JUDGMENT of the Court delivered on the 8th day of May 2018 by Mr. Justice Mahon
1. The appellant has appealed against his conviction on the 20th April 2015 for the murder of Sylvia Shields and Mary Callinan in their home No. 1, Orchard View, Grangegorman, Dublin 7 on the 7th March 1997 (the “Grangegorman Murders) following a lengthy trial at the Central Criminal Court. He was sentenced to life imprisonment on the same date. The murders of the two women were horrific and brutal. Post mortem examinations established that they had each received multiple stab wounds and that their bodies had been gratuitously mutilated. Dr. Harbison, the State Pathologist who conducted the post mortems stated, inter alia, in his report:-
“These injuries were outside my experience in twenty six years of pathology practice. The similarity between the injuries to the genital tracts of both of these women..was remarkable.”
2. Ms. Shields and Ms. Callinan lived in the house with a Ms. Mernagh who is since deceased. All were middle aged, and had a history of psychiatric illness. Their home was owned by St Brendan’s Hospital, Grangegorman, and they were living there under the general care of the hospital as part of a community based facility. They had all resided in the house for some considerable time prior to 7th March 1997.
3. Another double murder of a couple in their home in Co. Roscommon occurred about five months later, on the 15th August 1997, (the “Roscommon Murders”). On the same date and at the same address Sarah Jane Doyle, a relative of one of the victims, and the then girlfriend of the appellant, was seriously assaulted with a hammer. The appellant was seen fleeing the scene on a bicycle and was arrested by gardaí later the same day. He was convicted of the murders of the Roscommon couple and the assault on Ms. Doyle following a lengthy trial in the Central Criminal Court in 1998, and in respect of which he was sentenced to life imprisonment and ten years imprisonment respectively. The appellant is currently serving the life sentences imposed in respect of both sets of murders.
4. Following his arrest on the 16th August 1997 the appellant was questioned at Galway’s Mill Street garda station in relation to the Roscommon Murders and the assault on Ms. Doyle. He was not at that time a suspect in the Grangegorman Murders. The gardai in Galway had had no involvement in the investigation of those crimes and their only interest at the time in the appellant was in connection with the Roscommon Murders and the assault on Ms. Doyle.
5. In the course of his detention and questioning at Mill Street garda station in relation to the events in County Roscommon the appellant made a voluntary and entirely unprompted admission of his involvement in the Grangegorman Murders. He signed a cautioned statement on the 16th August 1997. He maintained that on his way home from Dublin city centre to Stoneybatter he had attacked the two women. On the following day, the 17th August 1997, the appellant volunteered a lengthy and detailed statement of admission in relation to the Grangegorman Murders and on the same day prepared a number of sketches in relation to the venue of the killings and of the footwear worn by him and the knife used on that occasion. On a further occasion on the same date he again insisted that he had been involved in those murders. Also on the same day when being ferried by gardai from Galway to Mountjoy Prison the appellant expressed a wish to point out to the gardai accompanying him to the house where he claimed he had murdered the two women. He was again cautioned and proceeded to give directions to the driver of the garda car to proceed to the house in which the two murders had occurred at Orchard View, Grangegorman. He also signed a note confirming the information he had given to the gardai on this occasion. Other admissions were also made by the appellant both before and after his arrest on the 16th August 1997 relating to the Roscommon Murders and the assault on his then girlfriend. Admissions were also made by the appellant to his solicitor, Mr. Peter Allen, and to a Prison Chaplin at Mountjoy Prison. Subsequently, in a number of verbal and written communications with the gardaí, the appellant retracted all of his inculpatory admissions made by him in relation to the Grangegorman murders.
6. Approximately three weeks prior to the Roscommon Murders, Dean Lyons was arrested and questioned at the Bridewell garda station in Dublin in relation to the Grangegorman Murders and made admissions in relation to them, of which led to him being charged with the murders. His confession had been volunteered by him to gardai and subsequently repeated to numerous other persons. His first confession was videotaped, but his second and third confessions were not; they were recorded in handwriting by gardaí instead. Mr. Lyons had a history of drug addiction and homelessness. Information provided by him in the course of his admissions to the gardaí displayed a certain familiarity with details of the murder of the two women including the nature of the wounds inflicted, the number and type of weapons used and the movements of the killer in the house.
7. By January 1998 the gardaí were satisfied that Dean Lyons had had no involvement in the Grangegorman Murders and charges preferred against him in respect thereof were withdrawn on the 29th April 1998.
8. Consideration was given in August 1997 to charging the appellant with the Grangegorman Murders. A decision however was taken not to do so essentially because of lack of evidence. A jacket and a pair of boots belonging to the appellant and seized by gardaí shortly after his arrest were subjected to forensic / DNA analysis by the State Forensic Science Laboratory (‘FSL’) but did not reveal anything of evidential value. A decision by the then Director of Public Prosecutions in 1999 to charge the appellant with the Grangegorman Murders was subsequently withdrawn, and was not proceeded with, until a new direction was made by the then Director of Public Prosecutions in 2009. In 2009, with the help of advancements in DNA forensic science, two DNA profiles were found on the appellant’s jacket, one relating to each of the Grangegorman victims. The circumstances in which the clothing items were taken by gardaí and the possible contamination of the jacket are matters which are very much the subject of this appeal and are discussed later in this judgment.
9. A number of enquiries took place because of concerns relating to the admissions made by Dean Lyons, particularly in circumstances where it became clear that he had no involvement with the murders. Dean Lyons died in 2000 shortly having been released from an English prison. Earlier, the gardaí had interviewed Mr. Lyons in Strangeways Prison in the U.K. and had obtained from him his agreement to give evidence in the course of proceedings which were then being contemplated against the appellant. Investigative reports had also been prepared by Assistant Commissioner McHugh in 1997 and 1998 and by Superintendant Kelly in relation to aspects of the garda investigation into the involvement of Dean Lyons.
10. Proceedings seeking the prohibition of the trial because of delay and for other reasons were heard by the High Court (Moriarty J.) in 2012 and in an appeal from the decision of the High Court to the Supreme Court in 2015. Both the High Court and the Supreme Court refused to prohibit the trial. In the concluding paragraph of the judgment of Hardiman J. in the Supreme Court case of Nash v DPP IESC 32 it was stated:-
“In the result, there is no basis upon which it can be argued that Mark Nash will not obtain a fair trial. Any reference to evidence in this judgment is not a finding of fact but merely an indication of the limited issues that have been referenced by affidavit and in argument. Questions of the admissibility of evidence, the overall fairness of the trial, the adequacy of disclosure, the proper selection of jurors and what warnings may need to be given to the jury are now matters for the trial judge.”
11. The core aspects of the prosecution case against the appellant was, in general terms, based upon the following:-
(i) Admissions made by the appellant to gardaí and others, both before and after his detention at Galway garda station on the 17th August 1997, including a lengthy and detailed statement of confession made on that date to the gardaí. The appellant contends that such admissions were obtained while he was in unlawful custody and / or in breach of his constitutional rights and ought therefore not to have been admitted into evidence;
(ii) forensic evidence (and in particular DNA profiles of both victims) extracted from material found on a black velvet jacket belonging to the appellant. The appellant contends that the jacket and the boot (referred at (iii) below) were unlawfully seized, and furthermore that the risk of contamination in the FSL was so great that the results of testing undertaken are entirely unreliable, and
(iii) a boot print said to match a boot owned by the appellant left in blood at the scene of the murders.
Grounds of appeal
12. The grounds of appeal submitted on behalf of the appellant are many and relate to almost all aspects of the trial. Comprehensive and helpful written submissions have been made by both parties to this Court. Furthermore, a number of the grounds of appeal were the subject of more detailed oral submissions in the course of the hearing of this appeal. For convenience, and for the purposes of discussion analysis and decision, this Court will particularly engage with the grounds of appeal under the following general headings:-
(i) Section 4 of the Criminal Justice Act 1984 (as amended).
(ii) Admissions made by the appellant.
(iii) Access to a solicitor.
(iv) The scientific evidence.
(v) Admission of other evidence.
(vi) Other applications to discharge the jury.
(vii) The charge to the jury.
Section 4 of the Criminal Justice Act 1984 (as amended)
13. It is contended that the appellant was not in lawful detention at the time when admissions were made by him in relation to the Grangegorman murders. It was argued that that the only basis for the detention of the appellant at Mill Street garda station, as authorised under s. 4 of the Criminal Justice Act 1984 (as amended), was in relation to the investigation of the Roscommon Murders. It was contended (quoting from the appellant’s submissions) that:
“…Once that purpose concluded he had to be released or charged and could not be detained, in the absence of strict compliance with the 1984 Act for the purposes of investigating any other offence. If therefore, as here, gardaí wished to interview Mr. Nash in relation to the separate Grangegorman matters then firstly his detention had to be authorised for that purpose by Sergeant Duffy who was then the member in charge.. . No one else had the statutory authority or power to authorise this further detention and consequently if, as here, the prosecution failed to prove beyond a reasonable doubt that Sergeant Duffy had made this decision then the continued detention was unlawful and all admissions made in that time inadmissible.”
14. This issue arose in the course of the trial, and was the subject of a lengthy ruling by the learned trial judge, in the following terms:-
“Chapter C was the legality of the distinction on the afternoon of the 17th of August 1997. Section 4 of the Criminal Justice Act 1984 as amended allows for the further detention of a suspect in respect of an offence, other than the offence for which he was arrested. If the member in charge has reasonable grounds for believing that such continued detention is necessary for the proper investigation of that offence. It is the contention of the defence that the decision to end the Roscommon questioning and to begin those for the Grangegorman murders was made by the senior investigating officers, and not the member in charge as prescribed by the said section 4.
Sergeant Duffy has testified in this voir dire that as the member in charge on the occasion in question he decided that for the full and proper investigation of the murder in Dublin the accused should be detained further as required by section 4.
The credibility of this is challenged on the basis that it was the subject matter of additional evidence served only recently in a case which the alleged offence, the offence allegedly happened over 17 years ago.
The prosecution replies to that last point by saying that if the case, the history of the case had been more recent, there would have been no such complaint about such additional evidence being served only days before the trial.
In any event, whatever about the various positions taken by the two sides, it is clear that Sergeant Duffy was involved. Detective Sergeant Lynagh went to him and had a conversation with him about this. According to the custody record he went to the accused and informed him of the decision. The question is was he a conduit for that decision made by others or did he himself make the decision as well as the others but did he make it independently as a member in charge. Now, he has testified that he did. The surrounding circumstances and sequence of events support that evidence and I am satisfied that he did. I am satisfied that he made the decision and that he communicated that decision to the accused.” (Emphasis added)
15. In the course of giving evidence on Day 6 of the trial Sergeant Duffy was questioned extensively in relation to his contact with the appellant in his role as the member in charge at Mill Street garda station following the appellant’s detention. The following exchange between Sergeant Duffy and Mr. Grehan S.C. is relevant in this context. It is as follows:-
“Q. And the next item was giving him a meal. Now, then at 1.20 pm you record that you had some further dealings with Mr Nash; is that right?
A. Yes. I went to see him in the interview room where I informed him that the questioning - that he was now - the questioning in relation to the murder in Castlerea was now complete and that he was now going to be detained and to be questioned in relation to murders at Grangegorman in Dublin on the night of the 6th, 7th of March 1997.
Q. Now, can you tell us how that came about?
A. Detective Sergeant Lynagh came to me and told me that they had completed their investigation of the incident in Castlerea and that he had information that the prisoner had given him information to say that he knew about the murders in Grangegorman in Dublin and that he was wishing that he would be - that the detention for Castlerea would finished and that he would be further detained for questioning in relation to the murders in Grangegorman.
Q. And had you been aware of the fact that Mr Nash had given information in relation to Grangegorman yourself?
A. I had indeed.
Q. Well, as a result, what did you decide?
A. I decided that for the full and proper investigation of the - that murder in Dublin and the fact that there was somebody already in custody that it was - that he should be detained further so that he could - further investigations could be carried out as to what happened on the night.
Q. What happened where?
A. At Grangegorman, as he had alleged.
Q. Yes. And were you aware of the provisions of the Acts that you were applying in relation to that?
A. There had been an amendment in 1997 to the Criminal Justice Act 1984, which I think it was section 2 which pertained to me that I could - if a prisoner was in custody and the offence for which he was arrested had been - the investigation had been completed, that he should be either released or charged but that he could be further detained if there was information pertaining to another incident which would warrant his proper investigation of the offence for which it was alleged. So, under that section -
Q. Did you consider - sorry?
A. Under that section I informed Mark Nash that I was further detaining him.
Q. Did you consider that you had such further in was?
A. Well, from what Sergeant Pat Lynagh had told me, his - and from the - he said the admissions made by Mark Nash to him, I felt that it was proper that he should be detained for the further investigation of - and to properly investigate the allegations he had made or the - not allegations but admissions that he had made to Sergeant Pat Lynagh and others.
Q. Is that why you granted -
A. That's why I granted the -
Q. All right. And that having been done, you went to Mr Nash, is that right?
A. That's right, and I explained it to him and he said he understood.”
16. The relevant legislation requires that the member in charge, in this instance Sergeant Duffy, has “reasonable grounds for believing that the continued detention (of the appellant) is necessary for the proper investigation of that other offence and (the appellant) may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained”.
17. It is quite clear from the evidence that Sergeant Duffy had reasonable grounds. He had relevant information from his colleagues involved in the questioning of the appellant. In those circumstances, the learned trial judge’s ruling was entirely appropriate and correct.
18. In general, it can be said that Sergeant Duffy acted impeccably in relation to the appellant. He arranged for a solicitor to attend at the garda station, having contacted three different solicitors. He arranged for a doctor to attend the appellant. He arranged for the appellant to go to hospital and he arranged for him to make telephone calls to persons in England. He arranged a visit for the appellant from his young daughter who was in the care of the Health Board and he also telephoned the hospital at the appellant’s request to enquire how the victim of the appellant’s assault, Ms. Doyle, was doing. There was no criticism made by the appellant or his solicitor of Sergeant Duffy.
19. This ground of appeal is dismissed.
Admissions made by the appellant
20. The appellant made certain admissions while at Mill Street and an extensive voir dire was conducted in relation to the admissibility of the inculpatory statements made by him. Unfortunately, the interviews conducted at Mill Street were not the subject of video or audio recording as such facilities were not available at that location at the time.
21. In a letter written by the appellant to his then girlfriend, Sarah Jane Doyle, and subsequently handed to Detective Sergeant Dillon on the 17th August 1997 for delivery to Ms. Doyle, the appellant described in the first paragraph of the letter how he had tried to take his own life and referred to violent tendencies in episodes where he lost all self control. With reference to those violent tendencies and loss of self-control, and clearly referring to the Grangegorman Murders, he went on:-
“It happened before in Ireland near Prussia Street but you’ll read all about it no doubt. I have been interviewed over fifteen times now. Questions relating to Roscommon and to Dublin but I am telling the full truth, I want it out in the open.”
22. In the course of an interview at Mill Street on the 16th August 1997 the appellant stated:-
“About three months ago I was walking home from Dublin city centre to Stoneybatter where I resided at the time. I broke into a house by the back window. I stabbed two women in their sleep. My mind was disturbed at the time. You have to understand that.”
23. On the following day, the appellant made a statement in which he stated, inter alia:-
“I now wish to volunteer information in relation to a double murder I committed in Dublin about five months ago…I came to a two storey end of terrace house. I cannot explain my mind at the time. Everything seemed to turn black, I lost control over myself and decided to break into the house.. While I was in the kitchen I picked up a red handled bread knife with a serrated edge, the blade was about four or five inches long. I went to the stairs…I came out of the bathroom and closed the door..I was facing another door, I opened this door..there was a large lady asleep on the bed. She was lying on her back. I pulled down the duvet of this lady down to her waist..I then started to stab this lady in the chest. I don’t know how many times I stabbed her. It was a frenzied attack. I cut her throat. I think it was just once I cut her throat. When I stabbed her I did it through the night dress. I left the room and left the door open after me. I then turned right, walked down the landing and down three or four steps into another bedroom..There was a bed on the left hand side as you enter..When I looked towards the bed I saw a lady getting out of the bed. She walked to the foot of the bed. I stabbed her in the chest while she was standing, I don’t know how many times. She fell face forward onto the bed. I may have cut her throat. I cannot remember..On the night I was wearing black trousers, white shirt, black velvet jacket and a pair of black brogues. With the exception of the velvet jacket all the other clothes has been discarded.”
24. In a sketch prepared by the appellant on the 17th August 1997 at Mill Street, the appellant wrote “rough sketch of the house where I killed the two ladies”. On the same sketch the appellant also wrote “this map relates to the area and vicinity of the man I saw in the driveway on the night of the Grangegorman murders”.
25. Also, on the 17th August 1997 the appellant consented in writing to the removal from his address in Drumcondra, Dublin 3 of his black velvet jacket stating “This is the jacket I wore on the night of the murders I committed in Grangegorman, Stoneybatter”.
26. While being driven by gardaí from Galway to Mountjoy Prison on the 17th August 1997 the appellant requested the opportunity to identify to accompanying gardaí the house where the murders were committed. A memo of what occurred was prepared by Sergeant Kevin Duffy as follows:-
“Memo of conversation with Mark Nash (prisoner) en route from Mill Street Galway Station to Mountjoy Prison. Prisoner Mark Nash indicated to D/Garda Reidy that he wished to point out the house where he murdered the two women a few months ago. D/Garda Reidy cautioned the prisoner as to the possible consequences of the prisoner saying anything in relation to the murder of the two women in Dublin or pointing out the house where he committed the double murder. The prisoner indicated that he understood same and stated that he wished to point out the house. The prisoner Mark Nash gave directions to the driver from Infirmary Road to Orchard View, Dublin 7. There he pointed out No. 1 Orchard View as the house where the murders took place. He also pointed out No. 1Marne Villas to D/Gda Reidy and he said “that’s where the guy was standing that I mentioned in my statement between the two double black gates except they were opened on the night.”
27. The first retraction by the appellant of his admissions in relation to the Grangegorman Murders was in a letter written in Mountjoy Prison on the 8th September 1997. On the 26th November 1997 the appellant wrote the following letter:-
“Not every man / women who takes their own life leaves a note but I feel I must in the hope that my last message makes it through as I pray it does. Basically, I’ve had enough, this life is not and will not ever be one I wish to live. I am unhappy and I am lonely and I no longer see any hope and so I say goodbye…I want to say that I did not commit that crimes that took place in Grangegorman in March 1997 but by chance I did see what had taken place in that house. Call me nosey or whatever, but when you see someone at 3 a.m. running like their life depended on it you probably would investigate also and so I did. What I saw in that house will and has haunted me, maybe after seeing what I saw you also would go mad as I did one night.”
28. At the conclusion of the voir dire in relation to the issue concerning the admission of statements made by the appellant, in the course of which evidence was heard from a large number of witnesses, the learned trial judge ruled as follows;-
“First, there is a voluntary nature of the admissions made by the accused to the gardaí and indeed the voluntary nature of what most of what he said in the course of his interaction with the gardaí. Secondly, there is the level of police disinterest in the investigation. I use the word disinterest deliberately; I make a distinction between the word disinterest and uninterest. Disinterest connotates a concept of distance or impartiality. The original investigating gardaí were from Galway and had little interest in pursuing, at least initially, what are now known by the shorthand description of the Grangegorman murders. These gardaí in Galway knew little of the details of the Grangegorman murders and the little they did know being picked up by them from reading accounts in the newspapers. At the particular time in August 1997 when the accused initially admitted to the Grangegorman murders the investigating gardaí in Galway had other things on their minds. They were investigating a serious case of double murder in County Roscommon and in addition, insofar as they knew anything about the murders in Dublin, they were aware from reading the accounts in the newspapers that another person had already confessed to the same.
Thirdly, there is no issue raised in this voir dire either by way of evidence or by way of questions put in cross examination, to suggest that the gardaí treatment of the accused was oppressive. Indeed, the gardaí approach to the accused was one of caution, courtesy and fairness. Fourthly, the accused has made a number of complaints both personally and through his solicitor about a number of matters including having made complaints to the garda complaints board but with one exception, it appears that no complaint has been raised about most of the matters which have been the subject of this voir dire.
While as I have said, it is important to place these issues in the context of all the facts and that’s why I do it at the very beginning. I do accept Mr. Hartnett’s submissions that any individual issue which has to be considered separately and that any allegation of a breach of a suspect’s constitutional statutory or other legal right has to be considered on its own merits and individually. All of the foregoing has to be qualified further by reminding ourselves, by me reminding myself, that the burden of proof of all of these individual issues is on the prosecution to establish this position and to do so beyond reasonable doubt..”
29. In relation to the admissions made by the appellant there are three aspects which deserve mention, namely:-
(i) A significant number of admissions were made, including one to his former girlfriend.
(ii) No allegation was made by the appellant in relation to the gardaí such as oppression or coercion. The only complaint subsequently made in relation to the gardaí related to access to a solicitor.
(iii) The gardaí to whom a very full admission was initially made by the appellant in relation to the Grangegorman Murders had no interest in the investigation of those murders. Their interest was confined to the Roscommon Murders. The first reference made to them about the Grangegorman Murders at Mill Street came from the appellant himself.
30. In all the circumstances the decision to allow the admissions into evidence was correct. The learned trial judge had the benefit of hearing the relevant witnesses first hand, including the gardaí concerned. He properly exercised his discretion to admit that evidence in the course of the trial.
31. This Court finds no error in relation to that decision.
Access to a solicitor
32. On the 16th August 1997, following his arrest by gardaí in Galway in relation to the Roscommon Murders and the assault on Ms. Doyle, the appellant requested to see a solicitor following his arrival at Mill Street Garda Station. This request was recorded in the garda station at as having occurred at 8.10 p.m. on that date. Gardaí made a number of unsuccessful attempts to contact local solicitors until eventually, Mr. Peter Allen, solicitor, was contacted at about 8.35 p.m. whereupon he agreed to attend at the garda station. Before the services of a solicitor were arranged and prior to his arrival at Mill Street, however, gardaí began questioning the appellant in relation to the Roscommon Murders but no questioning of the appellant took place in relation to the Grangegorman Murders at that time. Indeed, there was no mention to the gardaí of the Grangegorman Murders until after Mr. Allen had engaged in consultation with the appellant. Mr. Allen duly attended at the garda station at 8.45p.m. It was Mr. Allen who informed the gardaí that his client wished to admit to the Grangegorman Murders.
33. The gardaí asked Mr. Allen if he wanted to remain with the appellant while he was being questioned about the Grangegorman Murders but Mr. Allen declined stating that he had a commitment elsewhere. He also told the gardaí that the appellant had not requested him to remain.
34. It is contended on behalf of the appellant that he ought not to have been interviewed by gardaí in relation to the Grangegorman Murders in the absence of his solicitor. He was, however, interviewed in circumstances where the appellant had had access to his solicitor before making admissions, had indicated through his solicitor to the gardaí that he wished to make admissions in relation to the Grangegorman Murders and voluntarily agreed to be interviewed by the gardaí in relation to the Grangegorman Murders in the absence of his solicitor in circumstances where he knew, or must have known, that the gardaí would respect any request he might make to have a solicitor present and would endeavour to seek one in replacement of Mr. Allen if necessary.
35. On the issue of the appellant’s access to a solicitor by the time he made admissions in relation to the Grangegorman Murders, the learned trial judge ruled as follows:-
“The evidence has revealed the following facts to my satisfaction; the gardaí sought to secure a solicitor for the accused as soon as he requested one. The first mention of the Grangegorman Murders to the gardaí was after he had consulted his solicitor. It was also after this consultation between his solicitor, Mr. Allen, and Mr. Nash that Mr. Allen, the solicitor, told Superintendent Sugrue that Mr. Nash wished to admit to the Dublin murders. Immediately following this legal consultation the accused himself told the gardaí that he wished to make admissions to the Grangegorman murders. Mr. Allen, the solicitor, was permitted to sit in on the interview on the evening of the 16th August 1997 which admittedly was concerning the investigation into the Roscommon cases but he was permitted to sit in on these interviews when, as the law was understood at that time, his presence could have been refused by the gardaí.
It is submitted by the prosecution, and I accept, that the fact that Mr. Allen was permitted to be present during that interview is a powerful indicator to Mr. Nash and to the Court now that if he had wished to have a solicitor present on other occasions that this would have been accommodated. Now, the absence of solicitor or solicitors at subsequent interviews cannot be said to have put the accused at a disadvantage. It is clear from reading the transcripts and exhibits that the accused was very conscious and understood what was happening. He can be taken to know when he needed a solicitor and when he could proceed without one and I think in the light of what I have said an assumption can be made that at all material times, the gardaí would have facilitated the presence of a solicitor.
Now, the defence submits that Mr. Nash had initially made it a condition of admission to the Grangegorman murders that a solicitor be present. When Detective Garda Dillon asked Mr. Allen if he would, he, Mr. Allen would stay for the Grangegorman interview, Mr. Allen said that he had a family commitment and that he would not stay because his client, the accused, had not asked him to do so. It is the defence case that this right to the solicitor is personal to the accused and accordingly the question should have been put to the accused and not to his solicitor. However, taking all the surrounding circumstances into account it cannot be said in reality that Mr. Nash was at a disadvantage, that he was unhappy or that he was unwilling to proceed with the Grangegorman interview in the absence of further access to a solicitor. That this is so borne out by the garda inquiry interview under the auspices of Assistant Commissioner McHugh which took place in Mountjoy Prison in Dublin shortly afterwards on the 8th September 1997 at which was present Mr. Allen, the same solicitor. Now, as I say, this was an interview in the course of a garda inquiry and one of the questions put by Assistant Commissioner McHugh to Mr. Nash was, “did you make all the admissions about the Grangegorman Murders in Galway voluntarily?” to which the accused answered, “that is correct. I was in a state of duress and I was guilt ridden. I was told by garda officer in Galway that another person had been charged with the murders in Grangegorman, I did not know that up to that point”. For all of these reasons I cannot accept that the accused has been deprived of access to a solicitor, that any such deprivation is deprivation of his rights or renders his detention unlawful.”
36. Reliance is placed by the appellant on the Supreme Court decision of DPP v. Gormley and White  2 I.R. 591. The decision in that case was handed down many years after the events in Galway in August 1997. Undoubtedly, the decision in Gormley and White has strengthened the argument that the denial of a request to have a solicitor present during the course of questioning by gardaí is a breach of a person’s constitutional rights, as is the commencement of the questioning of a suspect before the arrival of a solicitor who is known to be on route to a garda station. Prior to the decision in that case, and at the time when the appellant was questioned about, and made admissions in relation to, the Grangegorman Murders the legal position in relation to the questioning of suspects was much less firm.
37. The legal position in relation to access to a solicitor prevailing in 1997 was generally based on the decision of the Supreme Court in DPP v. Healy  2 I.R. 73. That judgment spoke of the consequence of obtaining an admission as a consequence of a deliberate and conscious act by the gardaí to frustrate access to a solicitor. In that case the law in relation to an individual’s right to a solicitor when detained was less stringent than it is now. The relatively recent decision of Clarke J. in Gormley is relevant in this respect.
38. In Gormley, Clarke J. (as he then was) said:-
“The right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having had an opportunity to obtain such advice. The conviction of a person wholly or significantly on the basis of evidence obtained contrary to those constitutional entitlements represents a conviction following an unfair trial process.”
“In summary, therefore, so far as Mr. Gormley's case is concerned, I am satisfied that it has been established that Mr. Gormley did not have a trial in due course of law by reason of the fact that a material element of the evidence on foot of which he was convicted was evidence obtained during questioning which occurred after he had requested legal advice and before that legal advice had been obtained. On that basis, it is unnecessary to consider whether Mr. Gormley could have succeeded in his appeal by placing reliance on the ECHR.”
39. In the instant case there are present features which readily distinguish it from Gormley. The appellant was not denied access to a solicitor. Insofar as any questioning of the appellant took place prior to the arrival of the solicitor, Mr. Allen, to the garda station, he was not questioned in relation to the Grangegorman Murders. By the time he came to be questioned about the Grangegorman Murders he had enjoyed access to a solicitor. He had not requested that the solicitor remain at the garda station while he was being questioned in relation to the Grangegorman Murders, nor did he seek a new solicitor in circumstances where Mr. Allen had to leave the garda station because of another commitment. It is inconceivable to imagine that prior to his departure Mr. Allen had not had some discussion with his client in relation to the Grangegorman Murders and his intended admission to the gardaí in relation to them. Therefore, the appellant was in an entirely different situation than that of which concerned the appellant in Gormley.
40. The Court is satisfied that the learned trial judge’s ruling in relation to the solicitor access issue was entirely reasonable and appropriate. It therefore rejects this ground of appeal.
The scientific evidence
41. Although categorised by the appellant as one of the two ‘main planks’ of his appeal (the other being the issue of his admissions), what might be described as the primary focus of the appellant in this appeal concerned the forensic evidence adduced in the course of the trial, and, more particularly, the appellant’s contention that the risk of contamination was such as to render any such evidence extremely weak, discredited, unreliable, unfair and of no probative value, and, which with other issues prompted an application from the defence to withdraw the case from the jury at the conclusion of the prosecution case. That application was refused as was an application for a direction made following expert scientific evidence called on behalf of the defence.
42. The appellant’s jacket, which had been recovered from 133, Clonliffe Road, Clontarf in August 1997 was examined forensically in Dublin, Northern Ireland and England, but to no effect at that time. By 2009, DNA testing techniques had improved significantly in the interim and a decision was made to subject the jacket to further forensic analysis. DNA from inside the lining of the right cuff of the jacket and from threads which had been taken from the buttons (and stored separately) in 1998 was recovered. It matched the DNA of the two murdered women respectively.
43. The source of the DNA was and remains unknown. It could have been a blood stain, a hair, a flake of blood or hair, dandruff, or something else. It was also impossible to identify precisely when the DNA was deposited on the jacket. It was known that the jacket had been subjected to a dry cleaning process at some point in time before it was seized by gardaí, as there was a dry cleaning docket pinned to it.
44. A number of forensic scientists gave evidence in the course of the trial. Dr. Fiona Thornton, Mr. Michael Norton, Dr. Louise McKenna, Dr. Maureen Smith, Dr. Brid McBride, Dr. Linda Williams and Dr. Geraldine O’Donnell did so on behalf of the prosecution and were examined directly and in cross examination. Dr. Syndercombe-Court and Dr. Philip Avenell gave evidence on behalf of the defence and were likewise examined directly and in cross examination.
45. There was no dispute as to the identification of the DNA and its link to the murdered women. The contentious issue that arose in the course of the trial in relation to the DNA evidence revolved around the issue of contamination, and whether the possibility that the relevant material found on the jacket and on the button threads had been deposited at the time of the murder (thus tending to prove the appellant’s presence at the murder scene and in the course of the committing of the murders), or whether it had accidently landed on the jacket as a result of contamination in Room 3.6 in the FSL where forensic examination of various items from the scene of the double murder had taken place.
46. Room 3.6 was also the room where heavily bloodstained items recovered from the murder scene had been brushed down and examined in 1997. In the intervening years the jacket had been stored in a locked garda locker at the Bridewell garda station. In 1997 the jacket was kept in an unsealed bag within the FSL and in relatively close proximity to other items from the murder scene which were the subject of examination at that time.
47. For example, the evidence referred to improvements in cleaning protocols, the wearing of masks and caps to protect contamination from the scientist’s own DNA and the cleaning of the outside of bags in which material subjected to, or awaiting subjection to, analysis were kept. An example of a less rigorous state of affairs in 1997 was that the blood stained clothes were brushed down in Room 3.6 whereas now this would not be done. Furthermore, the bedclothes from the murder location would not have been brushed down in Room 3.6 for glass in the manner described by Dr. Norton as having taken place in 1997. Yet another example is that files relating to items of forensic evidence would not now be taken into the laboratory, whereas in 2009 they were.
48. The current guidelines that deal with the risk of contamination (known as FSL BTS 152 6th Revision) state:-
“The possibility of exhibit contamination within the laboratory has to be considered at all stages from receipt to analysis. In the area of DNA profiling, contamination by staff is most likely to be from an epithelia cells from hands, saliva and dandruff. Hair is also a potential DNA source, and in addition there is the possibility of inter and intra contamination…Practical aspects of avoiding contamination balanced with satisfactory procedures to minimise the risk of contamination are established in the laboratory for the identification of blood.”
49. It is useful at this juncture to consider closely the evidence from the various expert witnesses in relation to the contamination issue. Dr. Louise McKenna gave evidence on Day 32 of the trial. Dr. McKenna was a highly qualified scientist working with the FSL for over thirty five years. Her speciality was in the area of biology, including body fluids and fibres. In the course of her evidence, she provided the following information:-
“Q. Now, I think you told us that when you examined this button one and you saw, you used the KM test and you saw the light blood staining and we've seen the photo, and there was I think the word you used yesterday, was particulate material adhering to it; is that right?
Q. …when you say "adhering” what precisely do you mean by that?
A. I mean I could see small matter that was on the surface of the button that wasn't the original button surface.
Q. Mr Hartnett was putting to you a suggestion that a blood flake could land on a surface?
A. Yes, no. It wasn't - it wasn't a blood flake, it was actual - something adhering, that didn't - that didn't - it's just a small, something small on the surface of the button that was adhering.
Q. I see, adhering. And I think you told us yesterday that the buttons and threads were in plastic bags within the cardboard face file that we've seen there, is that right?
Q. And if one - if a blood flake were to have been in the dust and travelled on to a case file, to get at the button or threads or any of the buttons or threads, what would it have to do?
A. It couldn't get at the buttons or threads because they were inside plastic bags that were sealed with sellotape. So nothing could get into them. And they were further inside another plastic bag, and in the body of the file.”
50. Dr. Maureen Smith gave evidence on day 33 of the trial. She was also a highly qualified scientist with thirty five years experience working as a forensic scientist. She had also worked for thirty five years with the FSL prior to her retirement some months before giving evidence. Her area of expertise was DNA. She described how the FSL became involved in DNA testing as follows:-
“..the first half of the 1990s when we started to carry out our own DNA profiling, and at that stage we did it on a fairly limited number of cases. Partly because of the system which required, as we've already heard, a considerable amount of material. And from the mid-1990s, I suspect, if we thought the samples were too small, they were sent to the United Kingdom because they had moved on to the next generation. We ourselves introduced that type of profiling on small items in 1999.”
51. Dr. Smith disagreed with the suggestion that the DNA recovered from the button threads and inside the jacket sleeve could be explained by the contamination of the jacket from other items from the murder scene and also forensically examined in the FSL some weeks earlier. When asked to explain why she disagreed with that proposition, she stated:-
“Well, for the reasons I've outlined, when considering whether or not I was of the opinion that contamination was the cause of finding those profiles, such as the fact that they were the only profiles found; the samples were on one sleeve which was also the sleeve that had initially given some faint indication of blood; that in addition, the clothing from the two women were examined in that same glass recovery room, I think about one week apart, and yet there's no evidence of significant contamination of one set of bedclothes with the other, and the jacket was a further six weeks on, so I wouldn't consider that that's equally likely.”
52. She also stated:
“Again, in many instances of contamination where the amounts of DNA found are very small, a full profile is not obtained, but a partial or a lesser amount is obtained, but in fact the amounts of DNA in this case were quite significant. I mean, they were measurable. That's, I think, evidence that - it was in Dr Williams's file.”
53. In the course of cross examination, Dr. Smith stated:-
“..having looked at the records and being aware of the technology and also the regimes and the fact that it was different, I obviously wasn't assessing a risk in advance. We had results and I was looking at them to see were they safe, and based on what I've already talked about, the fact that there were no other extraneous profiles turning up, despite the fact that the activity in that room had continued over the period of time and the fact that subsequently the threads were sealed inside these multiple bags et cetera, which was I formed the opinion that the results were sound. And if I hadn't formed that opinion or if I'd formed a different opinion, I would have informed the DPP's office.”
54. Dr. Brid McBride gave evidence on Day 36 of the trial. She was also a highly qualified scientist with twenty five years experience working in the FSL. Her area of expertise was bacterial genetics. She was involved in forensic examination of the jacket on the 19th May 2005 and on subsequent dates. The following exchange took place between counsel for the prosecution and Dr. McBride.
“Q. In relation to your specific involvement in the case, can you comment in any way as to the possibilities of contamination?
A. Yes, I mean contamination is something that we're always aware of in the laboratory and it's one of the first things we'll think of when we get a profile, and this case was no exception. When Dr Williams told me that she'd developed a profile the first thing I did was to go back and see if there was any possibility that it could have arisen due to contamination, and I satisfied myself that there wasn't a possibility.”
55. She also stated:
“Yes, I mean that was one of - another reason why I felt quite happy because I had examined the outside of the jacket, particularly those - the sleeves of the jacket and found absolutely no other microscopic particles. And the particle I found was covered and it was inside the seam of the jacket, so how did it get inside the seam? There was nothing on the outside of the seam, so I was happy that this was an area that was protected..protected from any possible contamination. For a contamination even to have occurred it would have had to come from the outside of one bag to the outside of another, to the inside of that bag and from the outside of the jacket to inside the seam of the jacket which I felt was highly unlikely.”
56. Dr. Geraldine O’Donnell gave evidence on Day 37 of the trial. Like her colleagues she was also an experienced and highly qualified scientist and had worked in the FSL since 1982. Her expertise was in the area of DNA. She was also the Laboratory Quality Manager until 2007. She gave evidence in relation to anti contamination measures and contamination avoidance within the FSL. She explained how the risk of contamination was always present within any forensic laboratory. She described the steps taken over the years, and their improvement and updating with the passage of time, to deal with the risk of contamination, a risk which was ever present in any laboratory setting and which required constant vigilance and adherence to strict guidelines.
57. Dr. O’Donnell was the last prosecution scientist to give evidence.
58. Mr. McGrath S.C. (for the appellant) then applied to the learned trial judge by way of what he described as a “two headed application”. His application was for a direction and for a stay. Mr. McGrath made extensive submissions in relation to what he argued was the unreliability of the DNA evidence because of the risk of contamination. He submitted, inter alia:-
“So, it is clear, one, that there was no environmental monitoring back in 1997/1998. It is clear that the reason, as Dr Smith understands it, that environmental monitoring is carried out is to conduct background samples to see what type of DNA is there and if there is a DNA problem, and that was not taking place, that only started in 2010 or a number of years beforehand. And that of course is yet another anti contamination procedure that is there to minimise or guard against contamination. But, even with these modern cleaning systems, modern precautions, modern awareness’s of dangers, the fact remains that there was contamination in the laboratory. And this emerged, and this is a matter of considerable concern, this was something which was not brought to the table by the prosecution, but this is something which emerged by luck, so to speak. And this is something which is of real concern to the defence in this case, and should be a real concern to the Court in general.”
59. He also said:-
“…there was a failure to disclose firstly that there had been a review in this case in relation to contamination and the possibility of contamination. Secondly, there was no documentary evidence of that and, thirdly, there had been other contamination events, including a case-to-case contamination event in the laboratory. And that, in my respectful submission, that attitude towards disclosure is not consistent, in my respectful submission, with what ought to be expected of independent scientists in a case of this kind..”
60. Ms. Ní Raifeartaigh S.C. (as she then was), counsel on behalf of the prosecution, then made detailed submissions to the learned trial judge. She, in effect, in the course of her submissions, methodically reviewed the evidence of the various scientists who gave evidence, particularly in relation to the issue of contamination. She concluded her submission to the learned trial judge, on that issue, in the following terms:-
“Now, in my respectful submission, as regards the DNA evidence, that is a matter which should be left to the jury. And we are dealing at this stage with the Galbraith/Lacey application and it should only be withdrawn from the jury, in my respectful submission, if the Court were to consider that the evidence of contamination is so high that it could not safely be left to a jury. And I respectfully suggest on the contrary the evidence as it stands now at the end of the prosecution case is that no scientist out of the various scientists called, not one has conceded the risk of contamination in this case. Yes, in the abstract; yes, in general, there are general risks of contamination, but none of them has said or conceded that in their view there was contamination at play in the DNA findings in this particular case. And so I say, it is very, very, very far from the threshold where this case should be withdrawn from the jury on the scientific evidence.”
61. Further exchanges took place between counsel and the learned trial judge in relation to the scientific evidence. Ultimately, he refused the defence application, and in the course of his lengthy ruling he referred to the contamination issue in the following terms:-
“On the issue of the DNA evidence, all of the scientists are alive and they have all given evidence as to what they did, most of which has not been contested or contradicted. The defence asserts that it is unfair to let the matter go to the jury because there is not enough information on which a jury could make an assessment because, in a contemporary examination and analysis of material, there would have been fuller recording and documentation of the process. However, that does not mean that a jury cannot make an assessment in this case and, indeed, any issue about the reliability or credibility of the scientific witnesses is a matter for the jury. Indeed, the jury here will have an enormous amount of information, evidence and exhibits in this case on which to make a judgment. There is much information in this case as to what the scientists did, what they found, as to the procedures they followed, where they stored exhibits and so on and so forth.
Now the R v. Hoey  NICC 49 (20 December 2007) judgment from Northern Ireland, a judgment of Weir J, has been opened before me and accordingly I feel I should mention it. Weir J in that case settled the law as being that the burden of proof is on the prosecution to establish the integrity and freedom from possible contamination of each relevant item that was examined and analysed. But this was a judgment in the case of a judge sitting alone delivering a final verdict of acquittal, as distinct from an application to withdraw a case at the conclusion of the evidence for the prosecution, to withdraw a case from the jury. The facts, in any event, were different from what is present here…Now I think I should say in this case that I have ignored the controversy about the presence or absence of other contamination on the jacket. I've ignored that for the purpose of making this ruling. By that I mean it may be that the prosecution will pursue the point before the jury if they wish, but, in the light of what has been argued by counsel, I have accepted the defence position on this for the purpose of making this adjudication. That of course is without prejudice to what may follow subsequently in the case.
On the POC type application, I refuse it. And then there is the second leg of the Galbraith application which is an application to give a direction of not guilty on the basis of the unreliability or weakness of the case for the prosecution…Accordingly, I refuse that application as well.”
62. Expert scientific evidence was then called on behalf of the defence. Dr. Syndercombe- Court gave evidence on Day 41 of the trial. She was a U.K. based and highly qualified scientist and a member of the British Academy of Forensic Sciences and the European Profiling Group. In an initial report prepared by her she had suggested that in her view the risk of contamination was low. This was due to her belief that the relevant items had been the subject of examination in different rooms within the FSL. Upon discovering that this was not the case, she prepared an addendum to her report in which she expressed a concern of a significant increased risk of contamination. She concluded her direct examination as follows:-
“..the environment that the items were examined in would have placed those items in high risk of contamination when viewed in the sort of current day knowledge and although it might have not been expected, when it was - contamination like this wouldn't have been expected in 1997, but that didn't mean to say that it didn't exist. There is clear evidence of DNA on this item that I've seen, the jacket, from several individuals and that might have arisen from a contaminating event. I was clearly wrong when I wrote my original report giving the impression - I erroneously thought, perhaps - potentially guided by another document, that these items hadn't been examined in the same room. So, in my view, there is a high risk of contamination of these items when we examine them using newer technology.”
63. The following exchange took place between counsel for the prosecution and Dr. Syndercombe-Court in the course of cross examination:-
“Q. I'm suggesting to you, doctor, that the most that anybody could say is that there is a possibility of contamination because of the nature of science. That's the most that anybody could say?
A. Well if I say "possibility" are you going to put - are you going to imply that that's of a low risk or -?
Q. Well, you see, I have no idea what precisely you're saying because risk is one thing and it's impossible to quantify, correct? Risk is impossible to quantify?
A. Well you-
Q. You can't say 5%, 10%?
A. You can't put a number to it.
Q. You can't put a number on it?
A. But you can suggest low or high. My feeling is that because of the nature of this room there would be likely to be a high level of debris that might be retained in the room.
Q. That's your feeling?
A. That's my feeling.
64. Dr. Philip Avenell gave evidence on Day 42 of the trial. His qualifications included Bachelor of Science and Master of Science Degrees, with a doctorate in Philosophy. He was employed with the Forensic Science Service in London since 2002 working with body fluid examinations and the identification and interpretation of test results.
65. Dr. Avenell’s evidence included the following:-
“..I had compared two hypotheses as I explained; one considering whether or not the DNA results were obtained as a result of the jacket being present at or around the time of the murders of Ms Shields and Ms Callinan and also one considering whether or not the DNA could have been deposited on the jacket after the jacket had been seized by the garda. My overall assessment was in my opinion I was unable to determine which of those was more likely given the scientific findings with which I have been able to review.”
66. The following exchange took place between counsel for the prosecution and Dr. Avenell:-
“Q. And I'm putting it to you that there isn't in fact and you haven't put forward any proper scientific basis for your suggestion that there is an equal possibility of the DNA having been deposited from contamination?
A. I have raised the issues and the considerations that must be made in order to determine which of the two scenarios is more likely and I have considered both of those scenarios within the structure of my report.
Q. Where I'm suggesting to you the overwhelmingly likelihood is that on an occasion when both Ms Callinan and Ms Shiels had blood and tissue coming from them on the one occasion, that that is the likelihood as to when matters got on the jacket?
A. And as I've already stated I would expect to see more blood or more blood particles present if that were the situation, but yes, that is one explanation for the findings”.
67. On the issue of the dry cleaning of the jacket and whether that process would likely have removed the material that was subsequently found on the jacket in the FSL had it been present when seized by gardaí, Dr. Avenell stated:-
“Washing of clothing doesn't always remove staining and certainly doesn't always remove blood staining. We have seen examples where items have been both washed and dry cleaned and some blood staining has remained, either visible or detectable using a technique such as Luminol.”
68. Mr. Hartnett S.C. proceeded to apply to the learned trial judge for a direction to withdraw the case from the jury in the light of the evidence from Dr. Syndercombe-Court and Dr. Avenell. He summarised his submission to the learned trial judge in the following terms:-
“..Is there evidence, scientific evidence, consistent only with guilt and inconsistent with any rational hypothesis of innocence? And before that evidence can be allowed to go to the jury this Court would have to find that there was evidence on which a jury could find beyond any reasonable doubt that the DNA was deposited at the time of the murder and not in the laboratory, and even the prosecution say nobody can say that.
And can I say, Judge, that it is not a classic matter for a jury where they can be allowed to speculate, because if six scientists have come here and who cannot say when it was deposited and they were brought here for a reason, to give their expertise in relation to time of deposition, et cetera, if they cannot say it, then the jury cannot be asked to say it and to do so would be an invitation to speculation and a legal mischief, in my submission.
69. In refusing the application, the learned trial judge ruled as follows:-
“In my view, all of the matters which have been canvassed in this application revolve around the weight to be attached to the evidence of the witnesses, particularly the scientific witnesses called for the defence but also, of course, insofar as they are to be counter-posed with the evidence of the scientific witnesses for the prosecution and this depends on the interpretation of the strengths and weaknesses of the various matters given in evidence, the credibility and reliability of witnesses. To my mind, all the matters canvassed are matters for the jury to determine.
On the question of disclosure, there has been an amount of disclosure by the prosecution to the defence. There have to be always limits on disclosure to be determined according to the relevance of what's been sought and what is there to be disclosed, and in the context of the evidence of this case there has been adequate disclosure and certainly there is nothing to base any finding that the lack of disclosure has led to a situation where there's unfairness in the case and that the case should be withdrawn from the jury. Accordingly, I refuse the application to direct the jury to find the accused not guilty on the basis of what I've just said...So, I refuse the applications.”
70. Undoubtedly, in the Court’s view, the extensive scientific evidence given to the jury did not conclusively prove or disprove contamination. However, it is well established that for a matter to be left to the jury it does not have to be on the basis of particularly strong evidence in one direction or another. In DPP v. Buckley 3 IR 745, it was stated:-
“In considering, at the close of the prosecution case, whether sufficient evidence has been adduced to allow the case to proceed to the defence case, or to submissions, a trial judge should be concerned to see whether the proofs necessary to make out the charge have been adduced in evidence. At that stage, the trial judge is not concerned with issues of credibility or with sufficiency of proof but with the technical nature of the elements of the offence and whether these have been reflected in evidence by proof. There can be exceptional cases where the nature of a necessary proof is found to be so tenuous that a trial judge would be compelled to make a conclusion that any consequent conviction would be unsafe. In those very rare cases the issue as to conviction might be withdrawn from the jury, or from the judge acting as the tribunal of fact.” (emphasis added)
71. The very same issue was considered by this court in DPP v. JEM.  IECA 65. In its judgment, delivered by Edwards J., the following is stated:-
“47. At the outset the Court wishes to address a misconception that it occasionally encounters, that the second limb of Lord Lane’s celebrated statements of principle in R v Galbraith represents authority for the proposition that a case must be withdrawn from the jury if the prosecution’s evidence contains inherent weaknesses, or is vague, or contains significant inconsistencies. This Court wishes to emphasise that it is not authority for that proposition.
48. On the contrary, the emphasis in Galbraith is on the primacy of the jury in the criminal trial process as the sole arbiter of issues of fact. What Lord Lane was in fact saying in Galbraith was that even if the prosecution’s evidence contains inherent weaknesses, or is vague, or contains significant inconsistencies, it is for the jury to assess that evidence and make of it what they will, unless the state of the evidence is so infirm that no jury, properly directed, could convict upon it. Accordingly, what Galbraith is in fact concerned with is fairness.
49. Moreover, implicit in the Galbraith principles enunciated by Lord Lane, is that withdrawal of a case from a jury should be an exceptional measure to which resort should only be had for the purpose of avoiding a manifest risk of wrongful conviction.
50. This Court considers that the matter is well put in the following quotation from Archbold, Criminal Pleading Evidence & Practice 2014 at page 484, where the authors state:
“In making the judgment in line with the second limb of Galbraith, as to whether the state of the evidence called by the prosecution, taken as a whole, is so unsatisfactory, contradictory or so transparently unreliable, that no jury, properly directed, could convict, the judge must bear in mind the constitutional primacy of the jury and not usurp its function.”
51. Further, in The People (Director of Public Prosecutions) v M. (Unreported, Court of Criminal Appeal, 15th February, 2001) Denham J, as she then was, provided the following exegesis, with which we fully concur, concerning how the Galbraith principles ought properly to be applied:
“If there is no evidence that an element of the crime alleged has been committed, the situation would be clear. The judge would have to stop the trial. However, that is not the case here. If a judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict it is his duty to stop the trial. However, that is not the case here. Here there is lengthy evidence from the complainant in which there are some inconsistencies. These inconsistencies are matters which go to issues of reliability and credibility and thus, in the circumstances, are solely matters for the jury. The learned trial judge was therefore correct in letting the trial proceed. These are matters quintessentially for the jury to decide. However, if the inconsistencies were such as to render it unfair to proceed with the trial then the judge in the exercise of his or her discretion should stop the trial. However, that is not the situation here. On the facts and the law the learned trial judge did not err in refusing to withdraw the count in respect of the sexual assault from the jury at the conclusion of the prosecution case.””
72. Some emphasis was placed by counsel for the appellant in submissions made to the court that scientific evidence, because it is so specialist in nature, ought to leave a jury in a position where it can adjudicate on such evidence with some degree of certainty. Mr. Hartnett submitted that the basis for the prosecution’s scientific evidence was itself suspect and therefore the jury should not be asked to put it into the mix of evidence for their determination. He was critical of Mr. Grehan’s response to a question put by a member of the court as to how the prosecution viewed the extent of the risk of contamination based on the evidence in the case, when he suggested that the scientific evidence should be treated no differently to other evidence and be left to the jury for decision. However, that is true to this extent. Scientific evidence is evidence, albeit evidence based on facts, figures and opinions expressed by expert witnesses. It requires to be weighed and assessed by a jury in the same way as any other evidence. Scientific evidence may be very strong in one direction whereas in other cases less so. However, unless “the state of the evidence is so infirm that no jury properly directed could convict upon it” (DPP v. JEM.), it ought to be left for decision by the jury.
73. In the court’s view while there were certainly conflicts in the evidence as between the scientists called on behalf of the prosecution and those called on behalf of the defence in relation to the issue of contamination, it could not be said that the prosecution evidence was so weak as to justify the withdrawal of the case from the jury or the granting of a direction to the jury. It is clear from reading the evidence of the various scientists, when considered in its totality, that there was justification for a determination by the jury that the DNA profiles on the jacket seized from the appellant were present on that jacket from the time of the double murder. Such a determination, assuming it was made by the jury, could not be said to be perverse or against the evidence.
74. The learned trial judge enjoyed the considerable benefit of having heard days of evidence from the various scientists, all experts in their fields, and assessing their level of knowledge and the confidence exhibited by them in expressing views and providing opinions over a prolonged period during the course of robust cross examination. This Court would therefore attach considerable weight to the learned trial judge’s appreciation and assessment of that evidence and ultimately his decisions in relation to the applications made by the defence. Those decisions were in no way unreasonable nor did they exhibit any inappropriate exercise of his discretion as the trial judge to permit the trial to continue. His decisions did not render the trial unsafe.
75. This ground of appeal is therefore dismissed.
Admission of other evidence
76. Issue is taken by the appellant in relation to the decision of the learned trial judge to admit into evidence the report of Professor Harbison, evidence from Gardaí Donnellan and Hayes, evidence from Dr. Maureen Smith and admissions in letter intercepted by the gardaí.
Professor Harbison’s report
77. Professor Harbison, the State Pathologist, was unable to attend the trial to give evidence due to illness. The learned trial judge ruled that Professor Harbinson’s report could be read to the jury despite misgivings about its reliability arising from a report prepared by Professor Harbinson’s successor as State Pathologist, Professor Marie Cassidy. It was further complained that the concerns expressed by Professor Cassidy were not advised to the jury and that this constituted a breach of fundamental fair procedures.
78. Similar issues concerning Dr. Harbison’s unavailability to give evidence have arisen in a number of criminal trials.
79. In DPP v. Rattigan  2 I.R. 221, O’Donnell J. stated:-
“Objection was taken to the admission of Professor Harbison's report. Professor Harbison was no longer available to give evidence for health reasons. Evidence of his ill health was given to the court. While it was submitted by the defence that the court was wrong to admit the report into evidence, this court is satisfied that the court was not only entitled to do so, but was correct.”
80. In the instant case, the learned trial judge ruled as follows:-
“The issue that raises itself now, apart from any underlying principle of fairness, is whether or not the report of Professor Harbison is reliable and in my view, in light of what I have heard in the submissions, there is no basis for coming to a view that it is unreliable. I take on board what Prof. Cassidy has said about the notes and the absence of photographs as regards every injury described but she hasn’t seen the report, and in my view there is not a basis for saying that the report is unreliable and I rule it admissible under the Act of 1992.” (a reference to the Criminal Evidence Act 1992)
81. The Court is satisfied that the learned trial judge’s ruling was correct and appropriate in the circumstances.
The evidence from Assistant Commissioner Donnellan and Chief Superintendent Hayes
82. Objection was taken by the defence to the decision of the learned trial judge to allow the prosecution to adduce matters from the interviews of Dean Lyons in the course of the re-examination of Assistance Commissioner Donnellan on the grounds that such were hearsay and not admissible under any exception to the hearsay rule. It was also contended that the learned trial judge was wrong to adduce evidence from a previous consistent statement of a witness, Chief Superintendent Hayes, in the course of his re-examination. The basis for doing so was that the statement could be adduced to rebut a suggestion by the defence of recent fabrication.
83. The application for permission to put certain material to Assistant Commissioner Donnellan in his re-examination arose in a particular context, that is to say the putting by the defence to witnesses of what was described by the prosecution as highly selective propositions of what Dean Lyons was alleged to have said in relation to certain factual matters. In the course of her submission to the learned trial judge, Ms. Ní Raifeartaigh S.C. (as she then was) addressed the learned trial judge thus:-
“So, the position, Judge, is that notwithstanding what Mr. Hartnett says, the jury are entitled to have a fair understanding of what Dean Lyons said, because what is being suggested ultimately apparently is that portions of his statement are entirely in accordance with the evidence. And the jury have to assess that contention and they cannot assess it if they don’t accurately (know) what he said…The jury have to know the evidence, they can’t be misled as to what Dean Lyons said in anyway by having incomplete accounts of what he said to them…”
84. In a well considered ruling in relation to issue relating the statements of Dean Lyons, the learned trial judge stated:-
“Well, the submission is that all of these matters were put to the - this - witness and to the previous witness by way of testing the extent and reliability of - and probative maybe also, of the garda - review of their investigations of - and taken of statements of Mr. Lyons and Mr. Nash. This has to do presumably with the credibility of the garda investigation. And that’s fair enough, I mean for the defence to probe these questions, but it is also emerging as an issue that whether or not the admissions and statements of Mr. Lyons are consistent with what was found actually - on - in situ which might lead to the inference that Mr. Lyons in fact was the perpetrator of these offences. Now, that has become an issue in the case and that’s a matter certainly the jury is going to consider. However, in that situation, it seems to me proper to allow the prosecution to re-examine these matters to - for - the reasons that the prosecution argues, an attempt by them to put some balance on what was said in fact by Mr. Lyons..this illustrates in my mind the undesirability of me or anybody getting involved in a dispute as interpretation about the facts of the evidence. The - what - the - issue has now gone beyond just what any particular witness says or reacted or expressed views about. This is a matter I think the prosecution has to be allowed - give - open to the jury other matters in the statements of Mr. Lyons by way of balance as they put it. And then ultimately, it is a matter for the two sides to submit whatever arguments they wish to do before the jury so there cannot be any innate unfairness in allowing the prosecution - re-examine - on these matters.”
85. In relation to the issue relating to Chief Superintendent Hayes, the prosecution sought to put to him a prior statement he had made for the purposes of discounting any suggestion of recent fabrication in relating to entering 133, Clonliffe Road on the 17th August 1997 and the seizure of the jacket which provided the crucial DNA evidence.
86. The learned trial judge ruled as follows:-
“…But it is being put to him that it is a fabrication, and that it is - in - too much of a coincidence in line with the other matters that have been put to him. But in my view, the end purport is the same, it is a contention made, given that the rent book was only provided in relatively recent times, relatively speaking, as was his witness pack. It seems to me that it is being put to him that it is in effect, that it is an invention of late date. So I think I will allow the re examination.”
87. The Court is satisfied that the rulings made by the learned trial judge in respect of these two witnesses were correct. It is satisfied that no unfairness arose as a result of these rulings.
The evidence of Dr. Maureen Smith
88. Dr. Smith was one of the forensic scientists called by the prosecution in relation to the DNA evidence.
89. In the course of his re-examination of Dr. Smith, Mr. Grehan S.C. asked her:-
“…because you have been asked a lot of questions about contamination. In relation to the case this jury are concerned with, have you any concerns about contamination?”
90. Mr. Hartnett S.C. objected to the question. His objection was based on what he contended was Dr. Smith’s limited knowledge of the case and her limited involvement in it. He was concerned that she was been asked to give her “personal views of concern”.
91. The objection taken by Mr. Hartnett S.C. in submissions made by him to the learned trial judge at the time were clearly restricted to his objection as to the generality of the question asked of Dr. Smith. Mr. Hartnett voiced his objection in strong terms as follows:-
“…For my friend to ask a bland question in re-examination, after much technical evidence, of a witness who admits she was not fully briefed on the case and say, "Have you any concerns" is outrageous, in my submission. It could not ever be admissible as a question.” (Mr. Hartnett subsequently accepted that the use of the term “outrageous” was too strong).
92. The learned trial judge, wisely in the view of this court, ruled as follows:-
“The issue at the moment in the cross-examination of Dr. Smith has been the possibility of cross-contamination, contamination of the times being examined, analysed, in the laboratory in general. But also, of course, it's in the context of considering the possibility of contamination of this particular item, the subject matter of this case, the jacket of the accused. That's the issue. Questions of possibility of contamination in general in the background is in that context. It seems to me unreal not to allow the question, so I will permit the question to be asked.”
93. An objection to Dr. Smith’s evidence was again taken by Mr. Hartnett on the following day, and this was again rejected.
94. The ground of appeal relating to Dr. Smith’s evidence as detailed in the written submissions to this court appear to take a somewhat different angle than the defence’s approach in the course of the trial. The submissions refer to a failure to inform the defence prior to the trial of a review carried out in relation to the issue of contamination in the FSL.
95. In any event, the Court is satisfied that the approach adopted by the learned trial judge was correct.
The letters intercepted by the gardaí
96. Two letters written by the appellant to his then girlfriend, Ms. Doyle, were intercepted by gardaí on the 19th August 1997. One was intercepted at Ms. Doyle’s family home and the other was intercepted at the hospital where she was receiving in patient treatment as a result of head injuries sustained in the assault perpetrated by the appellant. Another letter written on the 17th August 1997 at Mill Street garda station by the appellant to Ms. Doyle and provided to Detective Garda Dillon for delivery to Ms. Doyle was in fact not so delivered and was kept and read by gardaí.
97. Reliance is placed by the appellant on the provisions of the Postal and Telecommunications Services Act 1983 (as amended) which creates the offence of intercepting postal communications without the consent of one of the parties to the correspondence or without lawful authority obtained in accordance with the requirements of the legislation.
98. In relation to the two letters posted to Ms. Doyle, there was evidence that Ms. Doyle herself had consented to them being taken by gardaí. In relation to the provisions of the Postal and Telecommunications Act 1983 (as amended) an offence is committed only where there is an interception of a letter before delivery (emphasis added). In both the instances as explained in the course of this trial, it was clear that the letters were retrieved by gardaí after delivery (emphasis added).
99. Detective Garda Dillon gave evidence in relation to the letter written by the appellant to Ms. Doyle but which was not posted by them or delivered to her. The evidence given was that the appellant handed the written letter to Detective Garda Dillon. It was not in a sealed envelope. The appellant did not take issue with the offer by Detective Garda Dillon to read the letter back to him, although he declined to have him do so. Furthermore, the appellant was cautioned by Detective Garda Dillon before the letter was handed over to him.
100. The letter read as follows:-
“Sarah Jane, I beg of you please read on,
As you probably know by now I never made it to the tracks to carry out my intentions, instead I was arrested on the Tuam Road five minutes out of Galway centre. I tried to die before my arrest by throwing myself at a van. But as I am writing this now I didn’t succeed. I hope you got the letter that I sent to your mothers. I tried to explain what was wrong with me but I don’t think I did it very well so I am trying now again. Sarah, for a long time now I have had what I could only call violent tendencies, I have episodes whereby I lose all self control.
It happened before in Ireland near Prussia Street but you will read all about it no doubt.
I have been interviewed over fifteen times now. Questions relating to Roscommon and Dublin. But I am telling the full truth, I want it out in the open. Goodbye, Mark”
101. The court is satisfied that firstly, there was no breach of the Postal and Telecommunications Act 1983 (as amended), and secondly, the interception of all three letters was permissible in the circumstances, and evidence relating to them was properly admitted in the course of the trial.
Other applications to discharge the jury
102. Under various headings (other than those discussed elsewhere in the judgment) the appellant maintains that the learned trial judge erred in failing to discharge the jury in the course of the trial. These are dealt with below in the order in which they appear in the appellant’s written submissions.
The Jury Foreman
103. On the 17th day of the trial it emerged that the foreman of the jury had applied twelve months previously for enrolment in An Garda Síochána, and sought a day off from jury duty for the purposes of attending an interview as part of his application process. The learned trial judge decided to discharge that juror from the jury. However, it is contended on behalf of the appellant that the fact that a juror had throughout the course of the trial been an applicant for enrolment in An Garda Síochána, and additionally had been chosen as foreman of the jury, was sufficient to render the continuance of the trial with that jury as unsafe. The appellant’s concern was that the members of the jury might have been unduly influenced by that single juror in support of a ‘guilty’ verdict.
104. The learned trial judge noted that certain categories of persons were ineligible to serve as jurors, including practicing solicitors and barristers and members of An Garda Síochána. The particular juror in question was not a member of An Garda Síochána and was therefore not specifically prevented from sitting on a jury; neither was there any statutory prohibition of an applicant to join An Garda Síochána acting as a juror. While the learned trial judge did not feel it appropriate to discharge the jury in the circumstances, he did accept that there might be an element of genuine apprehension that someone who aspired to be a member of An Garda Síochána should sit on the jury. He dealt with the matter by releasing the juror in question from further involvement in the case, and he permitted the election of a replacement foreman.
105. The issue in question is not one this Court believes could have justified the discharge of the entire jury at a point where the trial progressed for many days, and a great deal of evidence had already been heard. It is well established that a jury should only be discharged where it is clear that a failure to discharge the jury would result in an unfair trial. There is, in the court’s view, no reality to this being the case in these particular circumstances. It is also noteworthy that at the point when the particular juror raised the issue and found himself, consequently, removed from the jury, the jury had not begun their post evidence deliberations. Any such inappropriate influence as might have been exerted by the juror in question on the other members of the jury, (and there is no suggestion that he in any way attempted to influence them or that he did so in any manner whatsoever), would have had minimal effect at that point in time.
106. The Court is satisfied that the decision of the learned trial judge in this respect was entirely reasonable. To have discharged the jury on this basis would have been an overreaction. At that point of time, the trial was at significantly less than the half way mark and post evidence deliberation had not begun.
Late disclosures of reports
107. What is described by the appellant as repeated late disclosure was a further ground submitted to the learned trial judge for discharge of the jury. It was contended on behalf of the appellant that disclosure continued throughout the trial and this adversely impacted on the ability of the defence to properly prepare for the trial and conduct a full defence.
108. In particular a number of reports which had been prepared in the years between the date of the murders and the date of the trial, and particularly relating to the involvement of Dean Lyons were not disclosed, or were only partially disclosed, before the trial. These reports include those prepared by Superintendent Kelly, Assistant Commissioner McHugh and Superintendent Gordon. In relation to the Kelly report the learned trial judge noted that the prosecution did not have sight of the report prior to the trial. It was a report prepared by the then An Garda Síochána Complaints Board in response to allegations made by the appellant against gardaí in relation to taking statements from him. The learned trial judge ruled as follows:-
“Now, this and other matters were already alluded to in cross examination and they were already points obvious from other documents furnished. Now, of course, there are differences and it is inevitable that there will be differences and discrepancies but it is my view, taking a common sense approach to this, there is nothing new of any significant nature in the matters now disclosed in the Kelly report to result in a disadvantage to the defence in an material way or to in any way lead me to a view that there is unfairness to the procedures before in this trial and accordingly I will refuse the application.”
109. In relation to the McHugh reports, the learned trial judge ruled as follows:-
“Now, there has already been disclosure made to the defence by order of, in, pre trial hearings by order of Mr. Justice Hunt, and I have also allowed disclosure in the recent days of two other reports of Assistant Commissioner McHugh. And there are two earlier reports of September 1997 and June 1998 and I allow that disclosure because in the context of disclosure of much of the material had already been made of other reports as I have said. And so much of the material therein contained was already accessible to the defence. It could have been relevant to the cross examination of Assistant Commissioner McHugh and I also have to have regard to the observations of Mr. Justice Hardiman in the Supreme Court hearing in the appeal from the decision of Mr. Justice Moriarity. Mr. Justice Hardiman having particular regard to the long interval of time between the commission of these alleged offences and the hearing…
I think for the reasons that I gave for following the first two McHugh reports. And for the fact that much of this is contained in the Birmingham report, I think, and having regard again to the observations of Mr. Justice Hardiman I will allow disclosure of this report.”
110. There is of course an obligation on the prosecution to disclose to the defence any information at its disposal that is relevant to the proceedings and that could assist the defence. In Traynor v. Judge Delahunt 1 IR 605, McMahon J. stated “the prosecution has an obligation to disclose all material evidence within its possession, power or procurement, even where it does not propose to rely on it at trial”.
111. The DPP’s Guidelines For Prosecutors (revised 2010) state, at para. 9.3:-
“The extent of the duty to disclose is determined by concepts of constitutional justice, natural justice, fair procedures and the due process of law as well as statutory principles. The limits of this duty are not precisely delineated and depend upon the circumstances of each case. Further, the duty to disclose is an ongoing one and turns upon matters which are in issue at any time.”
112. Considering objectively the incidences of late disclosures which undoubtedly occurred in the course of this trial and the potential effect that such late disclosure might actually have had on the ability of the appellant to run his defence, the court cannot identify any prejudice to the defence that did occur or might have occurred. There is nothing to reasonably suggest that the learned trial judge dealt with these issues otherwise than in a considered and balanced manner and within the discretion available to him as trial judge. Such late disclosure that did occur did not, in the Court’s view, result in the trial been unfair.
The stolen VW car
113. In the garda investigation that followed the Grangegorman Murders, Martin Stafford, a criminal known to the gardaí was identified as a potential suspect. In the course of their investigations, gardaí established that Mr. Stafford lied to them about his whereabouts on the night of the murders. A VW car which had been stolen by Martin Stafford and which he was known to have been in on the night of the murders was the subject of forensic examination. The results of those tests were not disclosed to the defence, and the appellant maintains that his ability to defend himself in the trial thereby was adversely affected. However, the results of the forensic examination of the VW car did not reveal anything connected with the Grangegorman Murders. This fact was known to the defence in advance of their cross examination of relevant witnesses. The learned trial judge decided that no prejudice arose for the appellant in relation to this matter. He said:-
“Well, these matters of the contents of the report of Dr. Louise McKenna, the defence case is these are relevant. If they are relevant it is conceded by the prosecution that this matter should have been revealed to the defence before now. The report of course was not in being but the contents of it should have been revealed beforehand. But it cannot be said that the defence is prejudice in extent that would - that - a conclusion by me and a decision by me to discharge the jury would be proportionate. I could not come to any view that the defence has been irreparably prejudiced in this, and that any default that there has been is remediable. (It) need not result in any lasting prejudice to the defence, so I will not exceed to the application.”
114. In the circumstances, the ruling of the learned trial judge was not in error. It is not apparent to this Court what prejudice could have arisen or did arise for the appellant or the extent to which his defence may have been hampered in the circumstances.
Disclosure failures re contamination events in laboratory
115. This issue has essentially been dealt with in the section of this judgment relating to issue of the contamination evidence. This court finds no fault with the learned trial judge’s rejection of the application to withdraw the case from the jury in relation to alleged non disclosure of information relevant to the contamination issue, when he said:-
“On the question of disclosure, there has been an amount of disclosure by the prosecution to the defence. There have to be always limits on disclosure to be determined according to the relevance of what’s been sought and what is there to be disclosed, and in the context of the evidence of this case there has been adequate disclosure and certainly there is nothing to base any finding that the lack of disclosure has led to a situation where there is unfairness in the case and that the case should be withdrawn from the jury. Accordingly, I refuse the application to direct the jury to find the accused not guilty on the basis of what I have just said and also reject the application to discharge the jury on the absence of disclosure both with regards to Dr. Willis’s answers to questions in the Oireachtas Committee and also to matters which have surfaced in this case. So I refuse the applications.”
The RTE broadcast
116. Shortly after the jury retired to consider their verdicts, RTE, in the course of a news bulletin, while reporting on references to the FSL in the closing speech of counsel for the prosecution, displayed images of a modern laboratory as a backdrop to their report. The appellant’s concern as articulated to this court was of the risk that jury members who may have seen that news report might have believed that the FSL in 1997 was in the same “state of the art” condition as the one broadcast as a backdrop to the news items.
117. The learned trial judge ruled as follows:-
“Well, I regret to say I didn’t see either news broadcast last night. Now, applying my common sense, I cannot see how it can be said irredeemable damage has been done to the defence by showing pictures of a modern laboratory juxtaposed against with reporting comments made on reporting the closing speech of prosecuting counsel. There is no basis to discharge the jury.”
118. This ruling was appropriate and proportionate. By the time the news programme was broadcast, the jury had sat through days of detailed evidence relating to the FSL, its lay-out and procedures in 1997, and the extent to which it had been modernised and updated in the intervening years. To suggest that the jury might have been inappropriately influenced by the backdrop picture shown in the course of the tv news bulletin is in the Court’s view without merit.
The charge to the jury
119. The learned trial judge charged the jury over two days, Days 46 and 47, of the trial. It is contended by the appellant that he failed to properly direct, or misdirected, the jury in relation to a number of important matters. They are:-
(i) The boot print;
(ii) the reference to statements made by Dean Lyons, and
(iii) the failure to explain and marshal the scientific evidence.
The boot print
120. One of the items removed by gardaí from 133, Clonliffe Road was a pair of Caterpillar boots owned by the appellant. In the course of their investigation of the Grangegorman Murders, an imprint corresponding to the pattern of a Caterpillar type 9 boot was found at the murder scene. Mr. John McCullough of the FSL gave evidence to the effect that the boot print found at the murder scene was of a similar type to the sole of the appellant’s Caterpillar boot. Mr. McCullough’s evidence was that the imprint came from a boot in good condition, whereas the boot seized from the appellant some five months later, in August 1997, showed signs of significant wear. Mr. McCullough expressed his view that it was unlikely that the extent of the wear evident from a comparison of the boot print and the boot belonging to the appellant would have occurred in this intervening period, assuming normal wear.
121. In the course of his charge to the jury, the learned trial judge referred to this evidence in the following manner:-
“The foot print on the lino, Mr McCullough says, who's a State witness, a scientist, says that it was - given the level of wear on the sole that it was unlikely to have been - that it was unlikely to have been caused by usual wear and tear in five months and therefore was unlikely to have been that of the accused”.
122. This brief reference to this evidence was, in the Court’s view, not only fair but particularly supportive of the defence case. Nevertheless, the learned trial judge was requisitioned by defence counsel in relation to it and in consequence he re-addressed the jury as follows:-
“Now, the boots were the same, the same kind and a foot print in the blood found on the lino in the smaller bedroom in the front corresponded to the Caterpillar boot type 9 and a Caterpillar boot type 9 was found in Mr Nash's home. The defence contends that the evidence of Mr McCullough, who the defence says reminds us was a prosecution witness, creates a reasonable doubt about this because he said that he considered it very unlikely that the degree of wear which could have occurred in a period of five months, which was the interval between the murder and the examination of the shoes, from a virtually new conditioned boot to ones which were in the state such as that, he thought that was very unlikely and - but he added that, "I think it was very unlikely that that amount of wear over the period of time could have resulted in the deterioration in conditions if the shoes had been in normal use." But the prosecution also says that there was evidence that he had bought the boots sometime before the day of the murders and that at the time of the murders, if he had been wearing those boots, they would have been new. But again all of that - is - that evidence consistent only with guilt and is it not consistent with any rational hypothesis as to innocence. That is a question for you, members of the jury, and you have to be satisfied on those matters beyond reasonable doubt. The prosecution has to establish its position on that, like anything else, beyond reasonable doubt.”
123. This re-charging of the jury in relation to the boot evidence, in consequence of a requisition made on behalf of the defence, was undoubtedly more fulsome than the earlier and briefer reference to that evidence in the learned trial judge’s main charge to the jury. Arguably, the re-charge was less supportive of the defence case than the earlier shorter version. However, what was said in the re-charge reflected the evidence given and properly indicated the approach which the jury ought to take in relation to their consideration of that evidence. Certainly, the combination of the earlier shorter reference to the boot evidence and the subsequent longer reference to it in the re-charge presented a fair and reasonable summary of the evidence on this subject.
Statements of Dean Lyons
124. The appellant contends that the learned trial judge, in the course of his charge, asked the jury to speculate in relation to evidence which had not been adduced by the prosecution during the hearing. The passage complained of is as follows:-
“Now, what the prosecution say about all of that, first of all, one cannot really make a comparison between what Dean Lyons said and what Mark Nash said because you do not have everything that Dean Lyons said. What Dean Lyons said, what has been extracted from Dean Lyons's statements and admissions were selectively chosen. He hasn't - not everything that he said has been brought out before you and the prosecution says presumably the matters brought out by the defence are those selectively chosen which suit their case.”
125. It is argued that this brief reference by the learned trial judge suggested to the jury that there was material in existence which contradicted what the defence maintained were inconsistencies in statements made by Dean Lyons. They maintained that their concerns were further confirmed by the request from the jury after their retirement to consider a verdict to see copies of the statements of Dean Lyons.
126. The prosecution argued that the reference by the learned trial judge to the selective choosing of extracts from the statements of Dean Lyons was justified because of an exchange that took place between Mr. McGrath S.C. and the learned trial judge in the course of the trial. That exchange went as follows:-
“Judge: Well is there an application to have the confessions, statements and admissions of Mr. Lyons admitted before the jury?
Mr. McGrath: There will be cross examination in relation to those and depending on whether or not they are accepted then we may have to the position further. But obviously one would expect, given there will be no controversy about what he says.
Judge: And it is clear if you pursue that line of cross examination, Mr. McGrath, it would be implicit in that that there were senior members of the Garda Authority who did believe that the statements were reliable and so on.
Mr. McGrath: Sorry, yes, Judge. It would be, yes.”
127. This exchange, it is argued by the prosecution, supports their argument that the defence were afforded the opportunity to apply to admit the entirety of the statements before the jury, but elected instead to curtail the evidence only to go as far as cross examining gardaí in relation to their views on the issue of the reliability of the conflicting admissions; in other words, using the statements of Dean Lyons in a selective manner.
128. It is the case however that in the course of the learned trial judge’s charge to the jury they were comprehensively addressed on the stance taken in the course of the trial by both the prosecution and the defence in relation to the statements of Dean Lyons.
129. In a requisition made following the charge, Mr. Hartnett S.C. addressed the learned trial judge thus:-
“…you did say in addressing the jury that one of the points being made by the prosecution was that the point of corroboration are sympathy between Dean Lyons' admissions of the fact on the ground had been selectively chosen. Well, as I've indicated, they were points which came from the official garda report and you said presumably selectively chosen to prove their case. Now, that does seem to suggest that out there there is material to contradict, in some way, or contrary to the consistencies that we've put forward. There's never been any evidence of that and, indeed, there was never any attempt to prove consistency or inconsistency by the prosecution. So, I submit that that was not only unnecessary to say but it is destructive of the argument we are making and they even suggest, in fact does suggest, that we've something to hide or, sorry, and secondly, as my solicitor points out, prompting me, he's correct, that we have something to prove and that, of course, is possibly the nub of the situation.”
130. In response to that requisition, Mr. Grehan S.C. stated:-
“(referring to interviews of Mr. Lyons)..That they were all available to the defence, all of those had been provided, isn't that right? And his understand - the answer was his understanding was there's been full disclosure of all relevant matters to the defence and this goes back to the matter that I raised with the Court yesterday and where in effect Mr Hartnett, unfairly, in my submission, suggested that the prosecution had somehow kept matters from the jury, then that the jury would engage in some kind of comparison between Mr Nash's statements and Mr Lyons when, in fact, he knew full well that the defence had, in fact, selectively only put forward certain portions for the benefit of the jury…”
131. The learned trial judge decided against re-visiting the issue relating to the statements of Dean Lyons in any further re-charging of the jury. He felt it was best that it be “left as it was”, as, in his view, to re-visit the issue “would involve further qualifications and it would just complicate matters without advancing them very far”.
132. In the Court’s view, the criticism of the learned trial judge’s charge relating to the statements of Dean Lyons was baseless. The matter, to the extent that it was canvassed in the course of the trial, was very fully set out by the learned trial judge in his charge, and in the Court’s view also, he was correct not to re-visit the matter following requisitions made to him on behalf of the appellant.
The failure to explain and marshal the scientific evidence
133. It is submitted on behalf of the appellant that certain fundamental principles relating to the scientific evidence were not spelled out sufficiently, or at all, in the course of the charge. These were identified as:-
(i) DNA evidence is circumstantial evidence and all the legal principles which apply to such evidence apply to DNA evidence;
(ii) in order to justify a conviction based on evidence that is purely circumstantial, such evidence must be consistent with the guilt of the accused and must not be consistent with any rational hypothesis consistent with innocence, and
(iii) given the accepted risk of contamination in this case, the jury before relying on the DNA evidence would have to be satisfied beyond a reasonable doubt of the integrity of movement / storage and freedom from possible contamination of the jacket from when it was seized in 1997 until its examination by Dr. Linda Williams in 2009, and from which the DNA was extracted. If they were not so satisfied, then a jury could not as a matter of reason and law exclude a hypothesis consistent with innocence.
134. The learned trial judge is criticised for, it was suggested, his failure to give clear and detailed direction to the jury on the DNA evidence and particularly on how they might probably assess the contamination issue. The learned trial judge is further criticised for failing to adequately remind the jury of the scientific evidence adduced in the course of the trial.
135. It is useful to consider at this point what in fact the learned trial judge said to the jury in relation to these issues. Having first addressed them on the issue of corroboration, he continued as follows:-
“Now, with regards to the DNA evidence and the Caterpillar boot evidence, they are circumstantial evidence, which is the next point I wish to come to. Now, circumstantial evidence is any particular fact or facts from the existence of which one may infer the existence or non existence of some other fact which is in issue in the case and the DNA evidence and the Caterpillar boot evidence, as I say, are circumstantial evidence and there has to be care taken with circumstantial evidence and a jury has to be satisfied that such circumstantial evidence is consistent only with the guilt of the accused and does not have any rational hypothesis which is consistent with his innocence. There's no explanation for the circumstantial evidence which gives an innocent explanation as to what happened. So, you may act upon and, if it comes to it, convict an accused person on circumstantial evidence but to rely on it and to act as I've said you must be satisfied not only are the facts of the circumstantial evidence consistent with the accused having committed the offence, and being guilty, but also that such facts do - are - inconsistent with any rational conclusion that he was innocent. So, that's an important consideration to bear in mind.”
136. It is simply incorrect to maintain that the learned trial judge failed to adequately address the scientific evidence in the course of his charge to the jury. Almost ten pages of the transcript on Day 47 are taken up with a detailed analysis of the scientific evidence, and within that there are liberal references to what was said by particular experts, including the two scientists called on behalf of the defence. In his opening remarks to the jury on those particular extracts the learned trial judge refers to the DNA evidence as being one of the “two big issues” in the case, the other being the issue relating to the admissions made by the appellant.
137. One particular extract in the charge states very firmly and distinctly what the defence case was:-
“The defence says nobody can say precisely from when or from where these particles with the DNA profiles arrived on the jacket. Dust flakes and particles do travel. Dr Syndercombe Court related an incident in her laboratory where in a negative control sample they got a full profile that matched her secretary. This secretary had left some four years prior to the incident and she had never been in the laboratory and nobody knows how the profile got there. The defence says that the issue of contamination - sorry, that Dr Avenell is a reputable scientist, he works for both the police and for the defence in his forensic work in England.”
138. It cannot be disputed but that the jury, at the close of the charge would not have been left in any doubt that contamination was a very live and crucial issue in the case, and that there was evidence potentially linking the appellant with the murders of the two women.
139. Following requisitions made on behalf of the appellant, the learned trial judge again re-charged the jury in relation to the scientific evidence. He again reminded the jury that two expert witnesses called on behalf of the defence had raised the possibility of a transfer of dust material and other matters in the FSL laboratory room and of the potential for contamination. They were reminded of the risk of contamination to the jacket whilst stored at the Bridewell garda station and the risk of contamination arising because bed linen belonging to the murdered women had been examined in the same room (room 3.6), as had the jacket.
140. Considering the learned trial judge’s charge to the jury in relation to the scientific evidence, and more particularly in relation to the issue of contamination in the round, this Court is firmly of the view that the charge was well structured, clear and fair. Importantly, the learned trial judge made every effort, and did so successfully in the Court’s view, to explain in relative simple and straight forward terms, aspects of the scientific evidence which were complex and not easily comprehensible to lay people.
141. The Court therefore rejects the various complaints made in relation to the charging and re-charging of the jury. The charge was, in the Court’s view, clear and fair. Charging a jury at the end of a very lengthy and complex criminal trial, as this was, is no easy task. A trial judge has a wide discretion as to how to formulate the charge, and it is important that that discretion be respected to the greatest degree possible. In the often quoted extract from the judgment of Lord Taylor C.J. in R v. Richardson 98 Cr App R 174, the following was stated:-
“In our judgment, the pattern of the summing up, in what order and under what headings the evidence is marshalled, are matters wholly within the trial judge’s discretion. Providing he fairly reviews the essential features of the evidence, the structure of his summing up cannot be impugned simply because the defence would have preferred a different format.”
142. In relation to the criticism that the learned trial judge failed to summarise all of the evidence of the scientists called by both side, it is worthwhile reiterating the comments of Geoghegan J. in DPP v. Bishop IECCA 2, when he said (at p. 15):-
“While it is always important that the trial judge summarises for the jury the defence case as well as the prosecution case he is not obliged to refer to every piece of evidence that the jury heard and still less is he obliged to refer to every argument put forward in speeches to the jury.”
143. In the court’s view, the charge to the jury in this case can be classed as excellent. It fully respected and complied with the remarks in the judgment in R v. Landy  1 WLR 355, when the following was stated:-
“A summing up should be clear, concise and intelligible. If it is overloaded with detail, whether of fact or law and follows no obvious plan, it will not have any of the attributes it should have.”
144. This was a lengthy and complex murder trial, stretching over four months in 2015. The gruesome murder of two vulnerable and defenceless middle aged women on the 7th of March 1997 attracted enormous attention at the time and understandably so. It was not just the cruelty of the murders which attracted such attention but also the fact, as is so clear from the evidence, that the two women were brutally murdered and mutilated in circumstances where they presented absolutely no risk or threat to their killer or killers. The level of violence perpetrated upon them by their assailant or assailants was senseless, and perhaps thankfully was so fierce that their victims own appreciation of their fate was short lived.
145. The complexity of the trial was in no limited way the consequence of the unusual manner in which the appellant became involved in the investigation of the crime, and in circumstances where he was not a suspect nor is it likely he would have become a suspect but for his own admissions, later retracted, of involvement made after his arrest for a completely unrelated but almost as brutal murder of a County Roscommon couple and a near fatal assault on his then girlfriend. A further complicating factor was the involvement of the original suspect, Dean Lyons, who himself made what transpired to be false admissions to the Grangegorman Murders and who died in the year 2000 following his release from a U.K. prison having served a custodial sentence there for a non-related matter.
146. The trial itself saw many issues requiring voir dires and rulings by the learned trial judge. Many of those in turn became the subject of grounds of appeal before this Court and were the subject of detailed oral submissions over a period of four days, and which submissions the Court found most helpful.
147. The various appeal grounds have been considered in detail in the main body of this judgment, including, and in particular, those grounds identified by Mr. Hartnett at the opening of the appeal as constituting what he described as the “main planks” of the appeal. They were the issues relating to the admissions made by the appellant and the scientific / forensic evidence. Neither those grounds, nor indeed any of the other grounds of appeal, have been upheld by this Court and accordingly we must dismiss the appeal.
148. It should also be said that in general terms, this lengthy and complex trial was conducted by a very experienced criminal trial judge in a careful, indeed exemplary, fashion and was, again in general terms, in the strong view of this Court, an entirely fair trial which produced a verdict well justified by the evidence.