H390
Judgment
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Neutral Citation [2015] IEHC 390 18/06/2015 (CM) THE HIGH COURT JUDICIAL REVIEW [2013 No. 72 J.R.] BETWEEN JOHN GERARD MCDONAGH APPLICANT AND
THE COMMISSIONER OF AN GARDA SÍOCHÁNA, ASSISTANT COMMISSIONER JOHN O’MAHONEY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice McDermott delivered on 19th day of June, 2015 1. The applicant was granted leave to apply for judicial review on 4th February, 2013, (Peart J.) seeking an order of mandamus, or alternatively an injunction, directing the first and second named respondents to permit appropriately qualified experts access to forensic evidence gathered during the investigation into the murder and rape of Siobhan Hynes on 6th December, 1998, at Carraroe, Co. Galway. The applicant seeks to have items of real evidence submitted to new scientific procedures which, it is claimed, were discovered or became available, following the original investigation, and/or the applicant’s conviction for the rape and murder of the late Ms. Hynes and the dismissal of his appeal by the Court of Criminal Appeal. A number of other related declarations are also sought. 2. The applicant was convicted on 17th June, 2001 following a 28 day trial. The jury was directed to find the applicant not guilty of a s. 2 rape in the absence of evidence of penile penetration. A sentence of life imprisonment was imposed in respect of the murder charge and a sentence of 10 years imprisonment in respect of the s. 4 rape. 3. Leave to appeal was sought against conviction and sentence, but refused in an ex tempore judgment of the Court of Criminal Appeal, delivered on 14th February, 2007. 4. On the 13th August 2012 the solicitors for the applicant wrote to the first named respondent (the Commissioner) requesting access to items of evidence gathered during the course of the investigation, for the purpose of submitting them to new forensic testing procedures which came into existence since the original investigation, trial and/or appeal. The letter set out in summary the conclusions reached by a forensic expert who had re-examined the case. They were said to be based upon advances in testing which had resulted in DNA being extracted and tested in cases where it was not previously possible to do so. It was claimed that the expert expressed cause for concern in respect of the applicants conviction in the light of post-trial advances in testing techniques and that these advances might show:-
(b) Relevant fibres and hairs found can now be tested using new STR/DNA techniques and mitochondrial testing (c) The deceased’s clothing could provide ‘touch DNA’ samples or epithelial cells in circumstances where she was dressed in her jeans when found and as it is likely, or at least possible, that her jeans were placed back upon her body by the culprit when she was unconscious. DNA might be present on that clothing as well as on her panties.” 5. A reply was received from Assistant Commissioner John O’Mahoney dated 21st November, 2012 in which he stated:-
The Evidence 8. A summary of the evidence relied upon at the trial is found in the judgment of the Court of Criminal Appeal and in the affidavit of Mr. Robinson, Solicitor. He stated that the prosecution’s case relied heavily on forensic evidence based on the finding of fibres, and expert conclusions that:-
(b) There was support for the proposition that the deceased had been in the applicant’s car.
10. The clothes found at the applicant’s house were also tested for evidence of contact with the deceased, but no blood grouping was possible. No head hairs matching the deceased were found in the applicant’s car. There were very few head hairs on the deceased’s clothes and none matched the applicant. Other hair samples were not distinctive enough to look for matches amongst the hairs in the car. Finger and palm prints were taken from the deceased and all items of evidence were negative for fingerprints. No useful prints were found on the applicant’s car seat or on the items from the car. All of the evidence, including that highlighted by Mr. Robinson, was thoroughly reviewed by the Court of Criminal Appeal which considered in detail suggested weaknesses in the prosecution case and, in particular, the suggested inadequacy of the circumstantial evidence relied upon. 11. A number of years after the decision of the Court of Criminal Appeal a group known as the “Irish Innocence Project” submitted the applicant’s case for examination by a forensic scientist, Dr. Greg Hampikian, a Professor in the Department of Biology at Boise State University in Idaho. He is qualified to give evidence as a DNA expert in the United States and also worked in the United Kingdom. In his affidavits he outlines a number of changes in DNA testing since that performed in the late 1990s at a stage when SGM or SGM plus forensic DNA profiling was state of the art. He observed that in this case profiling produced inconclusive results on a number of items. He outlined how newer methods could possibly detect DNA from fewer cells and could specifically amplify male DNA even when in a mixed sample which is overwhelmingly female. These tests are designed to produce results on highly degraded samples such as might be expected in the applicant’s case where the body spent time submerged in sea water. He stated that it was not uncommon that newer DNA methods could produce results where standard SGM or SGM plus had been ineffective. In particular, he made three claims set out in his conclusions in an affidavit of January, 2013:-
Fingernail clippings were taken from the victim and sent to the crime lab. They were unable to get results using SGM or SGM plus testing from the left hand, and the DNA from the right hand yielded only the victim’s profile. However, modern DNA testing, specifically Y-STR testing, could now produce a male DNA profile. Before Y-STR testing, finger nail scrapings and clippings taken in sexual assault cases were often not viable for DNA testing because the male DNA (likely in skin cells under the nail) were overwhelmed by the female DNA of the victim. For this reason testing of biological material under the fingernails rarely gave a probative answer until Y-STR testing protocols were developed. Because the victim may well have scratched her attacker during the violent assault that led to her death, a male DNA profile from the victim’s fingernail clippings would be critical evidence in determining the identity of her attacker. 14. Fibers & Hairs: If hairs are identified in the evidence that still have roots attached, traditional STR - DNA testing can be performed on the hair to obtain a DNA profile. If, however, the hairs are merely fragments without roots, the hairs will have to be subjected to mitochondrial DNA testing. 15. Clothing Items (victims trousers, panties, bra): Several items of clothing that belonged to the victim and may have been handled by the perpetrator could provide useable DNA profiles and should be tested. Specifically, her trousers and bra were in a state of disarray, and her panties appear to have been placed back on the body. Now “touch DNA” profiles could likely be obtained through testing of the clothing items. Because of their clear link to the violent attack, those results would be highly probative. The crotch of the panties and trousers could also have epithelial cells from the perpetrator transferred either through contact, or drainage from the victim’s vagina. 16. To summarise, it is my opinion that DNA testing on the blood, clothing, fingernail clippings and other items can produce meaningful results e.g. clearly inculpating or excluding Mr. John McDonagh as the perpetrator. Methods such as mini STR-DNA testing, LCN DNA analysis, mitochondrial DNA testing and Y Chromosome STR testing can effectively extract and identify DNA profiles from the (a) fingernail scrapings from the deceased; (b) four swabs from a condom; (c) the victim’s underwear (panties); (d) the victim’s bra; (e) the victim’s trousers; and the (f) fibres recovered from the applicant’s clothing. The resulting profiles can be compared to determine whether this biological evidence was deposited by Mr. John McDonagh or another person. They can also be compared to one another to determine whether the various biological samples were deposited by one person or not. 17. When there are weaknesses in the evidence and inconclusive analysis as there are in this case, it is my expert opinion that modern DNA testing must be performed on probative biological evidence that can justify or exclude a perpetrator. 18. Were JMD to be definitively excluded as the originator of the biological materials, this would provide strong exculpatory evidence.” 13. It is accepted by Dr. Woods that Dr. Hampikian’s statements concerning the advanced method of DNA profiling are accurate. However, he states that LCN (low copy number) DNA profiling is no longer in use in the UK as it was a product of the UK Forensic Science Service, which has now closed. Other methods of DNA analysis referred to by Professor Hampikian were not provided by Keith Borer Consultants or by the Forensic Science Laboratory in Dublin, both of which employ conventional DNA profiling techniques using enhanced extraction methods. He was aware that other forensic science laboratories in the United Kingdom facilitate mitochondrial DNA and Y-STR techniques, though he was unsure how much of the actual testing was carried out in the United Kingdom. He accepted that both methods were provided by Cellmark Forensic Services in England and at least one other provider of mitochondrial DNA testing, LGC Limited of Teddington, which has sent samples to Pennsylvania for analysis. He addressed the three matters raised by Professor Hampikian’s affidavit.
Dr. Woods believed that the fingernail clippings could now be subjected to Y-STR analysis. However, he stated that in isolation any results obtained at this stage from the fingernail clippings would have questionable evidential value, but it remained “possible” that such results “could be significant if they formed part of a broader forensic picture, that is, if similar DNA profiles were obtained from other forensic evidence such as the deceased’s clothing or underwear”. Analysis of Clothing Items: He considered that the use of modern and/or novel DNA analysis techniques were unlikely to yield anything of probative value if only applied to limited samples in the case. The evidence would only be significant if consistent matching results were found across a range of samples, thereby increasing the likelihood of that DNA having been deposited by the last person to have contact with the deceased. Fibre Evidence: 15. Dr. Louise McKenna was the forensic scientist retained to examine items of evidence in the course of the investigation in this case and provided an affidavit sworn 10th June, 2013. She addressed each of the matters advanced by Dr. Hampikian:-
Dr. McKenna stated that the nail clippings were tested in a reputable DNA testing laboratory, Cellmark, though no conclusive result could be obtained. She was not at the time of the swearing of the affidavit aware of whether anything remained of the clippings (though it emerged in the course of the hearing that some of the clippings were still in existence). She noted that even if they were available and even if male DNA were found thereon, the issue would be whether the foreign DNA had transferred from the killer or as a result of an innocent encounter. She noted one recent study which demonstrated that 19% of the general population had foreign DNA under their fingernails. Dr. Hampikian in a further affidavit stated that there were more pertinent studies of post conviction cases. Testing indicated that of 194 post conviction DNA exonerations in the United States, 5% “included DNA evidence from fingernails”. Fibres and Hairs: Clothing Items:
18. The affidavits of the three experts concentrate on issues relating to DNA. They do not materially effect certain facts established at the trial. It remains the case that fibre evidence which was regarded as an important part of the prosecution case establishes that there was very strong support for the proposition that the applicant’s jumper had been in contact with the deceased’s clothing and was supportive of the proposition that the deceased had been in the applicant’s car. The applicant denied to Gardai that he had been wearing the jumper on which the fibres were found. He denied that the deceased had been in his car. Dr Hampikian claims no expertise on fibres. The fact remains that the applicant changed his top, had scratches on his body and a mark on his left hand the day after the killing and gave the Gardai the wrong jumper when asked for the jumper he wore on the night. Dr McKenna suggests that the fibre evidence is simply ignored by Dr Hampikian. Dr Woods, the applicant’s forensic scientist, now considers that the fibre evidence was thoroughly considered. He also considered that the absence of any hairs on the deceased or her clothing which appeared foreign to her rendered hair analysis of academic interest only. 19. There is no suggestion or evidence that any other person was identified as a potential culprit in the course of the investigation and the suggestion that another person was involved other than the applicant is, on the evidence available to the court, purely speculative. Dr Woods emphasised that an isolated result from the fingernail clipping test at this stage was of questionable evidential value. He believed that it had a possible significance if it formed part of a broader forensic picture obtained from the examination of other items. Its relevance, if any, depended on similar DNA profiles being obtained from other items of evidence. The evidence would only be significant if similar profiles were obtained from a range of samples. Dr McKenna considered that the chances of obtaining samples of DNA from the victims clothing was greatly reduced by its immersion in water and soil. She did not consider that further DNA testing of the items would likely yield profile evidence. Dr Hampikian has a different view and seems to rate more highly the prospect of obtaining profiles from the items requested. He is essentially advocating a reinvestigation of the items using a new scientific test on the basis of a possibility that a similar profile may be obtained from one or more of the items. It is also clear that the experts disagree on the significance of a finding of a third party DNA profile under the fingernail or in hair samples. Each of the witnesses relies on differing degrees of possibility of discovering a DNA profile on one or more of the items and the inferences that may perhaps be drawn from such findings. This ranges from what appears to the court to be a high level of possibility on the part of Dr.Hampikian to lower levels on the part of Dr. Woods and Dr. Mc Kenna which at times reflects a mere possibility on their part and scepticism about the value of retesting on the part of Dr, Mc Kenna. 20. For the reasons which follow I am not satisfied that an application for mandamus or declaratory relief is appropriate in this case. The court considers that the applicant has a remedy under s. 2 of the Criminal Procedure Act 1993. I therefore do not consider it appropriate to determine whether on the evidence the court considers that a sufficient evidential basis has been established to direct the test requested. That is a matter for the Court of Appeal to consider on the basis of much more extensive evidence and applying a different (and perhaps a much less onerous) test to that applicable to the granting of relief sought by way of judicial review. Public Policy 22. There is an extensive pre-trial obligation of disclosure in criminal trials. The prosecution must disclose to the defence all relevant evidence which is in its possession. It must disclose evidence which it does not intend to use at trial “if that evidence could be considered as relevant or could assist the defence” (see, The People (DPP) v. Michael McKevitt [2005] IECCA 139). The information that must be disclosed is that which is relevant or possibly relevant to an issue in the case, raises or possibly raises a new issue the existence of which is not apparent from the evidence which the prosecution proposes to rely upon, and is such that it holds out a real prospect of an avenue of enquiry relevant to issues arising in the case or from other disclosure (see R v. Keane [1994] 1 W.L.R. 746). 23. The disclosure rules are subject to or limited by claims arising on the basis of privilege or public policy. 24. No claim was made in this case that trial disclosure by the prosecution was incomplete or that access to any items of real evidence discovered in the course of the investigation or used in the course of the trial was not given to the applicant, his legal advisors or any forensic scientific expert retained to examine same. 25. This application concerns the release of materials to a convicted person after a trial and appeal and not to an accused in advance of trial. It seeks the re-examination of items of real evidence which were subjected to inconclusive DNA testing at trial which was not relied upon in evidence by either side. The carrying out of the proposed new tests on the basis that there is a possibility that some other male may be identified as a possible culprit in the s. 4 rape and murder for which the applicant was convicted is advanced as a sufficient reason to order that access be given to the items of evidence. 26. The respondents submit that a decision to grant access to items of real evidence for testing and this application must be governed by the recognition that a trial in accordance with law has taken place, and a wide ranging appeal with access to further forensic advice and investigation has been rejected by the Court of Criminal Appeal. It is also submitted that the presumption of innocence has been rebutted in that the applicant has been convicted and must be presumed guilty. While it is recognised that there is a public interest in the identification and correction of flaws in the trial process leading to the detection of an unsafe conviction, it is said that there is a countervailing public interest in the finality of proceedings for those concerned including witnesses, and relatives of the deceased who have a legitimate interest in knowing that the legal process has been concluded. 27. Furthermore, it is submitted that the applicant has failed to explain the extensive delay which arose in seeking the relevant re-examination and has not fully and clearly explained when the alleged new tests became available, or demonstrated that he acted in a timely fashion in seeking re-examination. 28. The application also raises issues concerning the preservation of items of evidence. The court was informed during the course of the hearing, that some nail clippings were preserved and remained available. However, there may be issues concerning the fragility of the nail clipping or any material that might be found upon it or indeed any of the items to which reference has been made. Furthermore, no evidence was put before the court concerning the potential loss or deterioration of any of the items which it was proposed to examine during the course or as a result of fresh testing. This may have implications for the conduct of any trial in the future which scientific experts would need to address. At the very least this information would have to be available to the court for the formulation of any appropriate order if such were granted. 29. On the other hand the court must give due weight to the principle that a person who is innocent should have an effective remedy where by he may establish that fact. 30. These issues have been considered in other common law jurisdictions. United Kingdom. 32. Following conviction and appeal, a convicted person in the United Kingdom may apply to the Criminal Cases Review Commission (CCRC) which is vested with power to review any conviction. If the CCRC thinks that there is a real possibility that the Court of Appeal might quash the conviction, it may refer the case back to that court on any grounds, whether previously argued or not on the basis that the applicant’s case is arguable. The Court of Appeal has a duty to investigate the safety of the conviction and must quash it if it is unsafe. The CCRC has extensive investigative powers, including the power to require the production to it of any material in the hands of the police or any other public body, to appoint an investigator with all the powers of a police officer and to assemble fresh evidence not before the court of trial. In Nunn, the United Kingdom Supreme Court noted the role of the CCRC as an independent body which was skilled in examining the details of evidence and determining when and if there is a real prospect of material emerging which affects the safety of a conviction. If there was, it had an obligation to make inquiries in a case, not only when a reasonable prospect of quashing the conviction had been demonstrated, but “in appropriate cases to see whether such a prospect can be shown, and it has ample power to direct a newly available scientific test to be undertaken”. However, the Supreme Court also stated that the CCRC must refrain from indulging in the consideration of merely speculative matters. Its important role is outlined by Lord Hughes J.S.C.:-
34. The court noted that the CCRC had ample power to direct that available scientific tests be undertaken (R. v. Shirley [2003] EWCA Crim 1976 and R. v. Hodgson [2009] EWCA Crim 490). 35. The appellant in Nunn claimed that the right to disclosure and inspection of items of real evidence which applied at the trial and appeal stages at common law and pursuant to statute, also applied at the post-appeal stage. This was dealt with in the United Kingdom by the Attorney General’s Guidelines concerning the disclosure of material affecting the safety of a conviction, which stated:-
72. Where, after the conclusion of proceedings, material comes to light, that might cast doubt on the safety of the conviction, the prosecutor must consider disclosure of such material.”
40. There will be cases in which An Garda Síochána and solicitors on behalf of a convicted person may agree that it is appropriate that new testing techniques ought to be applied to items of real evidence. In the United Kingdom, the Supreme Court clearly encouraged cooperation in such testing when deemed necessary in order to determine whether the matter should be referred to the CCRC. Nevertheless, there will be cases in which a dispute may arise between the convict and the prosecuting authorities as to the nature and extent of the obligation to carry out a requested test. The United Kingdom Supreme Court determined the matter in the following way:-
41. I am satisfied that An Garda Síochána, if necessary, in consultation with the office of the Director of Public Prosecutions, should consider any application for access to items of evidence for the purpose of applying newly discovered scientific tests, on its merits. There is no equivalent to the CCRC in this jurisdiction but there will undoubtedly be cases which it may be deemed appropriate by the Commissioner to cooperate with a defence solicitor in facilitating such a test; such cooperation is to be encouraged where appropriate. I am also satisfied that the principles outlined in the Nunn case are similar to those which apply as a matter of fair procedures in this jurisdiction under Articles 38 and 40.3 of the Constitution to the testing of items of evidence post-conviction and/or appeal. Canada 43. The court accepted that the Crown’s disclosure obligations continued through the appellate process as the protection of the innocent was as important on appeal as prior to conviction. However, the resolution of disclosure disputes on appeal required a somewhat different analytical framework, because the presumption of innocence no longer applied or the right to make full answer and defence. Nevertheless, the court recognised that the broad rights on appeal, including the right to receive fresh evidence and the courts wide remedial powers, were all calculated to maximise protection against wrongful convictions. The Crown’s obligation extended on appeal to any information in the possession of the Crown which gave rise to “a reasonable possibility (that it) may assist the accused in the prosecution of his or her appeal”. In order to succeed on the application for the production of the materials sought, the court stated that:-
44. It was noted by Lord Hughes in Nunn, that the decision in Trotta was a good illustration of the difference in the application of disclosure rules at the pre-trial and appellate stages. At the pre-trial stage, material affecting the pathologist and his standing would have been disclosable since it would not have been known whether there was any challenge to his findings, whereas at the appeal stage it was clear no such challenge had been made. The Trotta case is also noteworthy for its emphasis on the importance of the link between the possibility of generating new evidence using a new test thereby procuring an expert opinion and the requirement that the opinion be of a sufficiently cogent and relevant nature such that it might have affected the verdict in the case. The United States 46. Osborne sought the DNA testing that his attorney had failed to seek under an Alaskan post conviction statute. The Alaska Court of Appeals concluded that he had no right to the testing which at the time of the appeal was the “RFLP” test (pre the STR test). The court concluded that this test had been available at trial and it was not likely to be conclusive. It also relied on the fact that Osborne had confessed to his crimes in a 2004 application for parole and subsequently repeated this confession before a parole board. 47. Osborne claimed that under the due process clause of the 14th Amendment to the United States Constitution he had a constitutional right to access the STR test at his own expense. The difficultly raised by technological and scientific advances in DNA testing post conviction was recognised by Roberts CJ:-
49. Alaska did not enact such a statute but it was accepted by the Supreme Court that access was available to a prisoner under Alaskan law who wished to subject items of real evidence to newly available DNA testing in order to establish his/her innocence. Roberts CJ summarized the position as follows:-
Both parties agree that under these provisions … “a defendant is entitled to post conviction relief if the defendant presents newly discovered evidence that establishes by clear and convincing evidence that the defendant is innocent”. Osborne 1 … If such a claim is brought, state law permits general discovery. See Alaska rule Crim. Proc. 35.1(g). Alaska courts have explained that these procedures are available to request DNA evidence for newly available testing to establish actual innocence…” 51. The Supreme Court in rejecting the appellant’s claim to a right to further DNA testing post-conviction under the due process clause stated:-
Section 2 of the Criminal Procedure Act 1993
54. A “new” fact is defined by subs (3) as:-
(b) order the production of any document, exhibit or other thing connected with the proceedings; (c) order any person who would have been a compellable witness in the proceeding from which the appeal lies to attend for examination and be examined before the court, whether or not he was called in those proceedings; (d) receive the evidence, if tendered, of any witness; (e) generally make such order as may be necessary for the purpose of doing justice in the case before the court.” 56. It is clear that the purpose of the legislation is to empower the court to ensure that justice is done on any such application. It is rooted in the principle that a convicted person who wishes to assert his innocent on the basis of new evidence should not be precluded from doing so. It is axiomatic that the court will make any order to assist in the procurement of evidence if it can be established that such an order is necessary to achieve that purpose and that there is a reasonable prospect that such evidence would be admissible as a new or newly discovered fact. 57. Under s. 5(1) if it appears to the registrar of the Court of Appeal that an application under s. 2 does not disclose a prima facie case that a miscarriage of justice has occurred in respect of the conviction, he/she may without calling for the report of the official stenographer, refer this application to the court for summary determination. The court may “if its considers that the application is frivolous or vexatious and can be determined without adjourning it for a full hearing, dismiss it summarily, without calling on anyone to attend the hearing or to appear on behalf of the prosecution”. The applicant fears that if a s. 2 application were to be moved prior to the carrying out of the test and obtaining an expert report on its results, it would be certain to fail at this initial hurdle. 58. In The People (DPP) v. Kelly [2008] 3 IR 697, during the preparation of an application under s. 2(1) which had been submitted to the court, the applicant’s solicitors received from the Chief Prosecution Solicitor a booklet of photographs taken during the post mortem examination of the victim that had not been disclosed to the defence at the time of trial. A further expert report was produced based on a forensic analysis of the photographs relating to bruising on the neck of the deceased. The court heard and considered additional evidence from pathologists on behalf of the applicant and the Director of Public Prosecutions, and the transcript of the cross examination of the state pathologist at the trial. It concluded that this evidence would have been of little assistance to the applicant at the trial, in particular, having regard to the other evidence in the case, including his confession. In that case, the court noted that there were no new facts or science such as might invalidate any previous opinion tendered at the trial. 59. The Director of Public Prosecutions submitted that the procedure under s. 2 did not introduce an automatic right to a hearing under the section merely because an expert report could be produced contradicting the prosecution expert at the original trial; such an application might constitute no more than an attempt to introduce a fresh expert who might do a better job than the original defence expert. Alternatively, it was submitted that an applicant might seek to introduce a mixture of old and new science and/or old and new grounds of appeal in such a way that a limited piece of “new science” could be used as a trigger for the complete rehearing of numerous other issues. 60. The Court of Criminal Appeal expressed the “strong view” that opinion evidence should not ordinarily constitute a newly discovered fact within the terms of the Act for a number of reasons. Firstly, to so interpret opinion evidence would be to give a meaning to the word “fact” which was different from its ordinary and natural meaning. Secondly, it would have the effect of rendering virtually every conviction, even one upheld on appeal, open to later challenge if a further or new expert could be found to offer an opinion going further than a defence expert had done at trial or which tended to contradict or undermine experts called on behalf of the prosecution at trial. It would open the door to the introduction of additional evidence in circumstances which the court stated were “plainly contra-indicated” by the court in The People (DPP) v. Willoughby [2005] IECCA 4 in which the court stated at pp. 21 and 22:-
(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial. (c) It must be evidence which is credible and which might have a material and important influence on the result of the case. (d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.”
‘The court could not conclude for certain that the advent of the newly discovered material would have no effect on the manner in which the defence was conducted. The furthest one could go would be to say that it is possible that it might not have had any effect and this would not relieve the court from examining what the position would have been if the defence had availed of the newly discovered material and altered its strategy accordingly.’ 91. Thus, what the court is required to do is to carry out an objective evaluation of the newly discovered fact with a view to determining in the light of it whether the applicant’s conviction was unsafe and unsatisfactory in the context of the what the legal advisers might have done with the material if it had been available to them. The court cannot simply have regard only to the course actually taken by the defence at trial. 92. The court must therefore evaluate the evidence in relation to the newly discovered fact, firstly to ascertain if the evidence establishes the newly discovered fact, secondly to assess the weight and credibility of such evidence by reference to an objective standard to determine whether defence counsel could have utilised the newly discovered material in such a way as to raise a reasonable doubt in the minds of the jury about a significant element in the prosecution case.” 63. In order to advance such an application, the applicant must furnish to the court a proof or statement of the evidence which each new witness is to give together with an explanation by the witness for his failure to give such evidence at the trial (see Attorney General v. McGann [1927] IR503). In this case any proposed fresh evidence would be that of an expert witness on the basis of a report compiled following the application of further tests to items to which access is sought. In considering such an application it is appropriate to take into account whether such additional evidence “is credible and …. might have a material and important influence over the result of the case”. However, it must be borne in mind that, as stated by the Court of Criminal Appeal in Kelly, expert evidence is only admissible as a newly discovered fact when the state of scientific knowledge as of the date of the trial is invalidated or thrown into significant uncertainty by newly developed science. Is Section 2 applicable? 65. I am not satisfied that this is so. In The People (Director of Public Prosecutions) v. Pringle (No.2) [1997] 2 I.R. 225, Lynch J. reviewed the jurisdiction of the court then exercised by the Court of Criminal Appeal and stated at p. 240:-
67. In civil cases, of course, pre-trial discovery, and inspection procedures have been developed for the proper pleading and proof of cases. Pre-trial discovery, may, in exceptional circumstances be granted, where there is evidence of a clear wrong perpetrated against a plaintiff but the identities of the wrongdoers are known to a third party (EMI Records (Ireland) Limited v. Eircom Limited [2005] 4 IR 148). Discovery may also be granted prior to the delivery of a statement of claim, in exceptional circumstances, if such is required to prepare it properly. In Law Society of Ireland v. Rawlinson [1997] 3 I.R. 592, Morris J. (as he then was) granted discovery to the plaintiff in a negligence suit against a firm of accountants because according to its investigating accountants, access was required to prepare the statement of claim properly. Though the plaintiff was already in possession of sufficient information to enable it to prepare and deliver a statement of claim reflecting the basic ingredients of the case, it was desirable that the pleadings should be sufficiently concise and clear to enable the defendants to know the case which they had to meet. The case was complex. The plaintiff had a statutory duty to make good a solicitor’s alleged default from the Law Society’s compensation fund. A stateable case existed which was capable of being pleaded in general terms, but which could be more concisely pleaded if discovery were granted. Morris J. (as he then was) accepted that such discovery may be granted in exceptional circumstances if the interests of justice so require. However, the learned judge, was also satisfied that “trawling” or “fishing” was not permitted. 68. Thus, in McGrory v. ESB [2003] 2 I.R. 407, the Supreme Court accepted that the right of the defendant in an action where the plaintiff claims damages for personal injuries to have the plaintiff medically examined, to have access to his medical records and to interview his treating doctors, was not dependent on the closure of the pleadings. Keane C.J. stated that a medical examination could be sought at any stage and “it is indeed not unknown for potential defendants to seek such an examination before any proceedings are actually instituted”. Once they had been instituted, the examination and full access to the plaintiff’s records and interviews with his medical advisers were of assistance in enabling the defendants to form a view as to the amount of damages which the plaintiff is likely to recover. Discovery in such cases was not dependent on the closing of the pleadings and would assist in the calculation of any lodgement that might be made. Early discovery may also be required in medical negligence suits. 69. The issues involved in a s. 2 application are of equal if not greater importance to the applicant than those in which common law rules have been devised in civil cases as a matter of fair procedures. It appears to me that it was open to the applicant in this case to initiate a s. 2 application in the Court of Appeal and to apply by way of preliminary motion based on a full and extensive affidavit seeking an order directing that any relevant items of real evidence which were sought for forensic examination on the basis of a newly developed scientific test be made available for that purpose. 70. The application under s. 2 and a preliminary motion in the form discussed has a number of advantages. The entire history of the case will be available to the Court of Appeal. It will have full and ready access to all relevant papers, transcripts and items of real evidence together with any submissions made in the course of previous applications to the court of trial or the Court of Criminal Appeal. The Court of Appeal will have a more complete understanding of the circumstances and facts of the case, the evidence adduced and the nature and relevance of any new material sought to be advanced or any new test to be applied. Any application will be rooted in the reality of the evidence in the case to date and the defence previously advanced, in a much more concise and focused way than is possible on an application for judicial review. The maintenance and preservation of proposed exhibits or items of evidence will continue to be subject to the directions of a court exercising criminal jurisdiction which is an essential feature of the ordered continuity and integrity of criminal proceedings in the future. In contrast this court has been furnished with very limited material in relation to the conduct of the trial or the appeal. It seems to me that the more appropriate forum for seeking relief in respect of this matter is the Court of Appeal exercising its criminal jurisdiction under s. 2. 71. This conclusion is entirely consistent with other developments in criminal practice and procedure concerning the use of new science in the investigation and prosecution of offences. Under s. 8 of the Criminal Procedure Act 2010, the Director of Public Prosecutions may in respect of a person who has been tried on indictment but acquitted whether at the trial, or on appeal against conviction, apply to the court for a re-trial order where it appears to the Director that there is “new and compelling evidence” against that person in relation to the relevant offence, and that it is in the public interest to do so. There is little doubt that such new and compelling evidence may be based on new scientific discoveries which enable more advanced forensic analysis of items of real evidence. In the case of a “cold case” review such scientific advances may provide investigators with the breakthrough they need in identifying a culprit or exculpating a suspect. Scientific advances have also resulted in the exoneration of persons wrongfully accused. Of course, if new scientific discoveries are to have any practical application, the tests that are necessary must be carried out on the relevant items of real evidence, if still available. These will most probably be in the custody of An Garda Síochána. Thus, in a cold case review or for the purpose of a s. 8 consideration, items of real evidence are available to the prosecuting authority and investigators for testing at any time. Conclusions 73. A new scientific discovery which results in the development of a forensic test not previously available at the time of trial and/or appeal may, if later applied to items of real evidence relevant to the investigation of and/or the identification of the convicted person as the culprit in the offence of which he/she was convicted, invalidate or throw into significant uncertainty the conclusions reached on the basis of the state of scientific knowledge at that time. 74. If an expert opinion is obtained on the application of new scientific knowledge or a newly developed scientific test an application may then be made to the Court of Appeal to seek to have the expert opinion treated as a “newly discovered fact”. 75. If the new expert opinion is to be admitted in evidence the applicant must demonstrate that it was unknown at the time of trial or appeal or could not reasonably have been known or acquired at that time. 76. The new evidence must be credible and be such that it might have a material effect on the result of the case and in establishing that there has been a miscarriage of justice. 77. The onus is on the applicant to establish that the new expert opinion constitutes a new or newly discovered fact. An opinion that simply goes further than an expert opinion available at the trial or one which tends to contradict or undermine an expert called on behalf of the prosecution will not be sufficient and the assessment of the potential credibility or materiality of the new expert opinion must be conducted by reference to the other evidence at the trial and not in isolation. 78. When an application is submitted to the Court of Appeal on the basis that there has been a miscarriage of justice the court may “generally make such orders as may be necessary for the purpose of doing justice in the case before the court”. The potential effect of new scientific discoveries and tests has already been recognized in other common law jurisdictions and by the Court of Criminal Appeal. The court has ample jurisdiction to consider whether in an application initiated under s. 2 it is necessary for the purpose of doing justice to direct that items procured in the course of an investigation or relied upon in evidence, be subjected to a newly developed scientific test. However, that does not mean that a court application is required in every such case. 79. If, as a result of new scientific knowledge and/or the development of a new scientific test, it is sought to carry out forensic test(s) on item(s) of real evidence relevant to the investigation and trial for the purpose of obtaining an expert’s opinion which may be relied upon in an application under s. 2 of the Act, application to do so should first be made to the Commissioner of An Garda Síochána for access to the items for that purpose. 80. An Garda Síochána and the Director of Public Prosecutions share a duty to disclose to a convicted person and/or his legal representatives the discovery of any new evidence that he/she is innocent of the offence of which he/she was convicted including any new forensic evidence to that effect. It follows that situations may arise in which the Commissioner, the Director and the defence may agree that a new test should be applied because of its demonstrated relevance and potential significance and effect in a particular case. 81. This is also consistent with the use of new science in the continuing investigation of “cold cases” which may lead to the identification of culprits many years after the commission of a crime and the power now vested in the Director of Public Prosecutions to apply for a re-trial order in respect of a person who has been acquitted where there is “new and compelling” evidence under s. 8 of the Criminal Procedure Act 2010. 82. There is no legal requirement on the Commissioner or the Director to apply for a court order permitting access to such items for the purpose of testing: nor is an order required to enable the Commissioner to grant such access to an expert on behalf of a convicted person if that is thought to be appropriate in the circumstances. 83. An application by a convicted person to the Commissioner for access to items gathered in the course of the investigation or used as evidence in the course of the trial following conviction or appeal should be granted if it might reasonably be anticipated that the use of the test might yield a result and there is a reasonable prospect that the result and an opinion based upon it will be received as “newly discovered” evidence on an application under s. 2 of the 1993 Act. The overriding consideration is whether it is necessary for the purpose of doing justice that access be granted, a purpose which involves a shared responsibility between An Garda Síochána, the Director of Public Prosecutions and lawyers representing convicted persons. 84. There is no absolute obligation on the Commissioner to facilitate the re-investigation of offences following a conviction or a failed appeal. The preservation of exhibits or material gathered in the course of an investigation following the conclusion of a criminal investigation and criminal proceedings is not regulated by statute. Following a reasonable request by solicitors acting on behalf of the convict, the Commissioner should determine whether the items sought have been preserved, lost or perished over the years since the conviction and inform the solicitors accordingly. The Commissioner, if the material exists, should then consider the application for access. It may be that access will be granted or granted on terms as to supervision, joint examination or otherwise or refused for good reason. If refused adequate reasons should be given. These may be furnished in relatively short form sufficient to indicate that the merits of the request have been considered on the application of the appropriate test and outline briefly the basis for any conclusion. 85. An application should be refused if it is merely speculative. The Commissioner because of the wide knowledge, experience and skill of An Garda Síochána in the investigation of crime and of the particular offence should be given a wide margin of appreciation in respect of a refusal on any application for judicial review of a refusal. 86. The Commissioner’s decision is subject to judicial review. However, an application for judicial review of a refusal of access by the Commissioner may only be granted if the applicant establishes a fundamental flaw in the decision-making process and may otherwise only succeed in most exceptional circumstances if based on alleged unreasonableness or irrationality. 87. If the Commissioner refuses access to relevant items for the purpose of applying a newly developed test, the convicted person may, in the course of an application under s. 2 of the Criminal Procedure Act 1993, apply to the Court of Appeal for an order directing that access be granted upon such terms and conditions as are deemed necessary for the purpose of doing justice in the case. An application may be initiated under s. 2 seeking to quash the conviction and sentence and at the same time a motion may be filed seeking an order under s. 3 outlining the entire background and circumstances of the application. 88. The court considers that such an application is unsuitable to the limited jurisdiction available by way of judicial review. The Court of Appeal has full jurisdiction to make such orders as are necessary in an application under the 1993 Act for the purpose of doing justice and, in doing so, to examine all aspects of the case to date. To that end, it may direct further evidence and the production of anything connected with the proceedings or that access be granted to any item for further testing. 89. This court is limited, on this application, to a consideration of the evidence produced on affidavit and the examination of the decision-making process which led to the refusal of access. It has no jurisdiction to determine the merits of that decision or to substitute its own view as to whether the application should have been granted. 90. The court is also satisfied that this is not a suitable case in which to invoke the jurisdiction of the High Court to grant the relief sought in order to vindicate a claimed right to fair procedures or equality of arms under Article 40.3 of the Constitution since there is a remedy under s. 2: even if the remedy sought were available the limited nature of the evidence contained in the affidavits submitted does not justify such intervention. 91. An applicant for an order directing that access be granted by the Commissioner to relevant items for the purpose of carrying out a newly discovered test under s. 3 must establish that such items of evidence still exist. If they still exist their state of preservation should also be established and that the test is capable of being carried out to the extent required to yield a reliable result upon which to base a conclusion relevant to the issue. This may depend upon the state of preservation or the amount of material or the size of the sample necessary to carry out the test or other factors. The potential destruction or alteration of the nature of the items in the course of testing must also be considered and whether specific directions are required in that regard to ensure fairness to both parties, the integrity of the s. 2 application and any future trial in which reliance might be placed upon the test and any resulting conclusions. 92. The onus on the applicant seeking such an order is a high one and the order should not be granted on a speculative basis. The convicted person is not entitled to a re-investigation of the case or to access to items for the purpose of testing on the basis of mere assertions. He/she must demonstrate by reference to the entire facts of the case that it might reasonably be anticipated that the test might yield a result and that there is a reasonable prospect that the result and an opinion based upon it might be received as a “newly discovered fact” such as to establish a miscarriage of justice within the meaning of s. 2. Decision 93. I am satisfied that the Court of Appeal has jurisdiction to determine whether the relief sought in this case ought to be granted in the course of an application initiated under s. 2 of the Criminal Procedure Act 1993. The Assistant Commissioner made a decision that he could not accede to the request made for access in the absence of a court order. Though it was stated that “much consideration” was given to the application it is not clear that any consideration was given to its merits. I consider that the Commissioner is entitled to grant access to materials, items of evidence gathered in the course of a criminal investigation or exhibited in the criminal trial for scientific examination if that is thought to be appropriate within the terms of the legal test set out above in the light of new scientific discoveries. In that sense, the decision of the Commissioner was flawed. However, the applicant does not seek an order of certiorari in relation to the Commissioner’s decision or a declaration concerning a failure to address the application on its merits or because no adequate reasons are given for its refusal. Nevertheless, it seems to me that it is still open to the Commissioner to consider the matter on its merits. It is also open to the applicant having been refused access to initiate an application to the Court of Appeal under s. 2 seeking an order granting access to the items on the basis of the new science and the new forensic test for the reasons set out above. 94. Therefore, I am not satisfied that the applicant has established that he is entitled to an order of mandamus or an order directing the granting of access to items of evidence as requested or any of the declarations sought. Furthermore, I am not satisfied that the applicant has established any basis upon which to claim any relief under the provisions of the European Convention on Human Rights Act 2003 or the provisions of the European Convention on Human Rights. 95. This application is therefore refused. |