Court of Criminal Appeal dismisses appeal regarding jury warning on DNA evidence alone in murder case.

THE COURT OF CRIMINAL APPEAL

[Appeal No: 260/2011]

McKechnie J.

Moriarty J.

Herbert J.

Between/

The People (At the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Keith Wilson

Accused Person/Appellant

Judgment of the Court delivered on the 27th November, 2014 by Mr. Justice William McKechnie.

1. On the evening of the 14th of August, 2010, one Daniel Gaynor was shot dead by a lone gunman as he walked with his girlfriend

and his two young children at St Helena’s Road in Finglas. The gunman, who appeared to be dressed in white gloves, a cap and a

hoodie, approached from the rear and discharged several shots, with one of them fatally wounding the deceased. The prosecution

asserted that the gunman then fled the scene, discarding the gun, followed by the cap, then the gloves and finally the hoodie. All of

these items, save for one glove, were later discovered close to the scene of the shooting, with each piece of clothing having firearm

residue on it. On examination, the DNA profile of a single initially unidentified person was found on all of these items. By reason of

further investigations the D.P.P. claimed that the DNA profile as obtained matched that of the accused person: hence the subsequent

events as next described.

2. On the basis of confidential information received by the gardaí, Mr. Wilson was arrested for the murder of Daniel Gaynor at Dublin

Airport on the 7th November, 2010, at 11:35pm, having arrived on a flight from Malaga, Spain. Immediately upon his arrest, he was

informed of the reasons therefor, namely on suspicion of having murdered Daniel Gaynor. He was duly conveyed to Finglas Garda

Station, where on arrival a notice outlining his rights was read to him. At the point in the notice where reference was made to the

taking of personal samples for DNA testing, the accused indicated that he would not be consenting to having any such samples taken

from him. When making this comment the evidence showed that he used words to the effect that there was “not a chance” of him so

consenting.

3. At 1:05am on the morning of the 8th November, some one and a half hours after he had been arrested, Mr. Wilson was detained

under section 50 of the Criminal Justice Act 2007 (“the 2007 Act”). This provision provides for the detention of a person suspected of

having committed specific offences, one of which is murder with a firearm. Section 50(2) reads:

“(2) Where a member of the Garda Síochána arrests without warrant, whether in a Garda Síochána station or elsewhere, a

person (in this section referred to as “the arrested person”) whom he or she, with reasonable cause, suspects of having

committed an offence to which this section applies, the arrested person—

(a) if not already in a Garda Síochána station, may be taken to and detained in a Garda Síochána station, or

(b) if he or she is arrested in a Garda Síochána station, may be detained in the station”.

4. Under subsection (3)(a) of that section, a suspect may be detained for up to 6 hours. At 5:15am later that morning, his detention

was extended for a further period of 18 hours, as it finally was again at approximately 11:30pm for yet an additional period of 24

hours. Nothing turns on the various extensions made in respect of the original period.

5. During the course of the morning of the 8th November, 2010, the arresting garda, Det/Sgt Alan Brady, obtained consent from

Superintendent David Dowling to take a buccal swab sample from Mr. Wilson pursuant to section 2 of the Criminal Justice (Forensic

Evidence) Act 1990, as amended by section 14 of the Criminal Justice Act 2006 and section 53 of the Criminal Justice Act 2007. The

relevant provisions of that Act are as follows:

“2-(1) Subject to the provisions of subsections (4) to (8A) of this section, where a person is in custody under the

provisions of section 30 of the Offences against the State Act, 1939, section 4 of the Criminal Justice Act, 1984, section

2 of the Criminal Justice (Drug Trafficking) Act 1996 or section 50 of the Criminal Justice Act 2007, 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) (vi) a nail,

(vii) (vii) any material found under a nail,

(b) a swab from any part of the body including the mouth but not from any other body orifice or a genital region,

(c) a swab from a body orifice, other than the mouth, 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.

(1A) A reference in subsection (1) of this section to the mouth shall be read as including a reference to the inside of the

mouth.”

Subsection (4) states:

“(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) or (iii) 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.”

Subsection (10) of the section defines “appropriate consent” in the following way: it 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.”

Subsections 6 and 9 are also relevant: their respective provisions read as follows:-

“2-(6) Before a member of An 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.

2-(9) A person who obstructs or attempts to obstruct any member of An Garda Síochána or any other person acting

under the powers conferred by subsection (1) of the section shall be guilty of an offence and shall be liable on summary

conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding twelve months, or to both.”

6. The sample for which permission was authorised was clearly a sample as referred to in section 2(1)(b) of the 1990 Act, (“section 2

of the 1990 Act”). The intended use of such a sample, if obtained, was obvious: namely so that the gardaí could ascertain whether

the DNA of the arrested person matched the DNA found on the items discarded near the scene of the murder. Having previously

consulted with a solicitor at some time between 8am and 9am on the morning of the 8th November, 2010, Mr. Wilson was asked at

10:57am to consent to the taking of such a swab, to which he refused. As it happens, section 2 of the 1990 Act does not require the

consent of an individual from whom the sample is being taken where the sample in question is a buccal swab.

7. When questioned at the trial in this case as to why the gardaí had not used force to obtain the sample when Mr. Wilson refused

consent, Detective Inspector Colm Fox (“D/Inspector Fox”) gave as an explanation the absence of legislation to that effect. This

question arose in circumstances where counsel for the prosecution noted that force may be used where a suspect refuses to give his

fingerprints.

8. Before the accused person had been asked to give his consent for the taking of a buccal swab but after he had publicly made

known his intention of refusing consent for the taking of any sample, D/Inspector Fox instructed fellow colleagues at Finglas Garda

Station that any discarded items used by Mr. Wilson while he was in custody were to be collected for the purposes of DNA testing.

The D/Inspector confirmed in his evidence that on the night of Mr. Wilson’s arrest he gave a general direction to that effect but that

later during the course of the following morning he gave a specific instruction in that regard to one particular garda, namely Garda

Dillon.

9. As a result of these directions the following occurred:-

(i) In a certain part of Finglas Garda Station there is an outside area in which prisoners are allowed to smoke. This area

was swept, cleaned and photographed both before and after its use by Mr. Wilson, so as to ensure the integrity of any

evidence which might be obtained therefrom;

(ii) On a number of occasions throughout the morning of the 8th November, 2010, the accused person was permitted to

smoke in this area: where possible, the discarded cigarette butts were collected by members of An Garda Síochána;

(iii) During his detention a doctor was called as Mr. Wilson was complaining of a toothache. After the consultation had

concluded, the glove worn by Dr. Khan and a medical implement used by him, as well as a tissue used by Mr. Wilson, were

collected for the aforesaid purposes; and

(iv) Finally, a toothbrush and a towel also used by the accused person whilst in custody were likewise collected by

members of the force.

All of these items, which were retrieved without the knowledge of Mr. Wilson, were sent to Garda Emyln O’Connor for DNA testing.

10. On the 7th November, 2011, Mr. Wilson was convicted by unanimous jury verdict of the murder of Daniel Gaynor contrary to

section 4 of the Criminal Justice Act 1964, and of possession of a firearm with intent to endanger life contrary to section 15(1) of the

Firearm Acts 1925 as substituted by section 42 of the Criminal Justice Act 2006. In respect of the murder conviction, he received a

mandatory life sentence, and for the firearm offence a sentence of eight years to run concurrent with the life sentence.

11. In his Notice of Appeal dated the 20th December, 2011, Mr. Wilson sought leave from this Court to appeal the convictions entered

against him and he relied upon the following grounds for this purpose:-

“(1) The learned trial judge erred in law in ruling that the arrest of the appellant was lawful in circumstances where the

arresting gardaí did not state the power of arrest and there was no evidence before the court as to what power, if any,

was invoked.

(2) The learned trial judge erred in law in ruling that the DNA samples taken from cigarette butts used by the accused

while in custody was admissible evidence.

(3) The learned trial judge erred in law in failing to withdraw the case from the jury upon an application of the defence

that there was no case to answer.

(4) The learned trial judge erred in law in failing to discharge the jury in circumstances where the expert witness, Dr. Clara

O’Sullivan, stated in her evidence that if the brothers of the appellant provided forensic samples, they could be eliminated

as potential matches to the DNA found at the scene.

(5) The trial judge erred in law in failing to warn the jury of the dangers of convicting the accused in circumstances where

the sole evidence against him was DNA evidence alone.”

Submissions of the Appellant

Ground No.1: The Arrest Point

12. On Day 4 of the trial, an application was made by counsel on behalf of the accused person in which the validity of the arrest was

challenged: the point of argument being whether or not it was necessary, in order to effect a valid arrest, that the arrestee should be

informed of the specific statutory power under which he was being arrested. Having regard to the evidence and having considered the

submissions as made, the learned trial judge ruled as follows:

“…the Court is satisfied that the arrest of Keith Wilson by Det. Sgt. Brady was a lawful arrest. Keith Wilson was told at

the time of his arrest that he was being arrested for the murder of Daniel Gaynor, and the Court does not consider it

necessary for the particular statute, on foot of which the arrest took place, to have been communicated to the arrested

person in order to make the arrest a lawful one. There is no suggestion in this case that there was no power of arrest,

nor has any point been taken in relation to it save that it was not specifically mentioned, thereby depriving the Court of

an opportunity to consider if it had been validated. As it is not contended that it was not validly exercised, the Court

does not consider its invocation by the arresting officer or any other garda to be necessary”.

13. In support of this ground of appeal, the appellant relies upon the case of The Director of Public Prosecutions v. Alan Rooney

[1992] 2 I.R. 7 (“Rooney”) and the Court of Criminal Appeal’s (“CCA”) decision in The People (Attorney General) v. White [1947] I.R.

247 (“White”) as authorities for the proposition that the statutory power of arrest should have been specifically invoked. In Rooney,

which involved the power of search and seizure, O’Hanlon J. cited the decision in Christie v. Leachinsky [1947] A.C. 573, which

remains of high authority to this date, relating to the obligation to inform an accused of the reason for his arrest, and the judgment in

which that decision had first been adopted and approved of in this jurisdiction by Gavan Duffy (P.), namely White. O’Hanlon J. was

satisfied that the legal principles relating to the power of arrest applied equally to the power of search, as the protection underlying

such principles was also necessary so as to vindicate the constitutional right to liberty which would be affected in both instances.

14. Reference is further made by Mr. Wilson to The Criminal Process (Dublin, Round Hall, 2009) where Professor O’Malley wrote that

an arrest must be justified by a relevant “statutory or common-law provision” (p. 290). Comparing the situation of an arrest with that

of detention, O’Malley, citing the decision of Murray C.J., as he then was, in The Director of Public Prosecutions v. Finn [2003] 1 I.R.

372, went on to state that where detention is challenged, the prosecution must show that the individual in question was detained in

accordance with law (p. 303).

15. Based on these submissions, the appellant claims that he was not lawfully detained under section 50 of the Criminal Justice Act

2007 as his preceding arrest was unlawful in the first instance. In principle, that submission may indeed be correct if his argument on

the arrest point is valid.

Ground No. 2: The Admissibility of the DNA Evidence

16. As appears earlier in this judgment, the gardaí collected items utilised by Mr. Wilson whilst in garda custody and submitted them

for DNA testing without his knowledge and at a time when they knew that he had refused to voluntarily supply a mouth swab for that

purpose. As part of the application made to the learned trial judge on Day 4 of the hearing, counsel for Mr. Wilson submitted that the

taking of these items and their subsequent testing without consent was unlawful. The resulting evidence was therefore inadmissible

on such basis. The learned trial judge rejected this submission and found that the samples had been lawfully obtained.

17. In his ruling, the learned judge stated as follows:-

"In considering the admissibility of the cigarette butt evidence, it is necessary to consider the actions of Det. Insp. Fox in

light of Mr. Wilson's remark made at the hatch in Finglas Garda Station when he was being advised of various matters

including his rights and his right to a solicitor which, on the evidence, was readily complied with. It was clear that the

gardaí believed that evidence from a mouth swab could be significant. In light of the accused’s refusal to allow a swab to

be taken from his mouth, Det. Insp. Fox was obliged to consider how that evidence might otherwise be obtained and

certain gardaí were instructed to collect, inter alia, discarded cigarettes butts. This was done clearly in a manner

whereby the chain of evidence would be preserved and Mr. Wilson would not be alerted to what was happening. The

Court does not consider the actions taken by Det. Insp. Fox to have violated the rights of Mr. Wilson or to have been

oppressive. It considered his response to Mr. Wilson's refusal to have been careful, considered and entirely appropriate

and the Court accordingly deems the cigarette butt evidence admissible in court.”

18. Reliance is placed on the decision of the CCA in The Director of Public Prosecutions v. Scanlan (Court of Criminal Appeal,

unreported, Finnegan J., 20th April, 2007) (“Scanlan”). In that case Mr. Scanlan, whilst detained in custody, discarded a piece of

used chewing gum in a wrapper, and dropped it in a waste bin in the garda station in question. This item was retrieved by the gardaí

and tested for DNA, which was then used to convict the accused person. On appeal, the appellant submitted that in light of the

statutory and regulatory regime for taking samples, and even though this sample was not “taken” as such from him, nonetheless the

manner in which it came into the possession of the gardaí was unfair. The CCA found no objection to the manner in which the sample

was obtained by the gardaí but cautioned that everything which occurs in a garda station should be scrutinised carefully. In the

circumstances of that case, however, it was clear that there was no trick, stratagem or deception involved in the manner in which

the sample had been retrieved. Its admission was, therefore, unobjectionable. That is not, however, the situation in the instant case,

where it was submitted that there was in fact a stratagem and/or deception exercised so that Mr. Wilson's DNA could be obtained.

Furthermore, this stratagem was pursued in the face of an express refusal by him to supply any sample for such purposes.

19. It was submitted on this issue that the proper course to follow when a person refuses to supply a sample is to invoke the

provisions of section 2(9) of the 1990 Act, which provides that it is an offence to obstruct or attempt to obstruct the gardaí when

they are trying to obtain a sample provided for in section 2 of the Act. It is said that this is the only recourse available to the

authorities in such a situation. The appellant has further emphasised that the position of a person in garda custody is very different

to that of an individual at liberty or to an individual who has voluntarily presented himself at a garda station; accordingly, extra care

must be taken to protect the position of an incarcerated person. Such a person retains rights to privacy and bodily integrity and his

privilege against self-incrimination whilst so held. These must be respected when called into issue and upheld by the courts.

Ground No. 3: Application of No Case to Answer

20. On Day 6 of the trial, counsel on behalf of the appellant made an application that the proceedings should be withdrawn from the

jury on the basis that Mr. Wilson had no case to answer. The learned trial judge refused this application.

21. As part of the submissions on this point, much emphasis has been placed by the appellant on a number of well known cases

including R v. Galbraith [1981] 1 W.L.R. 1039 (“Galbraith”), where Lord Lane C.J. outlined what approach should be taken by the court

on an application of this nature. No difficulty in this regard can arise where, to state the obvious, there is no evidence that the

alleged crime was committed by the accused person. However, problems can emerge where the evidence is weak, vague, ill-defined

or non-specific. In such circumstances, where a judge arrives at the conclusion that, taken at its highest, the prosecution evidence

is such that a jury could not properly convict, even where properly directed, it is his duty, on submission being made, to stop the

case. If, on the other hand, the prosecution evidence is such that its strength depends on the view to be taken of a witness’s

reliability or of other matters within the remit of the jury, and where on at least one version of the facts that evidence is capable of

sustaining a conviction by the jury when properly charged, then the matter should proceed for their verdict.

22. In The People (Director of Public Prosecutions) v. Howe (Central Criminal Court; 10/2003) (“Howe”) the case was withdrawn from

the jury following an application of no case to answer. Butler J. left open the wider question of whether DNA evidence of itself could

be sufficient to ground a conviction as, in the circumstances of that particular case, the forensic scientist had no qualification in

statistics and thus could not determine the probability of whether another person could have identical DNA to that of the accused.

The learned judge also found that the prosecution had not disproved the possibility of the accused having a brother who could have

shared a similar DNA profile, basing his decision in this regard on the second reason given in the judgment of R v. Watters [2000]

E.W.C.A. Crim. 89 (“R. v. Watters”).

23. R v. Watters was a case in which the only evidence against the defendant was the DNA found on cigarette butts which linked him

to five related burglaries. The forensic expert for the prosecution made a number of points. First, a concession: she said that the

results which she had obtained did not mean that the cellular material actually did come from the appellant. Secondly, she also gave

as her opinion that DNA evidence should not be used in isolation, i.e. without some additional supporting evidence being available.

Thirdly, she stated that if the defendant had two brothers the probability of the “crime” DNA being that of the defendant reduced

significantly.

24. An application of no case to answer was refused by the trial judge on the basis that additional evidence had been tendered, such

as the fact that the defendant lived in the same area where the burglaries had taken place, that he appeared to be a smoker and

that the DNA matched in terms of gender. Furthermore, there was no evidence before the court that the defendant had any brothers.

On appeal, the Court of Appeal found that the case should never have been left to the jury, as there was nothing to exclude the

“brother possibility” in that particular case. In fact, the position tended to the contrary, in that a police officer had told the jury that

one of the defendant’s brothers was suspected of having been part of the team which carried out the burglaries. On the basis that

there was no evidence to exclude the possibility of the defendant’s brother having been involved, the charges should not have been

left for jury consideration.

25. The Court of Appeal in R v. Lashley [2000] E.W.C.A. Crim. 88 (“Lashley”) also quashed a conviction based solely on DNA evidence.

The evidence in that case linked the defendant to the scene of a robbery but the profile would have matched the profile of 7 to 10

males in the United Kingdom. The Court of Appeal stated that if there had been other evidence to connect the defendant to the

crime, such as that he lived in the area or had been in the vicinity of the crime at the relevant time, the case against him would have

been stronger. However, this was not the situation and so the conviction was stood down.

26. As a result of these and other cases, this Court was informed that the Crown Prosecution Service (“CPS”) in the United Kingdom

had changed its policy in relation to DNA evidence. In the Guidance on DNA Charging (16th July 2004), for which it was responsible,

the CPS made a statement to the effect that DNA should usually be assessed alongside other evidence and that an individual should

not be charged solely on the basis of a DNA profile match, unless there is a compelling reason to do so.

27. The last decision which was opened to us was that of a Magistrate sitting at Downing Centre Local Court in New South Wales

who gave judgment in Police v Le Platrier [2010] N.S.W.L.C. 22, a case which involved DNA evidence where the accused person had a

brother. This was the only evidence presented against the accused. The Magistrate found that on the basis of the odds of a DNA

match existing in relation to brothers there was a reasonable doubt that the defendant had committed the offence and that therefore

the prosecution had not proven its case beyond a reasonable doubt.

28. Dr Clara O’Sullivan, a forensic scientist, when giving expert evidence in the instant case, stated that the chances of another

person sharing the same DNA profile as the accused were about 1 in 1,000 million. However, where an individual has a brother, this

number is reduced to 1 in 27,400. As evidence was given by Garda Heffernan that the appellant has two brothers, it was submitted

that this undermined the quality of the DNA evidence available to the prosecution, particularly having regard to the standard of proof

involved in a criminal trial. No evidence was put forward by the DPP to exclude the possibility that one or even both brothers could

have been involved in this crime. Furthermore, no extrinsic evidence was submitted to link the appellant to the crime. Accordingly, the

appellant submits that the prosecution did not prove its case beyond a reasonable doubt and that it was therefore unsafe to leave

the indictment to the jury.

Ground No. 4: Application to Discharge the Jury

29. Dr. Clara O’Sullivan has a PhD in the Biology of DNA, as well as a Bachelor of Science degree, and is employed in the Forensic

Science Laboratory at Garda Headquarters. As above noted, she gave evidence – she did so on Day 5 and Day 6 of the hearing –

about the possibility of two unrelated people and of two brothers having the same DNA profile. On the first occasion she had stated

that the relevant statistic was just under a 1 in 3,000 “chance” of a brother having a similar profile; subsequently on the following

day she corrected that statistic to read a 1 in 27,400 “chance”. The following exchange then took place:

[She was asked by prosecuting counsel: “Do you mean a similar – you mean the exact same?” She answered “The same –

sorry, I beg your pardon, yes, the same profile as this person, because they would be related. If there was a suggestion

of a brother having a profile, this could be checked and the information I have on file was…” (emphasis added).]

She was then interrupted by counsel for the prosecution, whereupon the defence immediately made an application to have the jury

discharged on the basis that whilst there is no onus on the accused to prove anything, her statement had, as a matter of fact,

suggested the contrary, namely that this possibly should have been addressed by Mr. Wilson. It was submitted that this would be a

complete reversal of the burden of proof and contrary to the presumption of innocence. It was also claimed that such evidence had

conveyed to the jury that the defence had some information, resting somewhere externally, which was not going to be put before

them, leaving an influence of worry or concern in their minds. The trial judge considered the application by counsel for the defence

but concluded that he was not prepared to discharge the jury. He stated that in the event that he considered it necessary to say

something more about the burden of proof, he would do so again in his closing address to the jury. The trial judge did not ultimately

make any specific reference to this evidence when dealing with the burden of proof in his closing remarks. The appellant submits that

the trial judge erred in law in failing to discharge the jury under the circumstances as described.

30. In support of these assertions, the judgment of the Court of Appeal in R. v. Watters was again referred to, in particular paras. 18

to 20 thereof.

Ground No. 5: DNA Evidence: Need for Jury Warning

31. On Day 7 of the hearing, the defence made an application that the judge should give a warning to the jury of the dangers of

convicting solely on DNA evidence. The trial judge stated that he would note the submissions made by both parties on this point:

however, as a matter of fact he did not subsequently return to or otherwise mention this issue again in his charge to the jury.

32. The appellant referred to the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Allen

[2003] 4 I.R. 295 (“Allen”). That case involved, inter alia, DNA evidence called on behalf of the prosecution, as well as a still

photograph of the accused also being relied upon. The CCA stated that a trial judge should take particular care to warn a jury as to

the limitations and risk of error in relation to DNA evidence. Emphasis was placed upon the fact that the scientific techniques involved

were comparatively recent and that they were still being perfected. It was also highlighted that this type of evidence required the

jury to rely virtually entirely on expert evidence which they could think was somehow infallible.

33. The Irish Law Reform Commission, in its Report on the Establishment of a DNA Database (LRC 78 2005), has recommended the

introduction of a discretionary warning in cases where the prosecution relies on DNA evidence alone to ground a conviction. The

essential basis of this recommendation was that DNA evidence is not infallible. It is of interest to note that in the consultation paper

preparations to this report, the Commission’s view was that an obligatory warning should be given where the prosecution seeks to rely

on DNA evidence alone and where statistical evidence is relied upon in support thereof. However, even though no such

recommendation is to be found in the final report, it is nevertheless submitted by the appellant that this is a case in which the trial

judge should have exercised his discretion to warn the jury and that the decision in Allen should be followed.

34. Finally, Mr. Wilson also refers to the English decision giving its name to the Turnbull warning, R v. Turnbull [1977] Q.B. 224, which

cautioned against the danger of a miscarriage of justice where the case against an accused depends wholly or substantially on the

correctness of one or more identifications of the accused. The appellant states that the English Courts have held that that warning

should be adapted in cases where expert evidence as to voice identification is adduced. It is submitted by the appellant that a similar

type of warning should be given when DNA evidence alone is relied upon. The warning referred to in that decision consisted of the

judge directing the jury’s mind to the special need for caution in such circumstances, and explaining to them why such a cautionary

approach is necessary. The equivalent of the Turnbull warning in this jurisdiction can be found in The People (Attorney General) v.

Casey (No.2) [1963] I.R. 33, which, as matter of interest, well preceded Turnbull.

Submissions of the Respondent

Ground No.1: The Arrest Point

35. The respondent (or “the DPP”) submits that it was not necessary for the garda in question, Det/Sgt Brady, to have specified a

particular statutory provision or an express power when arresting Mr. Wilson on the 7th November, 2010. It was sufficient for the

arresting garda to have informed the appellant, as he did, of the reason for his arrest: this, it is submitted, was entirely adequate for

a lawful arrest. The reliance upon the decision in Christie v. Leachinsky [1947] A.C. 573, which it is accepted has been approved

repeatedly in this jurisdiction, (e.g. in The People (The Director of Public Prosecutions) v. Walsh [1980] I.R. 294), is misguided in that

the case is an authority only for the necessity to inform a suspect of the reason for his/her arrest. Once the person is told or

otherwise knows on what charge he is being arrested, that is sufficient. (See the five propositions set out by Viscount Simon at pp.

587 and 588 of the report). It should also be noted that after the appellant was brought to Finglas Garda Station, Det/Sgt Brady

applied to have him detained pursuant to section 50 of the 2007 Act.

36. Although that section of the 2007 Act does not provide an express power of arrest it is nonetheless significant that Mr. Wilson

was arrested on suspicion of having committed murder with a firearm, which is specifically referred to in the section. Furthermore, and

of critical significance are subsections 4(2) and 4(3) of the Criminal Law Act 1997, which allow any person or a garda to carry out an

arrest without a warrant where there is reasonable cause to suspect that an individual has committed an arrestable offence (para. 65

infra). The offence of murder is one such offence. Accordingly, the arrest in this case was lawful.

Ground No. 2: The Admissibility of the DNA Evidence

37. It is submitted by the respondent that the DNA samples taken from the cigarette butts discarded by the appellant while in

custody were correctly admitted in evidence. It is strongly disputed that there was any breach of his constitutional or legal rights,

neither of which in the circumstances prevailing can be regarded as absolute.

38. The direction given by D/Inspector Fox (para. 8 supra) that any items used by Mr. Wilson should be retrieved so that they might

be subsequently tested for DNA was lawful. This order was given after Mr. Wilson had refused to consent to the taking of samples

and in circumstances where the gardaí were acutely conscious of the importance of trying to obtain his DNA profile, in order to

ascertain whether it matched the DNA found on the items recovered near the scene of the murder.

39. Under section 2 of the 1990 Act, the consent of an individual from whom it is sought to take a buccal swab sample is not

required. Consent is necessary in relation to several other types of samples, as stipulated in section 2(4)(b) of the Act, but not a

buccal swab. The respondent submits that this means that where consent is not required, but nonetheless is requested and refused,

the gardaí, irrespective of this refusal, can still take such a sample; whereas of course if consent for the particular sample is needed

and refused, the gardaí cannot force the individual to comply. The Director of Public Prosecutions v. Creed [2009] IECCA 95 is cited

as an authority for this submission. It is further claimed that the construction of section 2 of the 1990 Act clearly envisages that

where consent is not required for the taking of a sample, reasonable force may be used to obtain it, if and where necessary. This

aspect of section 2 of the 1990 Act reflects section 4 of the Criminal Law Act 1997, which does not expressly state that the gardaí

may use reasonable force to affect an arrest but which is nonetheless understood as permitting such force, when required.

40. The D.P.P. also relies on section 7 of the Criminal Justice Act 2006 (“the 2006 Act”), which permits the gardaí to seize and retain

for use as evidence, any item which they find or which comes into their possession, and which they have reasonable grounds for

believing is evidence of or relates to the commission of an arrestable offence. In the case of Mr. Wilson, the gardaí took items which

had been discarded by him and they were not required to inform him of what they were doing. Any privilege against self incrimination

does not extend to the forensic testing of objects, even those once associated with an accused but which later have been discarded

by him.

41. In addition to section 7 of the 2006 Act, the gardaí also have a common law power to seize and retain evidence of a crime, in

existence and found at or after arrest, and to prevent the destruction of such evidence: see Jennings v. Quinn [1968] I.R. 305 and

Dillon v. O’Brien [1887] 20 L.R. Ir. 300. That the gardaí have both a right and a duty to retain and preserve articles which may give

rise to the reasonable possibility of securing relevant evidence has been reiterated in many cases such as Murphy v. The Director of

Public Prosecutions [1989] I.L.R.M. 71, Dunne v. The Director of Public Prosecutions [2002] 2 I.R. 305 and Bowes v. The Director of

Public Prosecutions [2003] 2 I.R. 25. In The People (The Director of Public Prosecutions) v. McFadden [2003] 2 I.R. 105, it was made

clear that this common law power extends to items seized during the course of a search in a garda station after arrest, where such

items are in the possession of the person arrested and where their retention is believed to be necessary so as to avoid the potential

destruction of material evidence. It is submitted that this power extends to items discarded by a suspect both before or after arrest.

The obligation on the gardaí to inform the individual of the power pursuant to which they are operating arises only where the person

in question objects to or otherwise questions what is occurring.

42. Finally on this ground of appeal, the respondent relies upon the authority of Scanlan for the contention that the removal of the

cigarette butts did not consist of “taking” as contemplated by section 2 of the 1990 Act.

Ground No. 3: Application of No Case to Answer

43. The respondent submits that the learned trial judge did not err in refusing to withdraw the case from the jury on the basis that

there was no case to answer. This complaint related to the quality of the DNA evidence upon which the jury was asked to consider

the question of Mr. Wilson’s guilt or innocence.

44. Dr O’Sullivan gave evidence that the chance of a brother of Mr. Wilson sharing the same DNA profile as him was 1 in 27,400. She

also said that there was no reported incident of brothers, other than identical twins, sharing the same DNA profile. It is submitted

that the jury had the right to consider whether any individual other than the appellant could have left the DNA profile which was

found on the items recovered at the scene of the murder. Furthermore, it is said by the respondent that there is no basis for

precluding a jury from convicting an accused person based on DNA evidence alone. In the cases from the United Kingdom cited by the

appellant on this point, it is suggested that what was referred to as supportive evidence was weak, as in Lashley where living in the

locality of the crime was accepted as constituting such evidence: that additional link does not really add anything of substance to

the cogency of the DNA evidence itself.

Ground No. 4: Application to Discharge the Jury

45. This application followed the giving by Dr. O’Sullivan of evidence which the appellant claimed was prejudicial to his case (para. 29

supra). In response the DPP submitted that it was not necessary to discharge the jury after the evidence of Dr. O’Sullivan, during

which the appellant claims she may have indicated that the defence had information, or could have conducted a check, on the

subject of a comparison between the DNA of the appellant and a brother of his.

46. Dr O’Sullivan could not be said to have given any hearsay evidence and the learned trial judge made it clear, in his summing up to

the jury, that the onus of proof was on the prosecution and that there was no evidence before them relating to the DNA profiles of

any of the brothers of the appellant. In response to the application to discharge the jury following the doctor’s evidence, the learned

trial judge said that he would address the question of her evidence on the “brothers issue” in his charge in relation to the burden of

proof, if he felt it necessary to do so. Whilst it is accepted that he did not ultimately directly do so, he did, however, as stated, make

clear to the jury that there was no DNA evidence of any brothers of the appellant in this case: a point also made very forcibly by the

defence in their closing speech. No requisition was raised after the judge’s charge on this matter.

Ground No. 5: DNA Evidence: Need for Jury Warning

47. The respondent submits that it was not necessary to give to the jury any special warning simply because the only evidence in the

case was DNA evidence.

48. In R v. Adams [1996] 2Cr. App. R. 467, the Court of Appeal stated that there was nothing inherent in the nature of DNA evidence

which supported the proposition that such evidence of itself was incapable of proving guilt. The court further stated that, in any

case, the probative value of a piece of evidence depends on its quality, individually assessed, as well as its relationship with any

other evidence. It is submitted by the DPP that it was a matter for the jury to decide in this case whether they were convinced that

the accused left the forensic traces from which the relevant DNA profile was developed, or whether it was reasonably possible that it

was left by a third party, albeit a person with matching DNA characteristics.

49. In relation to the report issued by the Law Reform Commission on this matter, it should be highlighted that the recommendation

made was that a warning “may be appropriate”. The Commission also recommended that the decision as to whether or not to give this

warning should be left to the discretion of the judge.

50. Finally, the respondent submits that the decision in Allen is not authority for the contention that a judge should give such a

warning. In that case, the jury was provided with insufficient evidence to enable them to make a decision as to whether any brother

of the appellant might have the same DNA profile.

Decision

Issue No. 1: The Validity of the Arrest

51. In 1947, both Viscount Simon and Lord du Parcq delivered judgments in the case of Christie v. Leachinsky [1947] A.C. 573

(“Christie”), which still remains the seminal authority on what requirements must be satisfied before a police officer can effect,

without a warrant, a valid and lawful arrest of a citizen. Very shortly after its delivery, the principles enunciated were adopted as part

of Irish law by the CCA, via the judgment of Gavan Duffy P., in White. It is of value to record what the then President of the High

Court said at p. 251 of the report:-

“Arrest, it was insisted, is not a right; it is a power, conferred for the protection of society; the essence of the law of

arrest … is that arrest is a first step towards an intended prosecution and the police cannot, for reasons of convenience,

take the law into their own hands. This principle of freedom, is of ‘supreme importance’ …”.

These principles ever since have found continuing expression in this jurisdiction, without any qualification or conditioning and without

any restatement or reformulation; in fact to my knowledge they have never been challenged in any way.

52. At pp. 587/588 of the report of his judgment, Viscount Simon in Christie set out five propositions in the context under discussion

as follows:-

“The above citations, and others which are referred to by my noble and learned friend, Lord du Parcq, seem to me to

establish the following proposition.

(1.) If a policeman arrests without a warrant upon suspicion of felony, or of other crime of a sort which does not require a

warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to

keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know

on what charge or on suspicion of what crime he is seized.

(2.) If the citizen is not so informed but is nonetheless seized, the policeman, apart from certain exceptions, is liable for

false imprisonment.

(3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist

if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

(4.) The requirement that he should be so informed does not mean that technical or precise language may be used. The

matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie,

entitled to his freedom and is only required to submit to restraints of his freedom if he knows in substance the reason why

it is claimed that this restraint should be imposed.

(5.) The person arrested cannot complain if he has not been supplied with the above information as and when he should

be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-

attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated,

and the above propositions are not intended to constitute a formal or complete code, but to indicate the general

principles of our law on a very, important matter. These principles apply equally to a private person who arrests on

suspicion.”

53. As is common case, these general principles continue to have full effect in this jurisdiction. Therefore, the requirement at a

general level is that the individual in question must be informed in clear language of the grounds or reasons for his arrest. If such is

not communicated or if a false or untrue reason is given, the arrest will be unlawful. The form of words is not critical: rather, what is

important is the substance of what is said and how it is communicated. The reasons why the law imposes this obligation are varied,

but essentially they are designed (i) to ensure that arbitrary arrest, or arrest without lawful justification existing at the time, does not

take place, (ii) to afford the person in question an opportunity of offering an explanation for the circumstances giving rise to the

arrest, if he so wishes, and (iii) to allow him to ascertain his rights and thereafter to exercise them, inter alia, so as to regain his

liberty as speedily as possible, if such should be achievable. (The People (DPP) v. Lawson [1978] ILRM 122 at 129 and Christie at

580).

54. Several cases from both the Supreme Court and the High Court show the ongoing judicial approval of Christie. At Supreme Court

level, these cases include The People v. Walsh [1980] I.R. 294, O’Mahony v. Ballagh [2002] 2 IR 410 and DPP (Garda Elaine Rowan) v

Ennis [1999] 2 ILRM 141. In addition, reference should also be made to a number of High Court decisions, all of which also applied

Christie, as such cases also touch on the more pertinent aspect of the first issue in the instant case. The first of these is DPP v.

Mooney [1992] 1 I.R. 548 (“Mooney”), in which Blayney J. was satisfied that a valid arrest could be effected for the purposes of a

section 49 offence under the Road Traffic Act 1961, as amended, by the arresting gardaí informing the suspect that he was being so

arrested for “drunken driving”, without the necessity to specify which of the three possible offences under the section he was

referring to, and likewise without having to give details of the other technical ingredients of the offences in question. On the

reasonable assumption that a lay individual would not be aware of a particular statutory provision, the only inference from this

conclusion is that the nomination, by identity, of the statutory provision creating the offence is not required. No point arose in that

case about whether or not the arresting officer had to inform the accused person of the statutory provision under which the arrest

was taking place. As it happened, the gardaí in question did specify section 49(6) of the 1961 Act, which was the correct section at

the time.

55. The second decision is The People (DPP) v. McCormack [1999] 4 I.R. 158 (“McCormack”), in which the point last made was

addressed somewhat more directly than in Mooney.

56. On a prosecution of section 49 of the 1961 Act, as amended, the District Court stated a case for the opinion of the High Court on

a single question – which can best be subdivided into two – to which the learned High Court judge added a third question, also for her

consideration. These questions asked whether the intention of the trial judge to dismiss the charge was correct where the accused

person was not told:-

(i) of the specific statutory provision under which he was being arrested,

(ii) of the reasons for his arrest, or

(iii) that in fact he was being arrested.

57. McGuinness J., answered questions 1 and 2, being those submitted by the District Court, in the negative on the basis of applying

Christie v. Leachinsky, Mooney and The DPP v. Connell [1998] 3 I.R. 580 (“Connell”), a case I will again refer to in a moment. In so

doing she obviously felt that once the power to arrest existed and once the underlying opinion formed by the member concerned as to

reasonable suspicion was justified, then if the appropriate provisions as outlined in the case law were applied, the same would be

sufficient to render the arrest lawful. Noting that on being stopped the accused was informed by the garda of her opinion that he had

consumed an intoxicating liquor, and given the fact that the specimen of his breath had proved positive, it was, in the court’s view,

abundantly clear that the defendant must have known of the reason for his arrest. Accordingly, the third rule set out in Christie

applied. Thus, questions 1 and 2 of the case stated had to be answered no. Whilst she answered the third question positively and

thus concluded that the dismissal of the charge was justified, that point is not of particular interest to this case.

58. McCormack therefore appears to say, or at least to infer, that once reasons are given for the arrest, or once the arrested person

knows or must be regarded as knowing why he is being arrested, then in either circumstance there is no further obligation on the

arresting officer to specify the precise statutory provision under which the individual in question is being arrested.

59. The judgment in Connell is also of particular interest, where Geoghegan J. was dealing with a case in which the gardaí informed

the suspect that he was being arrested under section 49(8) of the Road Traffic Act 1994, when in fact there is no such power of

arrest under that section. The appropriate section was section 49(8) of the Road Traffic Act 1961, as inserted by section 10 of the

1994 Act. Notwithstanding some unease as to why the correct provision was not known to the gardaí, the learned judge nonetheless

went on to say that the trial court could only draw one inference from the evidence, namely that the accused person had been

arrested under the correct section. He continued that even if no section had been identified, but that a phrase similar to that used in

Mooney had been communicated to Mr. Connell, then in such circumstances the arrest would still have been valid.

60. Accordingly, these cases, in particular McCormack and Connell, seem to suggest that there is no obligation to specify a precise –

or indeed any – statutory provision pursuant to which the arrest is being conducted. Provided the other requirements for effecting a

valid arrest are in place, such an arrest will not be invalidated on that basis alone.

61. However, the domestic case most pressingly relied upon by the appellant is DPP v Alan Rooney [1992] 2 IR 7, in which the High

Court, on a consultative case stated from the District Court, was asked for its opinion on the operation of section 29 of the Dublin

Police Act, 1842, the relevant provision of which reads as follows “…and every such constable may also stop, search and detain any

person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained.” One of the

questions posed, which is of interest to this case, was whether a member who stops and searches a citizen under the section must

“inform the suspect of his suspicion that he has or conveyed in any manner, “anything stolen or unlawfully obtained…””.

62. The facts of Rooney disclose that Sgt. Maguire approached the defendant on Talbot Street, Dublin, and asked what money he

had in his hand. Mr. Rooney showed what that was and answered negatively to the further question as to whether he had any more

money. At this point the sergeant then put his hand in the defendant's pocket and found a £20 note which he suspected was a

forgery. On the subsequent charge of having in his possession forged £20 notes contrary to section 8 of the Forgery Act 1913, the

District Judge sought the opinion as stated.

63. O'Hanlon J. pointed out that the power so conveyed was less drastic than the power of arrest, but nonetheless amounted to a

substantial and significant interference with the liberty of the subject and, accordingly, came to the view that the same legal

principles should apply as they do when a person is being arrested. Having referred to the fact that Christie was approved of firstly in

this jurisdiction by White, he then proceeded to apply its terms. The learned judge, having stated that in his view the House of Lords’

decision requires a police officer, before exercising a power of arrest, to inform the person arrested of the charge upon which he is

being arrested, went on to say that “[c]onsequently I would hold that before the power of search given by section 29 of the Dublin

Police Act, 1842, …can now be lawfully exercised, the suspect is entitled to be informed of the nature and description of the

statutory power which is being invoked” (p. 10). It is this passage, together with the answer given by the learned judge to the third

question asked, which is claimed to support the proposition that the specific statutory provision containing such power must be

mentioned.

64. I do not accept that the judgment of O'Hanlon J. is an authority for the proposition that the member in question must specify, by

particular nomination, the statutory provision under which the search (or arrest) is being conducted. What is stated is that the

suspect is entitled to be informed of the “nature and description” of the power which is being invoked, i.e., in the context of the

provision in question, that means the basis of the reasonable suspicion which allows the activation of the power, and also the purpose

of its use, namely to stop, search and detain the person. That falls far short of the suggestion made on behalf of Mr. Wilson. In any

event it is demonstrably evident from the judgment that O'Hanlon J. intended by express representation to apply the principles in

Christie v. Leachinsky. Accordingly, in addition to what I have stated, there could be no possible room for this submission unless it

can also be found in Christie.

65. In this case, Mr. Wilson was arrested on suspicion of having committed murder which involved the use of a firearm. That offence

is without doubt an arrestable offence within the meaning of subsections 4(2) and 4(3) of the Criminal Law Act 1997 (“the 1997

Act”). Under subs. (2), any person may arrest without a warrant any individual “who is or whom he or she, with reasonable cause

suspects to be guilty of the offence”, with subs. (3) conferring on a member of An Garda Síochána a similar power where “with

reasonable cause” the member suspects that an arrestable offence has been committed. It has never been doubted but that the

offence is an arrestable offence, that the same had been committed and that the arresting member had reasonable cause to suspect

that Mr. Wilson had been guilty of that offence. Therefore all the technical ingredients specified in either or both of these subsections

were in place before the arrest was effected. No further pre-condition was laid down before such power could be utilised.

Consequently, it cannot and in fact has not been challenged but that Det/Sgt Brady had the power to arrest Mr. Wilson on the

occasion and in the circumstances in question.

66. Likewise it is not in doubt but that the arresting garda communicated to Mr. Wilson in clear cut, specific and clearly understood

terms the true and accurate reason why he was being arrested and, further, on what charge that arrest was being conducted.

Accordingly, the accused fully understood why his liberty was being interfered with. This is a significant point as communication of

such information is essential to carry out a lawful arrest and to safeguard against arbitrary or unjustified arrest.

67. The core issue is whether section 4 of the Criminal Law Act 1997 should have been mentioned by name, as undoubtedly neither

this nor any statutory provision was so mentioned. In the court’s view there is no authority to support such a proposition and there is

no requirement to that effect. What authority we have been referred to is against it. In the instant case there was is in existence an

undisputed power to arrest. Once the conditions for its exercise have been satisfied, once the arrest has been conducted in

accordance therewith, and once the individual in question is informed of the reasons, grounds or purpose for his arrest, the mere

absence of nominating the statutory provision in use does not affect the validity of that arrest.

68. Furthermore, this case does not call for a consideration, which at some level may have been implicit in the evidence of Det/Sgt

Brady, of what consequences might follow where an arresting garda is under a mistaken view as to the statutory basis of the

intended arrest or where the incorrect statutory provision is mentioned. Even were such matters to require determination, it is likely

that once the essential requirements above identified are in place, in particular that the power to arrest exists and the reasons for its

exercise are adequately communicated to or otherwise known by the arrestee, any mistaken belief on the part of the gardaí, or even

a mistaken communication by them of the particular statutory provision, may not be fatal to the validity of arrest. However, these

issues must await a fuller debate on some further and more appropriate occasion.

69. In these circumstances this ground of appeal must fail.

Issue Number 2: Cigarette butts – DNA Profile

70. In 1990, the Oireachtas, evidently of the belief that whatever powers existed at common law to aid and assist the gardaí in

obtaining forensic evidence for the purposes of their investigations were inadequate, enacted the Criminal Justice (Forensic Evidence)

Act 1990, as previously referred to at para. 5 supra. The relevant sections of that Act are referred to or set out earlier in this

judgment but it should be recalled that, as amended, section 2(1)(b) of the Act permits the gardaí to take from a person in custody

“(b) a swab from any part of the body including the mouth but not from any other body orifice or a genital region”. No consent is

required from the detained person before this statutory power can be exercised. The situation of consent is of course different with

regard to other, what might be considered more invasive, samples, where the refusal of consent constitutes a criminal offence

(section 2(9) of the Act) and where such refusal, without good cause, permits the court of trial to draw appropriate inferences from

the stance so adopted by the accused person (section 3 of the Act).

71. In any event, by seeking Mr. Wilson’s consent to provide buccal swabs, it must be assumed that the gardaí were so doing in the

exercise by them of some perceived power or authority to that effect, or at least in the belief that such consent was either desirable

or necessary: courtesy alone could not explain it. It is not clear, however, what precisely that power or necessity was. If section 2 of

the 1990 Act was in use, then the consent of the accused was not required. Overlooking that confusion for the moment and assuming

that such provision was being relied upon, it is not immediately evident why D/Inspector Fox gave the directions which he did, instead

of following through with the statutory process (paras. 7 & 8 supra). It surely must be the case that greater legal protection could

have been achieved from the operation of the provision rather than from acting in a manner entirely outside its parameters,

particularly as the area in question can undoubtedly give rise to serious controversy, with potentially significant consequences for the

resulting evidence. And yet to this day no really acceptable explanation has been given for the adopted approach. In any event, it is

clear that the statutory provisions were not pursued but instead the course as above described was implemented, pursuant to such

directions.

72. The common law power of gardaí to seize evidence of a crime at or after the time of arrest, and to retain such evidence or

prevent its destruction, is well established: Jennings v. Quinn & Anor [1968] I.R. 305; Dillon v. O’Brien [1887] 20 L.R. Ir. 300. These

cases emphasise that officers have both a right and a duty to retain and preserve articles which may constitute, or give rise to the

reasonable possibility of securing, relevant evidence. More recently, the well known cases are: Murphy v. Director of Public

Prosecutions [1989] I.L.R.M. 71; Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305; and Bowes v. Director of Public

Prosecutions [2003] 2 I.R. 25, all of which related to identifying, preserving, retrieving and thereafter having available for use certain

items (in the above-named cases: a wrecked car upon which the accused claimed there were fingerprints; video surveillance footage;

and a car and motorcycle, respectively) which could then be tendered as part of the evidence at trial. Perhaps the most famous one

in this context is Braddish v. Director of Public Prosecutions & Anor [2001] 3 I.R. 127. It seems quite clear from the overall authorities

that the fact of arrest does not of itself prevent the gardaí from searching for, seizing, or retaining evidence. Quite evidently if they

should come upon the scene of a crime and lawfully arrest a suspect thereat, any evidence found simultaneously with the act of

arrest, or indeed afterwards, could be so treated. Furthermore, on arrival at a garda station after arrest, and either before or after

detention, any matter or thing of potential evidential value which could lawfully be taken from the arrested/detained person would, in

principle, be available to the prosecution at any subsequent trial. Therefore, in the court’s view, if there is a critical exclusionary

event in the context under discussion, it is not, of itself, solely related to the arrest of an accused person.

73. DPP v Scanlan, unreported CCA, 20th April 2007, although distinguished, is nevertheless relied upon by the appellant as authority

for suggesting that where such or such like evidence is obtained by way of trickery, a stratagem, or deception, or in an oppressive

manner, the same will be deemed inadmissible. Whilst the material in Scanlan was not obtained by such a method, it is strongly

suggested nonetheless that the contrary applies in the instant situation, where without the deliberate strategy of the gardaí, the

cigarette butts would never have been retrieved and thus would never have been available for DNA profiling.

74. Before relating Scanlan to this case, it is worthwhile to recall what happened in Finglas Garda Station at the relevant time, and

introduce it by saying that there was nothing opportunistic or fortuitous about the manner in which the police came to obtain the

cigarette butts from which they created the DNA profile which led to the appellant’s conviction on both counts. The sequence of

events on the night in question is outlined at paras. 2-9 of this judgment. D/Inspector Fox instructed fellow colleagues at the Station

that any discarded items used by the appellant whilst in custody were to be collected for the purposes of DNA testing. He gave a

general direction to that effect on the night of Mr. Wilson’s arrest and later gave a specific instruction in that regard to Garda Dillon.

There is an area outside the Station in which prisoners are allowed to smoke. This area was swept, cleaned and photographed both

before and after its use by the appellant so as to ensure the integrity of any evidence which might be obtained therefrom. On a

number of occasions throughout the morning of the 8th November, 2010, the prisoner was permitted to smoke in this area. Where

possible, the discarded cigarette butts were collected as instructed by members of the force.

75. This plan was devised following Mr. Wilson’s statement, at the time when his rights were being read over to him, that he would

not consent to the taking of any DNA samples. Some cigarette butts were collected prior to his detention at 1:00am on 8th

November, 2010. There was a further cigarette break, with a consequent retrieval of more cigarette butts, at 2:47am: this at a time

prior to any consultation with his solicitor. It is clear that the gathering of these cigarette butts was at all times part of a calculated

plan executed by the gardaí for the purposes as outlined. This plan throughout its duration was concealed from the appellant; he was

neither informed of its existence nor of the potential evidential use to which such cigarette butts could be put.

76. The Court of Criminal Appeal in Scanlan spoke of the stringent degree of scrutiny which must be applied to anything which occurs

in a garda station so as to ensure that there is no unnecessary interference with the rights of a person in custody. The Court in that

case saw nothing wrong with the manner in which the gardaí acted in circumstances where there was no trick, no stratagem and no

deception. Scanlan was a case where the manner by which the gardaí came to obtain the relevant evidence could rightfully be

described as “opportunistic”. The person in question asked if he could discard his chewing gum, whereupon he was furnished with a

waste paper basket. The chewing gum in its foil paper was later retrieved and subsequently yielded the DNA evidence which formed a

central plank of the prosecution’s case.

77. The method by which the evidence was obtained in the instant case was not quite so spontaneous. There was a deliberateness

to the way in which the gardaí both prepared the smoking area and methodically collected the discarded cigarette butts; such

circumstances were not present in the case of Scanlan. However, the mere fact of a deliberate plan having been carried out does not

of itself bring the gardaí’s conduct within the meaning of the trickery, deception or stratagems cautioned against in Scanlan. The

retrieval of the cigarette butts was unknown to the appellant, but it could not be said that he was in any way induced to smoke or

that he was influenced to provide an unwitting DNA sample. The gardaí gave the appellant short breaks during his detention, as is

required by law. The appellant chose to smoke during these breaks. Having thrown away the cigarette butts as he did, thereafter

these could be considered as discarded waste. Neither can it be said that the garda officers lied to or mislead the appellant or made

any misrepresentations as to his interrogation; if they had that clearly would have been a trick or a deception. Instead they said

nothing.

78. This, in the court’s view, falls short of the type of strategy which was condemned in Scanlan; the word “stratagem” so used must

be understood in the context of the related phrases, which refer to the use of “trickery” or “deception”. Such was not in place in this

case. Neither can it be said that there was a want of basic fairness in the sense outlined in The People (DPP) v Shaw [1982] I.R. 1, or

that otherwise the obtaining of such evidence was oppressive to the appellant. Therefore the court does not accept that some legal

or constitutional right of Mr. Wilson has been breached. Accordingly, the resulting evidence cannot be excluded on this ground.

79. Finally, it is expressly stated in section 2(11) of the 1990 Act that the powers so conferred by the Act are without prejudice to

any other powers exercisable by members of An Garda Síochána. Therefore, recourse to common law powers which validly exist and

which are validly exercised is not prohibited. Accordingly the trial judge was correct, in this Court’s view, to admit the DNA evidence

obtained from the cigarette butts.

80. Notwithstanding this conclusion however, the court would wish to say that what gives rise for concern at a general level, and

what prompted the court in Scanlan to say that everything occurring in a garda station “should be scrutinised carefully”, is the fact

that obviously if compulsorily detained a person’s freedom is grossly curtailed, with virtually all movements being prohibited or at least

being strictly controlled by the gardaí. This, quite evidently, is totally unlike a person who is not so incarcerated or even a person who

voluntarily cedes his liberty so as to engage in a custody environment with the gardaí, for example, for the purposes of helping them

with their inquiries.

81. As stated, this Court recognises the gross restrictions on personal liberty imposed upon incarcerated persons. Those restrictions

amount to more than mere confinement to a particular place or restraints on the detainee’s freedom of movement. Persons so

detained are in fact entirely dependent on the gardaí for necessaries such as food and refreshments, utensils to eat with, furniture to

sit on, bedding to rest upon, and washing and toilet facilities. Into this category would fall other items that might be deemed essential

to an individual detainee: for example, an inhaler for an asthmatic person or a syringe to administer insulin to a diabetic. The same

could also be said of any medical or, as in this case, dental equipment or supplies which were used to treat the detainee whilst in

custody. These and all similarly considered items, as determined by reference to the reasons herein given, can conveniently be

referred to as “necessaries”, being items essential to the realisation or preservation of the constitutional rights of a detainee whilst in

custody, as distinct from “non-essential” items, which do not bear upon the constitutional rights of such detainee.

82. The making available of such items is essential to life, to bodily integrity, and to privacy and dignity, to name but some of the

constitutional values involved, which, subject to the overriding restriction on liberty, continue to apply to detained persons and

manifestly must be respected. Further, such are basic requirements of the humane way in which the State must treat people in

custody. This Court is therefore acutely concerned with the potential use for the purposes of obtaining a DNA sample of any such

item(s), properly described as “necessaries”. Consequently, it would raise a major concern for the court if the DPP should have

attempted to use any such material of the type described as a basis for obtaining a DNA profile, whether or not the 1990 Act was

invoked: but in particular where its provisions had not been seen through to finality. Any such item, which the gardaí, prison or

detaining authorities, as the case may be, were obliged to provide to the incarcerated individual pursuant to the requirement to

uphold his/her constitutional rights while in custody, should not be available for the purpose of creating a DNA profile, unless the

detainee consents to same or unless there is some other identifiable basis in law, consistent with due respect for such rights, by

which such an item may be lawfully used for that purpose.

83. By contrast, the cigarette butts at issue in the instant case can be distinguished from those items which can be deemed

necessary to the preservation of such constitutional rights. It is undoubtedly the case that detainees continue to enjoy all of their

legal rights, except to the extent that those rights have been removed, curtailed or otherwise circumscribed by legislation. However,

whilst a smoker may be inconvenienced, or even made uncomfortable, by an absence of cigarettes, the provision (or non-provision) of

cigarettes does not engage the constitutional or legal rights of the detainee. A detainee is no more entitled to have a cigarette than

he is to have alcohol brought to him from a local establishment.

84. In conclusion on this point, we are satisfied to highlight an area of some significance, but for the reasons stated we do not

consider it necessary to discuss these matters any further in this case.

Ground No. 3: Application of No Case to Answer

85. The classic formulation of the approach to be taken on an application of no case to answer is set out in R. v. Galbraith [1981] 1

W.L.R. 1039 (“Galbraith”) by Lord Lane, C.J., who said:

“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has

been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises

where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or

because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution

evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon

a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or

weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within

the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly

come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It

follows that we think the second of the two schools of thought is to be preferred.” (p. 1042)

That statement of the law, which is so vital for the guidance of trial judges when an application of no case is made, has been

adopted in this jurisdiction in too many cases to mention. See, for example, The People (DPP) v A.D. [2012] 2 IR 332, DPP v Buckey

[2007] 3 IR 745 and The People (DPP) v Murphy [2005] 2 IR 125. Thus, at the level of principle the approach is authoritatively

decided: it is the application of such rules which occasionally gives rise to difficulty.

86. The issue on this ground of appeal is an important and difficult one. Essentially at one level it raises as a matter of principle

whether it is ever possible to secure a safe and satisfactory conviction based solely on DNA evidence. Complications can be added,

such as where an accused has close siblings in respect of whom no evidence of their individual or associated DNA profiles has been

tendered. However, it must also be asked, again at the same level, why such evidence, despite careful examination and scrutiny,

should be treated as being intrinsically incapable of sustaining a conviction in accordance with law. No authority in this jurisdiction at

superior court level has been open to us. Reliance by the appellant is placed on two UK cases, R v. Watters [2000] EWCA Crim 89 and

R v. Ronald Lashley [2000] EWCA Crim 88, with some reference also being made to the New South Wales decision in Police v. Le

Platrier [2010] NSWLC 22. A summary of the appellant’s submissions is to be found at paras. 20-28 supra. The absence of authority is

likewise reflected in the submissions of the DPP which are outlined at paras. 43-44 supra. There is therefore significant controversy

about this matter with unfortunately no authority of eminence to guide the court’s decision in the circumstances.

87. On the factual side the evidence relevant to this issue, as given by the prosecution, established that Mr. Gaynor had been shot

dead and that the weapon, together with certain items of clothing such as a cap, cotton glove and a hoodie, had been discarded by

the killer near the scene. Forensic analysis resulted in DNA profiles being obtained from these discarded items. A single male profile

was generated from the mini-tape taken from the white cotton glove. A mixed DNA profile, one from more than one person, was

generated from the mini-tapes from the baseball cap and the hoodie: these profiles consisted of a major profile, which matched that

found on the cotton glove, and also then minor elements from an unknown source or an alternative profile. The gun was examined and

swabs taken from the grips of it. Those revealed a mixed DNA profile also, consisting of a full major profile which matched the major

profiles from the baseball cap and hoodie, and also the single profile obtained from the cotton glove. The prosecution’s case was that

the major profiles from the gun and from the cap and hoodie, and the single profile from the cotton glove, all matched the profile

obtained from discarded cigarette butts which had been smoked by the accused whilst in garda custody. The case as made was that

because of this match, the same constituted a sufficient evidential basis upon which the jury could, when properly directed, come to

the conclusion that the accused had murdered the said Mr. Gaynor.

88. Dr. Clara O’Sullivan, whose qualifications are above referred to at para. 29 supra, estimated in her evidence the chances of a

person unrelated to the appellant sharing the profile which is found on the glove, baseball cap, hoodie and grips of the gun as being

considerably less than 1 in 1,000,000,000 (one in one thousand million), later clarified to be 1 in 1,000,000,000,000 (one in one

thousand billion). She stated as her definitive position that there was a 1 in 27,400 possibility that a brother of the accused could

also share his DNA, and thus the profile at the scene of the crime. On Day 6, in a correction of her earlier evidence given on the

previous day, she said:

“In my evidence, I gave a statistic for the chance that a brother would share the same profile as was seen on the crime

stains, for example, the cotton glove, would be less than 1 in 3,000, I wish to correct that, that that is, in fact, 1 in

27,400. There was a factor of 10 … … to the power of 4 … …”

She also gave evidence that there was no reported incident of a brother other than an identical twin sharing an identical profile with

another brother. Whilst agreeing that scientists do not ascribe to the term which is sometimes used, namely that “DNA is unique”,

nonetheless they have not found any matching DNA between individuals that are unrelated or who are not identical twins.

89. The complication above referred to (para. 86 supra) was undoubtedly present in the case, as Garda Heffernan gave evidence that

Mr. Wilson in fact had two brothers. No evidence referable to DNA characteristics with respect of either brother was given at the

trial. In those circumstances, the real issue under this ground of appeal relates to the validity of mounting a prosecution based solely

or predominantly on DNA evidence, with the added factor as mentioned, and of permitting that case to go to the jury.

90. In addition to these matters, there also are common issues which may arise in any type of case where an expert gives evidence:

first, the qualifications of that individual to offer what is tendered; and, secondly, the quality of the resulting evidence, a significant

factor of which will be the soundness of the premise upon which the opinion is given. This may give rise to a number of further

problems, namely the value of specifics, the fallibility of such evidence and the safety of convicting without some corroborative or

other evidence.

91. The single Irish case referred to is Howe, with the only report of the decision being that contained in The Irish Times on the 15th

October, 2003 (para. 22 supra). From that report it is not quite clear on what basis the trial judge made the decision which he did, or

whether he expressed any views of a general nature on the undesirability of the DPP pressing ahead with a prosecution where the

only evidence is DNA based. Consequently, as I have said previously, many of the authorities cited on behalf of Mr. Wilson were

drawn from the neighbouring jurisdiction. It is to be strongly doubted, however, whether this Court can give any great weight to such

cases, as both were heavily influenced by their individual facts, a situation noted expressly in each case. In any event the position in

England was changed by an executive decision of the Crown Prosecution Service in 2004, where its revised strategy is outlined at

para. 26 supra. One must therefore approach this submission at a more general level.

92. Accepting that DNA evidence is not infallible, the first matter to be considered is whether or not there is something inherent in its

nature which renders it either incapable or unsuitable of sustaining the guilt of an accused person. Rose L.J. in R. v. Adams [1996] 2

Cr. App. R. 467 at p. 470 thought there was nothing of this nature attaching to such evidence. Quite evidently the probative effect

of any piece of evidence will depend on its quality, when individually assessed or when considered along with all the other evidence.

Its strength and weakness must be evaluated accordingly.

93. It would seem obvious from the submissions that the DPP would prefer to have some supporting evidence in the prosecution of an

accused person rather than relying simply on DNA evidence. However, there must, of necessity, be situations, such as that in the

instant case, where a decision has to be made whether to prosecute, or not to prosecute, on that evidence alone. It would be a very

grave matter indeed if this Court were to conclude that no such prosecution should ever take place. It sees no justification for such a

stance. Rather the trial judge must be proactively astute in scrutinising such evidence and in affording every conceivable assistance

to the jury, as to what such evidence entails, its nature and quality, what infirmities it might have and what criticisms might rationally

be made of it. Once this has been achieved, the evaluation of the evidence thus becomes a matter for the jury, who should be

carefully directed and properly instructed, as of course it should be with all other evidence: however, special regard may be required

with this particular type of evidence.

94. Having carefully reviewed how the trial judge addressed the jury on this issue, the court is satisfied that he was correct in not

withdrawing the case from the jury and in treating the matter as being one for their consideration. It is further satisfied that on any

rational and reasonable view of the evidence, there was evidence on which the jury could properly come to the conclusion that the

accused person was guilty of the offence in question.

Ground No. 4: Application to Discharge the Jury

95. On Day 6 of the hearing, Dr. O’Sullivan, having corrected an error in the evidence previously given, answered a question of

prosecuting counsel in the following manner: the question asked was, “Do you mean a similar – you mean the exact same” and the

following response was given: “The same … sorry, I beg your pardon, yes, the same profile as this person, because they would be

related. If there is a suggestion of a brother having a profile this could be checked and the information I have on file was …”. The

continuation of the answer was interrupted when an application was made to discharge the jury by counsel on behalf of the appellant

on the basis that this evidence suggested that there was some onus of proof on an accused person to prove something, which was

not the case (para. 29 supra).

96. In his ruling, the learned judge stated “I have considered the application of counsel for the defence that I discharge the jury in

view of certain evidence being open before the jury. I am not prepared to discharge the jury or to accede to that application but in

the event that I consider it necessary to say something, then, about the burden of proof, with specific reference to this evidence, I’ll

do so in my closing speech to the jury”. As matters transpired no further reference was made to this matter. It is therefore claimed

that the judge made a fundamental error in not withdrawing the case from the jury on the basis that the evidence of Dr. O’Sullivan,

as stated, could clearly have left the impression that there was some legal onus of proof on an accused person, which is not the

case.

97. This Court rejects the appeal based on this ground. It does so on the basis that on any rational interpretation of what the doctor

said, the inference as suggested is highly remote: in fact it is one which it is not possible, at any objective level, to reasonably draw.

In addition however, the judge, even though he dealt with the onus of proof in a general way, nonetheless made it quite clear that at

all stages the legal onus of proof, that is the onus of establishing beyond a reasonable doubt any matter in issue, always rested on

the prosecution. That, in this Court’s view, was quite a sufficient direction to counter balance the suggested inference in the

evidence referred to, which in any event was so negligible as to be discountable.

Ground No. 5: DNA Evidence: Need for Jury Warning

98. Before the commencement of the judge’s charge, counsel on behalf of the appellant applied to the trial judge to warn the jury of

the dangers of convicting the accused in circumstances where the sole evidence against him was DNA based. Reference was made to

The People (DPP) v. Allen [2003] 4 I.R. 295, the Law Reform Commission’s Report previously referred to, and excerpts from The Judge’s

Charge in Criminal Trials by Coonan & Foley. In response, counsel on behalf of the prosecution stated that as a matter of principle it

was unnecessary and inappropriate to give such a warning. The learned judge noted the submissions as made but did not, in fact,

give any warning to the jury as he had been requested to do. When requisitioned on the point, he stated that “[h]aving considered

the submissions, I decided not to give a warning.”

99. The case of The People (DPP) v. Allen [2003] 4 I.R. 295 does not support the proposition that either a specific warning or a

warning in general terms is required where the sole evidence offered on behalf of the prosecution is DNA based. In that case the

court was not concerned with the question of a warning but rather with the quality of the evidence put before the jury, in particular

having regard to what the forensic scientist called on behalf of the prosecution had – and had not – said. The case is therefore fact

specific.

100. At pp. 100 – 101 of The Law Reform Commission’s Report on this topic, its conclusion was that:-

“…it may be appropriate that a warning should be given of the dangers of convicting on DNA evidence alone.”

It went on, however, to emphasise that the giving of such a warning should be left to and was a matter for the discretion of the trial

judge.

101. The probative value of DNA evidence depends on the nature and quality of such evidence as given in a particular case. It is of

course largely opinion based, but it does not fall into any recognised category of evidence which it is thought requires the trial judge

to mandatorily warn the jury about the dangers of convicting in reliance thereon. That being the situation, it remains a matter for the

discretion of the trial judge: a discretion which however should be more acceded to than refused. This point is quite separate from

the judge’s obligation, when his overall charge is considered, to ensure that the same can be said as having adequately explained to

the jury what the available evidence is and how they should approach its evaluation.

102. In this case the jury was expressly told that it was a matter for them to assess “the reliability and the credibility of the

witnesses and it is for you to decide what weight you attach to the evidence that you hear, be it expert witnesses or any other

witnesses. In fact, it is for you to decide on the credibility and reliability of all the witnesses in the case. This is entirely a matter

within your province”. In the court’s view, this direction, viewed in the context of the overall charge, was sufficient to ensure that

the jury fully understood their role and obligation, with regard to such evidence.

103. Finally, in this Court’s view the trial judge adequately discharged the duty and obligation upon him so that the trial of Mr. Wilson

could not be regarded as being less than that affording to him his constitutional rights. Whilst it was open to the judge to issue a

warning, he was not obliged to do so. Having regard to the totality of his direction, this ground of appeal cannot be sustained.

104. For the above reasons, the court will refuse leave to appeal.