The Court of Criminal Appeal has refused Keith Wilson leave to appeal his convictions for the murder of Daniel Gaynor and possession of a firearm with intent to endanger life.
In a judgment delivered on 27 November 2014, the court rejected five grounds of appeal. It upheld the trial judge’s rulings on the lawfulness of Wilson’s arrest, the admission of DNA evidence from cigarette butts he discarded in custody, the decision to leave the case with the jury, the refusal to discharge the jury, and the absence of a specific warning about DNA evidence.
Wilson was convicted by a jury in November 2011 and received a mandatory life sentence for murder, with an eight-year sentence for the firearm offence to run concurrently. The prosecution case relied on DNA profiles recovered from clothing and a firearm found near the scene of Gaynor’s fatal shooting, which matched a profile obtained from cigarette butts Wilson smoked while in Garda custody.
The court held that Wilson’s arrest was lawful because he was told clearly that he was being arrested on suspicion of Gaynor’s murder. It said the arresting garda did not also have to name the statutory provision authorising the arrest.
On the cigarette butts, the court acknowledged that Gardaí had deliberately prepared the station smoking area and collected discarded butts after Wilson refused a mouth swab. It nevertheless concluded that the collection was not trickery, deception or oppression, and that the butts could be treated as discarded waste. The DNA evidence was therefore admissible. The court separately expressed concern about using items essential to a detainee’s health, bodily integrity, privacy or dignity to obtain DNA without consent or another lawful basis. It said the cigarette butts did not fall into that category.
The defence argued that the DNA evidence was insufficient to go to the jury, particularly because Wilson had two brothers and no DNA evidence from them was presented. The court said DNA evidence was not inherently incapable of supporting a conviction and found there was evidence on which a properly directed jury could convict. It also rejected the challenge to the trial judge’s refusal to discharge the jury, finding the doctor’s comment about checking a brother’s profile did not reasonably imply that Wilson bore a burden of proof. The jury had been told that the prosecution carried that burden.
The court said a trial judge may give a warning about the risks of relying on DNA evidence alone, but is not required to do so in every case. It found the jury had been adequately directed on its role in assessing the evidence.
The order was to refuse leave to appeal; the court did not conduct a fresh trial or alter the convictions or sentences.