DPP -v- Cash
Supreme Court
Judgment was given on January 18th, 2010, by Mr Justice Nil Fennelly and Mr Justice Adrian Hardiman; the Chief Justice, Mr Justice John Murray, Ms Justice Susan Denham, Mr Justice Hugh Geoghegan, Ms Justice Fidelma Macken and Mr Justice Joseph Finnegan concurring.
Judgment
It was not necessary, on the facts of this case, to review the case of DPP -v- Kenny, in relation to the admissibility of evidence.
Background
This was an appeal of a High Court judgment by Mr Justice Peter Charleton, based on a case stated by the district judge, who had asked whether the evidence obtained during the investigation on the basis of an impugned fingerprint could form the basis for a lawful arrest; whether evidence then obtained while the accused was detained was admissible, and whether the second set of fingerprints had been obtained by consent.
In his High Court judgment, Mr Justice Charleton had said: "A suspicion which gives rise to reasonable cause for arrest does not have to be justified on the basis that every element of it arose solely on the basis of evidence that was properly obtained.
"Any system of the exclusion of improperly obtained evidence must be implemented on the basis of a balancing of interests. The two most fundamental competing interests, in that regard, are those of society and the accused. I would also place the rights of the victim in the balance."
John Cash, who was a minor at the time, was accused of burglary of a house in Clondalkin in July 2003. When the owner of the house notified gardaí of the burglary, they took fingerprints at the scene. These fingerprints were found to match those of John Cash, which were already on file since March 2002. In court, the garda admitted he did not know whether this first set of fingerprints had been lawfully taken and kept.
John Cash was arrested and taken to the Garda station with his mother, as he was under age. There his fingerprints were taken, with him signing the consent form in the presence of his mother, after he had been informed that if he did not agree, permission would be sought from the superintendent to have them taken. These matched the prints taken from the scene of the burglary.
The accused said he did not know how his fingerprints came to be at the scene of the burglary and denied any involvement in it. He was charged with the burglary. The only evidence against him was the fingerprint evidence.
No evidence was given as to how the first set of fingerprints came to be taken and retained.
Det Garda Walsh, who gave evidence about the burglary investigation, said he "did not know whether the fingerprint with which the prints found in St Martin's had been matched had themselves been lawfully taken and lawfully kept by the gardaí".
Another issue was that of consent to the taking of the second set of prints.
Asked why the consent procedure was used in taking these fingerprints, rather than the compulsory procedure under section 6 of the Criminal Justice Act 1984, the garda said that where prints were taken on consent, they could be kept indefinitely, whereas there was an obligation to destroy them after a period of time if they were taken under the 1984 Act.
Decisions
Mr Justice Fennelly said that the evidence in the case did not go far enough to permit or require the court to determine any of the questions raised.
There was a complete absence of any of any evidence of the taking of the 2002 set of fingerprints. Therefore it was unknown to the court whether or not provisions regarding the destruction of fingerprints under the 1984 Act applied to the first set of prints or not. It would only apply if they were not taken by consent.
The evidence of Det Garda Walsh as to why the consent procedure was preferred was interesting and suggestive but it had no direct application to the present case because of the absence of evidence concerning the first set of prints.
The 2002 print played no evidential role in the prosecution case, he pointed out. "Since the 2002 fingerprints 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.
"The questions posed by the learned district judge accordingly lack a sufficient evidential basis and are in that degree moot and thus inappropriate to be answered. Equally, the lengthy disquisition on the general topic of legally obtained evidence, which appears in the judgment of the learned trial judge, must be regarded as obiterand of no binding effect."
He said the court would accordingly remit the matter to the District Court to proceed in accordance with law. It would be up to the district judge to consider whether a prima faciecase had been established.
Mr Justice Fennelly said he was aware of the significance of the issues raised on both sides, but the evidential material was not available to answer the questions raised, so it was unnecessary to proceed to consider the prosecution's submission that the case of DPP -v- Kennyshould be reviewed.
Mr Justice Hardiman said that, as Mr Justice Charleton had observed, it had never been held that a reasonable suspicion on which an arrest was based was required to based on the kind of evidence that would be admissible under the rules of evidence in a criminal trial.
"The lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts," he said.
Upholding the decision of the High Court, he said the appellant had not established that an onus rested on the prosecution to establish the lawful provenance of material relied upon by a member of the Garda Síochána to justify an arrest.
The full judgment is on www.courts.ie
Gerard Hogan SC, Paul McDermott SC and Phillip Rahn BL, instructed by G Sheehan Solicitors, for the appellant; Donal O'Donnell SC, Tony Collins SC and Paul A. McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP.