The High Court refused an application to prohibit the retrial of John Kelly on two drug charges, finding he had not proved that missing fingerprint and palm-mark evidence created a real risk of an unfair trial.
In a judgment delivered on 17 June 2005, Quirke J. considered Kelly’s claim that Gardaí had failed to obtain and preserve prints from his BMW and from the outer packaging of cannabis parcels. The court held that the absence of print evidence from the vehicle was not shown to be relevant: Kelly owned and regularly used it, so his prints would be expected.
The two charges at issue alleged possession, for supply, of two five-kilogram bags of cannabis resin found buried in Long Meadows Park, Dublin, on 12 May 1997. Kelly had been convicted of those offences in 2000. The Court of Criminal Appeal quashed those convictions in March 2002 because his cross-examination at trial was improper and ordered a new trial.
At the original trial, forensic evidence linked the buried parcels to Kelly’s car through carbon paper, a bag tab and soil. But the parcels’ wrapping was examined for fingerprints only after it had been opened, and no prints were found. Kelly argued that earlier testing might have produced prints linking the parcels to someone else and that the lost opportunity threatened the fairness of the retrial.
The High Court noted that Francis O’Reilly had testified at the first trial that he possessed the cannabis, placed the parcels where Gardaí found them and buried the larger bags. He remained available to give the same evidence at retrial. The judge considered the possibility that earlier testing might have found prints speculative and concluded that their absence would not prejudice Kelly’s ability to defend himself.
The court also noted that the Court of Criminal Appeal had been aware that no timely fingerprint attempt had ensured evidence would be available when it ordered a retrial. Quirke J. said it was unnecessary to decide the State’s submissions about delay in bringing the judicial review application. The relief sought was refused, leaving the retrial order in place; the judgment did not decide Kelly’s guilt on the charges.