The Supreme Court has dismissed Luke Kearns’s appeal against the refusal to prohibit his trial on a burglary charge, ruling that he had not established a real risk of an unfair trial that could not be addressed by the trial judge.
The case concerns a burglary at a family home in Tallaght on 22 July 2009. The family were away in Kerry. Gardaí found the house forcibly entered and ransacked, with phones, jewellery, alcohol and a digital camera reported stolen. A garda lifted fingerprint marks from a Kodak camera box at the property. The box was not retained, and no photographs were taken of it or the marks in situ.
Kearns was arrested in February 2011 and charged with burglary. The judgment says fingerprint evidence was the prosecution’s primary evidence linking him to the alleged offence. He sought disclosure so an independent expert could assess the evidence. The prosecution said the camera box was unavailable for inspection. An expert retained for Kearns examined the fingerprint lift cards and comparison prints, but said the missing box prevented her from checking whether the lift came from that specific item. She also said photographs taken in situ could help establish where marks were found.
The prosecution’s fingerprint expert said the lift card preserved the mark for examination and that he could see nothing indicating it came from another source. The garda who lifted the marks said he believed the box had no further significance after the marks were transferred to cards. The defence expert disputed whether lifting a mark would remove all useful residue from the box. The Supreme Court said that conflict remained unresolved on the affidavit evidence. It also found no evidence before it establishing that photographing fingerprints in situ was standard practice.
The Court applied the test that an accused seeking to stop a trial must show a real risk of an unfair trial that cannot be avoided by appropriate rulings or directions. It said the duty to preserve material evidence applies as far as necessary and practicable, taking account of circumstances including resources and the nature of the item. The Court did not decide whether the fingerprint evidence was admissible or resolve the evidential conflict.
Instead, it held those matters could be examined at trial, where the trial judge could hear from the gardaí and the defence expert and rule on admissibility. The Court dismissed the appeal, leaving the trial to proceed subject to the trial judge’s decisions on the evidence.