The Supreme Court refused relief by way of judicial review to John Kelly, according to a judgment delivered on 21 December 2007 by Mr Justice Hardiman, who agreed with the judgment of Mrs Justice Denham and the order she proposed.
Justice Hardiman said Kelly had not engaged sufficiently with the facts to establish an entitlement to relief. In particular, he said Kelly had not produced evidence that someone handling the packets in the manner alleged would probably leave a visible fingerprint on them.
He also said there was no evidence that treatment of the packets by gardaí or scientific personnel, and its effect on the cling film, probably caused fingerprints that might otherwise have been available to become invisible or unavailable when the packaging was later examined.
Without firm evidence on those points, Justice Hardiman said he found it difficult to regard the case as anything other than academic or moot. He described the burden on the applicant as “not a high one” and said expert evidence about fingerprinting on various materials was readily available. Kelly could, if he wished, deploy such evidence at his trial, he said. In its absence, however, he had no case for judicial review relief.
The source is Justice Hardiman’s concurring judgment. It does not set out Justice Denham’s reasoning or the terms of the proposed order, and does not identify the trial proceedings or state their outcome.