Supreme Court dismisses appeal where conflicting expert evidence on fingerprint lifting remains unresolved due to lack of cross-examination.

THE SUPREME COURT

[Appeal No: 489/13]

Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

Dunne J.

Between/

LUKE KEARNS

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 6th day of March, 2015.

1. I agree with the order proposed by Ms. Justice Dunne in this case. I also gratefully adopt her summary of the factual background

to the case and of the evidence.

2. The summary of the evidence clearly establishes that there was a conflict of expert evidence between the State Expert and Ms.

Catherine Tweedy, a forensic scientist employed by Keith Borer Consultants for Mr. Kearns. Ms. Tweedy is a fingerprint expert. She

was retained by the applicant/appellant. She said:

“Quite commonly fingerprint tape will lift the excess powder and leave the fingerprint itself on an item. Theoretically if a

contact mark is very fresh and has only been created by sweat, there may be no mark left after a lift is made but in

practice, the fact is that even when contact marks are created by sweat alone, residue of the contact mark is left”.

Ms. Tweedy went on:

“I have never examined the box where there was no part of a contact mark left upon it after a fingerprint lift was taken”.

3. This evidence, however, was contradicted by two gardaí who swore affidavits.

4. The significance of the foregoing is that the sole evidence is a fingerprint, allegedly lifted from a box in which a camera was sold,

which the gardai say they “lifted” off the box. The gardaí say that this destroys any remnant of the fingerprint on the box, so that it

cannot be affirmatively proved (other than on the gardaí’s own evidence) that the “lifted” fingerprint was ever on the box. But the

appellant’s expert says that this is not so and that in the great majority of cases some trace, at least, of the fingerprint will remain on

the box. She says she has never examined a box on which a trace was not left.

5. This of course a significant divergence of expert evidence, and might have been decisive, especially in the context that no

photograph of the camera box were taken in situ or at all.

6. I agree with Ms. Justice Dunne’s statement at page 15 of her judgment:

“There is undoubtedly a conflict in the evidence between Ms. Tweedy and Detective Garda Gannon as to whether or not

any marks would have been left on the camera box showing the tape lifting of the finger mark. Given that there was such

a conflict in the evidence on affidavit below the learned President, it is perhaps surprising that no attempt was made to

resolve that conflict by the cross-examination of witnesses before the President. That conflict remains and is not possible

on the evidence before this Court to resolve that conflict.”.

Where it is not possible to resolve a conflict, the relevant issue will naturally be resolved against whichever party carries the onus of

proof, which in this case is the applicant/appellant.

7. I wish to reiterate what I said in Bolinden Tara Mines v. Cosgrave [2010] IESC, 62, at para. 43:

“It cannot be too strongly emphasised that, where evidence is presented on affidavit, a party who wishes to contradict

such evidence must serve a notice of intention to cross-examine. In a case tried on affidavit, it is not otherwise possible

to choose between two conflicting versions of fact which may have been deposed to. In a case where there is no

contradictory evidence an attack of the evidence which is made before the Court must include cross-examination unless

the contradicting party is prepared to rely wholly on a submission that the plaintiff has not made out its case, even taking

the evidence it has produced at its height.”

The above passage was cited by Clarke J. in IBB Internet Services Ltd. v. Motorola Ltd. [2013] IESC 53. He also referred to his own

judgment in McInerney Homes Ltd. (No. 2) [2011] IEHC 4. There, he referred to Bolinden and he added:

“it is of course open to a party to seek to argue that, even taking its opponent’s evidence at its high point, same does

not establish a material element of the matters needed to be established in order that the remedy be given by the Court.

While Hardiman J. was dealing with a case in which there was no contradictory evidence, it seems to me that similar

considerations may apply where there is contradictory evidence but where the evidence on both sides is given on

affidavit without cross-examination. It is of course open to a party in such circumstances to say that the Court can rely

on uncontradicted aspects of the evidence in reaching its conclusion. Indeed to a material extent that is what counsel for

both the Examiner and McInerney sought to do. However it is impossible for the Court to resolve material questions where

there is a conflict of evidence on matters of significance to an answer to those questions.”

I hope it will not again occur that contradictory affidavit evidence on a point important to the resolution of the case will simply be left

in that condition, with inconsistent sworn statements, and with no attempt to resolve the conflict in the only possible way, by the

service of notice of intention to cross-examine pursuant to the rules of Court.

8. I should also like to express my agreement with the observations of Ms. Justice Dunne at p.20 of her judgment as to the power and

duty of the learned trial judge to ensure that the appellant’s right to a fair trial will be vindicated by making appropriate rulings on the

issue before the Court. Those powers and duties of the learned trial judge are in no way diminished by the fact that the applicant has

failed in these judicial review proceedings.