Judgment
Title: | Director of Public Prosecutions -v- Boyce |
Neutral Citation: | [2008] IESC 62 |
Supreme Court Record Number: | 292/07 |
Court of Criminal Appeal Record Number: | 56/2001 |
Date of Delivery: | 11/18/2008 |
Court: | Supreme Court |
Composition of Court: | Denham J., Geoghegan J., Fennelly J., Macken J., Finnegan J. |
Judgment by: | Fennelly J. |
Status: | Approved |
Result: | Dismiss |
 | |
| Judgments by | Link to Judgment | Concurring | Denham J. | | Macken J. | Fennelly J. | | Geoghegan J. | Finnegan J. | | Macken J. | |
|
[2008] IESC 62
THE SUPREME COURT
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924
RECORD NO. 292/07
Denham J.
Geoghegan J.
Fennelly J.
Macken J.
Finnegan. J
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Appellant
JUDGMENT of Mr. Justice Fennelly delivered the 18th day of November 2008
1. The common law conferred no powers of detention for the purpose of the investigation of crime. The admissibility of confessions made to gardaí alleged to have been providing voluntary assistance in the investigation of crime were often disputed. Allegedly voluntary presence in a garda station was suspected of being a cloak disguising actual detention. Objections to confessions made in disputed circumstances were the subject-matter of the “trial within a trial” or voir dire.
2. The power of detention pursuant to the Offences against the State Act, 1939 related to “subversive” crime. It was not until the enactment of the Criminal Justice Act, 1984 that the gardaí had power to detain suspects without charge. Section 6 of that Act empowered the gardaí to exercise a number of powers in relation to the person of a detained person. Such intrusive acts could previously have been committed only by consent.
3. This appeal raises questions about the extent to which common law voluntary powers are affected by the existence of statutory powers. The case concerns the taking of a blood sample from the appellant, which laid the foundation for incriminating DNA evidence which was probably crucial to his conviction.
4. The appeal comes from the Court of Criminal Appeal which granted a certificate pursuant to section 29 of the Courts of Justice Act, 1924.
5. The appellant was convicted by a jury in the Central Criminal Court of six counts of rape, attempted rape, indecent assault or sexual assault. Since the grounds of appeal are limited to the taking of a blood sample from the appellant and its consequent use to provide DNA evidence which was used against the appellant at his trial, a very brief summary of the facts will suffice.
6. The complainant was an unmarried female neighbour of the appellant who was aged between 55 and 66 years over the period covered by the offences, that is from January 1983 to December 1994. She lived alone in a rural area. She did not identify the appellant in her evidence, but swore that all the sexual offences were committed against her by the same man. Part of her evidence was that the perpetrator of the offences referred to earlier incidents, when assaulting her. The relevance of the DNA evidence was described as follows by the Chief Justice, in delivering the judgment of the Court of Criminal Appeal:
“The prosecution relied on DNA evidence from which they said the jury could conclude that the applicant committed two of the offences namely those of 22nd December, 1989 and 16th August, 1991. It was also the prosecution case that if they were satisfied that the DNA evidence established that he committed the offences on the two occasions, they were entitled to conclude on other evidence that it was the same person who committed all or any one of the other offences.”
7. Clearly the jury accepted the DNA evidence and the connection between the different offences which was established, in part, by that evidence. The trial judge tried a preliminary issue as to whether to admit the DNA evidence.
8. The circumstances in which the sample of the appellant’s blood was taken are the principal basis of the present appeal. They are as follows.
9. The appellant was arrested on 10th July, 1996. He was informed that he was being arrested on suspicion of having committed the offence of rape against the complainant at her home in December, 1989. The gardaí administered the usual caution concerning anything he might say and that it might be given in evidence. Gardaí took him to a Garda Station, where they completed the statutory formalities which are required when a person has been arrested and is being detained under section 4 of the Criminal Justice Act, 1984. The learned trial judge found that these were completed correctly and properly.
10. The appellant, in the course of questioning, denied any involvement in the alleged offences.
11. A detective garda asked him whether he would provide a sample of his blood for the purpose of having it tested in connection with the allegation that he had raped the complainant in December 1989, the offence in respect of which he was being detained. The detective cautioned him that he was not obliged to give any sample but explained to him that any tests carried out on the blood sample might be given in evidence. The applicant agreed to give a sample of blood. The sample was taken in the Garda Station by a medical doctor with the consent of the applicant. The appellant was not informed that the evidence might be used in connection with any offence other than that in respect of which he had been arrested.
12. It was not disputed by the appellant, either at trial or in the Court of Criminal Appeal that he had provided a sample of his blood voluntarily. The learned trial judge found as a fact that he fully understood the caution and that he willingly and freely provided the sample. There was some dispute as to the terms of the caution of which the detective gave evidence, but the learned trial judge accepted the evidence of the garda witnesses summarised above.
13. Thus, it follows that the matter should now be approached on the basis that the blood sample was freely and voluntarily given following a clear caution which the appellant understood, though at a time when the appellant was being detained pursuant to the Act of 1984.
14. It is accepted by the prosecution that the gardaí did not follow the procedures laid down by the Criminal Justice (Forensic Evidence) Act, 1990 hereinafter “the Act of 1990”).
15. The appellant advanced a large number of grounds in the Court of Criminal Appeal, which dismissed his application for leave to appeal. That Court, however, granted a certificate pursuant to section 29 of the Courts of Justice Act, 1924 that the following point was a point of law of general public importance and that it was desirable in the public interest that an appeal be taken to this Court:
“Is it lawful for a member of An Garda Siochana, when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis, to do so without having invoked the provisions of Section 2 of the Criminal Justice (Evidence) Act, 1990?
16. The notice of appeal filed on behalf of the appellant advances the following grounds of appeal:
1. That the Court of Criminal Appeal erred in law or erred on a question of mixed fact and law in holding that Section 2 of the Criminal Justice (Forensic Evidence) Act, 1990 did not preclude a Garda from taking a voluntary forensic sample from a person in custody without invoking the provisions of the said Act and that the said section of the 1990 Act was designed to enable Gardai to obtain such forensic samples which might otherwise be refused and to provide for admissibility of such evidence arising from the refusal, and that the neglect, failure or refusal by the Gardai to take the said sample under the aegis of the said Act was ultra vires, contrary to Article 15.2.1 and Article 40.3.1 & 2 of the Constitution.
2. That the learned trial judge erred in law and on the facts in ruling that the blood sample from the Accused for the purpose of DNA testing was admissible in evidence, that it was lawfully taken and/or did not require to be taken pursuant to the Criminal Justice (Forensic Evidence) Act 1990, and thereby failed to vindicate the Accused’s Constitutional Rights to his bodily integrity.
3. That the learned trial Judge erred in law in holding that the said blood sample was not required to be taken pursuant to the Criminal Justice (Forensic Evidence) Act, 1990 and accordingly the provisions regarding the use and destruction of the sample and any records thereof did not apply in this case.
4. That the learned trial judge erred in law in firstly permitting and later preventing Counsel for defendant from pursuing the issue whether the consent given by the defendant to the taking of a blood sample was given as a fully informed consent or not, and whether this was an issue of fact which could properly be considered by the jury: and this was confusing to the jury rendering the trial unfair and unsatisfactory.
5. Failed to give a direction (in particular in relation to Counts other than those which relied on DNA evidence) to the Defence on the points raised at the close of the prosecution case (and in particular the lack of evidence to corroborate the DNA evidence in the case) and failed to correctly and adequately charge the Jury regarding corroboration required in cases of this nature.
6. Erred in law regarding the ruling of Section 5 of the Criminal Evidence Act, 1992 (regarding the Section 6 Certificate) grounding McDonnell’s evidence about the English Database used for DNA samples in general and erred in law in allowing evidence of databases to be used which were not properly validated.
7. That in all the circumstances of the case of the case the conviction of the Appellant is unsafe and unsatisfactory.
17. The first three grounds all relate to the certified point and raise the question of admissibility of the evidence. The fourth ground relates to the ruling of the learned trial judge that defence counsel were not permitted to question the consent given by the appellant to the taking of the blood sample once he had ruled on it. The fifth ground relates to the judge’s charge regarding the value and strength of the DNA evidence. The sixth ground relates to the use of a DNA database in evidence.
18. Thus all of the grounds of appeal relate directly or indirectly to the legal basis upon which the gardaí took a blood sample from the appellant and the admission of DNA based on that sample.
19. There is one central issue in the appeal, namely whether the gardaí continue to be entitled at common law to take blood samples (and presumably other personal physical samples) from a person detained pursuant to section 4 of the Act of 1984 with that person’s consent since the passing of the Act of 1990. I will deal later in this judgment with the additional points concerning the use of a DNA database by an expert witness and the charge to the jury.
20. At one point in his written submissions, it is suggested that there was no common law power to take samples. It is stated that no such samples were taken until the advance of scientific technology which assisted in measuring the alcohol level in blood or urine. Reference is made to powers under the Road Traffic Acts. I did not understand this stance to be maintained at the hearing of the appeal. Mr David Goldberg, Senior Counsel for the appellant accepted that there was (and presumably still is) power to take samples by consent and that he used the word “power” in the sense of “power to compel.”
21. There was never any reason to object to the taking of samples of any kind with the consent of a suspect freely given. As the Chief Justice put it in his judgment in the Court of Criminal Appeal:
“While the conduct of criminal investigations by the Gardaí must be carried out within the ambit of the law and in accordance with the law, many of the procedures which they adopt may not require the exercise of powers expressly conferred by statute. The interviewing and taking of statements from witnesses to a crime, the entry upon the scene of a crime, its examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on the basis of the consent and cooperation of the citizens concerned. Of course in certain circumstances, but not all, such as the refusal of a person to make a witness statement, the Gardaí may have an option of resorting to statutory or common-law powers. An example would be where a householder permits a Garda member to enter or enter and search premises without the need for a search warrant
“Cooperating citizens may willingly provide the Gardaí with forensic evidence such as fingerprints, clothing or blood samples to assist them in their inquiries. A rape victim may willingly provide a sample of pubic hair so that the Gardaí may determine whether it matches a pubic hair discovered in the course of their investigations in circumstances which, if matched, may implicate a suspect. Of course the gathering of such evidence and its use at a criminal trial from persons, who at the trial have the status of witnesses rather than that of an accused, is rarely a source of controversy.”
22. Neither the inviolability of the dwelling nor the right to bodily integrity of the human individual, though these are personal rights which enjoy constitutional protection, prevents individuals from agreeing to provide access to the one and samples from the other. Most citizens will perceive it as their duty to assist in the investigation of crime. Many will wish to eliminate themselves from suspicion; many others will wish to assist in finding the perpetrator of a crime. Where evidence is thus freely and voluntarily provided by a person at liberty, no principle of the criminal law prevents material thus gained in the course of police investigation from becoming the subject-matter of evidence at a criminal trial against the provider. This Court has stated in a series of cases that is the duty of the prosecution authorities, in particular An Garda Síochána, to preserve and retain all evidence, which comes into their possession, having a bearing or potential bearing on the issue of guilt or innocence of the accused (see, for example Braddish v. Director of Public Prosecutions; [2001] 3 I.R. 127).
23. What needs to be decided, in the present case, is whether, where the appellant was being detained pursuant to statutory power, the gardaí continued to have the right to resort to the common law and take a blood sample with the consent of the appellant rather than to submit to the restrictions imposed where they exercise the statutory power.
24. The Respondent submits that there is nothing in the Act of 1990 to suggest that the Oireachtas intended to abolish existing Garda entitlements to obtain samples voluntarily provided by persons in custody. They support the view of the Court of Criminal Appeal as expressed in the following passage from the judgment delivered by the Chief Justice:
“If the Oireachtas had intended that the Act was to have general application to all circumstances in which the taking of a blood sample from persons in custody could arise that it would have been expressed in words of general application. Moreover, if the Oireachtas intended the Act to have general application to the taking of all samples involved from persons in custody it would hardly have been necessary for the Oireachtas to include the proviso in subsection 11 of s. 2 whereby the powers conferred by s. 2 are without prejudice to any other powers exercisable by a member of An Garda Síochána, even in adopting the narrow interpretation of “powers” advocated by counsel for the applicant
“It would indeed be extraordinary if the Oireachtas contemplated that any forensic sample freely and voluntarily provided by a person in custody and then forensically examined by the Gardaí which was lawful before the passing of the Act should be considered unlawful after the passing of the Act without any express provision to that effect, even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused.”
25. This passage highlights the undoubted absence of any express statutory provision encroaching on the common law power to take samples from a suspect with his consent. The opposing view is that the gardaí should by resorting to an unregulated common law power not be allowed to undermine the express protections enshrined where the procedures under the Act of 1990 are followed. The appellant has drawn particular attention to a Garda circular of 1995 with a heading referring to the Act of 1990 addressed to all members of the force, a document whose existence was unknown either at the time of trial or of the appeal in the Court of Criminal Appeal. In effect, it advises all members of the force, where there is a wish to obtain a bodily sample, to seek to obtain it, in the first instance by consent. It then states:
“Where such a person refuses to provide or permit the taking of a sample, then and only, then, should the Gardaí consider invoking the provisions of the above Act.” (emphasis added)
26. The respondent has not objected to reference to this document. In fact, it is admitted that the circular invited the “Gardaí to initially seek the sample on a voluntary basis and thereafter, if unsuccessful, to invoke the terms of the Act of 1990.”
27. This then is the question: can the gardaí escape the obligation to follow the provisions of the Act of 1990 by exercising a common law power over a person in custody?
28. The appellant was not at liberty. He had been arrested and was being detained pursuant to the power conferred by section 4 of the Criminal Justice Act, 1994 (as amended by section 2 of Criminal Justice (Miscellaneous Provisions) Act, 1997). The premise and the purpose of the exercise of that power was that the gardaí had “reasonable grounds for believing that his detention [was] necessary for the proper investigation of the offence,” i.e., the offence of which he had been informed that he was suspected. It is obvious that one of the principal methods of investigation of crime is the questioning of suspects. It is implicit in section 4, particularly sub-section 5 of that section, that a suspect may lawfully be questioned while in detention.
29. In addition, section 6 of the Act confers powers on a member of the Garda Síochána to do the following in relation to a detained person:
“(a) demand of him his name and address;
(b) search him or cause him to be searched;
(c) photograph him or cause him to be photographed;
(d) take, or cause to be taken, his fingerprints and palm prints;
(e) [repealed]
(f) seize and retain for testing anything that he has in his possession.”
30. The powers mentioned at (c) and (d) are exercisable only on the authority of a member of the Garda Síochána not below the rank of superintendent.
31. The long title to the Act of 1990 says that it is “an Act to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences.” Section 2 provides the primary power to take samples. It is the provision which principally needs consideration. Section 3 provides for the drawing by a court or a jury, as the case may be, of such inferences as may be proper from a refusal of consent to provide samples pursuant to section 2. Section 4 contains provisions for the destruction of samples in certain circumstances, notably on failure to bring a prosecution within six months or on acquittal.
32. Section 2 provides, so far as relevant:
(1) Subject to the provisions of subsections (4) to (8) of this section, where a person is in custody under the provisions of section 30 of the Offences against the State Act, 1939 , or section 4 of the Criminal Justice Act, 1984 , a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely—
( a ) a sample of—
(i) blood,
(ii) pubic hair,
(iii) urine,.
(iv) saliva,
(v) hair other than pubic hair,
(vi) a nail,
(vii) any material found under a nail,
(b) a swab from any part of the body other than a body orifice or a genital region,
(c) a swab from a body orifice or a genital region,
(d) a dental impression,
(e) a footprint or similar impression of any part of the person's body other than a part of his hand or mouth.
[Subsections 2 and 3 relate to persons in prison]
(4) A sample may be taken under this section only if—
(a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and
(b) in the case of a sample mentioned in subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of subsection (1) of this section, or in paragraph (c) or (d) of the said subsection (1), the appropriate consent has been given in writing.
(5) An authorisation to take a sample under this section shall not be given unless the member of the Garda Síochána giving it has reasonable grounds—
( a ) for suspecting the involvement of the person from whom the sample is to be taken—
(i) in a case where the person is in custody, in the offence in respect of which he is in custody, or
(ii) in a case where the person is in prison, in the commission of an offence under the Offences against the State Act, 1939 , or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act or an offence to which section 4 of the Criminal Justice Act, 1984 , applies,
and
(b) for believing that the sample will tend to confirm or disprove the involvement of the person from whom the sample is to be taken in the said offence.
(6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person—
(a) of the nature of the offence in which it is suspected that that person has been involved,
(b) that an authorisation has been given under subsection (4) (a) of this section and of the grounds on which it has been given, and
(c) that the results of any tests on the sample may be given in evidence in any proceedings.
(7) An authorisation under subsection (4) (a) of this section may be given orally but, if it is given orally, it shall be confirmed in writing as soon as is practicable.
(8) A sample of a kind specified in subparagraph (i) or (ii) of paragraph (a) of subsection (1) of this section or in paragraph (c) of the said subsection (1) may be taken only by a registered medical practitioner and a dental impression may be taken only by a registered dentist or a registered medical practitioner.
(9) A person who obstructs or attempts to obstruct any member of the Garda Siochana or any other person acting under the powers conferred by subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.
(10) In this Act "appropriate consent" means—
(a) in the case of a person who has attained the age of 17 years, the consent of that person,
[(b) and (c) are not relevant]
(11) The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána.
33. Section 2 contains the following requirements which are applicable in relation to the taking of a blood sample of a person in custody pursuant to section 4 of the Act of 1984:
· The taking must be authorised by a member of the Garda Síochána not below the rank of superintendent (for brevity’s sake I refer to him as the “the superintendent”);
. The authorization may be given orally but must be reduced to writing as soon as practicable;
· The superintendent must have reasonable grounds for suspecting the person of involvement in the offence in respect of which he is in custody and that the sample will tend to confirm that suspicion;
· The person must be told of the nature of the offence of which he is suspected, of the superintendent’s authorisation and that the results of any tests on the sample may be given in evidence in any proceedings;
. The consent of the person must be given in writing.
34. Section 2 does not, of course, authorise the forcible taking of samples. Subsection (9) makes it an offence to obstruct or attempt to obstruct the exercise by the Garda Síochána in the exercise of their powers under the section. It does not create an offence of declining to provide a sample. The section lays down a procedure for obtaining samples by consent. The potential sanction for declining to consent to give a sample is provided by section 3. Inferences may be drawn at trial in cases of refusal without good cause. Even then subsection (3) provides that the provision regarding inferences:
“shall not have effect in relation to an accused unless he has been told in ordinary language by a member of the Garda Síochána when seeking his consent that the sample was required for the purpose of forensic testing, that his consent was necessary and, if his consent was not given, what the effect of a refusal by him of such consent could be.”
35. Section 4 provides additional protection for persons from whom samples have been taken pursuant to section 2 by laying down rules for their destruction, in effect, if no prosecution has been commenced after a specified time or after an acquittal.
36. None of the statutory protections laid down in the Act have any application to cases where a sample is taken based on the simple consent of the person giving it. As I have said above, the scheme of the Act is to provide for the taking of samples by consent but subject to elaborate protection.
37. The Act deals only with persons held in custody under various statutory provisions, namely section 30 of the Offences against the State Act and section 4 of the Act of 1984. Did the Oireachtas intend to lay down a regime which was to apply, where samples are taken by consent from persons in custody, while the gardaí could simply ignore that regime by seeking consent based on common law? That would be absurd. It would be inherently inconsistent and potentially unfair.
38. The key fact is that the person from whom the sample is taken is in custody. In matters of criminal law and procedure, the courts lean towards interpretations of statutory provisions which favour the rights of the accused person. In the present case, there is the additional factor that the Garda Síochána has laid it down as a matter of policy that consent should be sought outside the scope of the Act and that, only in the event of refusal, should the statutory procedures be applied.
39. In my view, where a person is in custody pursuant to the Act of 1984, the Gardaí are obliged to follow the statutory procedure. Their failure to do so amounted to a contravention of the Act, though not an interference with the constitutional rights of the appellant. The appellant freely agreed to provide a sample of his blood.
40. The respondent did not suggest that section 2(11) is relevant. As is made clear by the judgment of the Court of Criminal Appeal, counsel for the Respondent did not rely on that provision before that court. Presumably that is because it refers to a “power.” That word would not normally be used to describe the taking of samples or indeed evidence generally by consent of the affected individual.
41. Neither the trial court nor the Court of Criminal Appeal had to address the effect of this failure to follow the statutory regime on the admissibility of the expert evidence which based on the analysis of the blood sample. In each court, it was held that the Act did not apply. It is an undoubted fact that the blood sample led to the production of objective material evidence. The DNA evidence linked the appellant with the commission of the offences. No breach of a constitutional right was involved.
42. It remains to address the fifth and sixth grounds of appeal. The appellant’s submissions on these issues were presented at the hearing of the appeal by Mr Donal Keane, Barrister at law.
43. Under ground number 5, the complaint is that the judge, while giving a warning of the need for corroboration, did not provide the jury with any definition of that term.
44. Mr Keane first raised the issue of the corroboration advice which, though not now obliged to do so, the learned trial judge gave to the jury. The ground of appeal advanced in the Court of Criminal Appeal was that “the learned trial judge failed to correctly and adequately charge the jury regarding corroboration required in cases of this nature.” Ground number 5 repeats the point. It does not specifically mention the criticism of the charge which is now advanced. The most important point is, however, that no requisition was made of the learned trial judge in respect of his charge on corroboration. The Court of Criminal Appeal considered the charge in full and expressed itself satisfied that there was no misdirection of the jury nor did it give rise to any unfairness or injustice in the case. The appellant has not pointed to any suggested mistake by that Court. The failure of the defence to raise any requisition on the point now argued cannot be overlooked. It tends to support the view of the Court that there was no unfairness in the charge. Clearly, it is only upon detailed examination of the transcript, the point now made has emerged. I would uphold the view of the Court of Criminal Appeal. I would reject this ground.
45. On the sixth ground, Mr Keane, in the first instance made criticisms of a certificate at one point put forward by the prosecution pursuant to section 5 of the Criminal Evidence Act, 1992 in order to introduce a DNA database into evidence. However, the prosecution did not ultimately rely on that certificate. It relied on the expert evidence of Dr McDonald.
46. As explained in the judgment of the Court of Criminal Appeal, “the principal DNA evidence relied upon by the State was that of Dr. McDonald who found a DNA match between the blood sample taken from the accused and the semen stains taken from the underwear of the complainant relating to the relevant offences in 1989 and 1991.” The evidence was that “these were rare matches representing one in five million by reference to the first database which he used and one in six million by reference to the second database which he used.”
47. The appellant’s complaint relates to the fact that the expert witness for the prosecution was permitted to refer to a DNA database, which was not formally proved in evidence. The expert gave evidence based on the contents of this database, the contents of which were not proved in court. An application was made to the court of trial to disallow the evidence on the basis that it was hearsay and unproven. It was submitted that there is a grave danger in cases such as the present that DNA evidence will be accorded far greater evidence than it deserves. Counsel described the figures of probability of 5 or 6 million to one as “fantastic.” Thus counsel on behalf of the appellant could not cross-examine so as to test the veracity or accuracy of the database.
48. Counsel referred to a statement in the judgment of the Court of Criminal Appeal, delivered on 18th December 2003 by McCracken J, in the case of Director of Public Prosecutions v Allen, to the effect that there was a danger that a jury might jump to the conclusion that DNA evidence was infallible. Evidence based on a DNA sample had been given on behalf of the pros in that case by an expert witness to the effect that the chances that the DNA of the sample “having the same profile was less than one in a thousand million.” It was suggested, on appeal, that there was available evidence to the effect that the figure should have been much lower if the applicant’s siblings were taken into account. Although the court refused to admit that evidence, the prosecution conceded that the correct figure should have been one in ten thousand. The court set aside the conviction and ordered a retrial. The legal basis for that ruling is not entirely clear, except that the court said that it had an obligation to see that justice was done and that the failure to elicit the evidence regarding siblings had the potential to confuse or mislead the jury. The court did not consider the issue which is before this court. However, the expert had given evidence based on an Irish database. No issue was raised as to her right to do so.
49. The Court of Criminal Appeal, in the present case, ruled:
“Furthermore, in a long established exception to the hearsay rule, an expert can ground or fortify his or her opinion by referring to works of authority, learned articles, recognised reference norms and other similar material as comprising part of the general body of knowledge falling within the field of expertise of the expert in question.”
50. The court went on to refer to the English databases for white Caucasians upon which Dr McDonald had relied for his evidence and the evidence that “it was scientifically acceptable to rely on such databases dealing with a DNA match found in Ireland” and to his reliance “on expert scientific studies from America, Germany and the United Kingdom that different white Caucasian databases do not differ significantly between one country and another…”
51. I am satisfied that the Court of Criminal Appeal was correct in its ruling that Dr McDonald “was entitled to explain his reliance on the databases in question by reference to accepted scientific standards, scientific studies in published scientific data and norms accepted by the science in question.”
52. An expert is entitled to support his opinions by reference to material of the kind referred to in that passage. It is not necessary to prove such material by direct evidence. The appellant’s complaint of the overbearing character of DNA evidence can be met by the defence calling its own scientific evidence. DNA constitutes one of the astonishing scientific advances of the age. It has already contributed greatly to the investigation of crime, not least in enabling innocence to be proved, as has happened in some extraordinary cases. It is true that the powerful possibilities of DNA evidence place a particular burden on the prosecution to ensure the integrity of sampling, conservation of evidence and fair and balanced presentation of expert evidence. These obligations are always present but need to take account of the particular scientific characteristics of the evidence.
53. In the present case, I am satisfied that the sixth ground of appeal should be rejected.
54. Accordingly, I would hold that the gardaí were not entitled to take the blood sample from the appellant, without following the procedures laid down by the Act of 1990. It follows that the DNA evidence was taken unlawfully, even if not unconstitutionally. I would, therefore, allow the appeal and set aside the conviction.