Irish Court of Criminal Appeal

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Cite as: [2006] IECCA 57

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Judgment Title: D.P.P.-v- Mark Costigan

Neutral Citation: [2006] IECCA 57

Court of Criminal Appeal Record Number: 8/05

Date of Delivery: 28/04/2006

Court: Court of Criminal Appeal

Composition of Court: Macken J., O'Neill J., Herbert J.

Judgment by: Macken J.

Status of Judgment: Approved


Judgments by	Result
Macken J.	Refuse application

Outcome: Refuse application

COURT OF CRIMINAL APPEAL

Macken J.
O’Neill J.
Herbert J.

Between:

The People at the Suit of the Director
of Public Prosecutions

AND

Mark Costigan

Applicant

Judgment of the Court delivered on the 28th day of April 2006 by Macken J. __________________________________________________________

The Applicant was, on the 10th of December 2004, by unanimous verdict of a jury following trial at the Central Criminal Court, convicted of the murder of a Ms. Christine Quinn.
The Facts
Ms. Quinn’s body was found in the afternoon of the 5th December 2002 at her home in Kilkenny. She had been stabbed approximately 35 times and had fatal injuries to her lung, liver and heart. The evidence established that in the course of the forensic examination of the premises as part of the murder investigation, a number of blood splatters were found. Samples from these were taken and subsequently examined in the Forensic Science Laboratory of the Department of Justice, Equality and Law Reform. The evidence also established that on the 23rd December 2002 a sample of the Applicant’s blood was taken at Kilkenny Garda Station in the presence of a Detective Garda. This sample, and others, were also taken to the aforesaid forensic laboratory on the 27th December 2002 and tested.
According to the Applicant, it was conceded by the prosecution in the course of the trial that the only evidence which tended to connect the Applicant, as accused, with the premises where Ms. Quinn’s body was found was DNA evidence arising on the aforesaid tests, purporting to establish a match between blood stains swabbed in the upstairs of the house and a sample of blood taken from the Applicant on the 23rd December 2002. It is common case that he had been a visitor to the house in the past.
Grounds of Appeal
The Applicant seeks leave to appeal his conviction on two grounds: (a) that the learned trial judge erred in law in admitting the blood sample taken from the Applicant on the 23rd December 2002, and (b) that he also erred in law in refusing to discharge the jury on an application made to him arising from part of the learned trial judge’s charge to the jury.
As to the first of these grounds, there are two parts to it. Firstly, there was no informed consent given by the Applicant’s father, as his guardian, to the taking of blood, the Applicant being at the time 16 years of age. Secondly, the blood sample should have been excluded on the basis that members of An Garda Siochana (hereinafter “an Garda”) had misled the Applicant’s father by assuring him the Applicant was not a suspect as of the 23rd December 2002 when he clearly was, and had therefore secured the blood sample by a trick.
As to the first of these sub grounds, it is common case between the parties that the taking of a blood sample is technically an assault, and may constitute a violation of the citizen’s constitutional right to bodily integrity. According to the Applicant’s argument, any consent to it involves a waiver of a constitutional right, and the consent must therefore be both voluntary and informed. It follows that the Applicant’s father, as his guardian, had to be informed of his right to withhold consent.
The Applicant submits that to constitute a valid informed consent, the prosecution is obliged to establish, beyond reasonable doubt, all of the following criteria:

1 That there was a consent, express or implied.

2 That the giver of the consent had the authority to do so.

3 That the consent was voluntary and not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested.

4 That the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent.

5 That the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested.

6 Finally, that the giver of the consent was aware of the potential consequences of giving the consent.

The Applicant invokes a Canadian decision R. v Willis [1992] 7 Or (3d) 337 in support of his argument as to these criteria.
According to the Applicant, no consent had been given by his father acting as his guardian, and no caution had been administered to his father in that capacity. While it was admitted that a consent form was signed by the Applicant’s father, Counsel for the Applicant, Mr. Coffey, Senior Counsel, argues that there was no evidence that it had been either read over to the father or that he had read its contents before signing it. Counsel further argues that the form of the consent was materially different to the oral caution given to the Applicant’s father, Counsel for the Applicant in addition submits that the learned trial judge misdirected himself as to the requisite oral caution which ought to have been administered to the Applicant’s father, and as to the onus of proof required, by drawing inferences as to consent from the fact that the Applicant’s father raised no issue as to what was happening.
For the Respondent Senior Counsel Mr. Owens contends that, although the taking of a blood sample is an invasive procedure, the medical consequences are minimal, and there is no evidence that there was not an informed consent to that medical procedure, nor any evidence to support the proposition that the Applicant’s constitutional right of bodily integrity was interfered with unlawfully. He further argues that the evidence clearly demonstrated that both the Applicant and his father were made fully aware of the fact that the blood sample was needed because the Applicant had been a visitor to the house, that blood samples were being sought from a number of people who had previous contact with the house, and that the sample could be used for forensic purposes relating to the investigation. Counsel for the Respondent contends that the Applicant and his father well understood the caution given to each of them which emphasised that they were under no obligation to consent to the giving of a blood sample, and both had signed the consent forms mentioned above.
According to the Respondent the Applicant’s reliance on the case of R. v Willis, supra. is misconceived as that case was decided on the basis of provisions in the Canadian Charter of Rights and Freedoms relating to “search and seizure”. He also argues that in the present case there is no suggestion, and there could be no suggestion, that the Applicant was assaulted by the doctor or by members of the Garda when the blood sample was taken, so that the decision in R v. Willis has no application, even by analogy, in the circumstances of the instant case. Even assuming that the criteria set out in R. v Willis, supra, must all be established beyond reasonable doubt when a blood sample is taken, the Respondent contends that those criteria were satisfied in the present case.
As to the second sub ground of the first ground of appeal, it had been argued on behalf of the Applicant in the course of the trial that the consent obtained by Detective Garda Murphy was deficient because (a) the members of the Garda failed to inform the Applicant or his father of the reason for seeking the sample, namely that bloodstains had been found and swabbed at the scene of the murder; and (b) the members of the Garda failed to inform the Applicant or his father of their knowledge that the Applicant was bleeding from his right hand at 5.25 pm on the day of the murder.
The Applicant submits the Garda considered him a suspect for the murder as of the 23rd December 2002 because the breakthrough in the investigation came on the 22nd December 2002 when a video was viewed, and a statement was taken from a Mr. Paul Murphy. Further, when the Garda applied to the District Court for a search warrant on the 30th December 2002, they relied solely on that video as well as on the existence of cuts to the Applicant’s hand, and made no mention of any matters which allegedly became significant after the 23rd December 2002.
Moreover, the Applicant argues that the purported consent of the Applicant’s father was tainted by an assurance given to him that the Applicant was not, as of the 23rd December 2002, a suspect in respect of the murder. In reality it is argued that the blood sample was procured by means of a type of ruse or trick. Counsel for the Applicant contends that the evidence established that members of the Garda did consider the Applicant to be a suspect, at that date: that as of that date they had not procured any evidence of significance against anybody other than the Applicant: and that although other persons were contacted by telephone and arrangements for the taking of their blood samples were agreed, by appointment, in or about the 31st December 2002, two members of the Garda actually called to the home of the Applicant to bring him and his father to the garda station on the 23rd December 2002. Counsel for the Applicant points to the fact that Superintendent Ryan in the course of his evidence accepted it was not normal to do so. Counsel for the Applicant also submits that while the garda witnesses strenuously denied in evidence that as of the 23rd December 2002 they did not suspect the Applicant, they were at pains in their evidence to avoid use of the word “suspicion”.
Finally, under this heading, it is argued that the learned trial Judge misdirected himself by giving an unnecessarily restrictive meaning to the word “suspicion”, and that prior to the taking of the blood sample from the Applicant the Garda had a suspicion “simpliciter” even if this was merely “the suspicion that arises at or near the starting point of investigation” which, Counsel argues was enough, according to the decision of Devlin L. in the case of Shaaban Bin Hussein SBH & Ors v Chonk Food Kam CFK (1970) AC 942.
In response, Counsel for the Respondent submits that this latter aspect of the first ground of appeal is, in reality, the main thrust of the Applicant’s case. The gravamen of the application is that there was an incomplete and improper explanation given to the father of what was being investigated or that the sample was procured by trickery. Counsel argues this was manifestly not the case in this trial. There was, counsel for the Respondent argues, a very limited and cautious response given by the two members of the Garda in answer to the query by the Applicant’s father as to whether or not the Applicant was a suspect. This response, Counsel contends, makes it difficult for the Applicant to contend that any meaningful assurance was given either to him or to his father. While the cross-examination of the members of the Garda proceeded on the basis that an unqualified assurance was given that the Applicant was not a suspect, what the members had actually said could not constitute such assurance.
Further, the finding by the learned trial Judge that the sample of blood from the Applicant was “certainly not (obtained) on the basis of a ruse” involves, the Respondent submits, an acceptance by him of the evidence given by the members of the Garda in the course of the trial as to their state of mind on 23rd December 2002 and in relation to the reason why a sample of blood was being sought from the Applicant, a finding based on ample evidence.
The Applicant’s claim, in reality, according to Counsel for the Respondent, is that this blood sample, however relevant, is inadmissible in evidence as having been obtained in an illegal or unfair manner and this evidence should be treated in the same manner as a confession similarly obtained. In this jurisdiction Counsel contends, the legal principles relative to the admission of illegally obtained evidence, which does not amount to a breach of a constitutional right, are those set out in the judgment of Kingsmill Moore J., in People (Attorney General) v. O’Brien [1965] I.R. 142 at 160 as subsequently approved and applied by Finlay C.J., in the case of Director of Public Prosecutions v. McMahon [1986] I.R. 393. According to that jurisprudence, the decision whether to admit or to exclude evidence so obtained was stated to be one of judicial discretion to be exercised in accordance with the criteria indicated in the judgment. However, the question of whether a blood sample is provided voluntarily, while raising similar questions to whether a statement was provided voluntarily, is yet different in the essential fact that the probative value of a blood test, unlike a statement, does not change whether it is obtained voluntarily or not. People (D.P.P.) v. Walsh [1980] I.R. 294.
The trial judge therefore retains at all times, counsel for the Respondent argues, a discretion to admit or to exclude the evidence in accordance with the principles outlined in those judgments, and was therefore fully entitled, even had there been trickery or a ruse, which was not the case, to admit the blood samples.
Conclusions on the First Ground of Appeal
For the purposes of determining the first ground of appeal, it is appropriate to deal with the second sub-ground first, namely whether the purported consent of the Applicant’s father was undermined or tainted by an assurance given to him that the Applicant was not a suspect in relation to the murder as of the 23rd December 2002. If it be the case that the Court is satisfied that a ruse or some form of trickery obtained in the matter, the principles of law above referred to require to be applied to that finding, and to the consequences flowing therefrom. On the other hand, if this claim is not established, then the outstanding issue is whether or not the blood sample was taken from the Applicant without the informed consent of him and his father.
As to whether or not the consent of the Applicant or his father was undermined or tainted by an assurance given that the Applicant was not a suspect when he was, without in any way repeating the evidence already referred to above, the Court first considers the relevant evidence upon which the learned trial Judge reached his decision, as he did, that the blood sample was not obtained in a manner that was a breach of any constitutional right “and certainly not on the basis of a ruse”. This evidence, found in the transcript of the fifth day of the trial includes the following evidence of the garda in question:

“59. A. … we were requiring blood samples from the people who would be in a position to assist in our investigations. Now, John was home alone and we explained to John the position.

60. Q. Did he give any indication as to where Mark was at that stage?

A. He mentioned that Mark was with his mother in O’Loughlin Court.

61. Q. Did you do anything at that stage?

A. Having explained to John … … John inquired, you know, again. He was surprised to see us coming back and he inquired did we suspect that Mark was involved in what went on over there. Now it was explained to him, you know, that we were (sic) accusing Mark or himself of any wrongdoing, he questioned I think was he or Mark a suspect for what went on over there -- referring to the Quinn household -- or words to that effect, and it was pointed out to him that we weren’t accusing either him or Mark of any wrongdoing, and this was a natural part of an investigation, that in order to progress the investigation we needed to take blood samples from a number of people who had contact with the house in the past. Now having explained this to John, John couldn’t see any problem, and he went on to mention that Mark, you know, was nervous of needles and that if Mark was to give a blood sample that it might be easier if he gave one too. John then rang Mark and explained the situation to him it was agreed to -- that we would -- John would come with us and we drove over then to O’Loughlin Court. We didn’t get -- my recall of events is that we didn’t get out of the car, that Mark came out of the house and got into the car with us. Now, I was driving the car and Detective Sergeant Lynge would have explained to Mark -- explained to Mark what he had explained to John earlier on in relation to the blood.”

While Counsel for the Applicant cross-examined the garda witnesses on the basis that they must have considered the Applicant to be a suspect, indeed the prime and only suspect at the time when the blood sample was taken, it is nevertheless the case that in their evidence all the garda witnesses insisted that this was not so.
Secondly, the fact that certain matters were relied upon by the Garda to support an application for a search warrant, that is to say, only matters known as of the date of the taking of the blood sample, does not have as its inevitable consequence that the Garda considered the Applicant to be a suspect at the time of seeking the blood sample. It means only that, at the later date when seeking the search warrant, the situation had crystallised sufficiently for the garda to make a proper application even by reference back to events occurring earlier. It is entirely speculative to suggest, as here, that nothing which had occurred between the two dates - although there was ample evidence in relation to the same - could have affected the views of the Garda as to when a person became a suspect or whether he must have been so at an earlier date.
In the view of the Court there was, on the evidence, no assurance given to the Applicant or his father of the type contended for. On the contrary there was evidence upon which the learned trial judge was entitled properly to conclude that there was no ruse or trick used by members of the Garda such as to induce the Applicant’s father to consent to the taking of the Applicant’s blood sample when he or his father would otherwise have refused.
The Court finds therefore that the trial judge committed no error of law in finding that the consent was not procured by means of a ruse or trick, there being ample evidence to support such a finding. In the circumstances, it is not necessary to consider the principles of law applicable, where an Applicant establishes, successfully, that a blood sample was in fact procured by such means.
Having regard to the foregoing, it is now necessary to see whether the learned trial judge erred in law in admitting the blood sample or evidence relating to it on the grounds that there was no valid, informed consent to the same procured.
It is important from the outset to bear in mind the purpose for which the consent was sought by the Garda. It is common case between the parties that it was a consent to the giving of a blood sample, simpliciter. It was not a consent in the form of an admission, or to be considered as a type of confession. It was simply a consent to a medical procedure which, although not hugely invasive, is nevertheless technically an assault on the accused. It is therefore important that a valid consent to the procedure be clearly obtained. The evidence established that the Garda plainly indicated what was sought, namely blood samples. There was no need or requirement, in the case of the Applicant or his father, to have that procedure explained in any great detail, because it was perfectly obvious what was involved. The Applicant’s father signed a consent form in the following terms:

“I, John Costigan of (address) the parent of Mark who was born on the 29th March 1986 hereby consent to the taking of a blood sample from my son Mark. I have been informed that the results of any tests on the provided sample may be given in evidence in any proceedings against Mark for a criminal offence.”

Prima facie the signing of this form by the Applicant’s father is evidence of consent. The contention by the Applicant is that a valid consent did not exist because there was no evidence that his father had read the form or had its contents read to him before signing it. The Court is not satisfied that, when asked to sign a form consenting to the taking of a blood sample, no consent can implied from the fact of such signing unless the prosecution has also established that the form was read by the party signing it, or that it had been read over to him. Unless there is evidence of some exceptional circumstance, such as evidence of an inability to read, for example, which would require the form to be read over to a signatory in advance, the signing of the form by the party concerned is prima facie evidence that he party both understands fully and agrees to its contents.
Secondly, it is said that the consent could not be valid because no prior caution in the terms of the second sentence of the consent form was given to the Applicant’s father, as guardian of the Applicant. In that regard, the evidence established that the Applicant’s father was informed as to the nature of the blood test to be taken, and the reasons for the same. While it is the case that the wording of the consent form was different to the terms of the caution administered, no authority has been opened to the court requiring that, if a caution be mandatory prior to giving a consent, the form of the caution must be in precisely the same terms as the consent, nor any legal principle or rule that, if the caution is not in precisely the same terms, the consent must ipso facts be invalid.
There is, however, a question as to the content of the caution itself.
According to the evidence, Detective Garda Brian Murphy in giving evidence as to the caution relied upon said as follows:

“

I cautioned both of them as follows, that they were not obliged to give a sample of blood unless they wished to do so but that the results of any tests or examination of the blood that they had provided may be given in evidence in any criminal proceedings against them for a criminal offence. They both understood the caution and they had both signed consent forms.”

A reading of this caution makes it clear that while it was a caution administered to each of the recipients, it is not specifically addressed to the Applicant’s father in his capacity as guardian of the Applicant. In the circumstances it is appropriate to consider whether a caution directed to the Applicant’s father not just in his own capacity, but separately and additionally to him, in his capacity as guardian of the Applicant, is mandatory, or if it was permissible for the learned trial judge, as here, to have inferred from the overall evidence, that the consent of the Applicant’s father was given in both capacities.
The purpose of a caution should be recalled. As was stated in the case of People v Walsh [1980] I.R. 294, a case which concerned the taking of finger prints:

“The purpose of a caution in relation to a concession or statement is to ensure that what is said or written is said or written voluntarily. An involuntary confession or statement given out of fear or induced by hope is tainted evidence of a quality not acceptable in our courts. It is not so with finger prints. A finger print does not change. Whether a person concerned submits voluntarily to having his print taken or whether he fiercely objects and resists makes no difference to the probative value of the evidence obtained. His finger print remains the same and indicates always the same association or disassociation with the crime under investigation, irrespective of the circumstances under which it is obtained. Therefore I cannot see why the administering of a caution or anything resembling a caution should be a necessary preliminary to the admissibility of finger print evidence.”

It is clear that a distinction is drawn between, on the one hand, the taking or securing of evidence, such as fingerprints or blood, and the procuring of confessions or admissions made by an accused on the other hand. The latter will most likely be subject to exclusion orders in the course of a trial, event if short of illegality, where there has been some conduct of which the prosecution ought not to be permitted to take advantage, such as a trick or a ruse, but the former, which do not change in nature depending on whether they have been procured voluntarily or involuntarily, have been admitted with their full probative value, even where they have been secured by some ruse or trickery, which the learned trial Judge properly found not to have been the case here.
The Applicant relies, however, on the Canadian decision of R. v Willis, supra., in arguing that the prior cautioning of the Applicant’s father in his separate capacity as guardian of the Applicant was an essential ingredient to the admissibility of the samples. The criteria set out in that decision make it clear that a formal caution is not, in fact, a requirement. Assuming that case to be of persuasive value here, in setting out the criteria which ought to be met, what it requires is the existence of a consent “express or even implied”. On the evidence in the present case, the reasons for the blood test were clearly explained. The Applicant’s father indicated that the Applicant had reservations about needles, and because of this the father agreed himself to go along to give a blood sample together with his son, who at the time was at his mother’s house. The Garda thereupon took the father to the mother’s house, where, according to the evidence, his father alone went into the house and returned with his son, and both went with the Garda to the Garda station where the blood sample was taken. The Applicant’s father had the authority to consent. The consent was a voluntary one in the sense that the Applicant’s father was fully aware of what he was being asked to consent to, namely the taking of blood from the Applicant. The caution given – even if not expressly addressed to the Applicant’s father in both capacities – made it clear there was no obligation on him to consent. The form which he freely signed after caution included such consent “as parent of Mark” and there was no doubt but that the potential consequences of giving that consent were explained to him and were set out in the form of consent itself.
Having regard to the exchanges made between the members of the Garda and the father of the Applicant, and the decision of his father to go with the Applicant, to the garda station where the Applicant was to give a blood sample, and having regard to the events which then occurred, and to all of the foregoing matters, it is inconceivable that the Applicant’s father was not consenting, as guardian of the Applicant, to the taking of a blood sample from the Applicant on the date in question. The consent required in R. v Willis, supra., on the Applicant’s argument, can clearly be found to have existed, even if that consent be implied.
This Court is satisfied that the learned trial judge did not err in law in finding that there was an appropriate and valid consent to the taking of blood from the Applicant, and did not err in law in admitting the blood sample in evidence.
Second Ground of Appeal.

The second ground of appeal is based on the alleged failure of the learned trial judge to discharge the jury. Firstly, it is said that, in his charge to the jury, an erroneous mention was made of the fact that blood of the accused had been found on certain items in the house. The Applicant argues that there was no such evidence, nor any evidence that the blood stains were fresh, nor any evidence that they arose from events occurring on the date of the murder. Secondly, the Applicant complains that, in explaining the law relating to inferences, the learned trial Judge wrongly did so by reference to materials from within the case itself, and further, that he did so in a way which invited an inference that the Applicant’s DNA was present at the murder scene, and so as to suggest that there was no innocent explanation for its presence, the learned judge having drawn attention to the fact that the Applicant had not given evidence or explained away all or any of the matters referred to. Further, it is said the charge grossly misrepresented the evidential position and usurped the function of the jury. In particular it is argued that that part of the charge relating to the inferences which might be drawn by the jury could not have been remedied or corrected by clarification by means of a recharge.
It is also argued that, although the jury was recharged by the learned trial Judge, that recharge did not in any sense remedy the matter, since it did not specifically mention the earlier error concerning blood on the items previously mentioned and the learned trial judge should have said to the jury that these matters had not been proved in evidence. It is contended that the infirmities of the first charge were not corrected in an unambiguous way by the learned trial judge in dealing in the recharge with the requisitions made by counsel for the Applicant, thereby rendering the position even more unclear to a jury.
As to the first part of this ground of appeal, the Respondent argues that it was evident from the photographs tendered in the course of the trial that they showed blood of very recent origin on various items in locations in the house, and that the jury also had evidence that the Applicant had not been in the house for a long time prior to the date of the murder. Moreover, it is said the learned trial Judge was correct not to discharge the jury, as the errors complained of could be and were corrected by way of recharge. He was moreover fully entitled to refer to the evidence, or lack of it, and to comment on the absence of evidence by the accused.
As to the second part, the Respondent argues that the learned trial Judge correctly charged the jury as to inferences, on the basis of two reasonable explanations, one being consistent with innocence. In the present case there was no evidence from which a hypothetically innocent explanation could have been drawn. The example given made it clear to the jury that there might be, on the evidence in the case, a reasonable explanation consistent with innocence, and in such circumstances, the jury was obliged to draw that inference. The learned trial Judge was not obliged to invoke fantastic explanations.
Conclusions on the Second Ground of Appeal
As to this second ground of appeal, the Court accepts that in a trial such as the present, a trial judge must endeavour to ensure that his charge to the jury is clear and unambiguous as to the law to be applied. It is also appropriate that when a trial judge charges a jury in relation to the question of inferences, he should do so in a manner which does not compromise the evidence in the trial in such a way as to render the trial unfair to the accused. In the instant case examples by which to explain the drawing of inferences were constructed by the learned trial judge by reference to materials in the case itself. More frequently a trial judge will take examples from outside the context of the case so as to avoid any difficulties for the jury understanding and appreciating their exclusive role as triers of fact in a trial. There is, however, no inflexible rule as to the choice of material for the example, provided the trial remains at all times fair to the accused.
The ordinary way in which concerns arising from the charge of the trial Judge to the jury are to be dealt with is by requisition and appropriate recharge to the jury. In most cases concerns will be adequately remedied in this manner. But there is always the possibility that they may not be, and so in the present case the Applicant alleges that arising out of the particularities of the charge, the recharge did not, and could not, have remedied the errors complained of, and the jury should therefore have been discharged.
In the course of the trial, counsel of the Applicant and Counsel for the Respondent requisitioned the learned trial Judge on his charge on similar matters. It is useful to set out what was said in the charge, the requisitions made, and what was said by way of recharge. As to the first part of the second ground of appeal, the content of the charge complained of reads as follows:

“You will recall what he [Dr. Burrington] said about finding matches for Mark Costigan’s DNA on the Simpsons duvet and the soccer shirt as well as on the sample taken from a radiator swab from an upstairs bedroom as well as on the door knob and the right banister

as one comes down the stairs.”

…

“But if you are satisfied that the blood found on the items in the house such as the duvet and the soccer top as well as the door knob, the radiator and banisters matches the blood sample of Mark Costigan then it is to be regarded as placing Mark Costigan in that house on the day of the murder, provided you satisfied beyond a reasonable doubt…”

And further as to the second part of this ground, on the question of inferences:

“And let me take an example from the present case. It doesn’t immediately arise in the present case but I am using a particular hypothesis from the present case just to give you another example of what I mean. Lets take the soccer jersey that was found in the upstairs bedroom. That has some blood stains on it which matched the DNA profile when they were examined by that witness Mr. Burrington I think it was. Suppose there was evidence that Mark Costigan had been playing soccer in that very jersey that week before the murder because he had been lent it by Jason Quinn or Ronan Quinn and that, suppose that during the match he got an injury which caused his blood, his nose to bleed and that he didn’t bother to wash it before returning the jersey to Jason, then you have opened to you an inference that the blood may have got on to the jersey during the murder if there is other evidence that puts Mark Costigan in the house on the day of the murder but you can also infer that the blood came onto the jersey in a completely innocent way during the soccer match.”

On these extracts, counsel for the Applicant, in requisitioning the learned trial Judge, submitted as follows:

“…first of all your lordship’s example tended to suggest to the jury that you accepted that there was evidence of a DNA match and that the effect of that evidence was to prove that Mark Costigan’s blood was on the jersey. I accept that that is something that can be corrected by your lordship but it also, and very unfortunately, my lord, drew attention to the fact that the accused had not given evidence of the nature that you had identified.”

…

“… in that particular situation, because such evidence had not been given, the only logical implication is that the jury must draw the inference that the blood was that of Mark Costigan.”

Counsel for the Applicant expressed concern that this combination “could not perhaps be remedied”, and, having addressed further issues, applied for the jury to be discharged, which application was refused.
In the course of his recharge to the jury, the learned trial Judge stated:

“I said, of course, in my charge that you must take no notice of anything I say about the facts. And I repeat that. But nevertheless I did, I did say during my charge, I made reference to the blood of Mark Costigan being on the duvet. Now I oughtn’t to have put it like that because that indicates that I am of the view that it is Mark Costigan’s blood, do you understand? And what I should have said was that it was blood with a DNA profile which matches the DNA of the blood sample taken from Mark Costigan. Because it’s a matter entirely for you to decide on the basis of Mr. Burrington’s evidence whether it is a match for the blood of Mark Costigan. So any suggestion from the way I put it that I had a view or I was entering into your territory, you must completely ignore. Because I don’t have a view and it’s a matter I can’t have a view and that’s a matter for yourselves.”

And further:

“Now I also said when talking about the importance of considering whether an inference can be drawn which is consistent with innocence, I used as an example, purely hypothetical example, but I did use as an example the possibility that the soccer top could have been worn, for instance by Mark Costigan, in a soccer game and that he might have got a bloody nose during the game. And there might be a danger that by having used that as an example, insofar as there is any suggestion of a view by me that it is the blood of Mark Costigan on that jersey you must completely ignore that and whether the blood on that jersey is a match for the DNA of the blood sample of Mark Costigan is a matter for you. And I was simply highlighting that you must consider if there is another rational explanation which can point to innocence. And in relation to that soccer jersey as well, if by saying that, using that as an example I suggested in any way that Mark Costigan was under any obligation to explain the presence of blood on the soccer jersey, being on that jersey, which you might consider was a match for his blood, that I certainly didn’t intend to indicate that he was under any obligation. Because I think I made it clear at many stages during my charge that the Accused is under an obligation to prove absolutely nothing.

So if in any way I suggested that he was, that he ought to have, or if I drew attention to the fact that he hadn’t explained the blood by using the example in the way that I did, that was not my intention and I am quite sure you understand that there is no obligation on an Accused person to explain anything away. The onus of proof is on the Prosecution at all times and to the level of beyond a reasonable doubt and I certainly had no intention to highlight or point to the fact that Mark Costigan had not given an explanation. And insofar as I may have, which I don’t think I did, that I suggested that the DNA tests had established these matters, you must ignore anything I said accidentally of that kind. It’s a matter for you and you alone to decide these matters and everything else must be ignored.”

When the content of the recharge is considered on both bases contended for by the Applicant, the concerns of the Applicant as to the original charge were very fully dealt with by the learned trial Judge and the recharge itself was sufficiently clear. Firstly, the learned trial judge commenced by pointing out, correctly, that the jury must not take notice of anything he said about he facts. He directed the jury with reference to the first complaint of the Applicant in plain and simple terms that his reference in the example he had given to the blood of the accused being on the duvet, was incorrect and he gave reasons why. He then specifically stated that he should have referred to blood with a DNA profile which was capable of matching the DNA of the blood sample taken from the accused, explaining that it was a matter for the jury to decide whether or not to accept the evidence of Mr. Burrington in that regard.
The trial judge on the question of inferences, pointed out that the example he had used was purely hypothetical. He drew attention to the fact that in so far as his charge might be understood as indicating any suggestion of a view by him as to the source of the blood, that must be completely ignored. He drew specific attention to the fact that he had been highlighting, in the passage on inferences that the jury must, if there is another rational explanation which can point to innocence, the jury must adopt the inference in favour of the applicant. He emphasised that the accused was under no obligation to explain the presence of blood on a soccer jersey or on anything else for that matter, repeating that the onus of proof is at all times on the prosecution.
As to the clarification given in respect of the existence of circumstantial evidence, while the first explanation of the learned trial judge on the question of inferences to be drawn was a little complicated, and perhaps not as clear as other parts of this charge, a true reading of it establishes that he main thrust of this part of the charge was to ensure that the jury should be clear, when considering inferences, that if one possible inference favoured the accused, and one not, the jury must adopt the inference which favoured the accused. It was accepted by the Applicant, at the requisition stage, that the context was one where the Judge was “explaining what an inference was and in particular the legal situation that obtains where the inferences are equal”. Constructing an example from materials from the case itself, to illustrate the drawing of inferences by the jury may not have been entirely prudent. Nevertheless the perceived prejudice to the Applicant was well capable of being remedied, having regard to its context, by requisition and was remedied on that basis by the learned trial judge.
Upon the jury retiring after the recharge, Counsel for the Applicant drew the learned trial Judge’s attention to a failure to clarify two matters mentioned in his requisitions, not concerning any of the above parts of the charge or the recharge, and they too were duly clarified. Apart from this intervention, no requisition was raised on the recharge.
This Court is, on a review of the charge, the requisitions, and the recharge, satisfied that the concerns of the Applicant which constitute the basis for the second ground of appeal were capable of being remedied, and were adequately remedied by the learned trial judge. In the circumstances, the learned trial judge did not err in law in failing to discharge the jury.
The application for leave to appeal is therefore rejected.