THE SUPREME COURT. Murray C.J. 206/2007 Denham J. Hardiman J. Geoghegan J. Fennelly J. Macken J. Finnegan J. THE DIRECTOR OF PUBLIC PROSECUTIONS

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1 THE SUPREME COURT Murray C.J. 206/2007 Denham J. Hardiman J. Geoghegan J. Fennelly J. Macken J. Finnegan J. THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA BARRY WALSH) Respondent/Prosecutor and JOHN CASH Appellant/Defendant JUDGMENT delivered the 18 th day of January, 2010 by Mr. Justice Hardiman.

2 - 2 - This is a case stated pursuant to s.52of the Courts (Supplemental Provisions) Act. The case was stated on the 21 st July, 2005 by Judge Aingal Ní Chonduin, a judge of the District Court assigned to the Dublin Metropolitan District and sitting at the relevant time in the Childrens Court at Smithfield, Dublin. Background facts. John Cash, who was then below the age of majority, was charged with the offence of entering a building as a trespasser with intent to commit an arrestable offence therein, contrary to s.12(1)(a) and (3) of the Criminal Justice (Fraud and Theft Offences) Act, The specific terms of the charge against him were as follows: For that you, the said accused did on the 21 st July, 2003, at St. Martin s, Kylemore Road, Clondalkin, Dublin 22 in the Dublin Metropolitan District, did enter a building known as St. Martin s, Kylemore Road, Clondalkin, Dublin 22 as a trespasser with intent to commit an arrestable offence towit theft therein. It appears that the premises in question were a dwellinghouse. The relevant evidence given by prosecution witnesses is summarised by the learned District Court Judge as follows:

3 - 3 - RELEVANT FACTS AS GIVEN IN EVIDENCE BY PROSECUTION WITNESSES 3. Detective Garda Barry Walsh arrived at St. Martin s, Kylmore Road, Dublin 12 on the 21 July 2003 and was met there by the owner of the house, Rosin Walsh who told him that in her absence a bedroom window had been smashed and that property had been taken from the house. Detective Garda Walsh left the scene and contacted the Garda Divisional Scenes of Crime Office and requested a technical examination. That technical examination was conducted by Garda William Jordan on 22 July Garda Jordan gave evidence that he found finger marks on two pieces of glass in the window frame of St. Martin s, Kylmore Road. He lifted these prints and brought them to the Fingerprint Section in the Garda Technical Bureau on 23 July 2003 where they were given a number TB 15107/2003, put into an envelope, signed and sealed by Garda Jordan. 4. Detective Garda Walsh gave evidence that some time after this he received confidential information from t he Garda Technical Bureau identifying one John Joseph Cash, the Accused, as a suspect in this case. During cross examination Detective Garda Walsh was asked by Counsel for the Accused if he was aware of the evidence grounding the arrest. He stated that it was confidential

4 - 4 - information and to disclose it to the court would be prejudicial to the accused. Under cross-examination by Counsel for the Accused, Detective Garda Walsh stated that the confidential information he was referring to was information that the prints taken from St. Martin s and given the number TB 15107/2003 had been matched with a set of fingerprints of one John Joseph Cash on record at the Garda Technical Bureau. It was put to Detective Garda Walsh by Counsel for the accused that he had no knowledge as to how the print match had been made. He agreed. It was also put to Detective Garda Walsh that he did not know whether the fingerprints with which TB 15107/2003 had been matched (herein after referred to as the original unexplained prints ) had been lawfully taken and lawfully kept by Gardaí in accordance with the requirements of section 8 of the Criminal Justice Act, He agreed with this. 5. On 23 rd September 2003 Detective Garda Walsh, accompanied by Garda Brian O Shaughnessy, arrested the Accused at his home at 24 Labre Park, Ballyfermot, Dublin 10 under the provisions of section 4 Criminal Law Act 1997 on suspicion of commission of an arrestable offence, namely burglary. Under cross-examination, Detective Garda Walsh stated that the sole basis of the suspicion for the arrest was the information he had received from the Garda

5 - 5 - Technical Bureau that the original unexplained prints had matched TB 15107/ Detective Garda Walsh cautioned the Accused and brought him to Clondalkin Garda Station, having informed his parents Michael and Ellen Cash that they would be required to come to Clondalkin Garda Station as soon as practicable, as their son was under 18 years of age. Garda Walsh, Garda O Shaughnessy and the Accused arrived at Clondalkin Garda Station at 8.10am. The Accused was given a written notice of his rights by Garda Connel Treanor. 7. Detective Garda Walsh then req uested that the member in charge, Sergeant Philip Bourke, detain the Accused under the provisions of section 4 of the Criminal Justice Act, Detective Garda Walsh informed Sergeant Bourke that he was carrying out an investigation into the burglary at St. Martin s and that as a result of prints taken from the scene, the Accused had been nominated as a suspect by the Garda Technical Bureau. On the basis of this information Sergeant Bourke detained the Accused under the provisions of section At 10.15am Sergeant Bourke, in the presence of Detective Garda Walsh, requested the Accused and his mother to sign a written consent to providing his photograph and fingerprints. It was put to

6 - 6 - Sergeant Bourke by Counsel for the accused that the Accused was initially anxious not to give his fingerprints. Sergeant Bourke stated that he informed the Accused that if didn t wish to give his consent to have his fingerprints taken, that permission would be sought from a Superintendent. This was explained to the Accused and his mother. He stated that he explained and read over the consent from to the defendant and his parents. He stated that he was satisfied that both parents were aware of what was contained in the form. The Accused was asked by Sergeant Bourke in the presence of his mother if he would consent to having his fingerprints taken and he consented. The Accused signed the form in the presence of his mother. It was put to Sergeant Bourke during cross-examination by Counsel for the Accused that it was his intention that the fingerprints of the Accused would be taken one way or another. He agreed with this. Sergeant Bourke stated that if there was no consent to the taking of fingerprints then an application would have been made to the Superintendent. He went on to say that it was the policy of the gardai to offer the defendant the opportunity to provide prints first prior to making an application to the Superintendent. He stated that as a result of his experience, he believed it to be of courtesy to the defendant to do this. The Accused s prints and photographs were taken by

7 - 7 - Detective Garda Joseph Maguire, who had been so instructed by Sergeant Bourke. Detective Garda Maguire stated that he took the prints based on the consent from and not under the Criminal Justice Act, Detective Garda Maguire was asked by Counsel for the Accused where his power to take prints by consent derived from. He could not say. He stated that while he was aware of the provisions of section 6 of the Criminal Justice Act, 1984, he was simply following orders. 9. During cross-examination Detective Garda Walsh was asked the reason why the consent procedure, rather that the procedure under section 6 Criminal Justice Act 1984 is used by Gardai, and was used in this case. Detective Garda Walsh stated that where prints are taken on consent they can be kept indefinitely whereas there was an obligation to destroy them after a period of time if they were taken under the 1984 Act. 10. Detective Garda Walsh then brought the set of prints which had been taken from the Accused on a Form PC 65 (herein after referred to as PC 65 prints ) to the Fingerprint Section, Garda Technical Bureau, Phoenix Park where he handed them to Detective Garda Raymond Gannon.

8 Detective Garda Gannon, a fingerprint expert, compared the PC 65 prints with the TB 15107/03 prints taken from St. Martin s and was satisfied beyond doubt that both prints were made by the same person. 12. Detective Garda Gannon during cross-examination by Counsel for the Accused was asked by the Defence if he was aware of the evidence grounding the arrest. He stated that it was confidential information and to disclose it to the court would be prejudicial to the Accused. The defence nevertheless wanted this information to be disclosed to the court. Detective Garda Gannon then produced a further set of fingerprints bearing the name of one John Joseph Cash and dated the 31 March He was asked by Counsel for the Accused whether these prints had been taken pursuant to section 6 of the Criminal Justice Act, 1984 or otherwise. He replied that he did not know. He was also asked if he was aware of the provisions of section 8 of that Act and the requirement thereunder to destroy prints after six months. He stated that he was not. It was put to Detective Garda Gannon by Counsel for the Accused that he could not stand over whether these prints were lawfully taken or kept. He agreed with this.

9 During cross-examination Detective Garda Gannon was asked whether he was the person who matched the TB 15107/03 prints taken from St. Martin s to those of the Accused on some date prior to the 23 September thereby identifying the Accused as a suspect and leading to his arrest and detention on the 23 September Detective Garda Gannon stated that after opening a sealed envelope containing the TB 15107/03 prints that he matched them with the set of prints bearing the name John Cash dated the 31 st of March, 2002, using the AFIS ( Automated Fingerprint Information Service ). 14. Detective Sergeant Garda Walsh was informed by Detective Garda Gannon that the TB 15107/03 prints from St. Martin s matched the right forefinger and right middle finger taken from the Accused on the PC 65 form that morning. Detective Garda Walsh then returned to Clondalkin Garda Station where the Accused was still under Section 4 detention. 15. At Clondalkin Garda Station the Accused, in the presence of his mother, was interviewed by Garda Walsh and Garda O Shaughnessy. During this interview the matching of the prints were put to the Accused and he was asked to explain this. It was

10 put to him that he was responsible for the burglary at St. Martin s. The Accused denied any involvement in the burglary at St. Martin s and said that he was at a loss to explain how his prints appeared to match prints found at St. Martin s. 16. At 2.10pm on the 23 September 2003 the Accused, in the presence of his mother, was charged by Sergeant Stephen Lydon as set out in Clondalkin Charge Sheet No in relation to the burglary at St. Martin s. The Accused was then released on station bail to appear at District Court 55 on 14 October That was the end of the prosecution case. Counsel on behalf of the Accused at this point made an application for a direction dismissing the charge on the basis that there was no case to answer. It was common ground between Defence and Prosecution that the only evidence against the Accused was the fingerprint evidence. It thus appears that, after a break in at a dwellinghouse, fingermarks were found on two pieces of glass in a window frame in the premises broken into. These were sent to the Garda Technical Bureau and

11 they were matched, using a computerised process, with finger prints allegedly taken from the accused on a previous occasion, and dated, in the form in which they exist in the Technical Bureau s record, 31 st March, The comparison between these two sets of finger prints led to the arrest of the appellant in respect of the break in at St. Martin s and is subsequently to his detention under the provisions of s.4 of the Criminal Justice Act, While the age of the appellant does not appear from the case stated it appears he was a child or young person requiring to be tried before the Childrens Court, at the time of all material appearances in the years It further appears from the case stated that there was no evidence against the accused other than comparison of two sets of finger prints. Objection was taken on the part of the appellant to the admission of the finger print evidence on the basis that the arrest and detention under s.4 were unlawful because they were based on information from the Technical Bureau, which was in turn based on the March 2002 finger print kept in the records of that body. It was contended that the legality of

12 the taking of that finger print, and of its preservation by the gardaí, had not been established. This last mentioned contention was based on the agreement of a Detective Garda Gannon, a finger print expert, that he could not stand over whether these prints were lawfully taken or kept. It will be noted that it also arose from the evidence heard before the learned District Court Judge that the prosecutor, Detective Garda Walsh, first claimed privilege in relation to the information on the basis of which he had arrested the appellant. He also stated that he did not know whether the finger print with which the prints found in St. Martin s had been matched had themselves been lawfully taken and lawfully kept by the gardaí. Another prosecution witness, Detective Garda Maguire, took the appellant s finger prints and photograph while the latter was in custody under s.4 of the 1984 Act. He said he did so on the basis of a consent of the appellant and his parents. He could not say where his power to take prints by consent derived from. He said he was aware of the provisions of s.6 of the Criminal Justice Act, 1984 but he was simply following orders.

13 Another feature of the facts to emerge from the case stated is that set out at paragraph 9 thereof and is relied upon by the appellant. It appears that Detective Garda Walsh was asked the reason why the consent procedure, rather than the procedure under s.6 of the Criminal Justice Act, 1984, is used by gardaí, and was used in this case. In the words of the case stated: Detective Garda Walsh stated that where prints are taken on consent they can be kept indefinitely whereas there was an obligation to destroy them after a period of time if they were taken under the 1984 Act. Matters not established. It will be noted that there is no information in the case stated, and there was no evidence before the District Court, in relation to certain material matters. None of the gardaí involved in the St. Martin s investigation were involved in the chain of events apparently leading to the taking of the appellant s finger prints in March, The appellant did not himself give evidence, or call any evidence, on that question. The prosecution did not call any gardai who had been involved in the events of March, 2002 and neither did either side produce any custody record (if indeed the appellant had been in custody) which covered the circumstances in which the first set of finger prints were taken.

14 Moreover, there was no evidence other than what has been quoted above relating to the circumstances in which a second set of finger prints was taken. From the evidence quoted above it appears that they were taken while the appellant was in custody. This evidence, which appears to have been uncontradicted, establishes that a Sergeant Burke asked the accused and his mother to sign a written consent to the providing of his photograph and finger prints. The Sergeant said that he informed the accused that if he did not wish to give his consent to have his finger prints taken, that permission would be sought from a Superintendent. Subsequently the accused was asked, in the presence of his mother, if he would consent to having his finger prints taken and he consented. He then signed the consent form in the presence of his mother. Statutory provisions. relevant: Section 6 of the Criminal Justice Act, 1984, provides insofar as is (6)(i) Where a person is detained pursuant to s.4, a member of the Garda Síochána may - (a) - (b) - (c) (d) photograph him or cause him to be photographed; take or cause to cause to be taken his finger prints and palm prints,

15 (e) - (f) - (2) The powers conferred by subsection (1)(c) and (d) shall not be exercised except on the authority of a member of An Garda Síochána not below the rank of Superintendent. Section 8 of the same Act provides in so far as relevant: 8(1) Every photograph (including a negative), finger print and palm print of a person taken in pursuance of the powers conferred by s.6 and every copy and record thereof shall, if not previously destroyed, be destroyed as this Section directs. (2) Where proceedings for an offence to which s.4 applies are not instituted against the person within the period of six months from the date of the taking of the full graph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction can be carried out on the expiration of that period. A relevant authority. In DPP v. Boyce, (unreported) Court of Criminal Appeal, 21 st December, 2005, Murray C.J., giving the judgment of the Court, considered a situation in which a blood sample had been taken from an accused with his consent, though without utilising the procedures laid down in the Criminal Justice (Forensic) Act, Murray C.J. said: It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial, provided that it was obtained voluntarily and with the full consent of the person in custody that is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of

16 the law but it has not always been and is not necessarily independent, as such, on the existence of express statutory powers to collect such voluntarily provided forensic evidence. In short, it is not unlawful to take voluntarily provided forensic samples from a person in custody. The Court went on to hold that the enactment of the 1990 Act did not abolish the existing Common Law right of An Garda Síochána to take a sample by consent. The learned Chief Justice said: The Court can find nothing in the Act which suggests that the Oireachtas intended to abolish the existing and valuable faculty of the gardai to obtain or receive from persons in custody forensic samples that are voluntarily provided by such persons. In the present case, there equally appears to be nothing in the Criminal Justice Act, 1984 which trenches on the power of the gardaí to o obtain a sample, or a finger print, voluntarily. Questions raised. At the end of the case stated the learned District Justice raises the following questions: Whether I was correct in determining, on foot of the evidence before me, that the prosecution evidence be admitted and that the accused had a case to answer, and in reaching this decision: (i) Whether, in circumstances where the basis of a Garda investigation is a record of the accused s fingerprints,

17 retained by Gardai which, on being so challenged by the Defence, the Gardai are not in a position to stand over whether they were lawfully taken or kept, the evidence obtained during that investigation can form the legitimate basis for an arrest and subsequent detention pursuant to section 4 of the Criminal Justice Act, 1984? (ii) If the answer to the above question is No, must any evidence obtained during and consequential upon the said section 4 detention be excluded? (iii) whether the Gardai, following the entry into force of section 6 of the Criminal Justice Act, 1984 have a power to take fingerprints from a person who is in section 4 Garda detention, other than pursuant to the said section 6, in circumstances where a person has signed a written consent? (iv) If such a power does exist, is it lawfully exercised where a Garda witness has given evidence on oath that the consent procedure, rather than the procedure under section 6, is preferable so as to avoid the requirements of section 8 of the Criminal Justice Act pertaining to the keeping and destruction of fingerprints? (v) If such an exercise of power is not lawful, is any evidence obtained as a result inadmissible?

18 (vi) If a Garda has the power to take a fingerprint from a detainee who has given signed consent to the taking of the print, is it open, as a matter of law, for me to find that he consented voluntarily n the circumstances where a garda witness agreed with the assertion of Counsel for the Accused that it was his intention that the fingerprints would be obtained from the accused one way or another and it was conveyed to the accused that if he did not wish to give consent to have his fingerprints taken that permission would be sought from a Superintendent? (vii) If the answer to the previous question is No, is the consequential evidence admissible? Decision. It appears to me that the evidence in this case, as recorded in the case stated, does not go far enough to permit or require the court to determine any of the questions raised. The prosecution case was presented on the basis that the investigating members obtained information from the Garda Technical Bureau and that this led them to seek a match between the appellant s finger prints taken by them and finger prints previously lifted from St. Martin s. There is a complete absence of evidence as to the circumstances of the taking of the earlier,

19 , set of finger prints. Specifically, it is not known whether the appellant was in custody when they were taken; whether he was attended by a solicitor, a parent, or any other person; whether a statutory power was used to take those finger prints or whether he consented to their being taken. Because of the absence of evidence on this last point, it is unknown to the court whether or not provisions regarding destruction of finger prints contained in s.8 of the Act of 1984 applied to this first set of finger prints or not. It will be noted that the obligations to destroy applies only to prints taken under the powers conferred by s.6 of the same Act and would not appear to apply if the prints were taken by consent. The learned District Judge is entitled to consider, as noted above, that the appellant has not seen fit to call evidence, his own or anyone else s, and the circumstances in which the first set of finger prints was taken and neither has he apparently sought production of any record of the circumstances of their taking. The evidence of Detective Garda Walsh to the effect that consent to the procedure is preferred because it avoids the necessity to destroy finger prints after a specified time may be interesting and suggestive but

20 it has no direct application to the present case because of the absence of evidence as to whether this procedure was in fact employed and, if so, the circumstances in which that happened. Accordingly, questions such as the propriety of using the consent procedure for that purpose and of what, if anything, must be explained to a child suspect before that can be done must await determination in another case. The learned District Judge is, of course, entitled and obliged to have regard to the decision in DPP v. Boyce and this will provide useful guidance. In the prosecution in the District Court, the State s evidence was limited to a comparison of the finger prints lifted from St. Martin s with the appellant s fingerprints taken after his arrest and s.4 detention, in The finger print bearing the date 31 st March, 2002, plays no evidential role at all in the prosecution case. Its existence and its role in leading to the arrest of the appellant under s.4 was however brought out in the course of cross-examination by the defence during the District Court hearing, and in the face of resistance by the prosecution.

21 The defence did not however establish the circumstances of the taking of the earlier set of prints. If those finger prints had formed part of the prosecution case, the State would have had to establish their admissibility in the ordinary way. But they were not part of the prosecution case. Their role in the case was brought out by the defence, but in a very incomplete way. It is not even known who took the 2002 finger prints or (apart from the appellant himself) who was present when they were taken. Since the 2002 finger prints are not part of the prosecution case, it appears to me to be for the defence to establish, with a proper degree of precision, all facts concerning them which are necessary to any submission which the defence wishes to make. This onus is no more than an evidential burden, but it does not appear to me to have been discharged. The questions posed by the learned District Judge accordingly lack a sufficient evidential basis and are to that degree moot and thus inappropriate to be answered. Equally, the lengthy disquisition on the general topic of a legally obtained evidence, which appears in the judgment of the learned trial judge, must be regarded as obiter and of no binding effect.

22 The Court will accordingly remit this matter to the District Court to proceed in accordance with law. Since I do not consider the questions posed to contain a sufficient evidential basis to establish their relevance, or to require or permit this court to answer them, it will be for the learned District Judge to consider if she is satisfied that a prima facie case has been established on the basis of the evidence she has heard. If she considers that there is a prima facie case, the defence must be given the opportunity to go into evidence. In reaching this conclusion, I am not ignorant of the significance of the issues raised on both sides of this case. However, the evidential material is not available to answer the questions raised by the learned District Judge and, accordingly, it is unnecessary to proceed to consider the prosecution s submission that the case of DPP v. Kenny [1990] 2 IR 110 should be reviewed.