The Court of Criminal Appeal has refused Derek Wade leave to appeal his convictions for the murder of Zhi Song and the attempted robbery of Xiau Wen Zhou. The judgment, delivered on 28 October 2010 by Macken J., addressed three grounds pursued by Wade: the use of fingerprints previously taken in prison, the trial judge’s recharge to the jury, and the refusal to direct an acquittal on the murder charge.
Wade was convicted of murder on 7 March 2007 and sentenced to life imprisonment. He also received a five-year sentence for attempted robbery. The trial followed an incident at a Dublin home on 29 June 2005. Wade admitted entering through a downstairs window, going upstairs with a knife and meat cleaver, and taking a biscuit tin from Zhou’s bedroom. He said he accidentally collided with Song on the landing and ran away. The prosecution case was that Song was stabbed intentionally or recklessly. The judgment records that Song died after a chest wound injured his heart and lung.
Wade argued that fingerprints taken while he was serving an earlier prison sentence had been unlawfully retained and transferred to An Garda Síochána. Those prints were matched with prints found at the scene and were among the information used to obtain an arrest warrant. They were not introduced as evidence at trial. The court held that section 19 of the Criminal Justice (Miscellaneous Provisions) Act 1997 provided a legal basis for taking, retaining and transferring the prints, and for their use in forming reasonable suspicion to support the warrant. It said the trial fingerprints, taken after Wade’s arrest under statutory powers, were a separate matter and had not been challenged at trial.
The court did not decide whether the earlier prison rules and regulations had been valid before the 1997 Act; it concluded that section 19(8) deemed them to continue in force under that Act. As it found the fingerprints had been lawfully handled, it did not make a separate determination on Wade’s claim under Article 8 of the European Convention on Human Rights.
On the jury recharge, Wade argued that the trial judge’s comments on the possibility that Song had run onto a knife were prejudicial. The appeal court rejected that ground, finding the recharge was not prejudicial and reflected an acceptable comment on the murder definition and statutory presumption of intent.
Wade also argued that the murder case should have been withdrawn from the jury because the death could have been accidental. The appeal court held that the evidence, including the circumstances of the entry and the stabbing, left issues of unlawful killing and intent for a properly directed jury. It refused leave to appeal. The decision concerned leave to appeal; it did not set aside the convictions or sentences.