The Supreme Court dismissed Luke Kearns’s judicial review proceedings, leaving unresolved a dispute over whether a fingerprint lift from a camera box should have left trace residue on the box. The court said the conflict in affidavit evidence could not be resolved on the material before it and was therefore resolved against Kearns, who carried the burden of proof.
In a judgment delivered on 6 March 2015, Mr Justice Hardiman agreed with the order proposed by Ms Justice Dunne and adopted her summary of the factual background and evidence. The judgment identifies Kearns as the applicant/appellant and the Director of Public Prosecutions as respondent.
The dispute concerned what the court described as the sole evidence: a fingerprint allegedly lifted by gardaí from a box in which a camera was sold. Two gardaí swore affidavits saying the lifting process destroyed any remaining fingerprint on the box. That meant, they said, there could be no separate proof—apart from their own evidence—that the lifted print had been on it.
Kearns’s fingerprint expert, Catherine Tweedy, a forensic scientist employed by Keith Borer Consultants, gave a different account. She said that even when a contact mark was made by sweat alone, some residue would remain after a lift in the great majority of cases. She also said she had never examined a box on which no trace remained. The court noted that no photograph of the camera box had been taken, either at the scene or at all.
Hardiman said the conflict between Tweedy and Detective Garda Gannon might have been decisive, but it remained unresolved because the witnesses had not been cross-examined. He reiterated that a party wishing to contradict affidavit evidence must serve notice of intention to cross-examine. Without that step, he said, a court cannot choose between conflicting sworn versions on a material issue.
The judgment did not decide which account of the fingerprint residue was correct. It said that where a material conflict cannot be resolved, the issue is decided against the party bearing the burden of proof—in this case, Kearns. Hardiman also agreed with Dunne’s observations that a trial judge’s powers and duties to protect an appellant’s fair-trial rights are not diminished because an applicant has failed in judicial review proceedings.