The Supreme Court has dismissed John Kelly’s appeal against a High Court refusal to prohibit his retrial on four cannabis possession charges in the Dublin Circuit Criminal Court.
In a judgment delivered on 21 December 2007, Denham J. said the packaging from the cannabis resin parcels had been preserved and remained available for forensic examination. Kelly had not sought to have it examined by an expert. The court found he had not established a real risk that he would face an unfair retrial.
The charges arise from alleged events on 12 May 1997 at or near the entrance to Liffey Valley Park from St Laurence’s Road, Chapelizod, and in an area known as Long Meadows beside the N4 Chapelizod By-Pass. The prosecution alleged that Kelly possessed cannabis resin in two incidents: two packages were allegedly discarded as he approached an exit, and two more were found buried in the park. The allegations have not been determined at the retrial.
Kelly’s first trial, held over six days in July 2000, ended with convictions on the buried-package charges. The jury disagreed on the discarded-package charges. In March 2002, the Court of Criminal Appeal set aside the convictions because questions put to Kelly in cross-examination exceeded permissible limits and infringed the Criminal Justice (Evidence) Act 1924. It considered that there should be a new trial. The Director of Public Prosecutions then ordered a retrial on all four charges.
Kelly argued that investigators’ failure to take, retain and properly preserve fingerprints or palm marks from the package surfaces and his car created a real risk that he could not receive a fair retrial. He said forensic results might have supported evidence by Francis O’Reilly and helped demonstrate that Kelly’s own fingerprints were absent. The car evidence was not pressed before the Supreme Court; the appeal turned on the parcel packaging.
The court noted that forensic examination of the packaging found no fingerprints. Evidence was given that the packaging had been examined in 1998, more than a year after the alleged offences, and that fingerprints were often examined sooner rather than later. But the court said there was no evidence that the passage of time or handling had destroyed fingerprints, and the wrappings still existed and could be examined.
Denham J. said the decision was based on the facts and did not extend the law in *Braddish v D.P.P.* The court affirmed the High Court judgment and dismissed the appeal. It directed that, because of the passage of time, the matter be brought immediately to the attention of the Dublin Circuit Criminal Court. The Supreme Court had granted a stay on the prosecution pending the appeal; the judgment does not state what happened to the retrial afterward.