Court grants murderer Certificate to appeal to Supreme Court on DNA point of law

About this case:

• Judgment:
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Mr Keith Wilson was convicted in 2011 of the murder of one Daniel Gaynor.

Mr Wilson originally appealed his conviction on five grounds, the first being that the judge had erred in law by ruling that his arrest was lawful in circumstances where the arresting gardaí did not state the statutory power of arrest.

However, the Court of Criminal Appeal held that there was no authority to support the proposition that the specific statutory provision creating the power of arrest must be individually identified and invoked.

The second ground was that the Judge erred in law by ruling that DNA taken from cigarette butts used by the accused while in custody was admissible.

It was submitted that this evidence had been obtained through a stratagem and/or by deception, following Mr Wilson’s refusal to supply a DNA sample, and that the gardaí were only entitled to invoke the provisions of s. 2(9) of the Criminal Justice (Forensic Evidence) Act 1990, which provides that it is an offence to obstruct or attempt to obstruct the gardaí when they are trying to obtain a sample mentioned in that section of that Act.

The Court acknowledged that when incarcerated, individuals rely on the gardaí for essential items. However, cigarettes were not considered such items. While the Court acknowledged the deliberate way in which the gardaí had obtained the cigarette butts, it was found to fall short of the degree of trickery or deception to fall foul of the methods prohibited by case law.

Finally, the Court noted that the gardaí had common law powers as well as powers under the Criminal Justice (Forensic Evidence) Act 1990, which they used. The evidence was therefore admissible.

The application further argued that the judge erred in law by failing to withdraw the case from the jury on the basis of no case to answer, as it was unsafe to convict of the basis of DNA evidence alone.

However, the Court was reluctant to accept this argument, and found that the trial court had been correct in not withdrawing the case.

The applicant further submitted that the judge erred in law for failing to discharge the jury in in circumstances where the expert witness, Dr. Clara O’Sullivan, stated in her evidence that if the brothers of the appellant provided forensic samples, they could be eliminated as potential matches to the DNA found at the scene. It was alleged that this suggested a reversal of the onus of proof, and was contrary to the presumption of innocence.

However, the Court found that the inference suggested was highly remote, and that the trial judge had correctly directed the jury.

Finally, it was submitted that the judge erred in law for failing to warn the jury of the dangers of convicting the accused in circumstances where the sole evidence against him was DNA evidence alone.

However, the Court found that the probative value of DNA evidence depends on the nature and quality of such evidence in any given case, and that the trial judge’s charge to the jury sufficiently explained the evidence and how it should be evaluated.

Following the dismissal of his appeal, Mr Wilson sought a s.29 Certificate on the following points:

“When the sole evidence against an accused person is DNA evidence, is such sufficient to convict an accused or upon the Prosecution case being closed, should a trial judge withdraw a case from the jury upon an application of the Defence that there was no case to answer”;

“Should it be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances where the sole evidence against that accused is DNA evidence alone”; and

“Is evidence of DNA samples taken from cigarette butts used and discarded by the detained person whilst in custody admissible evidence at his trial.”

The Court considered the requirements which must be satisfied before a s.29 Certificate can be given: that “the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”

The Court cited D.P.P. v. M.J., (Court of Criminal Appeal (C.C.A.), Unreported, 25th June, 2015) and D.P.P. v. Patchell I.E.C.C.A. 6as providing guidance on these individual requirements.

The applicant argued that three points raised would be important to many cases and therefore raise issues which are of “enduring importance”.

In relation to whether an accused can be convicted based on DNA alone, the Court found that while the issue was an important and difficult one, is was not necessary to seek out the Supreme Court’s opinion on what was a policy issue.

Further: “As pointed out in the main judgment, it would indeed be a very grave matter for the Court to conclude that no prosecution could ever take place based solely on DNA evidence. No case law, research or other persuasive authority has been open to this Court which would justify such a stance.” Therefore, the s.2 threshold had not been met.

The Court did not find that the second point, relating to whether a trial judge should warn a jury about the dangers of convicting on DNA alone, met the requirements of s.29 either.

It was noted that this question had at its heart the suggestion that a mandatory warning should be given in all cases where DNA evidence only is relied upon.

However, the Law Reform Commission had previously considered this, and did not believe that such a warning, underpinned by an obligation to so do in all circumstances, was justified.

The default position, that the judge has discretion, was deemed sufficient, and the Court therefore rejected the application.

However, on the issue of whether DNA samples taken from cigarette butts discarded by a detained person while in custody are admissible evidence in his trial, the Court found that:

Serious issues arise with regard to the activities of An Garda Síochána which led to the retrieval of the cigarette butts, without which no DNA match was possible. Given the incarceration of Mr. Wilson at the time and the fact that constitutional rights may very well have been involved in the process adopted, this Court, noting the absence of any authority from the Supreme Court on this important matter, is of the opinion that this question meets the s. 29 threshold.

It therefore agreed to submit the question to the Supreme Court.