The Supreme Court dismissed Mark Nash’s appeal against a High Court ruling that allowed his trial for the 1997 murders of Sylvia Sheils and Mary Callinan to proceed. The appeal concerned whether delay and the loss or unavailability of evidence created a real risk that Nash could not receive a fair trial. The Court’s decision allowed the prosecution to continue; it did not decide whether Nash committed the murders or assess the strength of the evidence against him.
In a judgment delivered on 29 January 2015, Mr Justice Adrian Hardiman said the Court had dismissed the appeal on 10 December 2014 and that he was setting out his reasons for concurring. He concluded that, on the facts before the Court, Nash had not shown that the trial would necessarily be unfair because of the unavailable evidence identified in the application.
The murders took place at sheltered accommodation at Orchard View, Grangegorman Psychiatric Hospital, Dublin, on 6 March 1997. Dean Lyons was charged later that year after confessing to the killings. A Garda review subsequently concluded that he had not been involved, and the allegation against him was withdrawn. Nash, who had also confessed, was charged with the murders in October 2009, after DNA material found on his jacket was said to match one of the victims and material from a re-examination was said to match the other.
Hardiman J described the DNA evidence as the principal engine of the case against Nash but made no finding about its reliability, when it could have been obtained, possible contamination or significance. He said those matters were for trial. He also noted that questions about the handling of Lyons’s confessions and the later DNA discovery would require disclosure and exploration by the defence.
Several witnesses or potential witnesses were dead or unavailable, including Lyons. Hardiman J said that, assuming the defence received requested disclosure about Lyons’s confessions and how authorities first accepted and later rejected them, Nash had not been shown to be disadvantaged by Lyons’s death. He made no finding on any trial evidence or on the ultimate case against Nash.
The judgment reaffirmed that a prosecution must be stopped if there is a real risk of an unfair trial that cannot be avoided through measures available to the trial judge. Hardiman J said the reasons for refusing relief were factual and that the case could proceed without an abrogation of basic fairness. The trial judge would retain power to stay proceedings if convinced during the trial that it could not continue fairly.