Court certifies DNA evidence from discarded cigarette butts as a point of law for Supreme Court review.

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

APPELLANT/APPLICANT

JUDGMENT of the Court (No.2) delivered by Mr. Justice William M. McKechnie on the 22nd day of January 2016:

1. By written submission filed on the 29th day of July, 2015, Mr. Wilson, hereinafter referred to as “the applicant”, applied to this

Court for a Certificate pursuant to s. 29 of the Courts of Justice Act 1924, as substituted by s. 22 of the Criminal Justice Act 2006

and later amended by s. 59 of the Criminal Justice Act 2007 and s. 31 of the Criminal Procedure Act 2010 (hereinafter referred to as

“s. 29 of the 1924 Act”), to the effect that the decision of the Court of Criminal Appeal delivered in this matter on the 27th

November, 2014, dismissing his appeal against conviction, involves three points of law of exceptional public importance and that it is

desirable in the public interest that an appeal therefrom should be taken to the Supreme Court.

2. The points on which a Certificate is sought are as follows:-

(i) “When the sole evidence against an accused person is DNA evidence, is such sufficient to convict an accused or upon

the Prosecution case being closed, should a trial judge withdraw a case from the jury upon an application of the Defence

that there was no case to answer”;

(ii) “Should it be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances

where the sole evidence against that accused is DNA evidence alone”; and

(iii) “Is evidence of DNA samples taken from cigarette butts used and discarded by the detained person whilst in custody

admissible evidence at his trial.”

3. Having duly considered the relevant submissions, this Court at the conclusion of the hearing decided to accede to the application

on one of the grounds as hereinafter appearing. It now gives its reasons for reaching such decision.

The Applicant’s Conviction for Murder and Possession of a Firearm with Intent to Endanger Life:

4. The applicant was charged with the murder of one Daniel Gaynor contrary to s. 4 of the Criminal Justice Act 1964 and with

possession of a firearm with intent to endanger life contrary to s. 15(1) of the Firearms Act 1925 as substituted by s. 42 of the

Criminal Justice Act 2006. Following a plea of not guilty, Mr. Wilson was convicted of both offences by unanimous jury verdict on the

7th November, 2011. The applicant received a mandatory life sentence in respect of the murder conviction and a sentence of eight

years’ imprisonment in respect of the firearms offence, with this to run concurrently with the life sentence.

The Applicant’s Appeal to the Court of Criminal Appeal:

5. By Notice of Appeal dated the 20th December, 2011, the applicant sought leave from the Court of Criminal Appeal to appeal his

conviction on several grounds. These numbered five in total, and were set out as follows:

“(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.”

Written submissions were received on behalf of Mr. Wilson and on behalf of the Director of Public Prosecutions (“The D.P.P.”). The

Court of Criminal Appeal, having considered those submissions and having heard what was urged by way of oral presentation on behalf

of both parties, delivered its judgment on the 27th November, 2014.

6. In summary form this Court dealt with each of the applicant’s grounds of appeal as follows.

Ground No. 1: The Arrest Point:

7. The applicant argued that the learned trial judge erred in law in ruling that his arrest was lawful in circumstances where the

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

invoked. It was submitted that the statutory power of arrest should have been specifically mentioned. Based on the foregoing, it was

claimed that the accused was not lawfully detained under s. 50 of the Criminal Justice Act 2007 as his preceding arrest was unlawful

in the first instance.

8. The respondent submitted that it was not necessary for the garda officer in question to have specified a particular statutory

provision or an express power when arresting the applicant on the 7th November, 2010. It was submitted that it was sufficient for a

lawful arrest for the arresting garda to have informed the applicant, as he did, of the reason for his arrest. The respondent further

argued that the arrest was lawful under ss. 4(2) and 4(3) of the Criminal Law Act 1997 and that the subsequent detention of Mr.

Wilson was in accordance with s. 50 of the Criminal Justice Act 2007.

9. Having considered the submissions of both parties and having reviewed the case law on the issue, this Court held that there is no

authority to support the proposition that the specific statutory provision creating the power of arrest must be individually identified

and invoked. In the instant case there was in existence an undisputed power to arrest. Once the conditions for its exercise had been

satisfied, once the arrest had been conducted in accordance therewith, and once the individual in question had been informed of the

reasons or purpose for his arrest, the mere absence of nominating the statutory provision in use did not affect the validity of that

arrest. Thus there was no requirement in this case for the arresting garda to mention, by name, s. 4 of the Criminal Law Act 1997.

Ground No. 2: The Admissibility of the DNA Evidence:

10. The applicant submitted that the learned trial judge erred in law in ruling that the DNA samples taken from cigarette butts used by

the accused while in custody were admissible in evidence. He argued that this DNA evidence was obtained through use by the gardaí

of a stratagem and/or by deception and following his express refusal to supply a DNA sample. The applicant submitted that the only

course open to the gardaí following such refusal was to invoke the provisions of s. 2(9) of the Criminal Justice (Forensic Evidence) Act

1990, as amended, (“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 mentioned in that section of that Act. He also highlighted the extra care which must be taken to protect

the position of an incarcerated person.

11. The D.P.P., in response, argued that the DNA samples taken from the cigarette butts discarded by the applicant while in custody

were correctly admitted in evidence. The respondent noted that consent is not necessary for the taking of a buccal swab under s. 2

of the 1990 Act, and further stated that where such consent is not required, but nonetheless is requested and refused, the gardaí,

irrespective of this refusal, can still take such a sample and that reasonable force may be used to obtain it, if and when necessary.

The D.P.P. also relied on s. 7 of the Criminal Justice Act 2006, which permits the gardaí to seize and retain for use as evidence in

criminal proceedings any thing which they find or come into possession of and which they have reasonable grounds for believing is

evidence of, or relates to, the commission of an arrestable offence. The respondent further referred to the common law power of the

gardaí to seize and retain evidence of a crime, in existence and found at or after the arrest of an individual, and to prevent the

destruction of such evidence. She also submitted that this common law power extends to items seized during the course of a search

in a garda station after arrest and that it also extends to items discarded by a suspect before or after arrest. Finally on this ground of

appeal, the respondent submitted that the removal of the cigarette butts did not constitute a “taking” within the meaning of s. 2 of

the 1990 Act.

12. This Court acknowledged the gross restrictions on personal freedom that limit the movements of incarcerated persons. It noted

the dependence of persons so incarcerated on the gardaí for essential items such as food, utensils, bedding, washing and toilet

facilities, and medical/dental equipment and supplies: such items being essential to life, to bodily integrity, and to privacy and dignity.

The Court expressed its acute concern with the potential use for the purposes of a DNA sample of any such items which necessarily

had been utilised for the preservation of one’s constitutional rights while in custody. However, the Court distinguished the cigarette

butts at issue in the instant case from those items which could be deemed necessary to the realisation of such constitutional rights.

The Court also noted the deliberate manner in which the gardaí had gone about obtaining the cigarette butts in this case, but did not

find that such involved the requisite degree of trickery or deception to fall foul of the methods prohibited by case law. Finally, the

Court noted that the powers conferred under s. 2 of the Criminal Justice (Forensic Evidence) Act 1990 are without prejudice to any

other powers exercisable by the gardaí. The gardaí therefore had recourse to validly exercised common law powers. Accordingly, the

Court took the view that the trial judge was correct to admit the DNA evidence obtained from the cigarette butts.

Ground No. 3: The Application of No Case to Answer:

13. This ground of appeal related to the validity of mounting a prosecution based solely or predominantly on DNA evidence, and of

permitting that case to go to the jury. The applicant argued that the learned trial judge erred in law in failing to withdraw the case

from the jury following an application by the defence that there was no case to answer. It was submitted that the prosecution’s

evidence, taken at its highest, was such that the jury could not properly convict. The application was based on a claim that it is

unsafe to convict on the basis of DNA evidence alone. In this case no evidence had been put forward by the prosecution as to

whether either of the applicant’s two brothers could have been involved in the crime. This undermined the quality of the DNA

evidence. As there was no extrinsic evidence linking Mr. Wilson to the crime, it was submitted that the case had not been proven

beyond a reasonable doubt and should not have been left to the jury.

14. The respondent submitted that the jury was entitled to and must be presumed to have considered whether any individual other

than the applicant could have been responsible for the DNA profile found on the items recovered from the scene of the murder. It was

said by the D.P.P. that there is no basis for precluding a jury from convicting an accused person based solely on DNA evidence.

15. This Court considered that there is nothing inherent in the nature of DNA evidence which renders it incapable or unsuitable of

sustaining the guilt of an accused person. The Court was unwilling to hold that a prosecution cannot proceed on the basis of DNA

evidence alone. Having reviewed how the trial judge addressed the jury on this issue, this Court was satisfied that he was correct in

not withdrawing the case from the jury and that there was evidence on which the jury could come to the conclusion that the

applicant was guilty of the offence in question.

Ground No. 4: The Application to Discharge the Jury:

16. The applicant argued that the learned trial judge erred in law in failing to discharge the jury in circumstances where an expert

witness, Dr. Clara O’Sullivan, stated in her evidence that if the brothers of Mr. Wilson provided forensic samples, they could be

eliminated as potential matches to the DNA found at the scene. The applicant alleged that Dr. O’Sullivan’s statement suggested to

the jury that there was an onus on an accused person to prove something, which is not the case. This, it was contended,

constituted a complete reversal of the burden of proof and was contrary to the presumption of innocence.

17. The D.P.P. argued that the learned trial judge had 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 applicant. The

respondent submitted that counsel for the applicant had also made this latter point forcibly in his closing speech.

18. This Court rejected the fourth ground of appeal. It found that on any rational interpretation of Dr O’Sullivan’s testimony, the

inference suggested by the applicant was highly remote, and that in fact such an inference could not reasonably be drawn.

Furthermore, the Court was satisfied that the trial judge had made it clear that at all stages the legal burden of proof rested on the

prosecution. This direction was sufficient to counter the remote possibility suggested by the applicant.

Ground No. 5: The Need for a Jury Warning in Respect of a Conviction Based

Solely on DNA Evidence:

19. The applicant submitted that the trial judge erred in law by failing to warn the jury of the dangers of convicting an accused

person in circumstances where the sole evidence against him was DNA evidence. This ground of appeal was based on the limitations

and risk of error said to be inherent in DNA, which nonetheless can be perceived by juries as being infallible.

20. The respondent replied that it was not necessary to give the jury a special warning simply because the only evidence against the

applicant was that of DNA. The respondent argued that there is nothing intrinsic in the nature of DNA evidence which would render it

incapable of proving guilt.

21. This Court held that the probative value of DNA evidence depends on the nature and quality of such evidence in any given case.

It does not fall into any recognised category of evidence which it is thought requires the trial judge to warn the jury about the

dangers of convicting in reliance thereon. Provided that his overall charge has adequately explained to the jury what the available

evidence is and how they should evaluate it, it remains a matter for the discretion of the trial judge whether to give such a warning

or not. The trial judge’s direction in this case was sufficient in this regard.

The S. 29 Threshold:

22. Section 29(2) of the 1924 Act reads as follows:-

“A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of

that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting

authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of

exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the

Supreme Court.”

23. There are numerous cases from this Court dealing with the individual requirements which must be satisfied before the section can

be successfully invoked. In D.P.P. v. M.J., (Court of Criminal Appeal (C.C.A.), Unreported, 25th June, 2015) the Court said:-

“In order to succeed in an application under s. 29 of the 1924 Act, an applicant must show that arising out of the

decision, there is a point of law involved, that the point is not only important but it is of public importance: this means

that it must transcend the individual interests of the particular parties, no matter how critical the issue is for them …

[and] that a decision from the Supreme Court on the point so identified is warranted in, and by, the public interest. These

requirements are cumulative and nothing short of their combined satisfaction will suffice. One should add that the access

threshold to a successful s. 29 application is demonstrably high and will only succeed in a very limited number of cases.

Furthermore, it is of the first importance to point out that the statutory process is not available as a means of pursuing a

further appeal from what is considered by the convicted person as an unsatisfactory decision from the Court of Criminal

Appeal. All of these points are perfectly understandable and are entirely appropriate in light of the fact that the individual

in question will already have had his substantive appeal determined by the appellate court.”

24. Once again, in D.P.P. v. Patchell [2014] I.E.C.C.A. 6, at paras. 16 – 20, the C.C.A. said:-

“16. As appears from the express wording of the section, for an application to be successful, the moving party, upon

whom the onus of proof rests … must demonstrate that the point is a point of law and is one not only of exceptional

public importance but also that it should be determined in the public interest. Both requirements must be established; it

being insufficient to establish either one only (Kenny v. An Bord Pleanála (No.2) [2001] 1 I.R. 704). Whilst indeed it may

be true to say, as the Court of Criminal Appeal did in The People (D.P.P.) v. McCarthy & Ors [2010] I.E.C.C.A. 51

(“McCarthy”), that if a point satisfies the first aspect of the test, then it is most likely that it will also satisfy the other;

nonetheless, it may well be that in certain situations – at a particular time or in particular circumstances – it would not be

in public interest to have that point determined. Therefore, I feel that it is more responsive to the section to treat the

requirements as being disjunctive.

17. In any event it is clear that the point of law cannot only be peculiar to the particular facts of any given case and

that it must have the capacity of widespread application in its subject area. The point must have a gravity and

importance to it which enables the court to rightfully classify it as “exceptional”. Further, the jurisdiction must be

considered as such and in no circumstances is it intended to displace the first level of appeal, or, outside of its express

parameters, to permit a second strand of appeal. It is not designed to gain, and should not be used as, an opportunity of

rerunning what was argued in the Court of Criminal Appeal. It must therefore only be on rare and very limited occasions

that a certifying process can be invoked.

18. In addition it seems to the Court that when considering an application under this section, it is important to ascertain:

(i) what precise relevance the point of law in question has on the critical issues still pending in the case;

(ii) the necessity of obtaining the Supreme Court’s view on the suggested point; and, irrespective of that

view

(iii) what effect would it have on the ultimate disposal of the case.

19. Quite evidently, if the suggested point of law is not at the heart of the argument, it is difficult to see how it could

satisfy the requirements of the section. Likewise, there could be no question of seeking from the Supreme Court its

opinion on some abstract, hypothetical or moot issue. Furthermore, if the point does not have a decisive influence on the

ultimate disposal of the case, or at least a material bearing to that end, it is difficult to see how and why the exceptional

jurisdiction of the section should in such circumstances be applied.

20. In the Court’s view these points are no more than an elaboration of the section’s true positioning within, as applicable

in this case, the criminal process as a whole.”

Application of the S. 29 Test to this Case:

25. The applicant submits that it is important, in the public interest, to have the points raised in this application determined by the

Supreme Court. He states that these points are and will be important in many cases and that they therefore raise issues which are of

“enduring importance.”

26. The respondent disputes this and argues that the points of law suggested by the applicant are not points of law of exceptional

public importance and that the applicant has not sufficiently demonstrated that it is desirable in the public interest that an appeal

should be taken thereon to the Supreme Court.

Point 1: Whether an accused person can be convicted based on DNA evidence alone

27. The applicant’s first point relates to whether an accused person can be convicted when the sole evidence against him is based on

DNA or whether, upon the close of the prosecution case, a trial judge should withdraw the charges from the jury upon an application

of ‘no case to answer’ being made, by the defence.

28. The applicant relies on the arguments made in his written submissions and refers to a number of Australian cases dealing with this

matter, including R v Green (unrep, N.W.S.C.C.A., 26 March 1991), R v Pantoja (1996) 88 A Crim R 554, Forbes v R [2010] HCA Trans

45 and 120 and R v Jama (unrep, VCA, 7 Decemeber 2009, 764/2008), as well as the Report by the Hon. Mr Frank Vincent QC,

entitled “Inquiry into the Circumstances that Led To the Conviction of Mr Farah Abdulkadir Jama”, which was commissioned in light of

the wrongful conviction based on DNA evidence in the last of the cases just cited. Accordingly, Mr. Wilson submits that this point

raises a substantial and important issue of exceptional public importance that would benefit from the consideration of the Supreme

Court.

29. The respondent submits that this first point is not one of general application, and in effect amounts to an invitation to judges

presiding over trials to usurp the function of the jury. The D.P.P. states that this point is essentially about whether a particular piece

of evidence may, in the context of a given case, be sufficient to connect circumstantially an accused with the commission of the

crime with which he is charged. The answer to this depends on what the evidence is. Additionally, the respondent states that the

authorities above identified were not cited in argument during the trial or the appeal proper, and that this therefore amounts to an

impermissible attempt to rerun the appeal. The respondent also questions the relevance and persuasive authority of some of the

Australian cases relied upon. In any event, her position is that it does not raise a point that transcends the interests of the applicant.

Director of Public Prosecutions v M.J. [2014] I.E.C.C.A. 21; Director of Public Prosecutions v Cooke [2015] I.E.C.C.A. 5.

30. There is no doubt but that this is both an important and difficult issue, but notwithstanding such recognition, the Court does not

believe that it is necessary, or essential in the public interest, to seek the opinion of the Supreme Court on a question which is deeply

rooted in policy considerations, and which in effect inquires whether the D.P.P. should be prohibited from ever mounting a prosecution

based on DNA evidence only or alternatively whether a trial court should, at the level of principle, always withdraw any such case

from the jury. The submission seems to be pitched at such a level, rather than simply seeking to determine whether, in the particular

circumstances of this case, the resulting conviction, evidentially so based, was safe and satisfactory. Presumably the purpose of

drafting it in such wide terms was to lay a basis for suggesting its generalised importance, rather than simply its individual significance

to Mr. Wilson.

31. In considering this question one must do so in a concrete context which can only be found in the facts and circumstances of any

given case. In the instant case the DNA evidence offered at trial appeared, at least ex facie, to show that the major profiles obtained

from the gun and from the cap and hoodie, and the single profile obtained from the cotton glove, all matched the profile which related

to that of the convicted person. The scientific evidence was given by Dr. O’Sullivan who differentiated between a general member of

the public having a similar profile to that of the accused person, and the possibility that a brother of Mr. Wilson also shared his DNA.

The cross-examination of the relevant witnesses did not disturb this evidence.

32. This Court accepts that such evidence is not infallible, should not be so described, and should not be so looked upon. The

probative effect of every and any piece of evidence will depend on several factors, including its nature and quality on the one hand

and its weaknesses and deficiencies on the other. Therefore, when ruling on any application touching or concerning such evidence or

when addressing the jury thereon, the learned trial judge, insofar as the evidence permits or the submissions suggest, should adopt a

cautionary and questioning approach and should not proceed on the inevitability of its acceptance or cogency. Whilst undoubtedly it

may be difficult to challenge such evidence, nonetheless it is not impossible and if an accused person should indicate his intention of

so doing, the basic material would undoubtedly be made available for that purpose. If any such examination on behalf of an accused

person should give rise to contradictory evidence being tendered, then the trial judge would have to appropriately reflect both views

and otherwise comment upon it in the same way as he would relative to the evidence of any other expert.

33. In addition, when addressing the jury the trial judge should be careful in his charge and should always remind them that they are

the sole arbiters of all of the evidence tendered at trial.

34. No authority was submitted to indicate that DNA evidence, at the level of principle, was so unreliable that despite its apparent

cogency, at least on a prima facie basis, its use to maintain a prosecution would or would likely result in an unsafe conviction. That,

in effect, is the essence of what the applicant would seek to achieve via the submission of this question. As pointed out in the main

judgment, it would indeed be a very grave matter for the Court to conclude that no prosecution could ever take place based solely on

DNA evidence. No case law, research or other persuasive authority has been open to this Court which would justify such a stance.

Therefore, we do not think that the s. 29 threshold is met with regard to this matter.

Point 2: Whether it should be mandatory for a trial judge to warn the jury of the dangers of convicting an accused person based on

DNA evidence alone

35. While the first point raised by the applicant asks whether a prosecution based on DNA evidence alone should result in a directed

acquittal upon an application of no case to answer made by the defence, the second issue asks, as an alternative, whether there

should be a mandatory warning to the jury as to the dangers of convicting an accused person based on DNA evidence alone.

36. The applicant refers to the Law Reform Commission’s Consultation Paper on the Establishment of a DNA Database (LRC CP 29-

2004), wherein the Commission recommended that “in all cases where it is sought to rely on DNA evidence alone, the jury should be

warned of the dangers of convicting on this evidence in the absence of other supporting evidence.” (p. 244). Although it is

acknowledged that such a recommendation was ultimately omitted from the Commission’s Report on the Establishment of a DNA

Database (LRC 78-2005), he submits that the very fact that this issue merited discussion by the Commission is indicative of its

general public importance. Mr. Wilson states that an answer is required in the interests of criminal law generally and not just in the

interests of the present case; he therefore submits that whether a mandatory warning is required in such cases is an appropriate

question, in the interests of the public, to be addressed by the Supreme Court.

37. The respondent submits that the second point raised by the applicant is not a point of law for the purposes of s. 29 of the 1924

Act. It is a submission that courts should intervene to create new categories of corroboration warning, which is a matter for the

Oireachtas. The respondent points out that the Oireachtas has in fact intervened in the contrary direction by abolishing mandatory

corroboration warnings in relation to the unsworn evidence of a child (s. 28(2)(a) of the Criminal Evidence Act 1992) and in

proceedings in relation to offences of a sexual nature (s. 7 of the Criminal Law (Rape) Amendment Act 1990). The respondent queries

what is meant by “the dangers of convicting an accused” based on DNA evidence alone and asks why a warning should be given and

in what terms. The respondent submits that what is important is that the jury be given a clear direction on the role of expert

evidence and that it must be made clear to them that the ultimate decision on whether or not the matching profile is that of the

accused person is a matter for them. People (Director of Public Prosecutions) v. Raymond Gormley and People (Director of Public

Prosecutions) v Craig White [2014] 1 I.L.R.M. 377 (“DPP v. Gormley and White”).

38. As with Question No. 1, this Court does not believe that the subject question raises a matter of such significance that it could be

said to involve a point of law of exceptional public importance or that it is in the public interest to have it determined by the Supreme

Court.

39. Trial judges are very familiar with the circumstances in which a warning is required or advised by law with regard to certain pieces

of evidence, to certain classifications of witnesses and to certain other defined circumstances. In addition and/or outside of that,

such judges are ever conscious of the requirement to assess whether the state of the evidence, at any given time, in each particular

case is such as would in the interests of fairness require such a warning.

40. This question has at its heart the suggestion that a mandatory warning should be given in all cases where DNA evidence only is

relied upon. That this should become the law was discussed at some length by the Law Reform Commission as part of its consultation

process in the lead up to the publication of its Report, as above mentioned. In the final analysis it did not believe that such a

warning, underpinned by an obligation to so do in all circumstances, was justified. The default position therefore is that depending on

each individual case the trial judge retains a discretion whether to give such a warning and, if so, to determine the precise wording of

its content.

41. This Court believes that this is satisfactory and, noting the requirements on all such judges to ensure the application of fair

procedures right throughout the trial and that the accused person obtains a trial in due course of law, is satisfied that such provide a

sufficient safeguard in this context. Therefore, we also reject the application in relation to this ground.

Point 3: Whether the DNA samples taken from cigarette butts discarded by a detained person while in custody are admissible evidence

at his trial

42. The applicant’s final point relates to the admissibility of DNA evidence garnered from items which were abandoned by a detainee

while in police custody in circumstances where the said detainee had earlier refused to give consent to the voluntary or statutory

taking of samples for the purpose of forensic testing. The applicant submits that this issue transcends the issues in the present case

and raises a point of law of exceptional public importance in relation to the gathering of DNA evidence, the importance of which merits

determination by the Supreme Court.

43. The respondent submits that this third point is not likely to have widespread application. Upon commencement the relevant

provisions of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 an express provision will allow the use of

reasonable force to take non-intimate body samples such as buccal swaps. Thus any ambiguities about the correct interpretation of

the statutory powers which led to the taking of the cigarette butts in this case have been closed off. The respondent further submits

that the applicant has identified no infringement of a personal right such as to make this third point a point of law of exceptional

public importance. The respondents also state that the cigarette butts were discarded by the applicant and that the Gardaí were

entitled to take them under common law and statutory powers as having potential evidential value. They were also entitled to

process any data from the DNA sequence found thereon (s. 8(b) of the Data Protection Act 1988). Finally, the respondent says that

there was no breach of any constitutionally guaranteed right of due process. The D.P.P. submits that methods used in respect of the

samples ultimately relied upon were “non invasive” and did not involve any inhuman or degrading treatment.

44. The Court however takes a different view on the third ground as submitted. This ground is dealt with at paras. 70 – 84 in the

main judgment. Serious issues arise with regard to the activities of An Garda Síochána which led to the retrieval of the cigarette

butts, without which no DNA match was possible. Given the incarceration of Mr. Wilson at the time and the fact that constitutional

rights may very well have been involved in the process adopted, this Court, noting the absence of any authority from the Supreme

Court on this important matter, is of the opinion that this question meets the s. 29 threshold.

45. Accordingly, it agrees to submit this question.