Court of Criminal Appeal dismisses appeal against sexual offence convictions regarding DNA evidence and blood sample admissibility.

THE COURT OF CRIMINAL APPEAL

Murray C.J.

Lavan J.

White J.

56/01

THE PEOPLE OF THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

MICHAEL BOYCE

Applicant

Judgment of the Court delivered the 21st day of December, 2005 by

Murray C.J.

The applicant seeks leave to appeal against his conviction after trial before a judge and jury of the Central Criminal Court on

six counts relating to sexual offences. The applicant had been put on trial in respect of nine offences of a sexual nature and

having being found guilty in respect of counts 1, 6 and 7 the jury found him not guilty of rape on counts 2, 4 and 8 but

brought in an alternative verdict on each count of guilty of attempted rape. Of the remaining counts, namely, counts 3, 5 and

8 the jury reached no verdict in each instance. The offences on which the applicant had been indicted ranged over a

significant period of time that is to say from January, 1983 to December, 1994. All of the offences related to the same

victim and were all alleged to have taken place at her home. The offences in respect of which he was tried were as follows: -

Count No. 1. Indecent Assault contrary to Common Law as provided for in s. 10 of the Criminal Law (Rape)

Act, 1981 on 31st January, 1983.

Count No. 2. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law

(Rape) Act, 1981 on 5th January, 1984.

Count No. 3. Indecent Assault contrary to Common Law as provided for in s. 10 of the Criminal Law (Rape)

Act, 1981 on 5th January, 1984.

Count No. 4. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law

(Rape) Act, 1981 on 6th October, 1985.

Count No. 5. Indecent Assault contrary to Common Law as provided for in s. 10 of the Criminal Law (Rape)

Act, 1981 on 6th October, 1985.

Count No. 6. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law

(Rape) Act, 1981 on 22nd December, 1989.

Count No. 7. Sexual Assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 on 16th

August, 1991.

Count No. 8. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law

(Rape) Act, 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990 on 10th December,

1994.

Count No. 9. Sexual Assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 on 10th

December, 1994.

The applicant having been convicted in relation to counts 1, 2, 5, 6, 7 and 8, was sentenced to terms of imprisonment

ranging from 3 years to 8 years, the 8 years sentence being in respect of count 6.

As regards count no. 1, the applicant was found guilty on a majority verdict of ten to two. He was found guilty of the

offence of attempted rape on count no. 2 by a majority verdict of ten to two. There was no verdict returned on count 3. On

count 4 the jury returned a verdict of not guilty of rape by direction of the trial judge and the jury found him guilty of

attempted rape by a majority of ten to two. No verdict was returned in relation to count 5 as this did not arise in the light of

the verdict on count 4. He was convicted of count no. 6 on the indictment by a majority of eleven to one. He was convicted

on count no. 7 by a majority of eleven to one. He was also convicted of the offence of the offence of attempted rape in

relation to count 8 by a majority of ten to two. No verdict was returned on count no. 9 as this did not arise having regard to

the verdict in relation to count no. 8.

Grounds of appeal

The applicant applies for leave to appeal on 20 specified grounds set out in the notice of appeal, which were as follows: -

1. The learned trial Judge erred in law and on the facts in ruling that the blood sample taken from the Accused for the

purpose of DNA testing was lawfully taken and/or did not require to be taken pursuant to the Criminal Justice (Forensic

Evidence) Act, 1990 and thereby failed to vindicate the accused’s Constitutional Rights to his bodily integrity.

2. The learned trial Judge erred in law in holding that the said blood sample was not required to be taken pursuant to the Act

of 1990 and accordingly the provisions regarding the use and destruction of the sample and any records thereof did not

apply in this case.

3. The learned trial judge erred in law in firstly permitting and later preventing Counsel for the applicant from pursuing the

issue whether the consent given by the applicant to the taking of a blood sample was given as a fully informed consent or

not, and whether this was an issue of fact which could properly be considered by the jury: and that this was confusing to

them, rendering the trial unfair and unsatisfactory.

4. The learned trial Judge failed to adequately charge the Jury regarding the dangers of arriving at a guilty verdict based on

the DNA evidence in the absence of other corroborative evidence.

5. That the learned trial Judge erred in law in not permitting Counsel for the defendant to cite legal/scientific, or scientific

texts in support of 4 and in refusing counsel for the defendant opportunity to make full submissions on the admissibility of

DNA evidence.

6. The learned trial Judge erred in allowing evidence of databases to be used which were not properly validated.

7. That the learned trial judge erred in allowing evidence of databases to be used which did not include any reference to the

sub-group for that part of the population.

8. The evidence failed to distinguish between the applicant’s racial characteristics and those of the offender.

9. The expert evidence was permitted to include an unproven factor.

10. Failed to give a direction (in particular in relation to Counts other than those which relied on DNA evidence) to the

defence on the points raised at the close of the prosecution case (and in particular the lack of evidence to corroborate the

DNA evidence in the case).

11. Failed to correctly and adequately charge the Jury regarding corroboration required in cases of this nature.

12. Erred in law regarding the ruling on s. 5 of the Act of 1992 (regarding the Section 6 Certificate grounding McDonnell’s

Evidence about the English Database used for DNA samples in general).

13. Erred in law in refusing the delay argument raised.

14. Incorrectly charged the jury that they could infer the accused’s guilt from the description given in the prosecutrix’s

statement and/or did so without warning them adequately or at all of the dangers of giving weight to that description in

circumstances where she also gave a completely different description of an attacker in two other statements.

15. Erred in law in restricting defence Counsel’s cross-examination regarding the 1996 arrest and caution (2nd November,

2000) thereby rendering the trial unfair and unsatisfactory.

16. The prosecution failed to prove the chain of evidence regarding the 1989 DNA samples from the knickers because those

knickers were never produced in Court and identified by the complainant in the course of her evidence. In addition the

complainant did not indicate that she gave those knickers to the guard who was first in the chain of evidence though that

particular guard did say that she got the knickers from her.

17. The learned Judge erred in law in acceding to the application of the State to call evidence to contradict answers given by

their own witnesses to questions put in cross-examination. In particular in allowing the evidence of Pat Allard and his wife to

be interposed after the cross-examination of John Allard Junior. Further that these rulings prejudiced the fair trial of the

defendant/applicant.

18. That the learned trial Judge’s interruption during the trial and in particular during the making of submissions were

overbearing and unreasonable and rendered the trial unfair and unsatisfactory.

19. The learned trial Judge in his charge to the jury failed to put evidence favourable to the applicant to the jury, inter alia,

the evidence of William Boyce and William Ahern.

20. Conducted the trial in an unsatisfactory manner in all of the circumstances.

A further additional ground was relied on at the hearing of the appeal, the D.P.P. having consented to this ground being

relied upon and is referred to later in this judgment.

The offences arise out of six occasions between January 1983 and December 1994 when the complainant was either

indecently assaulted or the subject of a sexual assault involving an attempted rape and on one occasion, as found by the

jury, raped. The complainant, an unmarried woman, at the time lived alone in a small house in a rural area. The house was

relatively isolated although there were some neighbours living fairly nearby. She was born in 1928. She was 55 years of age

when the first offence was committed in 1983 and 66 when the last of the offences was committed in 1994. She was 72

years at the time of the trial. The offences were committed in January 1983, January 1984, October 1985, December 1989,

August 1991 and December 1994. At the trial the complainant did not give evidence identifying the accused as her assailant.

She did give evidence that it was the same man who sexually assaulted her on each occasion. On the first occasion in

January, 1983 she was at home in her house when the lights went off. She heard a noise in the hall and went out to find a

man there who said he was an E.S.B. man. She knew that the E.S.B. were working locally at the time. He then made

advances on her and she used a stick to try and fend him off. It was very dark. He got her on the ground and attempted to

rape her but “he couldn’t do anything”. She described him then as a person in thirties, low size, wearing dark clothes with a

stocky build. She said he smelt of oil, and referring to the various occasions in which the offences were committed, she said

there was always a smell of oil off him, like tractor or diesel oil. She described him as having a squeaky voice with a local

accent. After the attempted rape he drove off in a motor car. She ran in a very distressed state to her neighbours who called

the guards. It was subsequently found that the fuse box had been interfered with.

In January, 1984 the complainant was asleep downstairs when she heard banging and shouting and a man asked to be let in.

He called her by her first name. She heard a crash of timber as he forced his way in the door. Outside the internal door in

the house he shouted “let me in again”. He pushed opened the door and entered having pushed the complainant on the

floor he took off her lower clothes and sexually assaulted her. Again this assault took place in the dark.

In January, 1985 again in the early hours of the morning at about 2 or 3am she heard a noise and could hear the front door

opening and someone in the hall. The outside front door was locked. Again she was forced to the ground and seriously

sexually assaulted. She gave a similar description of her assailant as being stocky in build, wearing dark clothes with a

squeaky voice and a local ascent.

As on previous occasions, subsequent to the violent and sexual assault she went to her neighbours in a distressed state and

the gardaí were called.

This was the tragic pattern of events for the complainant. In October 1985, December 1989, August 1991 and December

1994, her assailant entered her house in the dark, pushed or knocked her to the ground, took off her lower clothes including

her under clothes, and sexually assaulted her.

It is quite clear that the jury were satisfied on the evidence that the complainant had been sexually assaulted and the victim

of the various offences of which the accused was convicted. There was also evidence before the jury which the prosecution

contended would entitle them to conclude that the same person committed some or all of the offences.

In the course of the several confrontations between the complainant and her assailant on some occasions, although not all,

her assailant used the same phrases or made a reference, expressly or impliedly, to one of the previous occasions on which

he had assaulted her.

The prosecution relied on DNA evidence from which they said the jury could conclude that the applicant committed two of

the offences namely those of 22nd December, 1989 and 16th August, 1991. It was also the prosecution case that if they

were satisfied that the DNA evidence established that he committed the offences on the two occasions, they were entitled to

conclude on other evidence that it was the same person who committed all or any one of the other offences.

Grounds 1 and 2 of the Appeal (The DNA evidence)

In addressing grounds one and two of the appeal as set out above counsel for the applicant submitted that the learned trial

judge erred in law in allowing the DNA evidence to be tendered at the trial on the grounds that the blood sample which had

been taken from him while in custody in the Garda Station for the purpose of determining his DNA, was taken unlawfully

and in breach of the requirements of the Criminal Justice (Forensic Evidence) Act, 1990. The Gardaí had taken the sample

on the basis that the applicant had freely consented to giving the sample. It was common case that the Gardaí did not rely on

the Act of 1990 and therefore did not follow any of the procedures provided for in the Act with regard to the taking of a

sample of blood including, inter alia, obtaining the “appropriate consent” in the manner required by the Act. In fact it

emerged during the course of the hearing of the appeal, at the request of counsel for the applicant and the consent of the

D.P.P., that the Gardaí had been advised by the D.P.P., after the coming into force of the Act of 1990, that they may

continue to take blood samples provided voluntarily and with their consent by persons in custody unless the person in

custody refused to voluntarily provide a blood sample in which case they may invoke or apply the provisions of the Act of

1990. Further reference will be made to the arguments made on behalf of the applicant and on behalf of the D.P.P. but first

of all it is necessary to refer in detail to the relevant provisions of the Act and the facts and circumstances under which the

blood sample was taken from the applicant when he was in custody in the Garda Station.

Criminal Justice (Forensic Evidence) Act, 1990

The long title to the Act states it to be “An Act to amend and extend the law to authorise the taking of bodily samples for

forensic testing from persons suspected of certain criminal offences”. Section 1 defines, inter alia, “appropriate consent”

as having the meaning assigned to it by s. 2(10) of the Act. The other relevant provisions of the Act are as follows:-

"Power to take 2.—(1) Subject to the provisions of subsections (4) to (8) of

bodily samples. this section, where a person is in custody under the provisions of section 30 of the Offences

against the State Act, 1939, or section 4 of the Criminal Justice Act, 1984, a member of the Garda Síochána

may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following

samples, namely—

( a ) a sample of—

(i) blood,

(ii) pubic hair,

(iii) urine,

(iv) saliva,

(v) hair other than pubic hair,

(vi) a nail,

(vii) any material found under a nail,

( b ) a swab from any part of the body other than a body orifice or a

genital region,

( c ) a swab from a body orifice or a genital region,

( d ) a dental impression,

( e ) a footprint or similar impression of any part of the person's body

other than a part of his hand or mouth.

(2) …

(3) …

(4) A sample may be taken under this section only if—

( a ) a member of the Garda Síochána not below the rank of

superintendent authorises it to be taken, and

( b ) in the case of a sample mentioned in subparagraph (i), (ii), (iii) or

(iv) of paragraph (a) of subsection (1) of this section, or in paragraph

(c) or (d) of the said subsection (1), the appropriate consent has been

given in writing.

(5) An authorisation to take a sample under this section shall not be given

unless the member of the Garda Síochána giving it has reasonable grounds—

( a ) for suspecting the involvement of the person from whom the sample

is to be taken—

(i) in a case where the person is in custody, in the offence in

respect of which he is in custody, or

(ii) in a case where the person is in prison, in the

commission of an offence under the Offences against the State

Act, 1939, or an offence which is for the time being a

scheduled offence for the purposes of Part V of that Act or an

offence to which section 4 of the Criminal Justice Act, 1984,

applies,

and

( b ) for believing that the sample will tend to confirm or disprove the

involvement of the person from whom the sample is to be taken in the

said offence.

(6) Before a member of the Garda Síochána takes, or causes to be taken, a

sample under subsection (1) of this section, or seeks the consent of the person

from whom the sample is required to the taking of such a sample, the member

shall inform the person—

( a ) of the nature of the offence in which it is suspected that that person

has been involved,

( b ) that an authorisation has been given under subsection (4) (a) of

this section and of the grounds on which it has been given, and

( c ) that the results of any tests on the sample may be given in evidence

in any proceedings.

(7) An authorisation under subsection (4) (a) of this section may be given

orally but, if it is given orally, it shall be confirmed in writing as soon as is

practicable.

(8) A sample of a kind specified in subparagraph (i) or (ii) of paragraph (a)

of subsection (1) of this section or in paragraph (c) of the said subsection (1)

may be taken only by a registered medical practitioner and a dental

impression may be taken only by a registered dentist or a registered medical

practitioner.

(9) A person who obstructs or attempts to obstruct any member of the Garda

Siochfina or any other person acting under the powers conferred by

subsection (1) of this section shall be guilty of an offence and shall be liable

on summary conviction to a fine not exceeding £1,000 or to imprisonment for

a term not exceeding 12 months or to both.

(10) In this Act "appropriate consent" means—

( a ) in the case of a person who has attained the age of 17 years, the

consent of that person,

( b ) in the case of a person who has not attained the age of 17 years but

has attained the age of 14 years, the consent of that person and of a

parent or guardian of that person, and

( c ) in the case of a person who has not attained the age of 14 years, the

consent of a parent or guardian of that person.

(11) The powers conferred by this section are without prejudice to any other

powers exercisable by a member of the Garda Síochána.

Inferences from 3.—(1) Where a consent required under section 2 of this Act

refusal to is refused without good cause, in any proceedings against a

consent to person for an offence—

taking a sample.

( a ) the court, in determining—

(i) whether to send forward that person for trial, or

(ii) whether there is a case to answer, and

( b ) the court (or, subject to the judge's directions, the jury), in

determining whether that person is guilty of the offence charged (or of

any other offence of which he could lawfully be convicted on that

charge), may draw such inferences, if any, from the refusal as appear

proper; and the refusal may, on the basis of such inferences, be treated

as, or as being capable of amounting to, corroboration of any evidence

in relation to which the refusal is material, but a person shall not be

convicted of an offence solely on an inference drawn from such refusal.

(2) The reference in subsection (1) of this section to evidence shall, in

relation to the preliminary examination of a charge, be taken to include a

statement of the evidence to be given by a witness at the trial.

(3) Subsection (1) of this section shall not have effect in relation to an

accused unless he has been told in ordinary language by a member of the

Garda Síochána when seeking his consent that the sample was required for

the purpose of forensic testing, that his consent was necessary and, if his

consent was not given, what the effect of a refusal by him of such consent

could be.

(4) This section shall not apply—

( a ) to a person who has not attained the age of 14 years, or

( b ) in a case where an appropriate consent has been refused by a

parent or guardian.”

Section 4 goes onto make provisions for the destruction of records and samples such as the destruction of a sample within

six months from the taking of the sample where a prosecution is not instituted against the person within six months. The

section also provides for exceptions to this requirement in certain circumstances.

Evidence concerning taking of blood sample and ruling on admissibility

At the commencement of the trial a preliminary issue was tried by the learned trial judge as to whether evidence deriving

from the blood sample taken from the accused could be admitted in evidence having regard to the circumstances under

which it was taken and the provisions of the Act of 1990. The trial judge heard Garda evidence and evidence from the

applicant in the absence of the jury. The Garda evidence was that the applicant was arrested at approximately 8:35 a.m. on

10th July, 1996. He was informed that he was arrested on suspicion of having committed the offence of rape against the

complainant at her home on 22nd December, 1989. The applicant was cautioned by the Gardaí that he was not obliged to

say anything unless he wished to do so but anything he did say would be taken down in writing and may be given in

evidence. He was taken to the Garda Station. At the Garda Station he was again informed by Garda Holt, the station

orderly, in ordinary language, of the crime in respect of which he had been arrested and he was also informed of his rights

as a detained person. Garda Holt also handed him a form, C72S, which sets out the information as to the rights of a person

in custody. Garda Holt also informed the applicant that he was being detained under s. 4 of the Criminal Justice Act, 1984

for the proper investigation of the crime of rape in respect of which he had been arrested. None of these facts were in issue

at the trial. The applicant was interviewed in the Garda Station by Detective Garda Burke and Detective Garda Nohilly.

According to Detective Garda Burke, he informed the applicant that he had information that the applicant was involved in

the alleged rape and also other sexual offences which were allegedly committed against the complainant. The applicant

denied any involvement with these alleged offences. Detective Garda Burke then asked the applicant if he would provide a

blood sample. Detective Garda Burke said he explained to the applicant that any tests carried out on the blood sample may

be given in evidence and cautioned him that he was not obliged to give any sample but if he did so the findings of the same

might be given in evidence. The applicant agreed to give a sample of blood. This sample was subsequently taken by a

medical doctor with the consent of the applicant in the Garda Station later that morning.

Subsequent to the taking of the blood sample, Detective Garda Burke interviewed the applicant again. He made notes of the

interview. When the notes were complete he read them over to the applicant and asked him to sign them. He declined

stating that he would wait until his solicitor came. The solicitor subsequently came and spoke to the applicant. At one point

Detective Garda Burke handed the notes to the solicitor who returned them to the Garda member having in the meantime

spoken with his client. Garda Burke then went down and spoke to the applicant who said “I will sign the notes now”. He

signed the notes. This was at about 2:25 in the afternoon after he had spoken with his solicitor. Those notes included an

answer given by the applicant to the question “What do you know about the incidents? Where you involved?” (Referring to

the sexual offences alleged to have been committed against the complainant). The answer given by the applicant was

recorded as “I was never involved in anything there. I have given blood to the doctor of my accord”. The notes then went

on to record further “Question: Yes, you gave blood after I had cautioned you that you were not obliged to give any

samples or submit to any medical examination unless you wished to do so but if you do submit to such an examination,

the findings of same may be given in evidence? Answer: Yes, I gave the blood. I know what you were saying”. Detective

Garda Nohilly gave evidence of being present when Detective Garda Burke asked the applicant to provide a sample of blood

and when the applicant was informed that if he did supply a sample tests carried out on it may be given in evidence.

The applicant was called to give evidence himself in the course of the hearing of this preliminary issue. He did not contest

the evidence given by the Gardaí concerning his arrest and caution at his home and the procedures which were followed and

general caution given after his arrival at the Garda Station. He acknowledged that when asked to give a blood sample he said

that he would. He agreed substantially with the notes of Garda Burke concerning the interview which he had with him that

morning. He acknowledged that he signed those notes after his solicitor had told him to sign them. He disputed the Garda

evidence first of all by denying that any caution had been given to him in relation to the giving of the blood sample as stated

by Garda Burke. He gave evidence that the request for a blood sample and his agreement to give one took place in the

presence of Garda Burke only and that no other Garda was present. He acknowledged that the notes which recorded him as

saying “I was never involved in anything there. I have given a blood sample to the doctor of my own accord”, were

correct while he disputed the recording in Garda Burke’s notes of the reference to he having been cautioned in relation to

the provision of a blood sample and his response and acknowledgement of same.

It is important to note, from a factual point of view, that the position adopted by the applicant at the trial, both when the

question of law was heard by the trial judge in the absence of the jury, and at the trial itself, was that he had voluntarily

agreed to provide a blood sample at the request of Garda Burke. This has not been disputed at any stage. It is also agreed

that he willingly permitted the doctor to take the blood sample. The relevant factual matter in dispute related to the

applicant’s denial that Garda Burke expressly cautioned him, at the time of the request for a sample of his blood and that the

blood would be analysed and the results may be given in evidence. Having heard the relevant evidence in the absence of the

jury the learned trial judge in ruling on the admissibility held, inter alia, that the blood sample had been given voluntarily by

the applicant and that the caution in issue had been administered.

At the trial itself before the jury the relevant Garda witnesses gave evidence to the same effect and although this was

challenged in cross-examination no witness gave evidence contradicting their account. Dr. Dalton (day 15) who took the

blood sample from the applicant stated that consent to the taking of the blood sample was given freely at the time. He stated

that Garda Burke was present and spoke to the applicant before he took the sample. While he could not remember the

precise words, his clear understanding was that the applicant had consented to give blood which would be used for a

forensic examination. He stated that Garda Burke had asked the applicant to consent to give blood and that he had

mentioned to the applicant that blood may be used for DNA testing. This evidence was not challenged in cross-examination

or otherwise at the trial.

The first issue of law raised at the trial and on this application for leave to appeal is whether the blood sample could only

have been obtained from the applicant pursuant to and in accordance with the provisions of the Criminal Justice (Forensic

Evidence) Act, 1990.

Whether the Criminal Justice (Forensic Evidence) Act, 1990 applied

At the hearing of this application, counsel for the applicant took grounds one and two in the notice of appeal together since

they both refer essentially to the same point namely, whether the investigation Gardaí should have sought and obtained the

blood sample from the applicant in accordance with the provisions of the Act of 1990 and whether the failure to do so

meant that the trial judge ought to have ruled all the evidence, that is to say the DNA evidence, related to that blood sample,

inadmissible. The factual issue as to whether Garda Byrne gave an express caution to the applicant concerning the use of the

results of the blood sample in evidence is not relevant to this ground of appeal particularly since it is common case that the

investigating Gardaí, following the advice of the D.P.P., did not consider that the Act of 1990 applied to the circumstances

of this case and did not seek the applicant’s consent in accordance with the procedures or requirements set out in that Act.

The basic contention made on behalf of the applicant is that even if he had voluntarily and willingly consented to the Gardaí

to the taking of the blood sample and at the time when he allowed the sample to be taken by the medical doctor this was

nonetheless unlawful because such a blood sample could only be demanded and obtained in accordance with the procedures

laid down in the Act of 1990.

Counsel for the applicant referred to a wide range of case-law, mostly foreign case-law, much of which is not really relevant

since the real issue in this ground of appeal turns on the interpretation of the provisions of the Act of 1990.

At this point it should be said that the learned trial judge, in his ruling admitting the evidence in issue did so principally on the

basis that s. 2(11) of the Act of 1990 in stating that the powers conferred on the Gardaí under the Act were without

prejudice to other powers exercised by them, meant that the ‘power’ of the Gardaí to invite persons to voluntarily provide a

blood sample applied in this case and therefore were unaffected by the provisions of the Act. This point is mentioned now

because counsel for the D.P.P., at the hearing of this application, stated that he was not relying on the subsection as a

section which saved a specific ‘power’ of the Gardaí to take such a sample. He relied generally on the lawfulness of a

request of persons in custody to voluntarily provide a sample and it being permissible to take it when the request is

voluntarily acceded to. Counsel submitted that the Act of 1990 did not affect the power or right of the Gardaí to take a

blood sample when voluntarily given.

The Collection of forensic evidence

While the conduct of criminal investigations by the Gardaí must be carried out within the ambit of the law and in accordance

with the law, many of the procedures which they adopt may not require the exercise of powers expressly conferred by

statute. The interviewing and taking of statements from witnesses to a crime, the entry upon the scene of a crime, its

examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on

the basis of the consent and cooperation of the citizens concerned. Of course in certain circumstances, but not all, such as

the refusal of a person to make a witness statement, the Gardaí may have an option of resorting to statutory or common-law

powers. An example would be where a householder permits a Garda member to enter or enter and search premises without

the need for a search warrant.

Cooperating citizens may willingly provide the Gardaí with forensic evidence such as fingerprints, clothing or blood samples

to assist them in their inquiries. A rape victim may willingly provide a sample of pubic hair so that the Gardaí may determine

whether it matches a pubic hair discovered in the course of their investigations in circumstances which, if matched, may

implicate a suspect. Of course the gathering of such evidence and its use at a criminal trial from persons, who at the trial

have the status of witnesses rather than that of an accused, is rarely a source of controversy. That forensic evidence

provided by such persons has been provided freely and voluntarily may be self-evident or assumed from the circumstances.

Inevitably, and properly, the obtaining of forensic evidence from persons in custody may often be a source of legal

controversy at a trial and subject to particular scrutiny as to its lawfulness and its voluntary nature. Forensic evidence can

take many forms, photographs, fingerprints, scrapings from underneath nails, blood samples, hair samples, and samples of

materials found in or on clothing, to name but some. 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. Provided consent is fully and voluntarily given and the person in custody is of full age and

not otherwise suffering from any legal or other incapacity, they may give a forensic sample, including in response to a Garda

request, and the Gardaí may take it or receive it. That is an essential part of the evidence gathering aspect of a criminal

investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent, 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 persons in custody. Of course, if statutory provisions apply to

the particular circumstances of a case, and in particular if the exercise of a power is conditional on compliance with the

statute, then the lawfulness of the manner in which the evidence is obtained and its admissibility at a trial must be considered

in the light of the applicability of such provisions. In this context the Court is satisfied that, at least prior to coming into force

of the Act of 1990, a blood sample could be lawfully taken from a person in custody provided that it was provided

voluntarily. This was commonly the case, even in the days when the only forensic evidence from such a sample related to

the blood group. Consequently evidence of taking of the sample and the results of forensic examination would be in principle

admissible in a trial. This is so whether one characterises the ability, so to speak, of the Gardaí to take such a sample in such

circumstances as a faculty, a right or a power.

As regards any right of the Gardaí to take a blood sample from persons in custody in such circumstances it was submitted

on behalf of the applicant that such a right did not amount to the exercise of a “power” within the meaning of s. 2

subsection 11 of the Act, which provides that the powers conferred by that section “… are without prejudice to any other

powers exercisable by a member of the Garda Síochána”. It was also submitted that the entitlement of the Gardaí to take a

blood sample when voluntarily provided by a person in custody could only be considered as extending to the taking of a

blood sample for the purpose of determining his or her blood group since what may be referred to as a DNA analysis with

all its potential consequences is a recent innovation arising from recent scientific advances.

As regards the latter point the Court is satisfied that the key question always is whether a forensic sample obtained by the

Gardaí from an accused has been obtained within the ambit of the law. That issue may have a range of implications but can

it be affected by nature or extent of the scientific analysis to which the forensic sample is subjected once otherwise lawfully

obtained? The Court does not consider there is any logical reason why the admissibility of otherwise lawfully obtained

forensic evidence should be limited or affected because advances in scientific methods of analysis have occurred which

permit a wider range of objective conclusions to be drawn from the forensic sample. Scientific advances may be very

valuable tools in enabling the State to present evidence at a trial which will enable a jury to reach their verdict. Provided that

the forensic evidence itself has been obtained lawfully, which includes not prejudicing a fair trial of an accused, scientific

advances in its analysis, even as important as DNA analysis, should not affect the issues as to the admissibility of such

evidence in a trial.

As regards the submission that the right or entitlement of the Gardaí to take a forensic sample, such as a blood sample,

when voluntarily offered by a person in custody does not constitute a “power” within the meaning of s. 2(11) the Court

considers that there may indeed be an ambiguity in the section. It was submitted on behalf of the applicant that a “power” is

a right to do something against the wish or will of another person, or to do it by conscription or under some coercive power.

It was suggested that when the Gardaí take a blood sample which has been voluntarily provided by a person in custody they

cannot be said to have been exercising a “power”, since they had not the right either to compel the person to provide a

blood sample or to visit any consequences on that person for failure to do so. The word “power” may in itself have several

meanings whether that advocated on behalf of the applicant or meaning “the ability to do something or act in a particular

way especially as a faculty …” (New Oxford Dictionary of English). Counsel for the D.P.P. did not argue in the appeal for

the interpretation different from that of counsel for the applicant. Accordingly, the Court considers it sufficient to state that

since s. 2(11) commences by referring to the powers conferred by this section, which are in the context of the Act of a

coercive nature, that the subsequent reference to the powers being without prejudice to other powers exercisable by the

Gardaí should be interpreted for present purposes as meaning other statutory powers of a coercive nature. The provision

may be pertinent in another context when considering the section and Act as a whole but the approach of both parties to this

issue highlights the fact that the long-standing admissibility of evidence at a trial based on a forensic sample voluntarily

provided by an accused when in custody is not, or does not have to be, dependent on an express statutory power but is at

least a faculty of the Gardaí in seeking to obtain evidence relevant to a criminal investigation.

Accordingly it was not the law prior to the coming into force of the Act of 1990 that evidence obtained from an analysis of a

blood sample taken from an accused who voluntarily provided a blood sample while in custody could not be admitted in a

trial. As mentioned above what is now in issue is whether notwithstanding the voluntary provision of the blood sample and

the consent to same given by the accused it was nonetheless unlawfully obtained because the consent was not obtained in

accordance with the provisions of the Criminal Justice (Forensic Evidence) Act, 1990. In short did that Act have the effect

of abolishing the existing faculty or right of the Gardaí to take, or cause to be taken, a blood sample voluntarily provided

with the consent by a person while in custody?

The Act of 1990

Of course it must be noted that outside the ambit of this Act the refusal of a person in custody to voluntarily provide a blood

sample in response to a request from a member of An Garda Síochána has no material consequences for any subsequent

trial of that person. The fact of that refusal may not be given in evidence and the question of any adverse inferences being

drawn by the jury from such a refusal cannot arise.

Section 2 of the Act is the first substantive section and provides that where a person is in custody under the provisions of s.

4 of the Criminal Justice Act, 1984, which is the case here, a member of An Garda Síochána “may take, or cause to be

taken from that person for the purpose of forensic testing” samples specified in that subsection among which figure a

sample of blood.

This power is made subject to the provisions of subsections (4) to (8) which in general terms sets out conditions or pre-

conditions for the exercise of a power under that subsection. The next section, s. 3 of the Act, sets out the consequences

which arise “Where a consent required under s. 2 of this Act is refused without good cause, …” [emphasis added]. The

consequences are that a court of trial, including a jury, in determining whether the person concerned is guilty of an offence

“may draw such inferences, if any, from the refusal as appear proper; and the refusal may, on the basis of such

inferences, be treated as, or as being capable of amounting to, corroboration of any evidence in relation to which the

refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such refusal”.

This is a fairly radical provision extending the range of evidence which the prosecution may tender at a trial namely the fact

of a refusal to provide a sample so that a jury may rely on it as an evidential element, but not solely, in determining the guilt

or otherwise of an accused. It also introduces a specific coercive nature to the power conferred on the Gardaí by virtue of

subsection 2 to seek such a sample.

Two key and related elements of the Act are the express power to take, or cause to be taken, one of the samples referred to

in section 2(1) and, when appropriate warnings or cautions had been given, the aforementioned consequences for the person

concerned at a subsequent trial in the event of a refusal. The combined effect of the two sections is twofold. Firstly, there is

some pressure on a person in custody to consent to a sample being taken in order to avoid adverse inferences being drawn

at any subsequent trial to a refusal and secondly, in the event of a refusal without good cause, there is additional evidence

available to potentially strengthen and corroborate the prosecution case by proving the fact of such refusal.

The court can find nothing in the Act which suggests that the Oireachtas intended to abolish the existing and valuable faculty

of the Gardaí to obtain or receive from persons in custody forensic samples that are voluntarily provided by such persons.

It is logical that a power created by an Act of the Oireachtas which has either a coercive effect or potentially adverse

consequences for an accused at a trial based on a refusal should be circumscribed by statutory safeguards. It is clear for

example that if a statute is going to provide that a person’s refusal to consent to a sample being taken should be evidence at

a subsequent trial and that the same statute would provide for specific safeguards governing the circumstances in which the

request and refusal of consent was made. These procedural requirements also have the effect of providing for an effective

means of proving a refusal at a trial with its potentially adverse consequences for an accused. Similarly, because of the

coercive aspect of the provision of a forensic sample it is appropriate that the Act should also provide for the destruction of

forensic records where the sample has been provided in such circumstances.

As already pointed out the power to take or cause to be taken a sample under section 2(1) of the Act is made subject to

subsections 4 to 8 of the section. Subsections 4, 5 and 6 relate to who may authorise the taking of a sample, circumstances

in which authorisation may be obtained and the information which must be given to the person concerned before his or her

consent is sought. Subsection 4 is introduced by the words “a sample may be taken under this section only if -” (emphasis

added). Subsections 5 and 6 are also limited by reference to samples taken under the section. They do not refer to samples

taken generally. If the Oireachtas had intended that the Act was to have general application to all circumstances in which the

taking of a blood sample from persons in custody could arise that it would have been expressed in words of general

application. Moreover, if the Oireachtas intended the Act to have general application to the taking of all samples involved

from persons in custody it would hardly have been necessary for the Oireachtas to include the proviso in subsection 11 of s.

2 whereby the powers conferred by s. 2 are without prejudice to any other powers exercisable by a member of An Garda

Síochána, even in adopting the narrow interpretation of “powers” advocated by counsel for the applicant.

It also introduced an offence of obstructing the operation of s. 2 (s. 2(9)), punishable by a fine or 12 months imprisonment.

It would indeed be extraordinary if the Oireachtas contemplated that any forensic sample freely and voluntarily provided by

a person in custody and then forensically examined by the Gardaí which was lawful before the passing of the Act should be

considered unlawful after the passing of the Act without any express provision to that effect, even though it was provided

without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused.

The Act creates a distinct statutory regime fundamentally different in nature and consequences from the gathering of

evidence under common-law rules or powers and does not have the effect of abolishing the right or faculty of Gardaí to take

or accept forensic samples from persons in custody that are voluntarily provided. It is an extension of the law rather than an

abrogation of the existing law. Although the learned trial judge decided that the provisions of the Act of 1990 did not apply

to the circumstances of this case from a different legal perspective the end result is the same. Since the Act does not apply

and the blood sample was provided voluntarily he was bound to admit the relevant evidence.

In conclusion the Court is of the view that the Act does not purport to abolish expressly or by implication the possibility of

the Gardaí to receive from persons in custody a forensic sample, such as blood, voluntarily provided. It is a distinct statutory

regime designed to enable the Gardaí to obtain such forensic samples which might otherwise be refused and, in the event of

a refusal to provide for the admissibility of evidence arising from the refusal which would theretofore have been

inadmissible. Accordingly this ground of appeal fails.

Consent issue (Grounds 3 and 15)

It was submitted on behalf of the applicant that the learned trial judge erred in law in acceding to the submission of counsel

for the D.P.P. that the taking of a blood sample of a person in custody fell into a different category or gave rise to different

considerations than the taking of a statement from an accused person in custody. Counsel submitted that the learned trial

judge was therefore wrong in law in refusing to allow the issue as to whether a caution was given before the taking of the

blood sample to be considered by the jury. Counsel submitted that the giving of a blood sample is precisely the same as the

giving of an oral statement and therefore the jury should be permitted to decide that question.

Accordingly the trial judge was wrong in limiting the purpose for which the relevant Garda witnesses could be cross-

examined in the course of the trial on the question of whether or not they cautioned the accused before taking the blood

sample. It was submitted that a caution informing the applicant of his right not to give a blood sample and that if he did so

the results of any forensic analysis may be given in evidence was necessary for a full consent of the applicant to the giving

of such a sample. Accordingly a question of fact as to whether such a caution had been given should have been left to the

jury.

In order to place this matter in context it is necessary to recall that early in the trial the trial judge, at the request of the

defence, tried an issue as to the admissibility of the taking of the blood sample and related evidence in the absence of the

jury. As summarised earlier in this judgment, evidence was given by the Gardaí concerning the arrest of the applicant, his

arrival in the Garda station, the procedures followed including the general caution administered to him and the course of the

interviews with him.

The area of factual controversy between the applicant’s evidence and that of the prosecution centred essentially on the

giving of the caution in connection with the blood sample and the record made by the Gardaí of an interview with the

applicant regarding that issue. The applicant did not contest that he had voluntarily agreed with the Gardaí to give a blood

sample and that he willingly consented to the doctor taking the blood sample. It was argued on his behalf that this could not

be treated as a full consent in the absence of the caution which the Gardaí contended he had been given.

After hearing all the evidence the learned trial judge concluded that the caution had in fact been given, that the consent to

give a sample was voluntary and that the taking of the sample and consequential evidence was admissible (as well as

deciding other legal issues concerning admissibility specifically as regards the application of the Act of 1990). Subsequently,

in the course of the trial before the jury, an issue arose as to whether counsel for the applicant should be permitted to cross-

examine the relevant witnesses as to whether the caution in question had in fact been given and whether this issue could be

an issue left to the jury to decide. Counsel for the defence were insistent that they be permitted to cross-examine the

relevant witnesses on this issue.

While counsel were given a good deal of latitude and in fact were allowed to cross-examine the relevant witnesses on the

issue of the caution, the question which arises on this ground of appeal turns on the ruling of the trial judge that the cross-

examination could not be relied upon for the purpose of inviting the jury to consider whether or not the caution relating to

the taking of the blood sample had been given. The trial judge also ruled that the jury would not be permitted to consider

that issue. The learned trial judge ruled, inter alia, that the question of admissibility of the evidence concerning the taking of

the blood sample was a question of law for the trial judge and had been ruled upon. Among the concerns the trial judge

expressed was that the issue was irrelevant to the issues to be considered by the jury and to allow that particular issue to also

go to them would confuse them. Counsel for the defence on the other hand submitted that the issue was a question of fact

for the jury so that they could determine whether the caution was given and whether the blood sample had been properly

taken, or fairly taken or lawfully taken.

It was not however contested that the admissibility of the evidence relating to the taking of the blood sample was a question

of law to be decided by the trial judge. The approach of counsel for the defence appears to be based on the premise that

evidence concerning the taking of a blood sample was similar or could be equated with evidence of the circumstances under

which an accused made an incriminating statement to the Gardaí.

Where an accused person makes a statement to the Gardaí, orally or in writing, issues may arise relating to the admissibility

of such a statement at a trial and particularly with regard to the issue of its voluntary nature. The admissibility of the

statement is a matter of law to be determined on the evidence by the trial judge in the absence of the jury. There would

usually be questions of fact inextricably linked to the question of law to be determined by the trial judge. Once such a

statement has been ruled admissible it is not open to the defence to challenge the admissibility as such but of course the

defence may challenge the evidence of the relevant prosecution witnesses concerning the circumstances under which the

statement was obtained and call such evidence as they may wish with regard to that issue, as for example where it is alleged

that a statement was made under duress. The statement will nonetheless go before the jury. The jury, duly directed by the

trial judge, will be entitled to consider the reliability of the statement in the light of the evidence and its conclusions in

relation to the circumstances under which it was taken and if they consider it proper to do so rule it out of consideration

entirely. This arises in part because of the nature of the protection given to a person in respect of his or her right not to

incriminate oneself in respect of a criminal offence. Is also arises because of the nature of a self-incriminating statement and

inherent dangers that its integrity or reliability may be directly undermined by oppressive or other wrongful conduct when it

was obtained. The jury do not decide on admissibility but are concerned with the reliability of the evidence in question. Oral

statements, and indeed written statements, of an inculpatory nature have always been treated as falling into the special

category of evidence governed by the law on the right to silence or in other words a right not to incriminate oneself regarding

a criminal offence.

The taking of forensic samples falls into a different category. Generally speaking forensic samples such as samples of blood,

hair or a nail involve the obtaining of objective evidence, that is to say, evidence of a forensic nature, including what

emerges from a subsequent forensic analysis, the validity of which is not usually susceptible to being affected by transient

factors. Of course, there are also circumstances where the characteristics of a sample may be transient, such as blood

alcohol level or the nature of scrapings taken from under a nail, but that is not the nature of the evidence here. Such items as

blood, hair, a sample of a nail and the like always have their particular forensic or scientific characteristics. Thus a person’s

blood group, or indeed DNA analysis, based on the inherent characteristics of the blood, will always be the same whenever

the sample is taken and analysed. For those type of analyses, an arrested person or an accused will always have available to

him a means of verifying, should he or she feel the need to do so, such forensic analysis. That is not to say that such

samples can be obtained otherwise than in accordance with law but they give rise to different legal considerations than that

which arises under the law relating to the right to silence or protection against self-incrimination. The law may make it

compulsory or a serious offence not to provide a forensic sample, such as fingerprints or a blood sample, to an extent which

may not be permissible with regard to the making of oral statements contrary to a person’s right to silence. Such matters as

forensic samples and indeed documents and other property of an accused which may be obtained in the course of the

gathering of evidence for the purposes of a criminal prosecution exist independently of the will of the accused and their

objective evidential value is not dependent on a self-incriminating statement or communication by the accused. The Court

considers that counsel for the D.P.P. were correct in submitting that they fall into a different category than inculpatory

statements by an accused.

Such a distinction was recognised in the case of Saunders –v- United Kingdom [1997] 23 EHRR 313 where the Court of

Human Rights in considering the right not to incriminate oneself in respect of a criminal offence stated (at para. 68):

“The Court recalls that, though not specifically mentioned in Article 6 of the Convention, the right to silence

and the right not to incriminate oneself are generally recognised international standards which lie at the heart

of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the

accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages

of justice and the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular,

presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort

to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this

sense the right is closely linked to the presumption of innocence contained in Article 6(2) of the Convention.”

Then, the judgment goes on to consider the nature of the right not to self-incriminate oneself in the following terms:

“The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused

person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the

Convention, and elsewhere, it does not extend to the use in criminal proceedings of material which may be

obtained from the accused through the use of compulsory powers but which has an existence independent of

the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine

samples and bodily tissues for the purposes of DNA testing.”

An analogous approach was adopted by the Supreme Court of the United States in the Schmerber –v- California 384 U.S.

757 when it considered a citizens right to silence and privilege against self-incrimination under the Fifth Amendment (the

Court also referring to similar protections under State constitutions) in a case in which a defendant was convicted of driving

a motorcar while under the influence of intoxicating liquor. In that case, after the defendant’s arrest, while he was at a

hospital receiving treatment for injuries suffered in a motorcar accident, a blood sample was withdrawn by a physician at the

direction of a police officer, acting without a search warrant, despite the defendant’s refusal, on the advice of counsel, to

consent to the blood test. In the majority opinion of the Court, Brennan J. in acknowledging that the Fifth Amendment of

the Constitution of the United States guaranteed the right of a person to remain silent unless he chooses to speak in the

unfettered exercise of his own will and to suffer no penalty for such silence went on to state:

“We hold that the privilege protects an accused only from being compelled to testify against himself, or

otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal

of blood and use of the analysis in question in this case did not involve compulsion to these ends.”

Later in his judgment in referring to the privilege against self-incrimination he stated:

“On the other hand, both federal and state courts have usually held that it offers no protection against

compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification,

to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction

which has emerged, often expressed in different ways, is that the privilege is a bar against compelling

"communications" or "testimony", but that compulsion which makes a suspect or accused the source of "real or

physical evidence" does not violate it.”

Also in rejecting the application of the privilege against self-incrimination to the case then before the Court he stated:

“Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved

either in the extraction or in the chemical analysis [of the blood]. Petitioner's testimonial capacities were in

no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which

depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating

product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or

writing by the petitioner, it was not inadmissible on privilege grounds.”

The Court adopts the distinction made by the Court of Human Rights and by the U.S. Supreme Court in concluding that the

trial judge was correct in distinguishing between self-incriminating evidence of an accused, orally or in writing, and the ruling

which he made in relation to the admissibility of the taking of the blood sample and the evidence relating to its analysis. The

decision on admissibility was, as a matter of law, exclusively a matter for the trial judge. The findings of fact which he made

in the course of his ruling were inextricably and exclusively related to that question of law. The reliability of the forensic

analysis depended on the evidence of the expert witnesses. Accordingly, he was correct in not permitting the jury to revisit

the issue determined by him in connection with the admissibility of the evidence, namely, whether the caution in question

was administered.

Rulings of law on such matters as the admissibility of documentary or forensic evidence are exclusively a matter for the trial

judge and not for the jury. A jury is only concerned with issues relevant to the guilt or innocence of an accused based on the

evidence ruled admissible by the trial judge. It might also be noted that the evidence that the applicant was aware that the

Gardaí were investigating a series of sexual assaults over a number of years against the complainant when he gave the blood

sample was not contested, that he does not contest the voluntary nature of his decision to provide it in that knowledge and

that at the trial before the jury all the evidence went in one direction only, namely that the caution had been administered,

the evidence of Dr. Dalton, who took the blood sample, that the applicant had been cautioned was not contested in cross-

examination and no witness contradicted the evidence given by him or the Gardaí of the administration of the caution.

However, in the light of the conclusions on this ground of appeal it is not necessary to consider whether, even if the trial

judge was wrong in his ruling, a miscarriage of justice was involved.

Grounds 4 – 9

For the purposes of his submissions, counsel for the applicant grouped grounds 4 – 9 together although they do give rise to a

number of discrete points.

First of all it was submitted that there was no evidence other than DNA evidence on which a jury properly charged could

convict. It was then submitted that the DNA evidence of itself could never be a sufficient ground for a verdict of guilty.

DNA evidence is only a probability. Accordingly, DNA evidence alone is incapable of constituting grounds upon which a

jury may convict. A jury should be warned that in the absence of further or other evidence it is insufficient in itself. DNA

evidence, it was submitted, can do no more than offer evidence of a match between a crime stain and its possible source. It

was contended that if a match is made it does not follow that the crime was committed and that the scientific expert, Dr.

McDonald, so admitted when he stated at day 18 of the transcript, question 140 “Well, quite often DNA evidence is not

taken on its own. There is often other evidence to go alongside that”.

With regard to the applicant’s reliance on that quotation from the evidence the answer arose when the witness was being

questioned concerning a suggested conflict between his evidence and the evidence of Dr. Smith who gave evidence of her

own DNA findings. Question 140 was a change of tack, so to speak, and the witness was asked “What do you say about the

need for, or the importance of, something other than DNA to assist your analysis in the presentation of criminal cases?”

It was then he gave the response cited above. The question was somewhat ambiguous referring to on the one hand the

“need for” and on the other “or importance of” evidence other than DNA evidence. In any event the response is simply a

statement of fact that often DNA evidence is not taken on its own because there exists other evidence alongside it. There is

no suggestion from the witness that DNA evidence, without more, can never be of importance. More importantly, this was

really not a question for the witness at all. As the scientific witnesses at the trial pointed out, and Dr. Smith had laid specific

emphasis on this, their function is simply to give expert evidence of the objective scientific data discovered by them and any

associated expert opinion in relation to it, and it was not for them to say how valuable it is in the context of the issue or the

guilt or innocence of an accused. The admissibility of evidence is, as a matter of law, a matter for the trial judge and the

weight to be attached to it in the context of the evidence as a whole in principle a matter for the jury. This is in effect what

the learned trial judge ruled when counsel made submissions concerning the pertinence of such a question for the witness

immediately following the giving of that answer.

While counsel for the applicant was unable to refer to any authority for his proposition for the benefit of the trial judge at the

trial in this appeal he relied on R. –v- Pantoja No. 60718 of 1995, apparently unreported, of the Court of Criminal Appeal

of the Supreme Court of New South Wales. Any perusal of that case will immediately make it clear that the nature and

quality of the evidence and the issues which arose from it were peculiar to the circumstances of that case. The evidence

relating inter alia to the statistical database, the relevance of racial characteristics, including the fact that the accused was a

member of a group known as the Quechua Indians of South America are wholly different from the facts and circumstances

of the present case. In the circumstances the Court does not consider it necessary to analyse this case in extensive detail.

Suffice it to say that the factual and evidential circumstances of that case were so different from this case that it is not of

assistance even as a persuasive authority on any point of principle. The Court also notes in passing that the Australian Court

of Criminal Appeal, in that case, in applying previous Australian case-law to the issues before it, namely R. –v- Gilmore (2)

1977 2 N.S.W.L.R. 935 noted that the precedent was based on a line of American authority stemming from a United States

case which had since been reversed but considered that “The Courts of this State should continue to adopt the approach

accepted in Regina –v- Gilmore until that decision has been further considered by this Court or the High Court. [Of

Australia] It was not challenged in the present case”. The Pantoja case highlights the frailties of relying on cases which

make discrete rulings on evidence in the context of their own particular facts especially with regard to the nature of the

expert evidence tendered in each case.

As regards the submission of the applicant generally in this regard it should first of all be noted that the forensic evidence or

more specifically the DNA evidence fell to be considered in the context of the evidence in the case as a whole. It is certainly

the case that the learned trial judge considered that he would have been bound to withdraw the case from the jury if there

had been no DNA evidence relating to the 1989 and 1991 offences. That is not to say that there was not other material

evidence which the jury could take into account in reaching their verdict. It is not necessary to refer to this in exhaustive

detail. Apart from the evidence of the complainant that specific offences has been committed, the evidence included the

general background and circumstances of the case whereby the complainant was sexually assaulted in her home in a series

of five occasions between January 1983 and December 1984. She was a single woman of mature years who lived alone in a

quiet rural spot being surrounded largely by farmland, her nearest neighbours being 150 yards away and others a

considerably greater distance. In her evidence, while not without its inconsistencies, she was insistent that it was the same

person who had sexually assaulted her on each occasion. She gave several reasons for that although she could not identify

her assailant personally. This included her descriptions of her assailant and her evidence that on more than one occasion the

assailant, in assaulting her sexually, said he wished to keep her young or young for sex. On the occasion of the second

offence she said her assailant called her by her first name and said “Let me in again”. The assailant made references during

some assaults to earlier assaults. There was evidence that he had a local accent. The complainant also gave evidence that

her assailant was in working clothes and wore wellington boots and had a smell from him like diesel or tractor oil on all

occasions. Mr. John James Allard gave evidence of having seen the accused’s car on one occasion two hours after dark near

the complainant’s home. He also gave evidence of encountering the accused at an uncle’s house subsequently and asking

him why his car was parked at that place at that time. He said that the accused blushed and turned away slightly at the

question and stated that he had been on the other side of the ditch at the time and did not come out because he was not sure

who it was who was there beside his car. Mr. Allard also gave evidence that the accused sought to explain his presence by

saying that he was waiting for a flight of ducks. The witness called in question the truth this explanation on the grounds that

nobody went duck shooting at that hour after dark, suggesting that the accused had given an untruthful explanation for his

presence. The accused himself lived one and a half miles as the crow flies from the complainant’s house and approximately

two and a half miles by road. There was also evidence of more peripheral matters some of which arose from the fact that

members of the Allard family who, it would appear with others, from time to time scouted the area around or near the

complainant’s house in order to see if they could find evidence of a prowler or somebody’s untoward presence in the light

of the series of attacks which had taken place on the complainant. On one occasion Mr. John Allard Snr. saw someone

moving in the dark through a field in the vicinity with a light or lamp in circumstances where he would not expect anyone to

be out and about. He drove on further down a boreen which was a cul-de-sac and blocked it with his car so that if there was

a car parked further down the boreen it would not be able to get out without him seeing it and taking its number. He went

on foot further on down the boreen to investigate further and, having heard the crash of glass, came back to his car to find

that the windscreen had been smashed. On another occasion Mr. Allard had received a call for help on a kind of intercom

system that had been set up between the complainant’s house and his house in the light of earlier attacks and went to

inspect. As he approached the complainant’s house he saw a short stocky figure, interfering with, the front of her house but

who ran off on his approach without him being able to identify that person.

If the jury accepted the evidence of the complainant and other (non-expert) witnesses, and that was a matter for them, and

even though they might attach greater or no weight to certain elements of it, it was sufficient to allow them to infer that the

complainant’s assailant was a local living locally at the time of the offences or at least that it was consistent with the assailant

being a local person. Of course it was not part of the State’s case that any of this evidence, either in whole or in part, was

sufficient in itself to ground a conviction of the accused. It is nonetheless the factual context in which the DNA evidence fell

to be considered.

It will be recalled that the principal DNA evidence relied upon by the State was that of Dr. McDonald who found a DNA

match between the blood sample taken from the accused and the semen stains taken from the underwear of the complainant

relating to the relevant offences in 1989 and 1991. His evidence was that these were rare matches representing one in five

million by reference to the first database which he used and one in six million by reference to the second database which he

used.

These are not the only factors however with regard to the DNA evidence. The evidence given by the complainant as to the

circumstances in which the semen stains came to be on her underwear was such that it was open to the jury to conclude that

they had been left there by the person who committed the sexual offences on the two occasions in question. In short there

was a direct link between the DNA match and the person who committed the offences. This of course was all a matter for

the jury to weigh upon the evidence but they were entitled, in the Court’s view, on that evidence to conclude, if they so saw

fit, that the person who had left the semen stain on the complainant’s underwear was the same person who sexually

assaulted her. It was then a matter for the jury to decide if it had been established beyond reasonable doubt that the accused

was the person who left the semen stain. Different issues concerning the strength and weight of DNA evidence might arise

in a case where some forensic sample which was a source for a match with the blood of an accused was found for example

on premises when the presence of the forensic sample in question on those premises was potentially consistent with his or

her innocent presence on those premises at some point as well as a culpable one. That might call for different considerations

as to the weight that would be attached to DNA evidence, obviously depending on the facts of the case. In short, the extent

to which forensic evidence is central or peripheral to the prosecution case will depend on the facts of each case.

There was also the evidence that the accused’s blood group PGM 2-1+, as distinct from DNA, was the same as that

extrapolated from the semen stains. Dr. Maureen Smith’s evidence was that this was a blood group to be found in 7.5 % of

the population that is to say, excluding 92.5 % of the population. The prosecution did not rely on this as a decisive element

but as part of the overall factual matrix of the case to be considered by the jury and of course blood group evidence is

admissible because it is material and relevant evidence for a jury.

The Court concludes that the applicant is incorrect in contending that the DNA evidence was the only evidence which fell to

be considered by the jury, even though without that evidence the case would have been withdrawn from the jury. There

was other relevant and admissible circumstantial evidence of varying importance which the jury were entitled to take into

account, when deciding whether the prosecution had established its case beyond reasonable doubt. This included evidence

before the jury from which it was entitled to conclude that the person who left the semen stains on the victim’s clothing was

the perpetrator of the particular offences in question. The forensic evidence indicated that the blood group of that person

was one which is found only in 7.5 % of the population. Apart from the blood group evidence there was the remainder of

the evidence which included that from which they could have concluded that the person was a local person with a local

accent living locally and so on. Circumstantial evidence may have an important role to play in a jury’s deliberations. As

pointed out in Halsbury’s Laws of England (Fourth Edition, Volume 11(2), paragraph 1061) a great deal of the evidence in a

criminal trial is indirect or circumstantial and “in seeking to connect the accused with the offence, facts which tend to show

… means of, or opportunity of, committing the offence … are also relevant”.

The Court is satisfied that the DNA evidence given by the expert witnesses in this case fell to be considered in conjunction

with and the context of all the other evidence in this case and that the trial judge was correct in refusing to exclude the DNA

evidence and in allowing the case to go the jury.

As part of this group of grounds of appeal, counsel for the applicant also complained that the learned trial judge was

incorrect in disallowing him to pursue a certain line of questioning concerning what he sometimes termed the “parameters”

of DNA evidence. This relates to a line of questioning, already adverted to above, whereby counsel for the applicant at the

trial sought to question Dr. McDonald as to the importance DNA evidence and whether on its own it was sufficient to

establish a persons guilt or whether a jury should be allowed to consider it on that basis.

This issue also arose in the context of various extracts from literature being put by counsel to the witness and sometimes to

the judge. As the learned trial judge had to point out on several occasions, the citation of extracts from experts, assuming

they are experts, by counsel is not evidence in the trial. It is not evidence upon which the jury can be invited to act. Counsel

was allowed a great deal of latitude by the trial judge over a considerable period in putting extracts of various publications to

the expert witness and probably more than was strictly necessary although nothing turns on this. A witness who gives

evidence as an expert must first of all establish his or her expertise in relation to the matter upon which he or she is to give

evidence. Any primary fact relied upon by the expert must be proved by admissible evidence but there are other secondary

matters such as established scientific norms, practices, standards and reference points within the field of expertise, such as

the a census, distribution of blood groups among the population, scientific norms such as the co-coefficient of expansion of

particular metals which he or she may rely upon or the like. An expert witness may be entitled to refresh his or her memory

by reference to textbooks or other scientifically accepted sources or to refer to them to confirm and explain his opinion (see

R. –v- Somers [1963] 1 W.L.R. 1306 CCA and Halsbury's Fourth Edition para. 1137). All such evidence tendered by the

prosecution is of course open to challenge by the defence. Counsel for the defence are in principle entitled to put to an

expert witness extracts from expert textbooks or other expert treatises. If the expert witness being cross-examined accepts a

proposition cited to him in cross-examination from such an extract then that proposition may be treated as evidence, it

having been adopted by the expert witness. If the proposition cited from the extract is not accepted by the expert witness

then it is open to counsel for the defence, if they consider it appropriate to do so, to call expert evidence to support that

proposition and such expert evidence may rely on or appropriate the proposition cited from the textbook or treatise. It is not

the case however that because counsel merely cites or puts to a witness what he or she claims to be expert evidence from

whomever, from a work of whatever date and whatever provenance that it becomes evidence for consideration by the jury.

In submitting in this appeal that he was wrongfully constrained by the learned trial judge in pursuing a line of questioning

with the expert Mr. McDonald to the affect that the DNA evidence given by him was not sufficient to support a criminal

conviction, counsel had sought to rely on a number of passages from a number of works to that affect. (See Book 18, p. 53

at sec. of transcript.) The learned trial judge ruled out this line of questioning on the grounds that it was not for such experts

to determine what constituted sufficient evidence to support a criminal conviction or to lead to an acquittal.

The essence of the learned trial judge’s ruling on this matter is to be found at p. 61 of the transcript, day 18, where he

stated:-

“If it is literature whereby scientists give opinion relative to what should constitute proof in a court of law

then it is not appropriate and it is inappropriate for you to do so and that is my ruling in relation to that.

You may ask an expert witness anything within the discipline of the expert witness. You may not ask him what

evidence is appropriate to ground a conviction in a court of law because that is not within Dr. McDonald’s

discipline and you may not read extracts from that. In effect, it is I who will direct the jury as to what evidence

is or is not appropriate to ground a conviction.”

The Court is of the view that the learned trial judge was entirely correct in his approach to this matter.

In his charge to the jury the learned trial judge instructed them in the following terms (Day 22 pp. 37 / 38):-

“You task is to consider the evidence, the evidence that has been placed before you in this case and having

considered that, to decide on that evidence and on that evidence alone whether Mr. Boyce is guilty or innocent

in respect of the charges that have been preferred against him.

I want to talk to you about evidence. What Mr. Birmingham or Mr. Goldberg may say to you is not evidence,

that is the first thing. What Mr. Goldberg says about Sellafield and what he says about Morris 1100 motorcars

is not evidence. He is quite entitled to persuade you as best he can but that is not evidence. If he reads out

extracts from scientific manuals that is not evidence either. The evidence you have to consider is what was

said in the witness box by witnesses who were sworn and whose testimony is available to you. When I

indicated that Mr. Goldberg’s reading out or Mr. Birmingham’s reading out from textbooks that that is not

evidence, I will explain it in this way. If Mr. Goldberg reads an extract from a scientific manual to an expert

witness, which he did, the extract which he reads out is not evidence but the response that the expert gives is

evidence and if you feel that the expert’s response has been undermined and has somehow undermined his

earlier evidence then that is evidence that you could have regard to. If you feel that his (sic) influences what

he said already then you can take that into account. But the extracts that are read out they are not evidence

because you can read extracts from all sorts of things to all sorts of people.

“What Mr. Birmingham or Mr. Goldberg may say about some case that they are talking about, the facts of

another case, that is not evidence because you do not know anything about that case, so, it is not evidence.

You should confine yourself only to what you heard from the witnesses in this court, in sworn testimony or in

documentary evidence that you have when you retire. I would like to tell you that in the first instance, it is

only evidence.”

In the course of his submissions in this appeal, counsel for the applicant also contended that the foregoing portion of the

charge was unfair and unbalanced. The Court disagrees. A trial judge has a duty to guide and instruct a jury as to what

constitutes evidence upon which they are entitled to rely and if counsel asserts something to be evidence which is not

evidence or misstates evidence the trial judge is entitled to, if not bound to, correct it.

Also included in counsel’s submissions under this group of grounds of appeal was the contention that since Dr. McDonald

was relying on statistical information in scientific literature and could not give evidence of it of his own knowledge, he

should not have been allowed to given expert evidence on the basis of such statistics or databases.

Dr. McDonald was cross-examined robustly and comprehensively by counsel for the applicant during the course of the trial.

Throughout his evidence and in particular in response to questions put by the defence, he gave extensive explanations as to

the scientific technology used by him in accordance with current scientific standards and how it differed from and was much

more sensitive than earlier DNA testing technology such as that used by Dr. Smith, who also had given evidence. (See for

example answer to question no. 38 day 18.) He also explained the scientific basis of his conclusions and reference points.

While generally speaking a witness is not permitted to give his or her own opinion, expert witnesses fall outside that rule and

may give evidence within the field of their expertise. A matter of expertise is some issue outside the ordinary knowledge of

the jury. Furthermore, in a long established exception to the hearsay rule, an expert can ground or fortify his or her opinion

by referring to works of authority, learned articles, recognised reference norms and other similar material as comprising part

of the general body of knowledge falling within the field of expertise of the expert in question. For example, in this case, Dr.

McDonald acknowledged that the databases upon which he relied for his conclusion as to the rarity of the matching DNA

samples in this case were English databases for white Caucasians. On several occasions in the course of his evidence he

explained why it was scientifically acceptable to rely on such databases dealing with a DNA match found in Ireland. He gave

it as his expert opinion and relied on expert scientific studies from America, Germany and the United Kingdom that different

white Caucasian databases do not differ significantly between one country and another. He also explained how certain

variables or factors including inbreeding and ethnic sub-groups may have to be taken into account in applying the white

Caucasian databases upon which he relied to a match found in Ireland. In doing so he explained that he had relied on

published scientific data and recognised procedures and factors within his field of expertise. These took account of such

elements as ethnic sub-groups and possible inbreeding in local communities. He gave evidence that any factor which he used

was higher than strictly required by scientific studies in order to be conservative. This is purely illustrative of Dr.

McDonald’s expert evidence and explanations in answer to extensive and detailed questions put to him by counsel for the

defence in relation to his findings and the basis of those findings.

The Court does not consider it necessary to review the extensive evidence which he gave in detail. His evidence was

extensively and of course properly probed by the defence but it is satisfied that his responses and explanations as to the

manner in which carried our the tests and the basis on which he arrived at his conclusions fell within the area of his expertise

and that he was entitled to explain his reliance on the databases in question by reference to accepted scientific standards,

scientific studies in published scientific data and norms accepted by the science in question. It was then a matter for the jury

to decide the weight or reliance which they would place on his testimony. In doing so, they were of course entitled to take

into account that there was no other expert witness in the trial which contradicted his view. The Court does not find that the

submission that Dr. McDonald’s evidence should have been excluded to be well-founded.

It was also contended by counsel for the applicant that Dr. McDonald agreed that he was at best estimating or speculating

on probability ratios in his evidence. It was submitted that speculation or estimation is insufficient to reach the standard of

proof. This submission was based on the following question and answer:

“Q. But at the end of the day it is all speculation; is it not?

A. It is an estimate based on scientific data, yes”

No one answer can be treated in isolation. It is quite evident from the answer itself and its context in the evidence of Dr.

McDonald as a whole that he at no time considered himself to be speculating in his evidence and that his conclusions were

an expert estimate or opinion based on scientific data.

The evidence of the complainant

In the course of his submissions under various grounds of appeal (and also referred in ground 14 of the Grounds of Appeal)

counsel for the applicant criticised the State’s reliance on the evidence of the complainant because, it was contended, she

was an unreliable witness on the grounds that she had given differing descriptions of her assailant, had made accusations

against other persons and did not at any time identify her assailant and in particular never identified the accused in court as

her assailant.

Her reliability as a witness was quintessentially a jury matter. In D.P.P. –v- Collins (unreported, Court of Criminal Appeal,

22nd April, 2002) this Court in addressing a similar submission, held that:

“The assessment of the credibility of the witness and the weight to be attached to such evidence is manifestly

within the province of a jury in a criminal trial”.

In that case the Court cited the decision of the Supreme Court in The People (D.P.P.) –v- Egan [1990] ILRM at 780 and in

particular the judgment of McCarthy J. who, inter alia, stated at p. 784:

“Save where a verdict may be identified as perverse, if credible evidence supports the verdict, the Court of

Criminal Appeal has no power to interfere with it”.

In reaching that conclusion McCarthy J. had cited Griffin J. in D.P.P. –v- Mulligan, [1982] 2 Frewen 16, who had stated:

“In reading the record of evidence the appellate court cannot assess the credibility of witnesses nor the

cogency of evidence of primary facts, or of inferences of fact which are dependent upon the credibility of a

witness or witnesses”.

Although the defence in this case were perfectly entitled to criticise and make adverse comments on several aspects of the

evidence of the complainant it remained ultimately a matter for the jury to decide on the reliability and credibility of her

evidence and it cannot be said that their decision to accept her evidence in relation to the sexual offences which she said

were committed against her could be considered as perverse.

Corroboration

Ground 11 of the grounds of appeal contends that the learned trial judge failed to correctly and adequately charge the jury

regarding corroboration required in cases of this nature.

Before addressing this point specifically, it should be noted that no requisition was raised with the trial judge concerning the

question of corroboration. It must also be observed that in the written submissions tendered to the Court on behalf of the

applicant it was contended, in the context of grounds 19, 20 and 21, that no requisitions were made because the charge was

so biased in favour of the State and against the defence it seemed to be a fruitless exercise. That statement is inappropriate.

First of all because it is inaccurate. Towards the end or latter part of the trial judge’s charge, the jury were allowed to go to

lunch and between that point and the resumption of the charge a number of submissions were made by counsel for the

defence in relation to the charge. Moreover at the conclusion of the charge itself a number of requisitions were made and the

jury were recalled and recharged in relation in particular to the evidence of Mr. William Boyce and the alibi which the

defence contended this gave to the accused in respect of one of the offences. Secondly, the submission is outside the ambit

of the grounds set out in the Notice of Appeal and this Court must address those grounds only. Thirdly, this Court has

consistently stated over many years that it is the duty of counsel for the defence (and indeed the prosecution) to draw to the

attention of the trial judge any deficiencies which they consider to exist in relation to the charge to the jury. If the defence

are of the view that deficiencies which they consider to exist in relation to the charge are so grave or extensive as not to be

capable of being corrected by redirecting the jury (such as that it was so biased in favour the State and against the defence

that the making of requisition would be a fruitless exercise), the appropriate and proper approach of counsel for the defence

is to seek to have the jury discharged on those grounds. Should the trial decline to do so, then the appropriate grounds can

be set out for an appeal. In this case the defence had every opportunity to make such requisitions regarding the charge as it

thought appropriate. It did make certain requisitions and these were dealt with by the learned trial judge as he thought

appropriate.

No requisition having been raised with the trial judge concerning his direction to the jury on the question of corroboration

the Court is doubtful, in the circumstances of the case, whether it is a question which is of such fundamental importance in

the circumstances of the case that it should address the matter in any case. Notwithstanding those concerns it may be said

that this was a case in which the trial judge was not bound to give a direction to the jury on the issue of corroboration having

regard to the provisions of s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990. There was no witness who purported

to contradict the complainant’s evidence that she had been sexually assaulted and she did not, in her evidence before the

Court, purport to identify the accused as the person who assaulted her but the trial judge was nonetheless very careful to

point out to the jury that the onus at all times rested on the prosecution to prove their case beyond reasonable doubt and

while they were entitled to rely on her evidence as evidence that she was sexually assaulted they were not bound to do so.

In the course of his charge he gave them the following directions:

“In many instances where there are allegations of rape or sexual assault or indecent assault it is regarded as

very dangerous to convict in the absence of what is called corroborative evidence or evidence other than just

the evidence of the person who claims to have been raped. Juries are usually warned to be careful not to

convict solely on the evidence of the persons complaining. I am not sure how important it is in this case,

certainly to some extent I have to warn you in relation to it, you should satisfied that the person concerned has

been raped and you should not necessarily just rely on her own account.

Mr. Goldberg has questioned these attacks and it is a matter for you. The evidence of a complaint, the fact that

she complained to Mr. Allard and Mrs. Allard and immediately, as soon as she possibly could, is important, it

does not corroborate her evidence but it is very consistent with her allegations. Insofar as her evidence is

concerned, it is her own evidence in the witness box and the description that she gave of the attack that you

must consider, whether you accept that or not. What she said to the Allards is not evidence of what happened,

what she says in the witness box is her evidence of what happened but the fact that she complained to the

Allards is something that you do take into account as being consistent with her allegations. You can take that,

you can reject it also, but it is something that you are entitled to say is consistent with the fact that she said

she was raped. You can also reject the Allards if you wish but that is a matter for you, you could also reject the

Gardaí and say that the Gardaí are unreliable witnesses. There is certainly evidence there that she made a

complaint to the Allards and she was also found to be in a dishevelled state and that can amount to

corroboration on some occasions but it is entirely a matter for you, you can reject that if you wish. Insofar as

this instance is concerned you first have to be satisfied that Ms. Hope was assaulted and you have to be

satisfied that she was assaulted in circumstances of indecency before you can go near the question of whether

it was Mr. Boyce who perpetrated the attack.”

“You will recall also that Ms. Hope was taken to hospital on that occasion and she was examined there, that is

another matter that you might or might not wish to take into account in relation to whether or not you accept

that she was subjected to an attack. Mr. Goldberg referred to the fact that you have not got medical evidence

in relation to that. That is so, you can consider that to be relevant or not relevant, whatever you like. The

relevance that it may or may not have is as to whether or not the attacks occurred.”

“Whether or not you will be assisted by medical evidence as to whether or not the attacks occurred I do not

know but Mr. Goldberg says that the fact that there was no medical evidence adduced by the doctors should

cause you to consider whether or not she was in fact attacked, that is a matter for you.” (Day 22; 69 / 71)

In his charge to the jury the learned trial judge pointed out that such matters as the evidence of immediate complaint to

others concerning the assaults which the complainant said had been committed against her was not evidence which

corroborated the case against the accused but was evidence which was consistent with the fact that she had been assaulted.

At one point in the above passage he used the word corroboration. It is clear from its context and the context of the charge

relating to the facts of the case as a whole that he was not conveying that the evidence in question was corroboration of any

allegation of guilt on the part of the accused. That was a question which they had to come to later and separately and that he

was still referring to matters which were simply consistent. If anything the charge on this matter was in ease of the defence.

In any event the Court is satisfied that there was no misdirection of the jury nor did it give rise to any unfairness or injustice

in the case.

Failure to grant a direction in respect of four of the offences

It was submitted on behalf of the applicant that the trial judge erred in failing to grant a direction on the counts which relate

to the offences committed in 1983, 1984, 1985 and 1994. It was submitted that these formed a separate group of offences,

distinct from the other two offences alleged to have occurred in 1989 and 1991. It was submitted that the DNA forensic

evidence was relevant to the latter offences only and had no relevance to the other offences. It was also submitted that in

the absence of any identification of the accused as the person who assaulted or attacked the complainant on the four

occasions in 1983, 1984, 1985 and 1994, the charges relating to those four occasions should have been withdrawn from the

jury. The jury should not have been permitted to rely on the DNA evidence concerning the 1989 and 1991 events as an aid

to identify the accused as the person who committed the offences on the other occasions. Since each count is a separate trial

it was submitted that it was essential that the jury should not be allowed to use the evidence in relation to one count to

convict in respect of another.

As an addendum to this submission it was also contended on behalf of the applicant that the trial judge in his charge to the

jury created unfair prejudice resulting in an unfair trial by permitting them to take account of the DNA evidence when

considering their verdict in relation to the other charges. In this context it was also submitted that the direction to the jury

that unless they were satisfied beyond reasonable doubt as to the presence of the applicant in the house in 1989 and 1991 on

foot of the DNA evidence they must acquit also in relation to the other offences. The deficiency in that direction, it was

contended, was to invite the jury to apply the same DNA evidence to the offences of 1983, 1984, 1985 and 1994. It also

carried with it the implication that if they were satisfied that the applicant was the assailant in 1989 and 1991 they should

then draw the conclusion that he must be the same person who committed the offences on the other occasions.

The Court does not consider that there is substance in this ground of appeal. As is clear from the transcript of the learned

trial judge’s charge to the jury, and as counsel for the defence acknowledged, he gave very clear directions to the jury as

regards their obligation to consider separately and distinctly each of the offences and the evidence relating to them. Page 57

of the transcript relating to the learned trial judge’s charge (day 22), states:

“You have to consider each of those offences separately and you must carefully consider all of the evidence in

respect of each of the offences separately and you may not convict Mr. Boyce unless and until you have heard

in full all of the evidence that has been adduced in respect of each of the charges … The evidence in respect of

each of the charges must be reviewed by you and considered by you independently, each charge independently,

and you must be independently satisfied in respect of each individual charge that the State has adduced

evidence in respect of that particular charge which is sufficient to satisfy you beyond a reasonable doubt on

the evidence and if you are so satisfied and only if you are so satisfied can you convict Mr. Boyce in respect of

that individual particular separate charge. The same need for separate consideration is necessary in respect

of each of the charges of indecent assault and sexual assault. Again you must consider each one of those

charges separately and independently, you must establish that you are satisfied, again beyond a reasonable

doubt and on the evidence, before you can convict in respect of any of those and you must consider all of the

evidence in respect of each of the individual charges of indecent assault and sexual assault.

Obviously, and it goes without saying, that if having considered the evidence that you are left a reasonable

doubt in respect of any charge, Mr. Boyce gets that and he is acquitted and he is entitled to that and that is

without question.”

The foregoing was in the context of the direction which the learned trial judge had already given generally as to the onus of

proof which rests upon the State at all stages throughout the trial to establish their case beyond a reasonable doubt.

One of the features of this case was of course that the complainant could not and did not give evidence identifying any

particular person as her assailant on any of the occasions in relation to which the charges were preferred. She did give

evidence, already referred to above, and outlined extensively by the learned trial judge in his charge, in relation to the

circumstances in which each offence was committed. All the offences occurred when she was alone in her own house after

dark. She was adamant that it was the same person that assaulted her on each occasion. In her evidence in court she gave

descriptions of her assailant including his size and build, the fact that he smelt of diesel or tractor oil, spoke with a local

accent, had a squeaky voice and so on. There were also general background features such as evidence that there may have

been a prowler in the locality of her house on different occasions, that the accused’s car was seen parked in the vicinity of

the house that he was nearby and subsequently gave an explanation for his presence there which was alleged not to have

been credible. In addition of course there was the evidence from the complainant that her assailant had on some occasions

made remarks which indicated that he had been present as the assailant on another occasion. This was the evidence which

the learned trial judge referred to generally as the overlapping evidence. He was at pains to point out in his charge that none

of this evidence would be a sufficient basis on its own for the jury to found a conviction of the accused for the offences in

question.

Of course there were details of the evidence given by the complainant in relation to the several offences which differed from

one occasion to another. For example, the statement of the assailant to the effect that he just wanted “to keep her young”

was made on two separate occasions and the statement “let me in again” and a reference by the assailant to the fact that he

had been away in England for some time were made on one occasion. The jury were bound, in accordance with the judge’s

direction, to determine to what extent there was evidence of a patent or implied connection between one occasion on which

an offence was committed and another. Their verdict in relation to the offences other than 1989 and 1991 may well reflect

that.

It was also the State’s case that if the jury were satisfied beyond reasonable doubt as to the guilt of the accused of the

offences relating to 1989 and 1991, then they were entitled to consider whether, in the light of the evidence of the

complainant and all the circumstances of the case, that it was the same person who committed some or all of the other

offences and thereby, again if satisfied beyond reasonable doubt, convict the accused in respect of one or more of the other

offences.

The trial judge of course pointed out to the jury that the State case rested on the contention that the DNA evidence linking

the accused to the offences in 1989 and 1991, in conjunction with other relevant evidence, was sufficient to satisfy them

beyond reasonable doubt that he was guilty of the offences committed on those particular dates. It was entirely a matter for

the jury to decide whether they were so satisfied. However, quite properly, he specifically pointed out to them that if they

were not satisfied beyond reasonable doubt that the accused was guilty of the offences of 1989 and 1991 then they were

bound to acquit the accused in respect of those offences and in respect of all the other offences.

In the Court’s view it was fair and necessary, in the circumstances of the case, that the trial judge point out to them that if

they were not satisfied that the accused was the person who committed the offences in 1989 and 1991 then they need go no

further with the case as there was no evidence in relation to the other cases which, taken on its own, would in law entitle

them to convict.

However, the learned trial judge quite properly told the jury that if they were satisfied beyond reasonable doubt that the

accused was the person who committed the offences in 1989 and 1991 by reason of the DNA evidence taken in conjunction

with other evidence relevant to those charges, including the background evidence, that they could then consider each of the

other charges for the purpose of deciding whether there was sufficient evidence to satisfy them beyond reasonable doubt

that it was the same person who committed the offences against the complainant on one or more occasion. He invited the

jury to consider the overlapping evidence – including the evidence of the complainant – not for the purpose of identifying

the accused as such as the culprit but for the purpose of considering whether they were entitled to be appropriately satisfied

on the evidence, that the assailant on any other occasion was one and the same person. In approaching this part of his

charge (at p. 130), he pointed out to the jury again that they “must consider each incident separately, you must assess the

evidence that you have heard in respect of each incident separately and in each case you must be satisfied on the

evidence and beyond a reasonable doubt before you can convict in respect of each individual charge”. At p. 131 he

pointed out that there was evidence “which overlaps from one charge into the other”. At p. 135 he stated he wished to

stress to the jury that there was no forensic evidence at all in relation to the incidents in 1983, 1984, 1985 and 1994 and that

there was nothing by way of identification of Mr. Boyce in relation to those incidents other than the overlapping matters.

Again the learned trial judge distinguished between counts 6 and 7 as the ones which relate to the incidents in December

1989 and August 1991 as differing from other counts on account of the forensic evidence.

The Court is quite satisfied that the trial judge properly and clearly distinguished between the evidence relating to the

offences of 1989 and 1991 and the other offences and clearly explained how they should approach the evidence in relation

to them having regard to that distinction and the particular facts of the case. They were advised to consider each charge

separately having regard to the evidence relating to each charge and including the evidence which he described as

overlapping evidence. There was no suggestion in the learned trial judge’s charge that should the accused be convicted of

the 1989 and 1991 that he should then be convicted of the other offences. In fact the contrary was the case.

Contrary to what was submitted by counsel for the applicant the trial judge was not inviting the jury to apply the DNA

forensic evidence to the other charges. All the trial judge was doing was addressing the particular issues in the manner in

which they arose for the jury in the circumstances of the case. If the forensic evidence, the DNA evidence, the evidence as

to blood group and other surrounding factors which might be taken into account in relation to the 1989 and 1991 offences

was sufficient to satisfy the jury that the accused was the person who committed them then their next and separate task was

to consider whether the evidence relating to the other charges, the overlapping evidence or as the trial judge referred to on

one occasion as the tapestry of evidence, was sufficient to satisfy them beyond reasonable doubt that one or more of the

other offences was committed by the same person who committed the 1989 and 1991 offences.

In the circumstances the Court is satisfied that the learned trial judge was correct in not withdrawing the offences committed

in 1983, 1984, 1985 and 1994 from the jury and that his directions to the jury were not deficient in the manner as alleged

and accordingly this ground of appeal is also dismissed.

Ground of Appeal No. 12: (Sections 5 & 6) of the Criminal Evidence Act, 1992

This ground of appeal states that there was an error in law in the ruling given in the trial on s. 5 of the Act of 1992 regarding

the Certificate served pursuant to s. 6 of that Act in respect of the English database which was to be relied upon by Dr.

McDonald, the expert witness. Counsel for the applicant raised an objection at the trial to any reliance by the prosecution on

s. 6 of the Act of 1992 for the purpose of producing a document proving an English database which would be relied upon by

Dr. McDonald in his evidence. The objection was taken before Dr. McDonald was called to give evidence. The defence

objected to information contained in the document referred to in the s. 6 Certificate being admissible pursuant to the Act

since the relevant section did not apply in respect of information supplied by a person who would not be compellable to give

evidence at the instance of the party wishing to give the information in evidence by virtue of the provisions of the Act. It

was submitted that Dr. McDonald was not such a compellable witness since he was a citizen of the United Kingdom.

It is not necessary to recite further the argument relied upon by the applicant for his contention that the prosecution in this

case were not entitled to introduce a document in evidence by virtue of the provisions of the Act of 1992. This is because at

the trial, when the objection was made, counsel for the prosecution stated that while it was true that a s. 6 Certificate had

been served “… It was served essentially on a belt and braces basis and, in my submission it was not necessary to serve

such a Certificate at all”. The prosecution did not introduce any document or information contained in a document in

reliance on the provisions of the Criminal Evidence Act, 1992 and therefore this ground of appeal is not relevant. Insofar as

it arises, the evidence of Dr. McDonald as an expert witness has been dealt with elsewhere in this judgment.

Delay

There is a general allegation that the applicant’s defence of the charges against him were frustrated by virtue of the length of

time which had elapsed from the dates of the alleged commission of the offences to the date when he was formally accused

of those offences by the Gardaí. This was asserted to have particular relevance to alibi evidence and again there is a general

assertion that his alibi evidence was either less precise or less convincing than it would have been had he known the charges

against him at an earlier time or that alibi evidence was not available at all by virtue of his inability to remember his precise

whereabouts at the time of the alleged offence. The assertions of prejudice are generalised and speculative and were not, in

the view of this Court, sufficiently precise or indicative of any fact from which it could be inferred or concluded that the

delay spoken of, leaving aside the circumstances relating to the delay, gave rise to a real risk of an unfair trial. In any event

there was no evidence relied upon in relation to these matters to establish such prejudice and they can be considered no

more than assertions. Accordingly, this ground of appeal must also fail.

Chain of Evidence

The next ground of appeal which the Court considers it appropriate to deal with is that set out in ground 16 of the Notice of

Appeal namely that “the prosecution failed to prove the chain of evidence regarding the 1989 DNA samples from the

knickers because those knickers were never produced in court and identified by the complainant in the course of her

evidence. In addition the complainant did not indicate that she gave those knickers to the Guard who was first in the

chain of evidence though that particular Guard did say that she got knickers from her”.

The evidence of the complainant in this case was that a number of Gardaí came to her house to investigate the assault which

had taken place on her on 22nd September, 1989. She named Garda Nohilly as one of those Gardaí. She gave evidence that

she gave the Gardaí her underwear at that time to take away. Garda Nohilly gave evidence of having gone out to the home

of the complainant on 22nd September, 1989 to investigate the sexual assault. He stated in evidence that he took possession

of the underwear, namely knickers, tights and a pair of socks, from the complainant and worn by her at the time of the

attack. These, he said, he placed in a sealed marked bag and later handed it over to Dr. Tim Creedon of the Forensic

Science Laboratory. No complaint is made that the chain of evidence was not subsequently complete up to the time of the

subsequent taking of a DNA sample from those knickers. It is complained that the knickers in question were not produced

and identified by the complainant in court. Neither the evidence of the complainant nor Garda Nohilly in this respect was

challenged. There may be circumstances in a particular case, having regard to the nature of the issues arising and the

property involved, that the identification of the item of property by a witness in court may be an important or essential part

of the evidence. This is not such a case. There was evidence before the jury that the knickers worn by the complainant at

the time of the alleged offence was taken from the complainant by Garda Nohilly and placed in a sealed bag as an exhibit or

item of evidence and subsequently transmitted for forensic examination. The jury were entitled to consider that evidence

and rely on it if satisfied by it. No requisition was made to the trial judge arising from his charge in respect of this matter.

This ground of appeal is also dismissed.

Evidence of Mr. and Mrs. Patrick Allard (Ground 17)

It was contended on behalf of the applicant that the trial judge erred in law in permitting the State to call evidence of these

two witnesses on foot of a Notice of Additional Evidence served on them on the grounds that the evidence prejudiced the

fair trial of the applicant.

It is not in dispute, and it could not be, that the prosecution during the course of a trial are entitled to serve on an accused a

list of any further witnesses which the prosecutor proposes to call at the trial and a statement of evidence that is expected to

be given by any such witness (see s. 4(c) of the Criminal Procedure Act, 1967 as inserted by the Criminal Justice Act,

1999). A previous witness who had given evidence of a conversation which he had with the accused in the house of his

uncle, Mr. Patrick Allard, had been cross-examined on the basis that the accused had never visited the house of Mr. Patrick

Allard and therefore the conversation in question could not have taken place. Mr. and Mrs. Patrick Allard were called to

give evidence, not to contradict the evidence given by the previous witness, but to give evidence of fact that the accused had

on occasions visited their house and had been in the house on an occasion or occasions when the previous witness had been

present. The defence were given an opportunity of postponing the hearing of such evidence if it needed further time to

consider it and deal with it but this was not considered necessary by the defence. The Court is of the view that the

prosecution were within its rights in calling this additional evidence and that the trial judge exercised his discretion properly

when admitting it. Even if one were to leave aside the fact that the additional evidence related to a matter on which the

accused was fully on notice from the outset, namely his presence in the house of Mr. Patrick Allard when a certain

conversation with Mr. John James Allard was alleged to have taken place, the Court is satisfied that there is nothing to

suggest that the calling of such evidence prejudiced the trial of the accused or rendered it unfair.

Interruptions by the trial judge (Ground 18)

In this ground the defence contends that the interruptions made by the learned trial judge during the trial and in particular

during the making of submissions by the defence were such as to render the trial unfair and unsatisfactory. An extensive

number of legal and procedural issues were raised by the defence in the course of the trial, which of course they were

perfectly entitled to do. They were often dealt with at great length and in the Court’s view the trial judge demonstrated a

great deal of equanimity and his interventions were at all times consistent with the function of the trial judge to ensure that

only evidence relevant to the case was addressed and that legal issues raised were clarified and examined. He was at pains to

give counsel for the defence every opportunity to deal with any suggested or actual lacuna in their legal arguments. The

Court does not find that this is in any sense a valid ground of appeal.

The evidence of William Boyce and William Ahern (Ground 19)

The only matter specified in this ground of appeal is the evidence of these two witnesses. It was the defence case that this

evidence, and in particular that of William Boyce, should be relied upon the jury as showing that the accused had an alibi in

respect of one of the offences. The learned trial judge received requisitions in relation to this evidence and in particular the

evidence of William Boyce from counsel for the defence. He recalled the jury and redirected them on this evidence in

accordance with that requisition and there was no suggestion to the trial judge, after he had recharged the jury, that he had

not done so. The Court is satisfied that the trial judge brought to the attention of the jury fully and fairly the evidence of

these two witnesses.

The judge’s charge generally

Apart from submissions and issues concerning the judge’s charge to the jury already dealt with in this judgment, there were

a number of other matters raised by the defence in relation to the fairness or balance of the judge’s charge none of which

had been made the subject of a requisition. The inclusion in grounds of appeal matters calling in question a trial judge’s

charge to the jury which were not the subject of requisitions has been a subject of observations and statements by this Court

in its case-law over the decades. When considering a trial judge’s charge to the jury at a distance and out of context of the

trial itself it may be too easy or simply facile to suggest that some matters should have been dealt with more fully or with

greater emphasis or less so. A trial judge has a delicate balance to strike in giving a summary of the evidence and directing

the jury on the law in the context and immediacy of the trial having regard to the evidence, the course of the trial, the issues

which were of primary controversy, the speeches of counsel and the context of the case as a whole. Counsel for both sides,

and in particular the defence, in that immediacy of the context of the trial, are in a special position, at the conclusion of the

charge, to identify any matter stated by the judge which could have a material effect on the fairness or balance of the charge

and which might require the jury to be redirected. It is in that context that the points of real importance fundamental to the

fairness of the trial can be best identified. The Court leans against points of issue with the charge being identified very much

later, out of the context of the trial, sometimes by persons who had no connection with the trial, but only after a “trawl”

through the transcript unless of course the points identified are substantial and of fundamental importance to the fairness of

the trial.

As long ago as the case of the Attorney General –v- Gilligan [1929], unreported but cited at p. 180 of the Second Edition

of Sands Criminal Law, in the following terms:

“The specific grounds of appeal must be stated in the Notice of Appeal. The Court of Criminal Appeal will not

allow a defendant or his counsel after he has read through the transcript of evidence and made a meticulous

scrutiny of it, then to formulate the grounds of appeal.”

This approach has been restated in numerous cases including The People (Attorney General) –v- Coughlin [1968] 1

Frewen 325. More recently in D.P.P. –v- Maloney [unreported, Court of Criminal Appeal, 2nd March, 1992) the court

stated:

“We would wish to reiterate the jurisprudence of the court which has been in place for many years that there

is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial

judge any inadequacies they perceive in his directions to the jury. If an appeal is brought before this Court on

a point that was not canvassed at the trial this Court will regard any person making such a new point as

having an obligation to explain why it is sought to be made on appeal when not made at the trial. That is not

to say but that if the essential justice of the case calls for intervention we have an obligation so to intervene.”

This approach was also reflected in D.P.P. –v- Redmond [unreported, Court of Criminal Appeal, 21st December, 2000)

where it was stated at p. 19:

“The Director, like a Defendant / Appellant, has normally to formulate his grounds of appeal without having

seen a transcript of the proceedings. This fact has clear drawbacks for an Appellant. But it has the often

discussed advantage that grounds of appeal will normally reflect what struck the parties as important at the

time of the hearing, and distinguishes between these points and other points which may be the result of

subsequent, “trawling” of the transcript.”

In D.P.P. –v- Noonan [1998] 2 I.R. 439 Geoghegan J. in giving the judgment of this Court, in referring to a particular

ground of appeal and the absence of a requisition said at p. 445:

“That being so, this Court must consider whether the application for leave to appeal should be refused. There

is absolutely no doubt that this Court can refuse to entertain an objection to a judge’s charge where that

objection did not form the subject matter of a requisition. But it does depend on the particular circumstances

of the case whether this Court takes that course or not. An obvious example where it might take that course

would be where there might appear to have been a deliberate omission to raise the requisition for tactical

reasons in the circumstances where perhaps other parts of the charge had been highly favourable to the

accused.”

Of course the reference to tactical reasons is only one reason and in that particular case, the Court permitted the point to be

argued having regard to the relevant circumstances of it. In this case it was submitted, in relation to ground 20, that the

defence case was never put to the jury at all and the question of an alibi dealt with merely en passim. The Court has already

dealt with the submission relating to the alibi arising from the evidence of Mr. William Boyce and Mr. William Ahern (which

had been the subject of a requisition) and some other matters even though they had not been the subject of a requisition.

Otherwise this general allegation is vague and uncertain and not the subject of a requisition. In the course of submissions at

the hearing of this appeal some references or allusions were made to other possible deficiencies in the charge that were also

not the subject of any requisition to the trial judge. These included for example a submission that the trial judge did not

adequately direct the jury on its approach to the DNA statistical evidence. After the event it would probably not be too

difficult to formulate some extra comment or observations which a trial judge might make in relation to such a matter but

such would probably not, particularly in this case, have materially assisted the jury in what was entirely a matter for them,

namely the weight to be attached to and inferences to be drawn from such evidence. The jury were well aware the issues

involved from the course of the trial, the extensive cross-examination of witnesses, counsels’ speeches and the trial judge’s

careful directions including their duty to be satisfied beyond reasonable doubt. The Court considers that nothing fundamental

to the trial turns in this point and no requisitions were made in respect of it at the conclusion of the charge. The Court is

satisfied that it has dealt with any substantive points raised in this appeal within the terms of the notice of appeal and that the

general criticisms of the charge and the other such matters alluded which were not subject to a requisition on the charge are

not of sufficient substance or so fundamental to the fairness of the trial as to properly arise for consideration as a ground of

appeal.

Point 21

What may be referred to as Point 21 of the grounds of appeal was a late application to add an additional ground of appeal

which contended that the Gardaí failed to inform the applicant at the time they requested him to provide a blood sample that

his sample would be used to investigate offences other than 22nd December, 1989, contrary to the applicant’s constitutional

rights to bodily integrity, privacy, rule against self-incrimination and fair procedures. This was grounded, inter alia, on

certain assertions of fact in the affidavit of the applicant’s solicitor. The Court does not consider that this ground of appeal is

tenable. In an issue tried in the absence of the jury the learned trial judge ruled that the blood sample had been taken from

the accused voluntarily and was admissible. The accused did not contest the voluntary nature as such of the giving of the

blood sample. Moreover not every element of fact referred to in the affidavit were so found by the trial judge. It was also

the uncontested evidence of the Gardaí that when the accused was arrested in 1996 he was informed that they were

investigating a sexual offence committed against the complainant in 1989 and other sexual offences committed against on

other occasions, of which he was aware. In any event, if forensic evidence is lawfully obtained from an accused in relation

to a particular offence which ultimately provides evidence in relation to other offences this in principle does not preclude its

admissibility in the first place unless there are other special elements such as oppression or male fides which was not found

to be present in this case.

In all the circumstances this application is dismissed.