A DUBLIN man convicted of having £500,000 worth of cocaine for supply and who had his appeal against conviction dismissed by the Court of Criminal Appeal applied yesterday to take a further point of appeal.
Eamon Kelly (47), of Furry Park Road, Dublin, had his appeal against conviction dismissed last March. The court reduced his 14 year term by a year.
Yesterday, he asked the Court of Criminal Appeal for permission to go to the Supreme Court as a point of law of exceptional public importance was involved. The three judges reserved their decision.
The point of law at issue is: "That a permanent record of the results of forensic tests made and done on behalf of the prosecution should be kept and disclosed for the consideration of the court of its evidential value, especially where such evidential value is or may be the subject of differing assessments between responsible experts.
At the Court of Criminal Appeal hearing, Kelly alleged the State failed to preserve forensic evidence disclosed by and to a fingerprint expert. He also claims it was wrongfully destroyed, making it impossible for a defence expert to make any findings.
Yesterday, Mr Rex Mackey SC, for Kelly, said the point of law related to smudges on a plastic bag which contained cocaine.
Miss Justice Carroll said there was no evidence that the smudges were partial fingerprints. Mr Mackey said if people could be identified who handled the bag, it would be sufficient.
Mr Justice Morris asked that even if the application was successful, what good would it be to Kelly?
Mr Mackey said it was a material irregularity. The smudges could have disclosed some fingerprint characteristics. The detective garda who gave evidence had said he would not bring to court any mark which had insufficient characteristics of a fingerprint to identify a person.
Mr Mackey said there were no identifying marks of Kelly on the bag but that was not to say there were no characteristics of other people.
Mr Michael O'Higgins, also for Mr Kelly, said Kelly's fingerprints were not on the bag but they were also told there were no identifiable marks found of anybody else. They knew other people had handled the bag and yet fingerprints were not on it.
Mr Peter Charleton SC, for the State, said a point of law could only be brought if there was a lack of clarity in the law. In this case there was no lack of clarity and it did not necessitate any further appeal.