currently pending before Dublin Circuit Criminal Court.

    2. That the learned trial judge erred in law and in fact in refusing to grant the applicant an order in the nature of an injunction restraining the respondent, her servants or agents from taking any further steps in the prosecution of the applicant herein on foot of Bill of Indictment No. 1354/11 currently pending before Dublin Circuit Criminal Court.

    3. That the learned trial judge erred in law and in fact by holding that the Gardaí did not have a duty to preserve the evidence in the case against the applicant.

  39. A further ground relied on in the notice of appeal to the effect that the learned trial judge erred in law in applying a test that required the applicant to show that he faced an unavoidable risk of an unavoidably unfair trial in order to be granted an order of prohibition by way of judicial review is no longer relied upon by the appellant.

  40. Discussion

  41. There have been many cases over the years in which the duty of the Gardaí to preserve evidence relevant to guilt or innocence, so far as is necessary and practicable until the conclusion of a trial had been considered, giving rise to a body of law colloquially described as “missing evidence” cases. The duty to preserve evidence is not a standalone duty. It is derived from the basic right of any individual to fair procedures in the prosecution of an offence. The alleged breach of this duty has led to a multiplicity of applications by way of judicial review to prohibit or injunct a trial on the basis that relevant evidence had not been preserved and consequently that an accused person would not obtain a fair trial. The law in this area was comprehensively reviewed by this Court in the case of Wall v The Director of Public Prosecutions [2013] IESC 56. MacMenamin J. at p. 2 of the judgment stated as follows:

  42. It is by now well established that the onus rests on an accused who seeks judicial review to prohibit a trial to prove that circumstances exist which give rise to a real risk that the accused would not receive a fair trial, which cannot be avoided by appropriate rulings and directions on the part of the trial judge (see Z. v Director of Public Prosecutions [1994] 2 I.R. 476 and D. v Director of Public Prosecutions [1994] 2 I.R. 405). The risk must be a real one, and the unfairness of the trial must be unavoidable. It is well settled, too, that there is a duty on the gardaí to obtain, and to keep track of items of real evidence relevant to the case (McFarlane v Director of Public Prosecutions [2007] 1 I.R. 134). This judgment concerns the former situation; it hinges on what is claimed to be ‘unobtained evidence’. It is said here the gardaí should have obtained this evidence at, or before, a defined point in the course of that investigation. It is contended that the failure then to obtain such evidence now gives rise to a real risk of an unfair trial. The issues in the case are whether the appellant, Mr. Jason Wall, can establish that there is, in fact, a real risk of an unfair trial, and whether that risk derives from a failure in duty by the investigating gardaí.

  43. As in that case, the contention herein is that the gardaí should have obtained and preserved the item on which a finger mark was found from which the finger print was subsequently lifted. It is then contended that the failure to obtain and preserve the Kodak camera box gives rise to a real risk of an unfair trial. Accordingly, it is for the appellant in this case to demonstrate that there is a real risk of an unfair trial and whether that risk derives from a failure by the investigating gardaí to preserve the camera box.

  44. Missing evidence cases

  45. A series of cases including Braddish v DPP [2001] 3 I.R. 127, Dunne v Director of Public Prosecutions [2002] 2 I.R. 305, Bowes v Director of Public Prosecutions [2003] 2 I.R. 25, have considered the applicable law in missing evidence cases. As I mentioned, the law in this area has been reviewed comprehensively in the Wall case referred to above. Denham C.J. in her judgment in that case stated at page 3 of her judgment summarised the applicable principles:

  46. In Savage v Director of Public Prosecutions [2009] 1 I.R. 185, I reviewed relevant case law and held: –

    (i)

    each case should be determined on its own circumstances;

    (ii)

    it is the courts' duty to protect due process;

    (iii)

    it is the duty of An Garda Síochána to preserve and disclose material evidence;

    (iv)

    this duty to preserve and disclose material evidence is to do so as far as is necessary and practicable;

    (v)

    the duty to disclose and preserve, as qualified by Lynch J. in Murphy v Director of Public Prosecutions [1989] I.L.R.M. 71 cannot be precisely defined as it is dependent on all the circumstances of the case;

    (vi)

    the duty does not require the gardaí to engage in a disproportionate commitment of manpower and resources;

    (vii)

    in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the gardaí to have a forensic report on the object;

    (viii)

    the duty should be interpreted in a practical manner on the facts of the case;

    (ix)

    if evidence is destroyed the reason for the destruction, whether bona fide or mala fide, is part of the matrix of the facts, but it is not a relevant factor in the test to be applied by the court;

    (x)

    all of the above are subject to the fundamental test to be applied by the court, that of ‘real risk’ as described by Finlay C.J. in Z. v Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506: –

    This court in the recent case of D. v Director of Public Prosecutions [1994] 2 I.R. 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which in that case also were pre-trial publicity) he could not obtain a fair trial.

    He continued at page 507:

    where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be unavoidable unfairness of trial.

    (xi)

    the focus of the inquiry is on the issue of the fairness of the intended trial, and not on shortcomings in the garda investigation. It is not a garda disciplinary process.

  47. In the course of argument, considerable reliance was placed by Mr. O’Loughlin, S.C. on the decision in the case of McFarlane v Director of Public Prosecutions [2007] 1 I.R. 134 in which it was made clear that in the absence of real items of evidence, such as the item/items on which fingerprints were found, photographs may be admissible in their stead. In that case, the items from which fingerprints were taken were initially preserved but then lost by the gardaí. The forensic analysis of the items and photographs of the items in situ were still available. The prosecution intended to rely upon the fingerprint lifts taken from the items. The applicant sought to prohibit the trial in the absence of those items and was successful in the High Court. However, on appeal the applicant’s case was dismissed. Hardiman J. observed at page 144 as follows:

  48. .... it is true, as the trial judge pointed out, that there was in fact a forensic examination of the missing items prior to their disappearance and that the results of the forensic analysis have been preserved. It appears from the book of evidence, exhibited by the applicant, that there is a chain of evidence covering the identification of the fingerprints on the items, the photographing of the fingerprints on the items and the preservation of the photographs. These photographs are available for comparison purposes: they have in fact been compared with the applicant's fingerprints and are available, if desired, for further comparison on behalf of the applicant. A significantly different situation would arise if this independent comparison were not possible. No attempt has been made in the present case to suggest that meaningful comparison is not possible, using the photographs, or that any additional advantage might have accrued to the applicant on the basis of a comparison with the actual marks made on the items as opposed to photographs of them.

  49. Relying on that decision together with what was described by Mr. O’Loughlin, S.C. as the universal practice in relation to fingerprint evidence of photographing finger marks in situ, it was contended that as a matter of law there must be available either the object from which finger marks have been lifted or, alternatively, photographs of the finger marks in situ on the item from which the fingerprint has been taken.

  50. The core of the argument made on behalf of the appellant finds some resonance in one of the points noted by Denham C.J. referred to above in Wall: “in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the gardaí to have a forensic report on the object” and as the object in this case, the camera box, is not a large item but a small cardboard box in which a camera was purchased it was argued that it was quite practicable for the gardaí to preserve it. It was emphasised that the fingerprint evidence is the primary evidence, indeed, the only evidence, on which the prosecution rely to allege that the appellant can be connected with the burglary in this case. Reliance was also placed on the well known decision in Braddish v Director of Public Prosecutions previously cited and the more recent case of Stirling v Director of Public Prosecutions [2014] IESC 13. That was a case in which identification based upon CCTV footage viewed by a member of the gardaí was at issue. The garda in question had viewed an incident live on CCTV but the footage viewed by the garda was subsequently lost. The garda was in a position to give evidence of what he had seen. It was held by the Court (Mac Menamin J.) that the trial of the applicant in that case should be prohibited and he stated as follows:

  51. The entire essence of the prosecution and defence must be identification; the only objective verifying evidence has become lost through neglect and failure to preserve the material. None of the ‘list’ of issues identified by counsel for the appellant, set out earlier in the judgment, can, therefore, be properly pursued at trial. Instead, a District Court judge will, inevitably, be faced with a procedural impasse; the reliability of the main witness as to fact cannot be tested in the most obvious way. The defence will be prevented from relying on evidence, which it was the duty of the gardaí, not only to preserve, but to make available both to the defence and to the court (see Braddish, and the other authorities to that effect cited in Wall). To the extent that the precept of continuity applies, it must, in this exceptional instance, yield to the vindication of the appellant’s constitutional right to a fair trial in the circumstances where the trial simply should not proceed. This is because a main building-block of the case, material plainly within the reasonable scope of the investigation, has been lost by the prosecution.

  52. Not only was the Kodak camera box herein not preserved but no photographs of the camera box were taken in situ or at all. Ms. Tweedy in her affidavit said that there was value in taking photographs of contact marks in situ. In fact, it appears from the replying affidavits that no photographs were taken at the scene of the burglary by the gardaí. Some photographs which are available were taken by the family whose home was burgled (but did not show the camera box).

  53. There is undoubtedly a conflict in the evidence between Ms. Tweedy and Detective Garda Gannon as to whether or not any mark 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 before 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 it is not possible on the evidence before this Court to resolve that conflict.

  54. During the course of the submissions in this case it was suggested by counsel on behalf of the appellant that the standard practice in relation to fingerprints was to take photographs of the finger marks in situ. There was no evidence on behalf of the appellant to this effect. Obviously that had occurred in the McFarlane case referred to above. The furthest that the matter is put is in the affidavit of Garda Raymond Gannon at para. 6 when he stated that:

  55. In my wide experience of giving evidence in criminal cases, fingerprint evidence is generally given by reference to the fingerprint lift cards taken at the crime scene as compared with the fingerprints taken from a suspect. I believe these are the appropriate reference materials given that the tape lifting of a finger mark removes it from the location where it is originally found and transfers it to the ‘lift card’ with the end result that the lift card is the only place where the finger mark continues to exist and can be examined. I further believe that this procedure of transferring the print to a lift card is the best way of preserving the finger mark.

  56. In a subsequent affidavit Garda Pidgeon who took the lift of the finger mark and placed it on the lift card said that he was not a photographer and did not photograph the scene or any of the items at the scene and pointed out that that was not something that he did. Thus the Court is being asked to deal with this aspect of the matter on the basis of a submission as to the “standard practice” of taking photographs of fingerprints in situ but there is no evidence before the Court as to the standard practice, if any.

  57. Decision

  58. The question to be determined in this case is whether there is a genuine risk of an unavoidably unfair trial. It has been contended that the appellant cannot have a fair trial by reason of the failure of the gardaí to preserve the Kodak camera box and, failing that, by reason of the fact that the gardaí did not photograph the finger mark on the Kodak camera box in situ. This Court is faced with the practical problem that there is a conflict of evidence as to whether or not any finger mark would remain on the camera box following the lifting of the fingerprint from the box. Further, the suggestion that the standard practice in such circumstances is to photograph the fingerprint is one on which there is no evidence before this Court and it is simply not possible to say what is the standard practice in this regard. It goes without saying that if this trial proceeds, the issue as to whether or not fingerprint evidence should be admissible in this case will focus on whether or not the chain of evidence in relation to the fingerprint evidence is complete if one of the links is missing, namely the Kodak camera box or in the alternative photographs of the Kodak camera box in situ. At a trial the trial judge would have the opportunity to hear the evidence of the relevant gardaí and Ms. Tweedy as to the issue of the effect of taking a fingerprint lift from a box such as the one described. The conflict between the gardai and Ms. Tweedy could be fully ventilated before the trial Court and it would be a matter then for the trial judge to determine whether, depending on the findings of the trial judge in that regard, the trial could proceed. Equally, the issue of the photographing of finger marks or fingerprints in situ would be possible to ventilate and the trial Court would be in a position to determine whether or not it is standard practice to photograph fingerprints in situ, at least where it is not possible to preserve the item on which the fingerprint is found.

  59. This case concerns the duty on the gardaí to preserve evidence. Fingerprint evidence can be of great significance in the context of any criminal trial. An accused person may deny having been present in a particular place and the finding of that person’s fingerprint in the place concerned will obviously be very significant and relevant. The duty of the gardaí to preserve evidence has been considered in a large number of cases and I have previously referred to the principles identified by Denham J. (as she then was) in the case of Savage v DPP. As was noted by Denham J., when enumerating the principles to be applied, the duty to preserve and disclose material evidence is to do so as far as is necessary and practicable. That is something which should be borne in mind. Fingerprints can be found in many different places and on many different items. However in some circumstances it simply may not be practicable for the gardaí to preserve the item as opposed to the fingerprint. Clearly photographs of finger marks have been used in the past when the item on which the finger mark appears has not been preserved. That is not to say that if an item cannot be preserved by the Gardaí that it must then be photographed. I would not like to reach any conclusion on this point without evidence of either (a) the general practice adopted by the gardaí in regard to the photographing of fingerprints and (b) the effectiveness and value of photographs of that kind. I think it is also important to bear in mind the practicalities involved in preserving or photographing such items. Presumably if the duty on the gardaí was to preserve either the item or to photograph an item from which a fingerprint was obtained it would require the gardaí in every instance to dispatch for the investigation of crimes not just the person who is in a position and trained to develop finger marks such as Garda David Pidgeon but also gardaí who were trained in the photographing of such finger marks. One must have regard to the issue of the commitment of manpower and resources to the investigation of certain offences. The resources and manpower available to the gardaí are not unlimited.

  60. At an earlier part of this judgment I referred to the passage from the judgment of MacMenamin J. in the case of Wall v DPP to the effect that the onus rests on an accused who seeks judicial review to prohibit a trial to prove that circumstances exist which give rise to a real risk that the accused would not receive a fair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. It would also be of assistance to refer to a passage from the judgment of O’Donnell J. in the case of Byrne v DPP 2011 1 I.R. 346 at p. 356 where he stated:

  61. In my view, having considered the decided cases, the position has now been reached where it can be said that other than perhaps the very straight forward type of Braddish case, it would now require something exceptional to persuade a court to prohibit a trial. This in my view is in accordance with principle. The point was made in McFarlane v DPP & Special Criminal Court [2007] 1 IR 134 that the fact that an applicant was unsuccessful in judicial review proceedings did not detract from the power and duty of a court of trial to assess the case developed at the trial ....

    The constitutional right the infringement of which is alleged to ground an applicant’s entitlement to prohibit a trial, is the right to fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution. The manner in which the Constitution contemplates that a fair trial is normally guaranteed, is through the trial and, if necessary, appeal processes of the Courts established under the Constitution. The primary onus of ensuring that that right is vindicated lies on the court of trial which will itself be a court established under the Constitution and obliged to administer justice pursuant to Article 34. It is in my view therefore, entirely consistent with the constitutional order to observe that it will only be in exceptional cases, that superior courts should intervene and prohibit a trial, particularly on the basis that evidence is sought to be adduced (in the case of video stills) or is not available (in the case of CCTV evidence itself) ....

    It is also relevant in my view, that the trial court retains the discretion to exclude the still photographs if the court comes to the conclusion that producing them in the absence of the original video evidence would be unfair to the accused.

  62. It is important to emphasise yet again that the jurisdiction to prohibit a trial is one which should only be exercised in exceptional circumstances. It does not seem to me that the appellant in this case has discharged the onus of proving that the circumstances in this case, namely the fact that the Kodak camera box on which the finger mark was found was not preserved or, alternatively, that the finger mark was not photographed in situ on the camera box is such that it gives rise to a real risk that the accused would not receive a fair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The evidence available to this Court does not permit of any other conclusion. Quite simply, the appellant has not discharged the onus of proving “that circumstances exist which give rise to a real risk that the accused would not receive a fair trial ....”

  63. Echoing the comments of O’Donnell J. to which I have just referred, I would make the observation that it is for the trial judge to ensure that the appellant’s right to a fair trial guaranteed by the Constitution will be vindicated by making appropriate rulings on the issues before the court of trial. Thus, it will be a matter for the trial judge having heard evidence on the matters at issue between the prosecution and the appellant to decide whether or not the evidence as to the appellant’s fingerprints is admissible. The trial judge will have the advantage of hearing the evidence of the Gardaí and Ms. Tweedy as to whether anything of use would be left on the camera box following the process by which the finger mark is lifted from the box. The trial judge will also have the advantage of hearing evidence as to what the practice is in relation to photographing of finger marks in situ and indeed the effectiveness of such photographs. Given the state of the evidence before this Court on these issues, it seems to me that the issues raised are matters which are best left to the trial court to determine.

  64. In all the circumstances I would dismiss the appeal herein.


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